MAPLES v. WARREN et al

Filing 7

OPINION. Signed by Judge Joel A. Pisano on 4/16/2012. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GREGORY P. MAPLES, JR.,

:
Civil Action No. 12-933 (JAP)

Petitioner,

:

v.

:

O P I N I O N

ADMINISTRATOR CHARLIE WARREN, :
et al.,
:
Respondents.
APPEARANCES:
GREGORY P. MAPLES, JR., Petitioner Pro Se
491548/933623B
N.J.S.P.
P.O. Box 861
Trenton, NJ 08625

PISANO, District Judge
This matter is before the Court on Petitioner Gregory P.
Maples, Jr.’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenges his 2004 New Jersey state
court conviction and sentence.

For reasons discussed below, it

appears from review of the petition papers provided by petitioner
that his § 2254 habeas petition may be subject to dismissal as
time-barred under 28 U.S.C. §2244(d).1
1

Although the statute of limitations is an affirmative defense,

Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 124
S.Ct. 48 (2003), it is appropriate for a district court to raise the issue sua
sponte prior to ordering an answer. The Supreme Court held that district

1

I.

PROCEDURAL BACKGROUND
Petitioner, Gregory P. Maples, Jr. (“Petitioner”), filed a

petition for habeas corpus relief on or about February 8, 2012.2
According

to

the

allegations

contained

in

his

petition,

Petitioner was convicted in the Superior Court of New Jersey, Law
Division, Ocean County on multiple counts including second degree
conspiracy and first degree murder.

Petitioner was sentenced on

July 9, 2004 to, as he describes in the petition, a sentence of
“30/30.”
Petitioner filed a direct appeal from his conviction and
sentence to the Superior Court of New Jersey, Appellate Division.
On May 12, 2005 the Appellate Division affirmed the conviction.
The Supreme Court of New Jersey denied certification on October

courts are permitted to consider sua sponte the timeliness of a state inmate’s
habeas petition; however, the district court must accord the parties fair
notice and an opportunity to present their positions on the issue of time bar
if the record shows that the petition is untimely. Day v. McDonough, 547 U.S.
198, 209(2006).
2

Pursuant to the “prison mailbox rule,” a habeas petition is deemed
filed on the date the prisoner delivers it to prison officials for mailing,
not on the date the petition is ultimately filed with the court. See Houston
v. Lack, 487 U.S. 266, 270-71 (1988); see also Burns v. Morton, 134 F.3d 109,
112-13 (3d Cir. 1988) (applying prison mailbox rule set forth in Houston,
which dealt with filing of an appeal, to a pro se prisoner’s filing of a
habeas petition). Often times, when the Court is unable to determine the
exact date that a petitioner handed his petition to prison officials for
mailing, it will look to the signed and dated certification of the petition.
See Henderson v. Frank, 155 F.3d 159, 163-64 (3d Cir. 1988) (using date
prisoner signed petition as date he handed it to prison officials for purposes
of calculating timeliness of habeas petition). Here, Petitioner signed his
petition on February 8, 2012. Therefore, the Court will use the date February
8, 2012, for statute of limitation purposes, as the date this habeas action
was filed, rather than the date the petition was received by the Court, which
was February 16, 2012.

2

5,

2005.

Petitioner

did

not

file

a

petition

for

writ

of

certiorari with the Supreme Court of the United States.
Petitioner states that he then filed, in the Ocean County
Law Division, a proceeding regarding newly discovered evidence,
but that application was withdrawn.
filed

a

“2nd

P.C.R.”

but

Petitioner states that he

supplies

no

dates

regarding

that

application.
While

Petitioner

did

provide

vague

information

regarding

subsequent proceedings, the October 5, 2005 date is the last date
listed by Petitioner in his Petition regarding exhaustion of
state court remedies.

Petitioner did not submit this federal

habeas petition to prison officials for mailing until on or about
February 8, 2012.
II.

STANDARD OF REVIEW
A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers.

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).
3

III.

