JEAN v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
OPINION. Signed by Judge John Michael Vazquez on 11/14/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILHEM LOUIS JEAN,
THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Civil Action No.: 16-4077 (JMV)
Vazquez, United States District Judge
This matter comes before the Court upon Respondents’ motion to dismiss the petition for
writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 15.) Petitioner filed his original habeas
petition on May 1, 2016. (Pet., ECF No. 1.) The Court dismissed the petition without prejudice
for failure to comply with Rule 2(c) of the Rules Governing Section 2254 Cases, and Petitioner
filed an amended petition on September 22, 2016. (ECF No. 4.) On April 17, 2017, Respondents
filed the instant motion to dismiss. Petitioner did not file a reply.
STATUTE OF LIMITATIONS
The Parties’ Arguments
Respondents submit that the habeas petition is untimely under 28 U.S.C. § 2244(d)(1).
(ECF No. 15-1 at 8.) The statute of limitations for petitions under § 2254 is one-year. 28 U.S.C.
§ 2244(d). The one-year begins to run from the latest of four events, relevant here, the date on
which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review. (ECF No. 15-1 at 9, citing § 2244(d)(1)(A)). A state court criminal
judgment is final upon the conclusion of direct review or expiration of the time to seek such review,
including the ninety-day period for filing a petition for writ of certiorari in the United States
Supreme Court. (Id. at 10; citing Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v.
Horn, 187 F.3d 333, 337 n. 1 (1999); U.S. Sup. Ct. R. 13.) The statute of limitations is tolled
during the time “which a properly filed application for State post-conviction or other collateral
review . . . is pending.” (Id., quoting § 2244(d)(2)).
Respondents assert Petitioner’s conviction became final, and the statute of limitations
began to run, on July 25, 2011. (ECF No. 15-1 at 10-11.) This date is after the expiration of the
30-day period for filing a petition for certification to the New Jersey Supreme Court as well as the
90-day period for filing a petition for certiorari to the United States Supreme Court. (Id.) The
statute of limitations was then tolled on April 28, 2012, when Petitioner filed his first petition for
post-conviction relief (“PCR”). (Id.) At this point, Respondents contend, 278 days of the of the
one-year limitations period had run. (Id.)
The PCR petition was denied by the PCR Court on March 1, 2013. (Id.) Petitioner did not
appeal. (Id.) Thus, Respondents maintain that the statute of limitations began to run again and
was not tolled until Petitioner filed a second petition for post-conviction relief on June 7, 2013.
(Id.) Another 98 days of the statute of limitations had run according to Respondents. (Id.) The
limitations period was tolled again during Petitioner’s second PCR proceedings, and time began
to run again after the New Jersey Supreme Court, on April 29, 2016, denied certification on
Petitioner’s second PCR petition. (Id. at 11-12.) Another 141 days elapsed before Petitioner
placed his amended habeas petition in the prisoner mailing system on September 17, 2016. (Id. at
12.) Therefore, Respondents assert 517 days passed before Petitioner filed his amended habeas
Petitioner did not file a reply, but the Court notes one of Petitioner’s grounds for relief is
that his trial counsel mishandled his actual innocence claim. (ECF No. 4 at 6.) Under certain
circumstances, discussed below, a claim of actual innocence may overcome a statute of limitations
28 U.S.C. § 2244(d) provides as follows:
(d)(1) A 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
After a petitioner seeks review from the State’s highest court, the judgment of conviction
becomes final and the limitations period begins to run after expiration of the 90-day period for
filing a petition for writ of certiorari to the United States Supreme Court. Swartz, 204 F.3d at 419.
The statute of limitations began to run on July 25, 2011
On September 4, 2008, the Superior Court of New Jersey, Law Division, Union County
entered a judgment of conviction against Petitioner for aggravated sexual assault in the first degree,
sexual assault in the second degree, and endangering the welfare of a child. (ECF No. 15-3 at 1.)
Petitioner was sentenced to a 10-year aggregate term of imprisonment. (Id. at 3-4.) Petitioner
timely appealed, and the Appellate Division affirmed his judgment and conviction on March 25,
2011. (ECF No. 15-4.) Petitioner did not file a petition for certification with New Jersey Supreme
Court. (ECF No. 15-5, ¶8.)
Giving Petitioner the benefit of the period of time when he could have petitioned the New
Jersey Supreme Court and the United States Supreme Court, the one-year habeas statute of
limitations began to run when Petitioner’s direct review became final on July 25, 2011. 1
Kapral v. United States, 166 F.3d 565, 570 (“[I]f a defendant does not file a certiorari petition, the
judgment of conviction does not become “final” until the time for seeking certiorari review
expires.”). Two hundred ninety-one days of the one-year habeas statute of limitations elapsed
before Petitioner filed his first PCR petition.
