DENNIS CAVANAUGH, District Judge
Petitioner EDWIN RICHARDSON (hereinafter "Petitioner"), currently confined at Bayside State Prison, Leesburg, New Jersey, filed a pro se petition seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter "Petition") and submitted due application to proceed in forma pauperis.
This Court, however, prior to examining Petitioner's application on the merits, shall determine whether Petitioner properly exhausted state court remedies with respect to these challenges, as well as whether Petitioner's challenges are time-barred. See Long v. Wilson, 393 F.3d 390, 402-03 (3d Cir. 2004) (stating that a court may examine an application for a writ of habeas corpus sua sponte and citing Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002); Herbst v. Cook, 260 F.3d 1039, 1042 n. 3 (9th Cir. 2001); Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000); Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999)). nolo contendere See See State v. Richardson 78 N.J. 329See see id. See id. 28 U.S.C. § 2254Rose v. Lundy 455 U.S. 509 515 Toulson v. Beyer 987 F.2d 984 987 Duarte v. Hershberger 947 F. Supp. 146 see also Lambert v. Blackwell 134 F.3d 506 513 cert. denied 532 U.S. 919Wilwording v. Swenson 404 U.S. 249 250 Picard v. Connor 404 U.S. 270 275 Evans v. Court of Common Pleas, Del. Cty., Pa. 959 F.2d 1227 1230 cert dismissed 506 U.S. 1089See Granberry v. Greer 481 U.S. 129 Rose 455 U.S. at 516-18 Evans 959 F.2d at 1230 O'Halloran v. Ryan 835 F.2d 506 509 See Rose 455 U.S. at 519 Castille v. Peoples 489 U.S. 346 349 See Ross v. Petsock 868 F.2d 639 see also O'Sullivan v. Boerckel 526 U.S. 838 28 U.S.C. § 2254See Picard 404 U.S. at 275 Castille 489 U.S. at 350 See Toulson 987 F.2d at 987 See Picard 404 U.S. at 275 See id See 28 U.S.C. § 2254 28 U.S.C. § 2244See Swartz v. Meyers 204 F.3d 417 419 Morris v. Horn 187 F.3d 333 337 13Kapral v. United States 166 F.3d 565 577 See Merritt v. Blaine 326 F.3d 157 161 Miller v. N.J. State Dep't of Corr. 145 F.3d 616 617-18 28 U.S.C. § 2244 see Lawrence v. Florida 127 S. Ct. 1079 1086-89 28 U.S.C. § 2244See Long v. Wilson 393 F.3d 390 394-95 Schlueter v. Varner 384 F.3d 69 78-79 see Miller v. N.J. State Dep't of Corr. 145 F.3d 616 618 Pace v. DiGuglielmo 125 S.Ct. 1807 1814 and LaCava v. Kyler 398 F.3d 271 275-276 See id. see also Merritt v. Blaine 326 F.3d 157 168 Jones v. Morton 195 F.3d 153 159 see Jones 195 F.3d at 159 See Brinson v. Vaughn 398 F.3d 225 230 Brown v. Shannon 322 F.3d 768 773 Valverde v. Stinson 224 F.3d 129 134 28 U.S.C. § 2244 see accord supra see accord supra 28 U.S.C. § 2254Estelle v. McGuire 502 U.S. 62 67-68 28 U.S.C. § 2254accord Barry v. Bergen County Probation Dept. 128 F.3d 152 159 Smith v. Phillips 455 U.S. 209 221 Engle v. Isaac, 456 U.S. 107 120 Smith v. Horn 120 F.3d 400 414 see also Smith v. Zimmerman 768 F.2d 69 71 73See See id. Engle 456 U.S. at 120 Johnson v. Rosemeyer 117 F.3d 104 110 Hochman v. New Jersey Supreme Court Hochman See 28 U.S.C. § 1257See District of Columbia Court of Appeals v. Feldman 460 U.S. 462 486 Rooker v. Fidelity Trust Co. 263 U.S. 413 416 See Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n 426 U.S. 482 488 Groppi v. Wisconsin 400 U.S. 505 507 See Jones v. Superintendent of Rahway State Prison 725 F. 2d 40 43 Hochman
Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814, n. 8 (2005) ("We have never squarely addressed the question whether equitable tolling is applicable to AEDPA's statute of limitations").
