BARTHOLOMEW v. RICCI et al
Filing
17
OPINION filed. Signed by Judge Freda L. Wolfson on 11/21/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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MICHELLE RICCI et al.,
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Respondents.
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GREGORY J. BARTHOLOMEW,
Civil Action No. 10-3666 (FLW)
O P I N I O N
APPEARANCES:
Gregory J. Bartholomew, Pro Se
420190/987301A
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Meghan Marie Clark, Assistant Prosecutor
Ocean County Prosecutor’s Office
119 Hooper Avenue, P.O. Box 2191
Toms River, NJ 08754
Attorney for Respondents
WOLFSON, District Judge
Petitioner, Gregory J. Bartholomew, a prisoner confined at
the New Jersey State Prison in Trenton, New Jersey, submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254.
The respondents are Michelle Ricci, and the Attorney
General of the State of New Jersey.
Respondents have filed an
Answer, asserting that the petition is time-barred.
Further,
Petitioner filed two motions which remain pending on the docket.
For the reasons stated herein, the petition and pending
motions will be dismissed, without prejudice, as time-barred.1
BACKGROUND
According to the petition, Petitioner was convicted for
robbery and related charges, and was sentenced on May 31, 2001,
in the Superior Court of New Jersey, Ocean County, to 35 years to
life incarceration without parole, under New Jersey’s Persistent
Offender Accountability Act, or the “three strikes law.”
(Petition, ¶¶ 1-3).
Petitioner states that the convictions and
sentence were affirmed by the Superior Court of New Jersey,
Appellate Division (“Appellate Division”), and that his petition
for certification to the New Jersey Supreme Court was denied on
September 4, 2003.
(Pet., ¶¶ 8-11).
Respondents note that the
petition for certification was actually denied on September 8,
2003.
Petitioner did not file a petition for a writ of
certiorari with the United States Supreme Court.
(Pet., ¶ 9(h)).
On August 10, 2004, Petitioner filed a motion for postconviction relief (“PCR”) in the trial court, which was denied
without an evidentiary hearing.
(Pet., ¶ 11).
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Petitioner
Petitioner’s motions include a motion to file a traverse
out of time, and a motion to amend his petition. This Court
finds that dismissal of the petition, without prejudice, is
proper, despite the pending motions, as the petition is clearly
time-barred. Petitioner’s motions will be dismissed as moot, as
the traverse and motion to amend speak to the claims asserted in
the petition. However, Petitioner may move to reopen this case,
and reinstate his motions, as set forth in this Opinion, infra.
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appealed to the Appellate Division, which affirmed the PCR denial
on May 4, 2009.
On July 20, 2009, the New Jersey Supreme Court
denied certification.
(Pet., ¶ 11).
Petitioner filed this petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 on July 18, 2010.
He was advised of
his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.
2000) on November 23, 2010.
An Order to Answer was issued, and
on May 9, 2011, Respondents filed the Answer and relevant state
court record.
Petitioner has since filed two motions, which
remain pending on this Court’s docket (docket entries 13 and 14).
Respondents filed a brief in opposition to the motions (docket
entry 16).
In his habeas petition, Petitioner argues that he is
entitled to habeas relief based on various grounds, including,
trial court errors, constitutionally-deficient jury procedures,
prosecutorial misconduct, and ineffective assistance of counsel,
amongst other reasons.
In their Answer, Respondents argue that
Petitioner’s grounds for relief have no merit, and that the
petition is untimely and unexhausted.
DISCUSSION
A.
Pleading Standards
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
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(1972).
A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United
States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert.
denied, 399 U.S. 912 (1970).
B.
The Petition is Time-Barred
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254(a).
A petitioner's ability to pursue the writ
of habeas corpus is subject to various affirmative defenses,
including the defense that the petition is time-barred.
The limitations period for a § 2254 habeas petition is set
forth in 28 U.S.C. § 2244(d), which provides in pertinent part:
(1) A 1-year period of limitations 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 latest of(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;
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(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 State action;
(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 post-conviction 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 section.
Thus, evaluation of the timeliness of this § 2254 petition
requires a determination of, first, when the pertinent judgment
became “final,” and, second, the period of time during which an
application for state post-conviction relief was “properly filed”
and “pending” for tolling purposes.
A state court criminal judgment becomes “final” within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the
90-day period for filing a petition for writ of certiorari in the
United States Supreme Court.
