CONCEPCION v. STATE OF NEW JERSEY

Filing 19

OPINION filed. Signed by Judge Anne E. Thompson on 6/9/2011. (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NOT FOR PUBLICATION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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STATE OF NEW JERSEY,
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Respondent.
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PEDRO JUAN CONCEPCION,

Civil Action No. 10-5419 (AET)
O P I N I O N

APPEARANCES:
Pedro Juan Concepcion, Pro Se
300652B/214004
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Simon Louis Rosenbach, Assistant Prosecutor
Middlesex County Prosecutor’s Office
25 Kirkpatrick Street, 3d Floor
New Brunswick, NJ 08901
Attorney for Respondent (NO APPEARANCE MADE ON DOCKET)
THOMPSON, District Judge
Petitioner, Pedro Juan Concepcion, 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 respondent is the State of New Jersey.

Petitioner has filed numerous motions, which remain pending
in this case, and an application to proceed in forma pauperis.
Respondent filed a letter in opposition to the motions, and
asserts that the petition is time-barred.

For the reasons stated

herein, the application to proceed in forma pauperis will be
granted.

However, the petition, and pending motions, will be

dismissed, without prejudice.
BACKGROUND
According to the petition, Petitioner was convicted for
murder and related charges, and sentenced on June 7, 1988, in the
Superior Court of New Jersey, Middlesex County, to a sentence of
“triple life w/105 yr. stip.”

(Petition, ¶¶ 1-3).

Respondent’s

letter in opposition to Petitioner’s motions (hereinafter
“Respondent’s Letter), docket entry 15, notes that Petitioner’s
sentence was a life term, with a 30-year period of parole
ineligibility.

Petitioner states that the convictions 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.

(Pet., ¶¶ 8-11).

Respondent confirms that the petition for certification was
denied on June 12, 1992.

(Respondent’s Letter, p. 2).

Petitioner notes that he filed a motion for post-conviction
relief (“PCR”) in the trial court, which was denied without an
evidentiary hearing.

(Pet., ¶¶ 12-17).

Respondent confirms that

two post-conviction documents were filed by Petitioner, showing
1994 dates; however, Respondent states that neither postconviction relief document reflects a PCR motion.
Letter, p. 2).

2

(Respondent’s

Petitioner filed this petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 on or about October 19, 2010.

He

was advised of his rights pursuant to Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000) on November 1, 2010.

Petitioner has since

filed ten motions, which remain pending on this Court’s docket.
In his habeas petition, Petitioner argues as Grounds for
Relief that his judgment should be vacated for lack of
jurisdiction.

Grounds are set forth as follows:

A. Ground I: There is a controversy in law and equity;
B. Ground II: Petitioner[‘s] rights were
constitutionally violated under the Thirteenth and
Fourteenth Amendment . . . when the State legislation
Encroached and failed to define the “man” in any of the
statutes adjudicated. The statutes identify a broad
definition “as to” a ‘person’ which failed to include
the “man” that was convicted, further constituting
human Rights violations.
C. Ground III: Petitioner’s [rights were violated]
when both the lower court failed to establish
jurisdiction on the record, thereby causing
imprisonment to be false and unconstitutional.
D. Ground IV: Fatal Defects in the State Government’s
Charging Instruments.
E. Ground V: The State government lacked legislative,
territorial or admiralty jurisdiction over the Locus
Quo.
(Pet., ¶ 18).

In all of his filings, Petitioner asserts that the

state courts did not have jurisdiction over him to convict him.
He further argues in one of his attachments to the petition: “The
one year statute of limitations as contained in 28 U.S.C. §
2244(d) does not apply, THERE IS NO STATUTE OF LIMITATIONS to
challenge VOID judgments and ORDERS that can be challenged at any

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time and at any court.”

(Petitioner’s Brief, docket entry 1-10,

at p. 9).
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
(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).

Nevertheless, a federal district

court can dismiss a habeas corpus petition if it appears from the
face of the petition that the petitioner is not entitled to
relief.

See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers

v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
1025 (1989).
B.

See

also 28 U.S.C. §§ 2243, 2255.

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
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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 limitation 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;
(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
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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.
To statutorily toll the limitations period, a state petition
for post-conviction relief must be “properly filed.”

As such:

An application is “filed,” as that term is
commonly understood, when it is delivered to, and
accepted by the appropriate court officer for placement
into the official record. And an application is
“properly filed” when its delivery and acceptance are
in compliance with the applicable laws and rules
governing filings. These usually prescribe, for
example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
lodged, and the requisite filing fee. In some
jurisdictions the filing requirements also include, for
example, preconditions imposed on particular abusive
filers, or on all filers generally. But in common
usage, the question whether an application has been
“properly filed” is quite separate from the question
whether the claims contained in the application are
meritorious and free of procedural bar.
Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote
omitted) (finding that a petition was not “[im]properly filed”
merely because it presented claims that were procedurally barred

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under New York law on the grounds that they were previously
determined on the merits upon an appeal from the judgment of
conviction or that they could have been raised on direct appeal
but were not); 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

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F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
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 in
1988.

Petitioner’s direct appeal concluded on June 12, 1992, and
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the last date in which Petitioner could have petitioned the
United States Supreme Court for certiorari would have been
September 11, 1992.
date.

Thus, the conviction became “final” on that

Since Petitioner’s conviction became final prior to the

enactment of the AEDPA, Petitioner had one-year after the
enactment of the AEDPA, until April 24, 1997, to file an
application for a writ of habeas corpus in this Court,
challenging his conviction.

It does not appear that Petitioner

has done so, and it is clear that this Petition, filed in 2010,
is untimely.
As pled, Petitioner asserts no facts that would indicate
that his petition should be equitably tolled.
petition must be dismissed as time-barred.

Accordingly, this

All pending motions

will be dismissed as moot.
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

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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.
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/ Anne E. Thompson
ANNE E. THOMPSON
United States District Judge
Dated: June 9, 2011

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