STATUTE OF LIMITATIONS ANALYSIS
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 . . .
(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; . . .
(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.
Pursuant to § 2244(d), evaluation of the timeliness of a §
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.”
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.

4

The limitations period is tolled during the time a properly
filed application for state post-conviction relief is pending. 28
U.S.C. § 2244(d)(2). An application for state post-conviction
relief is considered “pending” within the meaning of § 2244(d)(2)
from the time it is “properly filed,”3 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.

Nevertheless, “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.

Dist.

Attorney

of

the

County

of

Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).

3

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) (footnotes and
citations omitted).

5

Here, the last date listed by Petitioner in his recitation
of dates related to exhaustion of state court remedies is October
5, 2005.

Thus, there is over a six year gap between the last

date listed regarding exhaustion of state court remedies and the
date of filing the instant petition.

However, before the Court

can dismiss this action as time-barred, the parties should be
given the opportunity to address the issue of timeliness.

See

Day

are

v.

McDonough,

permitted

to

547

consider

U.S.
sua

198

sponte

(2006)(district
the

timeliness

courts
of

a

state

inmate’s habeas petition, but must accord the parties fair notice
and an opportunity to present their positions).
Petitioner may be able to overcome this statutory time bar
if he can show that the limitations period did not expire as
determined by this Court, or if he can show a basis for equitable
tolling.

See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001);

Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999); Miller v. New
Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir.
1998).

“Generally, a litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.”
408, 416-17 (2005).

Pace v. DiGuglielmo, 544 U.S.

The Third Circuit instructs that equitable

tolling is appropriate when “principles of equity would make the
6

rigid application of a limitation period unfair, such as when a
state prisoner faces extraordinary circumstances that prevent him
from

filing

a

timely

habeas

petition

and

the

prisoner

has

exercised reasonable diligence in attempting to investigate and
bring his claims.”
Cir. 2005).

LaCava v. Kyler, 398 F.3d 271, 275-76 (3d

Mere excusable neglect is not sufficient.

Id.;

Miller, 145 F.3d at 618-19; Jones, 195 F.3d at 159.
Extraordinary

circumstances

have been found where:

permitting

equitable

tolling

(1) the petitioner has been actively

misled; (2) the petitioner has been prevented from asserting his
rights

in

some

extraordinary

way;

(3)

the

petitioner

timely

asserted his rights in the wrong forum, see Jones, 195 F.3d at
159, or (4) the court has misled a party regarding the steps that
the party needs to take to preserve a claim, see Brinson v.
Vaughn,

398

extraordinary

F.3d

225,

230

circumstances

(3d
exist,

Cir.

2005).4

however,

Even

“[i]f

where

the

person

seeking equitable tolling has not exercised reasonable diligence
in

attempting

began,

the

to
link

file
of

after

the

causation

4

extraordinary

circumstances

between

extraordinary

the

The Third Circuit has expressly held that, in non-capital
cases, attorney error, miscalculation, inadequate research, or
other mistakes are not the extraordinary circumstances necessary
to establish equitable tolling. Johnson v. Hendricks, 314 F.3d
159, 163 (3d Cir. 2002), cert. denied 538 U.S. 1022 (2003); Fahy,
240 F.3d at 244.
7

circumstances

and

extraordinary

circumstances

filing.”

the

failure

to

file

therefore

is

did

broken,

not

and

prevent

the

timely

Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.)(quoting

Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)), cert.
denied, 539 U.S. 948 (2003).

IV.

CONCLUSION
For

the

foregoing

reasons,

this

petition

for

a

writ

of

habeas corpus under 28 U.S.C. § 2254 may be subject to dismissal
as time-barred under 28 U.S.C. § 2244(d).

Therefore, the Court

will order Petitioner to show cause in writing why his petition
should

not

be

dismissed

as

untimely.

An

appropriate

follows.

DATED:

April 16, 2012

/s/ Joel A. Pisano
Joel A. Pisano
United States District Judge

8

order