DRURY v. STATE OF NEW JERSEY

Filing 34

MEMORANDUM and ORDER TO ANSWER. Signed by Judge Brian R. Martinotti on 10/5/2017. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JEFFREY DRURY,

Civil Action No. 13-3135-BRM
Petitioner,

v.

MEMORANDUM AND ORDER

STATE OF NEW JERSEY,
Respondent.
THIS MATTER has been opened to the Court by Petitioner Jeffrey Drury (“Petitioner”),
upon the filing of his amended petition for writ of habeas corpus (“Amended Petition”) pursuant
to 28 U.S.C. § 2254. (ECF No. 11.) Respondent the State of New Jersey (“Respondent”) filed a
limited answer (the “Limited Answer”) addressing only the issue of timeliness. (ECF No. 25.) As
discussed below, the Limited Answer submitted by Respondent is missing crucial documents and
information, namely: (1) Petitioner’s Amended Judgment of Conviction (“Amended JOC”) and
(2) a date-stamped copy of Petitioner’s Notice of Appeal of the denial of his application for postconviction relief (“PCR”). As such, the Court is unable to determine from the record whether the
initial petition (“Initial Petition”) is untimely and therefore orders Respondent to file a full and
complete answer to the Amended Petition within forty-five (45) days. Petitioner may file a
response within forty-five (45) days of his receipt of the Respondent’s full and complete Answer.
If Respondent raises a timeliness defense in its Answer, Petitioner shall provide any evidence in
support of equitable tolling that he would like the Court to consider.
Petitioner was initially sentenced to an aggregate prison term of forty-five years with a
twenty-seven-year period of parole ineligibility. (Original J. of Conviction (ECF No. 25-3).) On
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January 5, 2004, Petitioner filed a Notice of Appeal with the New Jersey Superior Court, Appellate
Division. (Notice of Appeal (ECF No. 25-4).) On January 27, 2006, the Appellate Division
affirmed Petitioner’s conviction and sentence, but remanded for re-sentencing on Count Three
(first-degree aggravated sexual assault), which was found to have been incorrectly elevated to a
first-degree offense. See State v. Drury, 889 A.2d 1087 (N.J. Super. Ct. App. Div. 2006). Petitioner
subsequently filed a petition for certification with the New Jersey Supreme Court; the petition was
granted after which the matter was remanded for re-sentencing and correction of the judgment of
conviction. State v. Drury, 919 A.2d 813 (N.J. 2007). Petitioner was resentenced on December 12,
2008. See State v. Drury, No. A-5973-09T4, 2012 WL 1205862, at *1 (N.J. Super. Ct. App. Div.
Apr. 12, 2012) (providing date of resentencing). Respondent, however, has not referenced nor
provided a dated copy of the Amended JOC in its Limited Answer. 1
While his direct appeal was still pending, Petitioner filed an application for PCR on July
23, 2007, in New Jersey Superior Court, Law Division. (Pro Se PCR (ECF No. 25-7).) On
November 13, 2009, the Honorable Mitchel E. Osterer, J.S.C. denied Petitioner’s application for
PCR (Order Denying Relief (ECF No. 25-8)), and, according to Petitioner’s response to this
Court’s April 23, 2014 Order to Show Cause, Petitioner appealed the denial on August 6, 2010
(Pet. Resp. to OTSC (ECF No. 15) at 1). Respondent has submitted an undated copy of the Notice
of Appeal, which states only that the Assistant Public Defender ordered copies of the relevant
transcripts on August 6, 2010. (See Notice of Appeal of denial of PCR (ECF No. 25-9).) On April
12, 2012, the Appellate Division addressed Petitioner’s PCR claims on the merits and affirmed the

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Petitioner has provided a copy of a Certification from his appellate attorney on PCR, filed in
connection with a “Notice of Motion to File a Brief as Within Time,” stating Petitioner’s corrected
Amended JOC “did not exist” until on or about February 14, 2011. (Pet. Resp. to OTSC (ECF No.
15) at 2-3.)
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denial of Petitioner’s PCR petition. See Drury, No. 2012 WL 1205862. On October 25, 2012, the
New Jersey Supreme Court denied certification. State v. Drury, 54 A.3d 810 (N.J. 2012).
The Initial Petition in this matter is dated May 1, 2013, and was docketed on May 7, 2013. 2
(Initial Petition (ECF No. 1) at 18.) Petitioner also submitted an application to proceed in forma
pauperis (“IFP”). (ECF No. 1-1.) By Order dated October 9, 2013, the Court denied Petitioner’s
IFP application without prejudice and administratively terminated the action. (Order Denying
Pet.’s IFP Appl. (ECF No. 2).) Petitioner resubmitted his IFP application, which was granted by
the Court on November 4, 2013. (Order Granting Pet.’s IFP Appl. (ECF No. 5).) The Court,
however, administratively terminated the action again because Petitioner failed to name a proper
respondent and provided Petitioner with thirty days within which to submit an amended petition.
(See id.) On November 25, 2013, Petitioner submitted a second amended petition naming Beverly
Hastings as a Respondent. (Second Amended Pet. (ECF No. 6).) By Order dated December 31,
2013, the Court administratively terminated the action because Petitioner had failed to name the
warden of the prison where he was confined and provided Petitioner with thirty days to submit a
third amended petition. (ECF No. 7.) On January 8, 2014, Petitioner submitted a handwritten
caption listing Patrick Nogan as the Respondent; however, he did not submit an amended petition

