TAYLOR v. BALICKI, No. 1:2009cv05372 - Document 17 (D.N.J. 2010)
Court Description: OPINION. Signed by Judge Jerome B. Simandle on 10/25/2010. (tf, n.m. )
Download PDF
<![CDATA[
TAYLOR v. BALICKI Doc. 17 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY LEVAR TAYLOR, Petitioner, v. KAREN BALICKI, et al., Respondents. : : : : : : : : : Civil Action No. 09-5372 (JBS) OPINION APPEARANCES: Petitioner pro se Levar Taylor Federal Correctional Inst. P.O. Box 7007 Marianna, Florida 32447-7007 Counsel for Respondents Natalie Ann Schmid Drummond State of New Jersey, OAG R.J. Hughes Justice Complex 25 Market Street P.O. Box 086 Trenton, NJ 08625 SIMANDLE, District Judge Petitioner Levar Taylor, a prisoner previously confined at South Woods State Prison in Bridgeton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Karen Balicki and the Attorney General of New Jersey. For the reasons stated herein, the Petition must be dismissed with prejudice. Dockets.Justia.com I. BACKGROUND On April 13, 2007, pursuant to a guilty plea, Petitioner was sentenced in the Superior Court of New Jersey, Law Division, Atlantic County, to a five-year term of imprisonment for computer theft, in violation of N.J.S.A. 2C:20-25. Petitioner did not file any direct appeal of this conviction or sentence. On May 11, 2007, Petitioner filed in the trial court a motion for reconsideration of his sentence, which was denied on May 24, 2007. Petitioner did not appeal. Petitioner asserts that he filed a petition for postconviction relief in the trial court that was never entered on the docket or addressed. The copy of the cover page to the petition, attached by Petitioner to his Reply, is dated September 3, 2008. Petitioner filed in the trial court a second motion for reconsideration of sentence on April 6, 2009, which was denied on April 29, 2009. Petitioner did not appeal. Here, Petitioner asserts the following grounds for relief: (1) ineffective assistance of counsel, (2) errors of fact, apparently with respect to the form of capitalization of Petitioner s name on court documents, (3) fraud, in the form of alleged legalese by the prosecutor, and (4) fraud by court officers. 2 Respondents argue that the Petition is time-barred and that the claims were not properly exhausted in state court. II. PLEADING STANDARDS 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). III. ANALYSIS 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, asserted here, that this Petition is time-barred. 3 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. The limitations period is applied on a claim-by-claim basis. See Fielder v. Verner, 379 F.3d 113 (3d Cir. 2004), cert. denied, 543 U.S. 1067 (2005); Sweger v. Chesney, 294 F.3d 506 (3d Cir. 2002). Here, the facts alleged indicate that the timeliness of the entire Petition must be measured by Section 2244(d)(1)(A). Thus, evaluation of the timeliness of this § 2254 petition requires a determination of, first, when the pertinent judgment 4 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 90day 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. A state court s grant of leave to file an out-of-time direct appeal resets the date when the conviction becomes final under § 2244(d)(1). Jimenez v. Quartermain, 129 S.Ct. 681 (2009). To statutorily toll the limitations period, a state petition for post-conviction relief must be properly filed. 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. 5 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 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). Where a state court has rejected a petition for postconviction relief as untimely, however, it was not properly filed and the petitioner is not entitled to statutory tolling under § 2244(d)(2). Pace v. Diguglielmo, 544 U.S. 408 (2005). This is so even where, in the alternative, the state court addresses the merits of the petition in addition to finding it untimely. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). 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 v. Meyers, 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 6 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) also is subject to equitable tolling. 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 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. at 159. Jones, 195 F.3d 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 7 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 ). Finally, 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)). Here, the judgment against Petitioner was entered on April 13, 2007. Before expiration of the 45-day period for filing an appeal with the Superior Court of New Jersey, Appellate Division, see N.J.Ct.R. 2:4-1, Petitioner filed a motion for reconsideration of the sentence. Thus, calculation of the time for filing a federal habeas petition was tolled until May 24, 2007, while the motion for reconsideration of the sentence was pending. Petitioner s time for filing a direct appeal in state court expired no more than 45 days later, on July 8, 2007, and the conviction became final on that date, for purposes of calculating the federal limitations period. Thus, absent some other basis for tolling, the one-year limitations period for filing this federal habeas Petition expired on July 8, 2008. Even if Petitioner filed a state petition for post-conviction relief on or about September 3, 8 2008, as he asserts, that filing would have been too late to statutorily toll the federal limitations period, which had already expired, as was the filing of the second state motion for reconsideration of the sentence on April 6, 2009. Accordingly, this Petition is time-barred, and must be dismissed with prejudice. IV. 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 9 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. V. CONCLUSION For the reasons set forth above, the Petition must be dismissed with prejudice. An appropriate order follows. s/ Jerome B. Simandle Jerome B. Simandle United States District Judge Dated: October 25, 2010 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