Although the AEDPA provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1), Petitioner's one-year limitations period began on April 24, 1996 because his conviction became final prior to April 24, 1996, the effective date of the AEDPA See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Absent statutory or equitable tolling, the limitations period expired on April 23, 1997. See id.
A claim of "ineffective assistance of counsel" does not provide a basis for equitable tolling. See Pace, 125 S. Ct. at 1814, n. 9 (dismissing the "ineffective assistance of counsel" excuse offered by the petitioner who asserted "that he received ineffective assistance of counsel at `all levels of representation'").
Qualitatively, Petitioner's Petition resembles an application which simultaneously challenges both an inmate's conviction and denial of parole to that inmate a decade after the conviction. Moreover, such conflation of the inmate's challenges to two distinct determinations into one § 2254 application could unduly subrogate the firm limitations requirement set forth in the AEDPA, since such conflation would allow the inmate to litigate time barred claims merely by packaging them together with claims pertaining to a recent judgement.
1. Upon entering plea of , Petitioner was convicted for murder and sentenced to a life sentence by the Superior Court of New Jersey, Law Division, on July 13, 1976. Pet. §§ 1-5. 2. After Petitioner appealed either his conviction or his sentence to the Superior Court of New Jersey, Appellate Division, the Appellate Division affirmed his conviction and sentence, and the Supreme Court of New Jersey denied him certification on September 19, 1978. , (1978). 3. On a date unclear from the face of the Petition, Petitioner filed an application with the Superior Court of New Jersey, Law Division, requesting re-sentencing pursuant to N.J.S.A. 2C:1-1d(2), which was denied by the Superior Court on December 6, 2005. Docket Entry No. 1-4, at 4. 4. Following Petitioner's appeal of such denial, the Superior Court of New Jersey, Appellate Division, denied Petitioner's appeal on November 13, 2006, at 3, and the Supreme Court of New Jersey denied Petitioner certification on June 15, 2007. at 2. 5. On July 9, 2007, Petitioner filed his instant Petition with this Court asserting the following four grounds: (a) [Petitioner is] being held unlawfully in custody on an illegal sentence [because Petitioner's] sentence [was] in excess and in violation of maximum punishment allowed under the law; (b) [Petitioner was subject to] an illegal plea bargain; (c) [P]etitioner is eligible to be re-sentenced under [N.J.S.A. 2C:1-1d(2)]; and (d) [Petitioner was denied his rights under the] Equal Protection [Clause because] the difference in . . . [P]etitioner's sentence in ratio to proportion of that of his co-defendant's is incredible, unjustifiable, and unexplained. Pet. § 12. 6. The foregoing suggests that Petitioner sets forth two distinct challenges, one with respect to his term of imprisonment imposed on July 13, 1976, and another with respect to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing, affirmed by the Supreme Court of New Jersey on June 15, 2007, through denial of certification to Petitioner. 7. A state prisoner applying for a writ of habeas corpus in federal court must first "exhaust the remedies available in the courts of the State," unless "there is an absence of available State corrective process or . . . circumstances exist that render such process ineffective. . . ." (b)(1); , , (1982); , , (3d Cir. 1993); , (D.N.J. 1996); , , (3d Cir. 1997), , (2001) (finding that "Supreme Court precedent and the AEDPA mandate that prior to determining the merits of [a] petition, [a court] must consider whether [petitioner] is required to present [his or her] unexhausted claims to the [state's] courts"). The courts of a state must be afforded an "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." , , (1971); , , (1971); , , (3d Cir. 1992), . , (1993). Exhaustion is not a jurisdictional requirement; rather, it is designed to allow state courts the first opportunity to pass upon federal constitutional claims, in furtherance of the policies of comity and federalism. , (1987); , ; , ; , , (3d Cir. 1987). Exhaustion also has the practical effect of permitting development of a complete factual record in state court, to aid the federal courts in their review. , ; , , (1989). A petitioner must exhaust state remedies by presenting his federal constitutional claims to each level of the state courts empowered to hear those claims, either on direct appeal or in post-conviction proceedings. , (3d Cir. 1989); , (1999) ("requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State"); (c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented"). Once a petitioner's federal claims have been fairly presented to the state's highest court, the exhaustion requirement is satisfied. , ; , . The petitioner generally bears the burden to prove all facts establishing exhaustion. , . This means that the claims heard by the state courts must be the "substantial equivalent" of the claims asserted in the federal habeas petition. , . Reliance on the same constitutional provision is not sufficient; the legal theory and factual predicate must also be the same. . at 277. Where any available procedure remains for the applicant to raise the question presented in the courts of the state, the applicant has not exhausted the available remedies. (c). 