This Court applied Federal Rule of Civil Procedure 6 in computing the expiration of the statute
of limitations. See Rule 12, Rules Governing Section 2254 Cases (“The Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”)
The statute of limitations was tolled from April 17, 2013 through June 6,
2013, and again from June 7, 2013 through April 29, 2016
Petitioner filed his first petition for post-conviction relief on May 11, 2012. (ECF No. 155.) The PCR Court denied the petition on March 1, 2013. (ECF No. 15-6.) Petitioner had 45
days, until April 16, 2013, in which to file a notice of appeal with the Appellate Division, but he
did not do so. See N.J. R.A.R. 2:4-1(a). Nonetheless, this 45-day period counts toward the tolling
period. See Swartz, 204 F.3d at 421 (“[F]or purposes of § 2244(d)(2) ‘pending’ includes the time
for seeking discretionary review, whether or not discretionary review is sought.”). The first PCR
petition was no longer pending at the end of the 45-day period, April 17, 2013, and the statute of
limitations began to run again.
Petitioner filed a second PCR petition on June 7, 2013, again tolling the statute of
limitations. (ECF No. 15-7.) Fifty days elapsed between April 17, 2013 and June 6, 2013. The
PCR Court denied Petitioner’s second petition on October 25, 2013. (ECF No. 15-8.) Petitioner
timely appealed on November 18, 2013. (ECF No. 15-9.) The Appellate Division affirmed the
denial of Petitioner’s second PCR petition on September 25, 2015. (ECF No. 15-10.) The New
Jersey Supreme Court denied Petitioner’s petition for certification on April 29, 2016. (ECF No.
15-11.) Thus, the statute of limitations period began to run again on April 30, 2016.
Although the Court dismissed Petitioner’s original habeas petition without prejudice for
failure to comply with Rule 2(c) of the Rules Governing Section 2254 Cases and administratively
terminated this action (ECF Nos. 2, 3), administrative termination is not a dismissal for purposes
of the statute of limitations. In other words, the case is not subject to the statute of limitations time
bar if it was originally filed timely. See Houston v. Lack, 487 U.S. 266, (1988) (ruling that a notice
of appeal was filed at the time petitioner delivered it to prison authorities for forwarding to the
court clerk); McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996) (indicating that
a complaint is deemed filed when actually or constructively received by the court clerk); see also
Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275 (3d Cir. 2013) (“[D]istrict courts retain
jurisdiction over administratively closed cases.”).
Therefore, in calculating the statute of
limitations, a court uses the date Petitioner submitted his original petition to prison authorities for
filing. See Pabon v. Mahoney, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (noting that under the prisoner
mailbox rule, a document is deemed filed on the date it is given to prison officials for mailing.)
According to the original petition, Petitioner gave the petition to prison authorities for filing on
June 27, 2016. (ECF No. 1 at 16.) Fifty days elapsed between April 30, 2016 and June 27, 2016.
Therefore, a total of three hundred ninety-seven days ran before Petitioner submitted his petition
for filing on June 27, 2016, and his petition is untimely.
Petitioner’s plea of actual innocence does not overcome the habeas statute
“Actual innocence, if proved, serves as a gateway through which a petitioner may pass [if
the] impediment is expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.Ct. 1924,
1928 (2013). However, “a petitioner does not meet the threshold requirement unless he persuades
the district court that, in light of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.” Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298,
329 (1995) (“Unexplained delay in presenting new evidence bears on the determination whether
the petitioner has made the requisite showing [of actual innocence].”)
Here, Petitioner alleges he is actually innocent, but he has not offered any newly discovered
evidence to support his claim. (ECF No. 4-1 at 9.) His claim rests on the trial judge’s expressed
disbelief in the jury’s verdict, and the trial judge’s belief that Petitioner’s former wife orchestrated
false criminal charges of out spite. (Id.) The Appellate Division considered the trial judge’s posttrial statements on direct review. (ECF No. 15-4 at 14-19.) Petitioner, however, faults his counsel
for not raising the issue of actual innocence before the New Jersey Supreme Court and for filing
“a half-hearted PCR Application.” (Id. at 5.)
The trial judge’s post-verdict statement that Petitioner’s ex-wife was not credible is not
newly discovered evidence of actual innocence. Moreover, this information was considered by
the court on direct appellate review. The Appellate Division held “[the victim’s] testimony and
the uncontested facts about age and relationship were sufficient to sustain the charges against
defendant, if the jury found her credible.” (ECF No. 15-4 at 18.) “[D]efendant’s statement after
his arrest bolster[ed] [the victim’s] allegations.” (Id. at 19.) The record provided sufficient
evidence that the verdict was not against the weight of the evidence. (Id.) Therefore, petitioner
has not stated an actual innocence claim that overcomes the expiration of the statute of limitations.
For the reasons discussed above, Respondents’ motion to dismiss is granted, and the
amended habeas petition is dismissed as time-barred.
CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to a certificate of appealability in
this matter. See Third Circuit Local Appellate Rule 22.2. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Based on the discussion in this Opinion, Petitioner has not made
a substantial showing of denial of a constitutional right, and this Court will not issue a certification
of appealability. An appropriate Order follows.
Dated: November 14, 2017
At Newark, New Jersey
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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