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Respondent’s analysis of the timeliness issue, which focuses on events after Petitioner’s
submission of his Initial Petition, misses the mark. Although Petitioner’s habeas case was
administratively terminated and reopened several times, administrative termination is not a
dismissal, and the initial filing date is the date that matters for purposes of the Court’s timeliness
analysis. By virtue of the federal prisoner mail box rule, “a pro se prisoner’s habeas petition is
deemed filed at the moment he delivers it to prison officials for mailing to the district court.” Burns
v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)); see
also Maples v. Warren, No. 12–0993, 2012 WL 1344828, at *1 n.2 (D.N.J. Apr. 16, 2012) (“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.”).

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with the caption. (See ECF No. 8.) On January 23, 2014, the Court administratively terminated the
action and provided Petitioner with thirty days to submit an amended petition naming the proper
respondent. (ECF No. 9.) On February 14 2014, Petitioner’s Amended Petition was filed. (ECF
No. 11.) By Order dated February 24, 2014, the Court advised Petitioner of his rights pursuant to
Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000) (ECF No. 12), and Petitioner elected to have his
Petition ruled on as filed. (Pet. Resp. Regarding Mason Order (ECF No. 13).)
On April 23, 2014, the Court issued an Order to Show Cause, directing Petitioner to show
cause as to why his Petition should not be dismissed as untimely and administratively terminating
the action pending Petitioner’s submission. (ECF No. 14.) On May 5, 2014, Petitioner’s response
to the Order to Show Cause was filed. (ECF No. 15.) On May 12, 2014, the Court directed
Respondent to file an answer to the Amended Petition, limited to the issue of timeliness. (ECF No.
16.) Respondent sought two extensions of time within which to file the Limited Answer, which
were granted by the Court. (ECF Nos. 19, 21, 23, 24.) On October 8, 2014, Respondent filed its
Limited Answer, addressing only the issue of timeliness. (ECF No. 25.)
The only issue currently before the Court is whether the Initial Petition was untimely under
the Antiterrorism Effective Death Penalty Act (“AEDPA”). Under AEDPA, Congress prescribed
a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners.
28 U.S.C. § 2244(d)(1); see Douglas v. Horn, 359 F.3d 257, 261 (2004). Pursuant to 28 U.S.C. §
2244(d)(1),
[t]he 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
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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.
Here, Petitioner was resentenced and Respondent has not provided the Amended JOC. As such,
the Court does not have sufficient information to determine the “date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). 3
The Court is also unable to determine whether Petitioner is entitled to tolling for the time
during which his PCR petition and appeal of the denial of his PCR petition were pending. Under
28 U.S.C. 2244(d)(2), “[t]he 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.” This exception to the
one-year limitation period is known as statutory tolling and provides that the one-year limitations
period is tolled during the time a properly filed application for post-conviction relief is pending.
See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003). An application for PCR is considered
“pending” within the meaning of 28 U.S.C. § 2244(d)(2) during the period between a lower state

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In the usual case, the limitation period would begin to run forty-five days after the relevant
resentencing and would be tolled by Petitioner’s “properly filed” PCR application. See, e.g.,
Clement v. Hauck, No. 12-5234, 2015 WL 4171839, at *5 (D.N.J. July 10, 2015). Here, however,
it appears Petitioner had already filed his PCR application when his resentencing occurred.
Nevertheless, courts in this District use the date of amended JOC, as opposed to the date of the
original JOC, as the operative date to determine when Petitioner’s JOC became final under 28
U.S.C. § 2244(d)(1)(A). See, e.g., Clement, 2015 WL 4171839, at *5; King v. Johnson, No. 160654, 2017 WL 1709596, at *2 (D.N.J. May 1, 2017).
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court’s ruling and the period a petitioner has to seek review of the decision, regardless of whether
the appeal was actually sought. Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000). 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 state
of limitations under 28 U.S.C. § 2244(d)(2).” Stokes v. D.A. of the Cty. of Phila., 247 F.3d 539,
542 (3d Cir. 2001).
A petitioner is only entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d)(2) for 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. 28 U.S.C. § 2244(d)(2). To fall within
the AEDPA tolling provision, the application for State PCR must have been both pending and
“properly filed.” 4 Fahy v. Horn, 240 F.3d 239, 243 (3d Cir.), cert. denied, 534 U.S. 944 (2001).
Notably, the “properly filed” requirement also applies to a petitioner’s applications
appealing or otherwise seeking review of the trial court’s post-conviction determinations. In
Swartz, the Third Circuit explained, “it is not clear from [the text of 28 U.S.C. § 2244] whether
the term ‘properly filed application’ refers only to the initial PCRA [(“Pennsylvania Post
conviction Relief Act”)] application, or whether it also applies to all related applications for