See Swartz v. Meyers, 204 F.3d 417,
419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d
Cir. 1999); U.S. Sup. Ct. R. 13.
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To statutorily toll the limitations period pursuant to §
2244(d)(2), a state petition for post-conviction relief must be
“properly filed.”
Artuz v. Bennett, 531 U.S. 4, 8-9 (2000); see
also Pace v. DiGuglielmo, 544 U.S. 408 (2005) (state PCR petition
rejected as untimely under state statute of limitations was not
“properly filed” for purposes of § 2244 (d)(2)).
An application for state post-conviction relief is
considered “pending” within the meaning of § 2244(d)(2), and the
limitations period is statutorily tolled from the time it is
“properly filed,” during the period between a lower state court's
decision and the filing of a notice of appeal to a higher court,
Carey v. Saffold, 536 U.S. 214 (2002), and through the time in
which an appeal could be filed, even if the appeal is never
filed, Swartz, 204 F.3d at 420-24.
However, “the time during
which a state prisoner may file a petition for writ of certiorari
in the United States Supreme Court from the denial of his state
post-conviction petition does not toll the one year statute of
limitations under 28 U.S.C. § 2244(d)(2).”
Stokes v. District
Attorney of the County of Philadelphia, 247 F.3d 539, 542 (3d
Cir.), cert. denied, 534 U.S. 959 (2001).
The limitations period of § 2244(d) is also subject to
equitable tolling.
See Fahy v. Horn, 240 F.3d 239, 244 (3d
Cir.), cert. denied, 534 U.S. 944 (2001); Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
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Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
Equitable tolling
applies:
only when the principles of equity would make the rigid
application of a limitation period unfair. Generally,
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or
her rights. The petitioner must show that he or she
exercised reasonable diligence in investigating and
bringing the claims. Mere excusable neglect is not
sufficient.
Miller, 145 F.3d at 618-19 (citations and punctuation marks
omitted).
Among other circumstances, the Court of Appeals for
the Third Circuit has held that equitable tolling may be
appropriate “if the plaintiff has timely asserted his rights
mistakenly in the wrong forum,” i.e., if a petitioner has filed a
timely but unexhausted federal habeas petition.
See Jones, 195
F.3d at 159; see also Duncan v. Walker, 533 U.S. 167, 183 (2001)
(Stevens, J., joined by Souter, J., concurring in part) (“neither
the Court's narrow holding [that the limitations period is not
statutorily tolled during the pendency of a premature federal
habeas petition], nor anything in the text or legislative history
of AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity”); 533
U.S. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.)
(characterizing Justice Stevens's suggestion as “sound”).
Here, the judgment against Petitioner was entered on May 21,
2001.
Petitioner’s direct appeal concluded on September 8, 2003,
and the last date on which Petitioner could have petitioned the
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United States Supreme Court for certiorari would have been
December 8, 2003.
date.
Thus, the conviction became “final” on that
Petitioner had one year to file an application for a writ
of habeas corpus in this Court, challenging his conviction.
Petitioner expended eight months of his limitations period
prior to filing his PCR motion on August 10, 2004 and statutorily
tolling his limitations period.
Of course, during the pendency
of his PCR motion, the limitations period was tolled, pursuant to
28 U.S.C. § 2244(d)(2), until July 20, 2009, when the New Jersey
Supreme Court denied certification.
Afterwards, Petitioner
expended approximately twelve more months prior to filing this
habeas petition in this Court on July 18, 2010.
Thus, it is clear from his own admissions in the petition,
that this petition is untimely.
The eight months expended prior
to filing the PCR motion, plus the twelve months after the PCR
motion proceeding through state court until Petitioner filed this
habeas petition, demonstrate that the petition is barred by the
limitations period.
As pled, Petitioner asserts no facts that would indicate
that his petition should be equitably tolled.
petition must be dismissed as time-barred.
will be dismissed as moot.
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Accordingly, this
All pending motions
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, reasonable jurists would not find this Court's procedural
ruling debatable.
Accordingly, no certificate of appealability
shall issue.
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CONCLUSION
For the reasons set forth above, the petition, and pending
motions, are dismissed, without prejudice.
If Petitioner can
demonstrate that his petition should be statutorily or equitably
tolled, he may file a motion to reopen the case, setting forth
his argument clearly and concisely, for this Court to consider.
An appropriate order follows.
s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: November 21, 2011
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