8. On April 24, 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act (hereinafter "AEDPA"), which provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." (d)(1). (a) 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. , , (3d Cir. 2000); , , n. 1 (3d Cir. 1999); U.S. Sup. Ct. R. . "If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired." , , (3d Cir. 1999). Therefore, for the purposes of Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976, Petitioner's conviction became final 90 days after September 19, 1978, that is, on December 18, 1978. (b) For the purposes of Petitioner's challenges with respect to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing, that decision becomes final 90 days after June 15, 2007, that is, on September 14, 2007. 9. The statute of limitations under § 2244(d) is subject to tolling exception(s), that is, statutory tolling and, perhaps, equitable tolling. , , (3d Cir. 2003); , , (3d Cir. 1998). Section 2244(d)(2) requires statutory tolling for "[t]he 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." (d)(2) (emphasis supplied). 10. For the purposes of Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976, Petitioner's statute of limitations expired on April 23, 1997. Petitioner's 1-year period of limitation was not statutorily tolled by his application for re-sentencing, since (a) Petitioner's application for re-sentencing did not challenge constitutionality of his term of imprisonment imposed on July 13, 1976, but raised an entirely different challenge, , , (2007) (explaining that only an "application for State post-conviction or other collateral review within the meaning of (d)(2)" triggers statutory tolling), and (b) in any event, Petitioner's filing of any application after Petitioner's period of limitations had already run could not trigger statutory tolling with respect to his term of imprisonment imposed on July 13, 1976. , , (3d Cir. 2004); , , (3d Cir. 2004). 11. Presuming that the AEDPA statute of limitations is subject to equitable tolling, , , (3d Cir. 1998), "a litigant seeking equitable tolling [would] bear 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." , , (2005). The Third Circuit instructs that equitable tolling could be appropriate only when "the principles of equity would make the 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 the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims." , , (3d Cir. 2005). Mere excusable neglect is not sufficient. ; , , (3d Cir. 2003); , , (3d Cir. 1999). Extraordinary circumstances have been found where (1) the defendant has actively misled the plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum, , , or (4) the court itself has misled a party regarding the steps that the party needs to take to preserve a claim. , , (3d Cir. 2005). Moreover, even where extraordinary circumstances do exist, "[i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." , , (3d Cir. 2003) (quoting , , (2d Cir. 2000)). Since Petitioner's Petition, as it stands now, is silent as to any circumstances that might prompt this Court to consider equitable tolling, Petitioner's Petition supplies this Court with no reason for equitable tolling cognizable under the (d)(2) for the purposes of Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976. 12. Therefore, as it stands now, Petitioner's Petition appears to be untimely for the purposes of Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976. 13. Moreover, as it stands now, Petitioner's Petition leaves this Court guessing whether Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976, as they are set forth in Petitioner's current grounds (a), (b) and (d), Pet., ¶ 5, were duly exhausted during Petitioner's direct appellate process in the state courts. 14. By contrast, Petitioner's challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing, as set forth in his ground (c), Pet., ¶ 5, appears to be both timely and duly exhausted in the state courts. 15. This Court, however, cannot "split" the Petition into two distinct matters to be entertained through the means of the same action. The Court, therefore, will assess Petitioner's timely and duly exhausted challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing in this matter and will direct the Clerk of the Court to institute a separate and new matter for the purposes of entertaining Petitioner's challenge with respect to his term of imprisonment imposed on July 13, 1976. 16. Petitioner's challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re- sentencing does not merit habeas relief. Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to entertain a habeas petition challenging a state conviction or sentence only where the inmate's custody violates federal law: [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. (a). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." , , (1991); (a); , , (3d Cir. 1997). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." , , (1982). "If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts." , n. 19 (1982). Moreover, "it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim." , , (3d Cir. 1997) (citation omitted); , , , (3d Cir. 1985). 