KING v. LANIGAN et al, No. 2:2013cv00055 - Document 10 (D.N.J. 2013)
Court Description: OPINION. Signed by Judge Claire C. Cecchi on 10/30/13. (jd, )
Download PDF
<![CDATA[
NOT FOR PUBLICATION Action 1 Petitioner, OPINION v. GARY M. LANIGAN, et al., Respondents. APPEARANCES: LESLIE R. KING, Petitioner prose 433416 I 640460C New Jersey State Prison P.O. Box 861 Trenton, N.J. 08625 CECCHI, District Judge This matter is before the Court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by Petitioner Leslie R. King ("Petitioner"). The respondents are Gary M. Lanigan, Jeffrey Cheisa and the State ofNew Jersey. Because it appears from a review of the answer I. BACKGROUND barred, state court. ("PCR") Petitioner 1 regarding any PCR filed a petition Court on or about July 26, a writ of habeas corpus under 28 U.S.C. § in this see =:.:::o-.:....:,_;:;_==...::=' Civil No. 10-3753 (D.N.J.). In his response 1 to the notice provided pursuant to ~~=--.;........:.....:·\Jo...::..P:''~.; ; . "', 208 F.3d 414 (3d Cir. 2000), Petitioner requested that his petition be withdrawn so that he could further pursue his exhaustion of state court remedies. The petition was withdrawn on February 22, 2011 and that file was closed. Petitioner then sought further review from the Supreme Court of New Jersey, which was denied on September 21, 2012. Petition, page 9. On or about January 2, 2013, after this further pursuit of state court remedies, Petitioner filed the instant petition without providing any dates regarding his continued state court activity. Petitioner was advised of his rights pursuant to .:::..:..::=::..::;;...==-.:..:.....:;:..;..;;,.,;;;.,.t.=> 208 F .3d 414 (3d Cir. 2000) and Petitioner responded that his Petition should II. DISCUSSION a to an application t'r<=> ¢<:>Ta ¢rf ,,.,, .._..,,,, of the Constitution or of the United by such 1 11"\ 1r\""'fil 1 11"'l""'rtT 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 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 section. 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 a state 1 1 denial one " U.S.C. § 539, (3d 2001). Here, Petitioner failed to provide the court with regarding most of his state court activity. As noted above, Petitioner's trial and sentence dates were April 18, 2002 and May 28, 2002, respectively. Petitioner appealed the judgment in July of 2002 and the judgment was affirmed on an unspecified date in 2005. Petitioner then engaged in the post-conviction relief process but did not provide any dates with respect to those filings or decisions to show that his filings conformed to the one year limitations time frame. Given the large gaps in time between known filings during Petitioner's exhaustion of state court remedies, it appears that the petition is time-barred. The limitations period of§ 2244(d) also is subject to equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d 2001); .::.....;;;;..;:...;;;..;::._.;....:,._;;;...;;;:..;;;;;...:..c::..=, 61 195 F.3d 153, 159 (3d Cir. 1999); Miller v. 8 1 " (quoting....!...!:!~~::::......!...!~~~' F.3d """'""'"'"'""'"""'.. has alleged no F.3d 1 Cir. 2000)). equitable tolling of the habeas limitations period. As such, it appears this petition is therefore untimely. III. CONCLUSION For the reasons set forth above, the Petition will be dismissed as time-barred. Petitioner will be allowed 30 days leave to provide a full recitation of the dates regarding state court exhaustion if he is able to show that the filing of the petition complied with the one year limitations period for the filing of a§ 2254 habeas petition as set forth in 28 U.S.C. § 2244(d). Petitioner may also present any valid grounds for equitable tolling within 30 days. An appropriate order follows.
]]>
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.
