NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

ADOLPHUS DOWNS, :

: Civil Action No. 10-3158 (WJM)

Petitioner, :

:

v. : O P I N I O N

:

DONALD MEE, et al., :

:

Respondents. :

________________________________:

APPEARANCES:

Adolphus Downs, Pro Se

297856-189521C

East Jersey State Prison

Lock Bag R

Rahway, NJ 07065

Steven E. Braun, Esq.

Passaic County Prosecutor’s Office

401 Grand Street

Paterson, NJ 07505-2095

Attorney for Respondents

MARTINI, District Judge

Petitioner, Adolphus Downs, a prisoner confined at the East

Jersey State Prison in Rahway, New Jersey, submitted a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

respondents are Administrator Donald Mee and the Attorney General

of New Jersey. Respondents have filed a motion to dismiss based

on the limitations period. For the reasons stated herein, the

motion to dismiss must be granted, and the petition must be 

dismissed.
BACKGROUND

Petitioner was convicted on January 23, 1998 in New Jersey

state court for robbery and weapons charges. Except for one

count which was reversed and remanded, Petitioner’s convictions

and sentences were affirmed by the Superior Court of New Jersey,

Appellate Division (“Appellate Division”) on January 19, 2000. 

Petitioner’s petition for certification to the New Jersey Supreme

Court was denied on April 28, 2000. Petitioner had until

approximately July 28, 2000 to file a petition for certiorari

with the United States Supreme Court.

On September 28, 2000, Petitioner filed his first postconviction relief (“PCR”) motion in the trial court. It was

denied in April of 2001, with the denial being reversed by the

Appellate Division on March 27, 2003. The Appellate Division

ordered that the matter be remanded for an evidentiary hearing on

Petitioner’s claim of ineffective assistance of counsel. On

October 30, 2003, after remand and evidentiary hearing, the

petition was denied by the trial court. Petitioner appealed the

October 30, 2003 denial, which was affirmed by the Appellate

Division on April 29, 2005. Petitioner’s petition for

certification was denied on September 12, 2005.

On March 24, 2006, Petitioner filed a petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254, in this Court. 

During the pendency of that habeas action, he filed a third PCR

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motion on May 31, 2006, which was denied on August 2, 2006. 1

Petitioner did not appeal the third PCR denial. On November 8,

2006, this Court issued an Opinion and Order dismissing

Petitioner’s first-filed habeas petition for failure to exhaust

state court remedies. This Court informed Petitioner in the

dismissal Opinion that once he filed his PCR motion to exhaust

his claims, he would have ten months left on his limitations

period to file a second, all-inclusive, exhausted habeas

petition.

Approximately one month later, Petitioner filed a fourth PCR

motion, presumably to exhaust his state court remedies, on

December 11, 2006, which was denied as untimely under New Jersey

law by the Appellate Division on September 22, 2008. 

Petitioner’s petition for certification to the New Jersey Supreme

Court was denied on February 11, 2009. Thereafter, however,

Petitioner waited until June 21, 2010 to file this second habeas

petition in this Court.

In his second petition, Petitioner asserts evidential

insufficiency, prosecutorial misconduct, trial court error, and

ineffective assistance of counsel as his grounds for habeas

relief (Petition, ¶ 12).

 Although this is referred to as the third PCR motion, 1

this Court cannot locate the record concerning Petitioner’s

second PCR motion. However, it is not vital to the outcome of

this litigation, as the Court, for purposes of this motion to

dismiss, has given Petitioner the benefit of the doubt to

consider any time between the first and final PCR motions tolled.

3
In lieu of an Answer, Respondents have filed a motion to

dismiss, asserting that this second petition is time-barred. 

DISCUSSION

A. Pleading Standards

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. See 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).

B. The Petition is Time-Barred

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 that the petition is time-barred.

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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

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became “final,” and, second, the period of time during which an

application for state post-conviction relief was “properly filed”

and “pending” for tolling purposes.

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. 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). See Jimenez v.

Quartermain, 555 U.S. 113 (2009).

To statutorily toll the limitations period, a state petition

for post-conviction relief must be “properly filed.” As such:

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.

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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); see also Pace v. DiGuglielmo, 544 U.S. 408 (2005)

(state PCR petition rejected as untimely under state statute of

limitations was not “properly filed” for purposes of § 2244

(d)(2)).

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, 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 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).

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The limitations period of § 2244(d) also is subject to

equitable tolling. See 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. See Jones, 195

F.3d at 159; 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

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

8
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 January

23, 1998, and Petitioner’s direct appeal concluded on July 28,

2000, the last date in which Petitioner could have petitioned the

United States Supreme Court for certiorari. Thus, the conviction

became “final” on that date, and Petitioner had one year to file

his federal habeas petition, or until July 27, 2001.

 Even tolling Petitioner’s PCR filings from September 28,

2000 through the denial of his final PCR motion by the New Jersey

Supreme Court on February 22, 2009, Petitioner did not file this

habeas petition until June 21, 2010, more than a year later.2

This Court notes again that when Petitioner’s first-filed habeas

petition was denied by this Court on November 8, 2006, Petitioner

was told that he would have ten months after his final PCR motion

was concluded. Still, Petitioner did not file this habeas motion

until June, 2010, well after ten months had passed.

 This Court notes that although Petitioner dated the 2

petition “7/8/10,” the Clerk of the Court received it and created

a docket for the case on June 21, 2010. The Court presumes that

Petitioner meant to write “6/8/10" as the date he signed the

petition, not “7/8/10.”

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This Court also notes that Petitioner’s final PCR motion,

filed on December 11, 2006, was not “properly filed” as it was

denied as untimely. See Pace v. DeGuglielmo, 544 U.S. 408

(2005). However, even tolling the time limit, Petitioner’s

petition for certification to the New Jersey Supreme Court on the

denial of his final PCR motion was denied on February 11, 2009. 

Again, this petition having been filed more than a year after

that, in June of 2010, demonstrates that the petition is clearly

untimely.

Finally, Petitioner asserts no facts that would indicate

that his petition should be equitably tolled. Accordingly, this

petition is time-barred, the motion to dismiss must be granted,

and the petition must be dismissed.

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

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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

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.

CONCLUSION

For the reasons set forth above, Respondents’ motion to

dismiss is granted, and the petition is dismissed. An

appropriate order follows.

s/William J. Martini

 

 WILLIAM J. MARTINI

United States District Judge

Dated: 6/8/11

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