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It is well established that a application for state PCR that was rejected by the state courts as
untimely is not “properly filed” under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414
(2005) (holding that when a PCR “petition is untimely under state law, that [is] the end of the
matter for purposes of § 2244(d)(2)”) (citation omitted); see also Allen v. Siebert, 552 U.S. 3
(2007). “The ‘properly filed’ phrase [also] encompasses more than timeliness.” Merritt v. Blaine,
326 F.3d 157, 167 (3d Cir. 2003); see, e.g., Pace, 544 U.S. at 414-15 (recognizing copy
requirements and filing fees as conditions of filing); Didiano v. Balicki, No. 09–2315, 2010 WL
1752191, at *6 n.6 (D.N.J. Apr. 29, 2010) (finding that successive PCR dismissed for failure to
comply with state procedural rules was not properly filed); Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 88 n.11 (3d Cir. 2013) (“[W]e note that [the inmate’s PCR submission]
was not properly filed [within the meaning of Artuz] until he perfected it.”).

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appeal” but “assum[ed] arguendo that an untimely request for allowance of appeal is considered
not ‘properly filed.’” Swartz, 204 F.3d at 421 n.3. The Third Circuit has subsequently held that
applications for appeal must be “properly filed” in order to entitle the petitioner to statutory tolling
under 28 U.S.C. § 2244(d)(2). See Douglas, 359 F.3d at 262 (holding that the petitioner’s notice
of appeal nunc pro tunc filed in the Pennsylvania Supreme Court after the deadline for filing a
notice of appeal was not “properly filed”); Jenkins, 705 F.3d at 86-88, nn.6, 8 (explaining that a
petitioner who filed an untimely appeal of his PCRA is not entitled to statutory tolling from the
date when, under state law, the prisoner’s time to appeal denial of his PCRA (or to seek
certification of its affirmance) expired until when an application to file such an appeal nunc pro
tunc (or to seek certification nunc pro tunc) is granted); see also Alvarenga v. Lagana, No. 134604, 2016 WL 3610156, at *1 (D.N.J. July 1, 2016) (“When an out-of-time appeal is filed, even
if the appeal is accepted as properly filed by the state appeals court, statutory tolling does not
include the period between the expiration of time to appeal and when the appeal was actually
filed.”), certificate of appealability denied sub nom, Alvarenga v. Admin N. State Prison, No. 163538 (3d Cir. Dec. 14, 2016).
Here, the record shows a large interval of time between the denial of Petitioner’s PCR on
November 12, 2009, and his Notice of Appeal of that denial. (ECF No. 25-8.) Respondent,
however, has submitted only an undated copy of the Notice of Appeal. (See ECF No. 25-9.) As
such, the Court is unable to determine whether Petitioner is entitled to tolling for the entire period
of time during which his PCR and related appeal were pending.
For the reasons explained above, the Court is unable to determine whether the Initial
Petition is untimely based on the record provided by Respondent. Therefore, Respondent is ordered
to provide a full and complete answer to the Amended Petition. If Respondent raises timeliness as