17. Petitioner's challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re- sentencing does not assert a violation of federal law. Pet. ¶ 12(c). In no ambiguous terms, Petitioner asserts that he disagrees with the Resentencing Panel's application of state law N.J.S.A. 2C:1-1d(2). However, Petitioner's claims based on state law are not cognizable under § 2254. , n. 19. Moreover, it would be futile to allow Petitioner to amend his challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing by injecting constitutional language since "errors of state law cannot be repackaged as federal errors." , , (3d Cir. 1997); , 1990 U.S. Dist. LEXIS 11328 (D.N.J. Aug. 27, 1990). As the court in explained, this Court may not review a final determination of the New Jersey Supreme Court. Review of such decisions . . . can only be obtained from the United States Supreme Court pursuant to a writ of certiorari. (3). . . . A United States District Court may not entertain an appeal from judgments of the highest court of a state. , , (1983); , , (1923). [Moreover, such petition] presents no case or controversy capable of judicial decision. . . . Reduced to its essence, [such application] expresses only [petitioner's] disagreement with the New Jersey Supreme Court's interpretation of a New Jersey statute. [therefore, Petitioner] has failed to assert a controversy requiring this Court's decision. He merely asks the Court to reinterpret a state statute that has already been interpreted by the state's highest court. This the Court cannot do. Federal courts must accept interpretations of state law made by a state's highest court. [] , , (1976); , , (1971). No right exists under the [federal law] to a correct determination of state law. [] , , (3d Cir. 1984). , 1990 U.S. Dist. LEXIS 11328, at *7-10. Therefore, Petitioner's challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re- sentencing will be dismissed. THEREFORE IT IS on this 10 day of Sept, 2007, ORDERED that the instant Petition is construed as two different applications by Petitioner, one raising Petitioner's challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing and another raising Petitioner's challenges with respect to constitutionality of his term of imprisonment imposed on July 13, 1976; and it is further
ORDERED that Petitioner's challenge with respect to the Resentencing Panel's decision to deny Petitioner's request for resentencing is denied for failure to allege a violation of Petitioner's federal rights warranting habeas relief; and it is further
ORDERED that the Court denies Petitioner a certificate of appealability with respect to Petitioner's challenge to the Resentencing Panel's decision to deny Petitioner's request for re-sentencing because Petitioner has not made "a substantial showing of the denial of a constitutional right" under 28 U.S.C. § 2253(c)(2), see Miller-El v. Cockrell, 537 U.S. 322 (2003); and it is further
ORDERED that the Clerk shall close the file on this matter; and it is further
ORDERED that the Clerk of the Court shall open a new and separate § 2254 matter for the purposes of entertaining Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976, and assign this new and separate matter to the undersigned; and it is further
ORDERED that the Clerk of the Court shall file Petitioner's Petition and the instant Order in this new and separate matter; and it is further
ORDERED Petitioner is granted in forma pauperis status for the purposes of this new and separate matter on the basis of Petitioner's application to proceed in forma pauperis filed in the instant matter; and it is further ORDERED that, for the purposes of entertaining Petitioner's challenges with respect to his term of imprisonment imposed on July 13, 1976, Petitioner shall show cause, in writing filed with the Clerk of this Court in this new and separate matter, as to why his Petition should not be dismissed for failure to meet the statute of limitations requirements set forth in 28 U.S.C. § 2244(d)(1) or for failure to exhaust state remedies by stating by stating
(A) Petitioner's grounds, if any, for statutory or equitable tolling, as well as
(B) all Petitioner's grounds raised at every level of the state courts during Petitioner's direct appeal with respect to his term of imprisonment imposed on July 13, 1976 (or, in the event Petitioner has no recollection or no documentation allowing Petitioner to list every ground raised by Petitioner at every state court during Petitioner's direct appeal with respect to his term of imprisonment imposed on July 13, 1976, by stating expressly that Petitioner has no such recollection or documentation); and it is further
ORDERED that Petitioner shall show cause within 45 days of the date of entry of this Order; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Order upon Petitioner by regular mail, specifying to Petitioner the index number of the new and separate matter in which Petitioner shall show cause; and it is finally
ORDERED that, if Petitioner does not submit such written response to the Clerk of this Court within the time period set forth in this Order, the Court will dismiss the new and separate matter for Petitioner's failure to comply with the statutory limitation period, pursuant to 28 U.S.C. § 2254, without further notice to Petitioner.