NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

DONNY REEVEY, :

:

Petitioner, : CIVIL ACTION NO. 11-4063 (MLC)

:

v. : O P I N I O N

:

PAULA K. LAGANA, et al., :

:

Respondents. :

 :

COOPER, District Judge

Petitioner, Donny Reevey, petitions for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. He is challenging his 2005

New Jersey state court conviction and sentence. It appears that

his petition is subject to dismissal as time-barred under 28

U.S.C. § 2244(d).1

I. PROCEDURAL BACKGROUND

Petitioner filed this petition on or about July 1, 2011. 

According to the allegations in the petition, Petitioner was

convicted on June 28, 2005, in New Jersey Superior Court, Law

Division, Monmouth County on multiple counts including employing

 The statute of limitations is an affirmative defense, 1

Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), but a

district court may raise the issue sua sponte before ordering an

answer. A district court is permitted to consider sua sponte the

timeliness of a state inmate’s habeas petition, but must accord

the petitioner an opportunity to present their positions on the

issue of time bar if the record shows that the petition is

untimely. Day v. McDonough, 547 U.S. 198, 209 (2006).

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a juvenile in the commission of a crime, robbery, burglary,

resisting arrest, and assault. Petitioner was sentenced on

September 23, 2005 to twenty years of imprisonment.2

Petitioner directly appealed from his conviction and

sentence to the New Jersey Appellate Division. On July 2, 2007,

the Appellate Division affirmed the conviction. The New Jersey

Supreme Court denied certification on September 11, 2007. 

Petitioner did not file a petition for writ of certiorari with

the United States Supreme Court.

Petitioner states that he filed his petition for postconviction relief (“PCR”) in New Jersey Superior Court, Law

Division, Monmouth County on April 7, 2007 (which would have been

before such time as his judgment of conviction became final). On

January 16, 2009, the Superior Court denied PCR.

 Under the “prison mailbox rule,” a habeas petition is 2

deemed filed on the date the prisoner delivers it to prison

officials for mailing, not on the date the petition is ultimately

filed with a court. See Houston v. Lack, 487 U.S. 266, 270-71

(1988); see Burns v. Morton, 134 F.3d 109, 112-13 (3d Cir. 1988)

(applying prison mailbox rule). A court, when unable to

determine the exact date that a petitioner handed a petition to

prison officials for mailing, will look to the signed and dated

certification of the petition. See Henderson v. Frank, 155 F.3d

159, 163-64 (3d Cir. 1998) (using date prisoner signed petition

as date he handed it to prison officials for purposes of

calculating timeliness). Here, Petitioner signed his petition on

July 1, 2011. Therefore, the Court will use that date for

statute of limitation purposes.

2

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The January 16, 2009 date is the last date listed by

Petitioner in his Petition regarding exhaustion of state court

remedies. Petitioner did not submit this federal habeas petition

to prison officials for mailing until on or about July 1, 2011.

II. STANDARD OF REVIEW

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. Att’y Gen.,

878 F.2d 714, 721-22 (3d Cir. 1989).

III. STATUTE OF LIMITATIONS ANALYSIS

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 ...

(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; ...

(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.

3

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Pursuant to § 2244(d), evaluation of the timeliness of a §

2254 petition requires a determination of, first, when the

pertinent judgment 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

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.

The limitations period is tolled during the time a properly

filed application for state post-conviction relief is pending. 28

U.S.C. § 2244(d)(2). An application for state post-conviction

relief is considered to be 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. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000);

Swartz, 204 F.3d at 420-24. Nevertheless, “the time during which

4

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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. Dist.

Att’y, 247 F.3d 539, 542 (3d Cir. 2001).

The last date listed here by Petitioner in his recitation of

dates related to exhaustion of state court remedies is January

16, 2009. Since Petitioner claims to have filed his PCR

proceedings before the judgment of conviction became final, the

Court will, at this time, allow Petitioner the benefit of the

doubt that no time to be counted toward the one-year time limit

to file a federal habeas corpus petition had elapsed before he

filed for PCR. Even so, Petitioner did not file this habeas

petition until July 1, 2011, approximately a year and a half

after the January 16, 2009 date. Petitioner provides no reason

for his delay in filing this petition out of time. Therefore, it

would appear from the face of the petition that this habeas

proceeding is now time-barred under 28 U.S.C. § 2244(d). 

However, the Court will provide Petitioner with an opportunity to

address the issue of timeliness.

Petitioner may be able to overcome this statutory time bar

if he can show that the limitations period did not expire as

determined by this Court, or if he can show a basis for equitable

5

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tolling. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001);

Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999); Miller v. N.J.

State Dep’t of Corrs., 145 F.3d 616, 618 (3d Cir. 1998). 

“Generally, a litigant seeking equitable tolling 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.” Pace v. DiGuglielmo, 544 U.S. 408, 416-17

(2005). Equitable tolling is appropriate when “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 and the prisoner has exercised reasonable diligence in

attempting to investigate and bring his claims.” LaCava v.

Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). Mere excusable

neglect is not sufficient. Id.; Miller, 145 F.3d at 618-19;

Jones, 195 F.3d at 159.

Extraordinary circumstances permitting equitable tolling may

be found where a petitioner has: (1) been actively misled; (2)

been prevented from asserting rights in some extraordinary way;

(3) timely asserted his rights in the wrong forum, see Jones, 195

F.3d at 159, or (4) been misled by the court regarding the steps

needed to take to preserve a claim. See Brinson v. Vaughn, 398

6

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F.3d 225, 230 (3d Cir. 2005). Even where extraordinary 3

circumstances exist, however, “[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.” Brown v. Shannon, 322 F.3d 768,

773 (3d Cir. 2003).

Therefore, this Court will order Petitioner to show cause

why his petition should not be dismissed as time-barred.

IV. CONCLUSION

Because this Court finds that the petition for a writ of

habeas corpus under 28 U.S.C. § 2254 may be subject to dismissal

as time-barred under 28 U.S.C. § 2244(d), this Court will order

Petitioner to show cause why his petition should not be dismissed

as untimely. An appropriate order follows.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: March 16, 2012

 In non-capital cases, attorney error, miscalculation, 3

inadequate research, or other mistakes are not the extraordinary

circumstances necessary to establish equitable tolling. Johnson

v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002); Fahy, 240 F.3d at

244.

7

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