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a defense in its full and complete answer, it shall provide (1) the Amended JOC, and any
subsequent appeal thereof, and (1) a date-stamped copy of Petitioner’s Notice of Appeal of the
denial of his PCR (or its equivalent), and (3) any other documents and legal analysis relevant to
the timeliness issue. Petitioner may file a reply within forty-five days of his receipt of the State’s
answer.
If Respondent raises a timeliness defense, Petitioner shall provide all evidence in support
of equitable tolling he wishes the Court to consider. The courts have recognized the statute of
limitations may be equitably tolled where extraordinary circumstances so warrant. United States
v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013). Equitable tolling should be granted sparingly and
only when the principles of equity would make the rigid application of a limitation period unfair.
See id., at 174 (citing Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). A petitioner must
establish he has diligently pursued his rights and that extraordinary circumstances stood in his way
and prevented timely filing in order to be eligible for equitable tolling. Id. (citing Holland v.
Florida, 560 U.S. 631, 651 (2010)). Mere excusable neglect is not sufficient. Id. As summarized
by the Third Circuit, “[g]enerally, a litigant seeking equitable tolling [of the AEDPA’s one-year
statute of limitations] 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.” Ross v.
Varano, 712 F.3d 784, 798 (3d Cir. 2013) (citing Pace, 544 U.S. at 418). Notably, “[t]his
obligation does not pertain solely to the filing of the federal habeas petition, rather it is an
obligation that exists during the period appellant is exhausting state court remedies as well.” Id.
at 799 (citing LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005)). A determination of whether a
petitioner has exercised reasonable diligence is made under a subjective test: it must be considered
in light of the particular circumstances of the case. See Schlueter v. Varner, 384 F.3d 69, 74 (3d

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Cir. 2004) (“Due diligence does not require the maximum feasible diligence, but it does require
diligence in the circumstances.”) (citation omitted).
IT IS THEREFORE, on this 5th day of October 2017,
ORDERED that the Clerk of the Court shall serve a copy of this Order upon the Attorney
General of the State of New Jersey; and it is further
ORDERED that Respondents shall file a full and complete answer to all claims asserted
in the Amended Petition (ECF No. 11) within forty-five (45) days of the entry of this Order, see
Ukawabutu v. Morton, 997 F. Supp. 605 (D.N.J. 1998); and it is further
ORDERED that Respondents’ answer shall respond to the factual and legal allegations of
the Amended Petition by each paragraph and subparagraph, see Rule 5 of the Rules Governing
Section 2254 Cases in the United States District Courts (“Habeas Rules”); and it is further
ORDERED that Respondents shall raise by way of their answer any appropriate defenses
which they wish to have the Court consider, including, but not limited to, timeliness and
exhaustion, and also, with respect to the asserted defenses, provide the relevant legal arguments
with citations to appropriate legal authority; if Respondent raises timeliness as a defense, it shall
provide (1) the Amended JOC, and any subsequent appeal thereof, and (1) a date-stamped copy of
Petitioner’s Notice of Appeal of the denial of his PCR (or its equivalent), and (3) any other
documents and legal analysis relevant to the timeliness issue; and it is further
ORDERED that Respondents’ answer shall adhere to the requirements of Rule 5 of the
Habeas Rules in providing the relevant state court record of proceedings, in particular, the answer
shall indicate what transcripts (of pretrial, trial, sentencing, and postconviction proceedings) are available, when they can be furnished,
and also what proceedings have been recorded and not transcribed.
There shall also be attached to the answer such portions of the
transcripts as the answering party deems relevant. The Court on its
own motion or upon request of the Petitioner may order that further
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portions of the existing transcripts be furnished or that certain
portions of the non-transcribed proceedings be transcribed and
furnished. If a transcript is neither available nor procurable, a
narrative summary of the evidence may be submitted. If the
Petitioner appealed from the JOC or from an adverse judgment or
order in a post-conviction proceeding, a copy of the Petitioner’s
brief on appeal (including any pro se briefs) and of the opinion of
the appellate court, if any, shall also be filed by respondent with the
answer.
Rule 5 of the Habeas Rules; and it is further
ORDERED that Respondents’ answer shall address the merits of each claim raised in the
Amended Petition as to whether the Petitioner has made a substantial showing of the denial of a
federal constitutional right; and it is further
ORDERED that the answer shall contain an index of exhibits identifying each document
from the relevant state court proceedings that is filed with the answer; and it is further
ORDERED that Respondents shall electronically file the answer, the exhibits, and the list
of exhibits; and it is further
ORDERED that all exhibits to the answer must be identified by a descriptive name in the
electronic filing entry, for example:
“Exhibit #1 Transcript of [type of proceeding] held on XX/XX/XXXX” or
“Exhibit #2 Opinion entered on XX/XX/XXXX by Judge YYYY”; and it is further
ORDERED that Petitioner may file and serve a reply to the answer within forty-five (45)
days after Respondents file the answer, see Rule 5(e) of the Habeas Rules; and it is further
ORDERED that if Respondent raises timeliness as a defense, Petitioner shall provide any
arguments and evidence in support of equitable tolling that he wishes the Court to consider; and it
is further

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ORDERED that within seven (7) days after any change in Petitioner’s custody status, be
it release or otherwise, Respondents shall electronically file a written notice of the same with the
Clerk of the Court; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Order and the
accompanying Memorandum and Order to Petitioner by regular mail.

_/s/ Brian R. Martinotti
_____
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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