NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

JUAN R. SOTO, :

:

Petitioner, : Civil No. 11-3631 (FLW)

:

v. : OPINION

:

GREG BARTKOWSKI, et al., :

:

Respondents. :

APPEARANCES:

JUAN R. SOTO, Petitioner Pro Se

#301232

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625

WOLFSON, District Judge

This matter is before the Court on Petitioner Juan R. Soto’s

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

2254, in which he is challenging his 1998 New Jersey state court

conviction and sentence. For reasons discussed below, it appears

from review of the petition papers provided by petitioner that

his § 2254 habeas petition may be subject to dismissal as timebarred under 28 U.S.C. §2244(d).1

Although the statute of limitations is an affirmative defense,

1

Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 124

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I. PROCEDURAL BACKGROUND

Petitioner, Juan R. Soto (“Petitioner”), filed a petition

for habeas corpus relief on or about June 15, 2011. According 2

to the allegations contained in his petition, Petitioner was

convicted by jury trial on or about May 4, 1998, in the Superior

Court of New Jersey, Law Division, Mercer County on multiple

counts including felony murder, aggravated manslaughter, robbery,

kidnapping, burglary, conspiracy to commit robbery, and weapons

charges. Petitioner was sentenced to life imprisonment with

thirty years without parole.

Petitioner filed a direct appeal from his conviction and

sentence to the Superior Court of New Jersey, Appellate Division. 

S.Ct. 48 (2003), it is appropriate for a district court to raise the issue sua

sponte prior to ordering an answer. The Supreme Court held that district

courts are permitted to consider sua sponte the timeliness of a state inmate’s

habeas petition; however, the district court must accord the parties fair

notice and 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).

Pursuant to the “prison mailbox rule,” a habeas petition is deemed

2

filed on the date the prisoner delivers it to prison officials for mailing,

not on the date the petition is ultimately filed with the court. See Houston

v. Lack, 487 U.S. 266, 270-71 (1988); see also Burns v. Morton, 134 F.3d 109,

112-13 (3d Cir. 1988) (applying prison mailbox rule set forth in Houston,

which dealt with filing of an appeal, to a pro se prisoner’s filing of a

habeas petition). Often times, when the Court is unable to determine the

exact date that a petitioner handed his petition to prison officials for

mailing, it will look to the signed and dated certification of the petition.

See Henderson v. Frank, 155 F.3d 159, 163-64 (3d Cir. 1988) (using date

prisoner signed petition as date he handed it to prison officials for purposes

of calculating timeliness of habeas petition). Here, Petitioner signed his

petition on June 15, 2011. Therefore, the Court will use the date June 15,

2011, for statute of limitation purposes, as the date this habeas action was

filed, rather than the date the petition was received by the Court, which was

June 21, 2011.

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On June 13, 2001, the Appellate Division vacated the kidnapping

conviction and sentence and affirmed all other convictions and

sentences. The Supreme Court of New Jersey denied certification

on October 23, 2001. Petitioner did not file a petition for writ

of certiorari with the Supreme Court of the United States. 

On December 10, 2002, Petitioner filed a petition for postconviction relief (“PCR”), pro se, in the Superior Court of New

Jersey, Law Division, Mercer County. On September 14, 2006, the

Superior Court denied PCR. Petitioner then appealed the denial

of his state PCR petition to the Appellate Division. The

Appellate Division affirmed denial of PCR on January 15, 2008. 

It appears that Petitioner may have omitted certain facts from

the recitation of dates but he does make reference to another

Appellate Division decision decided on November 10, 2010. 

As stated above, Petitioner did not submit this federal

habeas petition to prison officials for mailing until on or about

June 15, 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

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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. 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.

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

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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 “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 3

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.

Nevertheless, “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. §

An application is “properly filed” when its delivery and acceptance

3

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. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (footnotes and

citations omitted).

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2244(d)(2).” Stokes v. Dist. Attorney of the County of

Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).

Here, the judgment of conviction became final 90 days after

October 23, 2001, on or about January 21, 2002. 

Accordingly, Petitioner had one year from the date on which

his judgment of conviction became final under § 2244(d)(1)(A),

January 21, 2002, or until January 21, 2003, to timely file his

federal habeas petition. 

To permit tolling of the one-year limitations period under 

§ 2244(d)(2), Petitioner must have filed his state PCR petition

before the one-year period had expired. Here, Petitioner filed

his PCR petition on December 10, 2002, within the one-year

permissible time period but allowing over ten months of that time

to elapse. Given the apparent lack of certain filing dates, the

Court will allow Petitioner the benefit of the doubt and assume

for purposes of this review that the PCR process ended with the

November 10, 2010 Appellate Court decision. 

From that date, Petitioner would have had under two months

left in the one-year time period in which to file a federal

habeas corpus petition. Yet Petitioner allowed over seven more

months to elapse until filing this Petition on June 15, 2011,

thus exceeding the one-year limitations period by over five

months. Petitioner provides no reason for his delay in filing

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this petition out of time. As such, it would appear from the

face of the petition that this habeas action is now time-barred

under 28 U.S.C. § 2244(d).

Before the Court can dismiss this action as time-barred, it

is appropriate that the parties be given the opportunity to

address the issue of timeliness. See Day v. McDonough, 547 U.S.

198 (2006)(district courts are permitted to consider sua sponte

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

accord the parties fair notice and an opportunity to present

their positions).

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

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. New

Jersey State Dept. of Corrections, 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). The Third Circuit instructs that equitable

tolling is appropriate when “principles of equity would make the

rigid application of a limitation period unfair, such as when a

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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

have been found where: (1) the petitioner has been actively

misled; (2) the petitioner has been prevented from asserting his

rights in some extraordinary way; (3) the petitioner timely

asserted his rights in the wrong forum, see Jones, 195 F.3d at

159, or (4) the court has misled a party regarding the steps that

the party needs to take to preserve a claim, see Brinson v.

Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Even where 4

extraordinary 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

 The Third Circuit has expressly held that, in non-capital 4

cases, attorney error, miscalculation, 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), cert. denied 538 U.S. 1022 (2003); Fahy,

240 F.3d at 244.

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extraordinary circumstances therefore did not prevent timely

filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.)(quoting

Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)), cert.

denied, 539 U.S. 948 (2003).

Therefore, before this Court can dismiss this petition, an

Order will be issued directing Petitioner to show cause why his

petition should not be dismissed as time-barred.

IV. CONCLUSION

For the foregoing reasons, 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),

the Court will order Petitioner to show cause in writing why his

petition should not be dismissed as untimely. An appropriate

order follows.

s/Freda L. Wolfson

DATED: February 1, 2012 Freda L. Wolfson

 United States District Judge

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