1

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

______________________________ 

 : 

DARRYL L. JENNINGS, : 

 : Civil Action No. 11-4143 (PGS) 

 Petitioner, : 

 : 

 v. : OPINION 

 : 

PAULA DOW, et. al., : 

 : 

 Respondents. : 

 : 

APPEARANCES: 

 

 DARRYL L. JENNINGS, Petitioner Pro Se 

 # 313716 

 New Jersey State Prison 

 P.O. Box 861 

 Trenton, New Jersey 08625 

SHERIDAN, District Judge 

 This matter is before the Court on petitioner Darryl L. 

Jennings’ petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254, in which he is challenging his 2000 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 is subject to 

dismissal as time-barred under 28 U.S.C. § 2244(d).1

 

 

1

 Although the statute of limitations is an affirmative defense, 

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

denied, 540 U.S. 826 (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 

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I. PROCEDURAL BACKGROUND 

 Petitioner, Darryl L. Jennings, filed a petition for habeas 

corpus relief on or about June 20, 2011.2 According to the 

allegations contained in his petition, Petitioner was convicted 

pursuant to a plea of guilty on or about April 7, 2000, in the 

Superior Court of New Jersey, Law Division, Monmouth County on 

charges of armed robbery, robbery and burglary. Petitioner was 

sentenced to a prison term of 60 years with a 30 year parole 

disqualifier. (Petition at ¶¶ 1-6). 

 Petitioner filed a direct appeal from his conviction and 

sentence to the Superior Court of New Jersey, Appellate 

 

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, 209-10 (2006). 2

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

deemed 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 20, 

2011. Therefore, the Court will use the date June 20, 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 on July 19, 2011.

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Division. On or about September 18, 2001, the Appellate 

Division affirmed the conviction and sentence. The Supreme 

Court of New Jersey denied certification on January 10, 2002. 

State v. Jennings, 171 N.J. 41 (2002). Petitioner alleges that 

he filed a petition for a writ of certiorari with the Supreme 

Court of the United States, on or about February 18, 2010. The 

petition was denied on or about April 29, 2010. (Pet., ¶¶ 8, 9 

and 14). 

 Petitioner filed his first petition for post-conviction 

relief (“PCR”), pro se, in the Superior Court of New Jersey, Law 

Division, Monmouth County, and again, he fails to provide the 

date on which he filed his state PCR petition. The PCR petition 

was denied on December 14, 2007. (Pet., ¶¶ 11). Petitioner 

appealed from the decision denying his PCR petition, which the 

Appellate Division affirmed in an unpublished opinion on July 

21, 2009. State v. Jennings, 2009 WL 2147912 (N.J. Super. A.D. 

July 21, 2009). The Supreme Court of New Jersey denied 

certification on or about November 10, 2009. (Pet., ¶ 12(e)). 

State v. Jennings, 200 N.J. 504 (2009). 

 As stated above, Petitioner filed this federal habeas 

petition on June 20, 2011. 

 

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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. 

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),3

 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; ... 

(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

 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).

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 Section 2244(d) became effective on April 24, 1996 when the 

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 

was signed into law. See Burns v. Morton, 134 F.3d 109, 111 (3d 

Cir. 1998); Duarte v. Herschberger, 947 F. Supp. 146, 147 

(D.N.J. 1996). 

 Thus, 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, however, 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 

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statutorily tolled, from the time it is “properly filed,”4  

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 

v. Meyers, 204 F.3d at 420-24. More specifically, “[t]he time 

that an application for state post conviction review is 

‘pending’ includes the period between (1) a lower court’s 

adverse determination, and (2) the prisoner’s filing of a notice 

of appeal, provided that the filing of the notice of appeal is 

timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 

(2006) (finding that time between denial of post-conviction 

relief and filing of appeal was not tolled where appeal was 

untimely, even where state considered untimely appeal on its 

merits). Nevertheless, § 2244(d)(2) does not toll the one year 

statute of limitations during the pendency of a state prisoner’s 

petition for writ of certiorari in the United States Supreme 

 

4

 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. 

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

citations omitted).

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Court. See Lawrence v. Florida, 549 U.S. 327, 332-33 (2007); 

Stokes v. District Attorney of the County of Philadelphia, 247 

F.3d 539, 542 (3d Cir.), cert. denied, 534 U.S. 959 (2001). 

 Here, Petitioner’s judgment of conviction became final 

after the enactment of AEDPA. The judgment of conviction was 

entered on or about April 7, 2000, and Petitioner apparently 

filed a direct appeal shortly thereafter. On or about September 

18, 2001, the Appellate Division affirmed the conviction and 

sentence. The New Jersey Supreme Court denied certification on 

January 10, 2002. Petitioner did not file a petition for a writ 

of certiorari with the Supreme Court of the United States until 

more than eight years later, on or about February 18, 2010, 

which was summarily denied on April 29, 2010. Therefore, 

Petitioner’s judgment of conviction became final 90 days after 

the date the New Jersey Supreme Court denied certification on 

January 10, 2002, or on or about April 8, 2002. See Swartz, 204 

F.3d at 419; Morris, 187 F.3d at 337 n.1; U.S. Sup. Ct. R. 13. 

 Accordingly, Petitioner had one year from the date on which 

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

April 8, 2002, or until April 8, 2003, to timely file his 

federal habeas petition under § 2254. 

 To permit tolling of the one-year limitations period under 

28 U.S.C. § 2244(d)(2), Petitioner would have had to file his 

state PCR petition before the one-year period had expired, or 

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before April 8, 2003. Otherwise, the state PCR petition would 

not serve to toll the statute of limitations. See Long v. 

Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004). In this case, 

Petitioner did not file his state PCR petition until May 2007, 

more than four years after the one-year statutory period had 

expired on April 8, 2003. See State v. Jennings, 2009 WL 

2147912 at *1. Consequently, statutory tolling does not apply 

in this case. 

 Moreover, Petitioner did not file his habeas petition until 

June 20, 2011, more than eight (8) years after his limitations 

period had expired. Therefore, 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, 

however, 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 

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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). “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 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. 

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Vaughn, 398 F.3d 225, 230 (3d Cir.), cert. denied, 546 U.S. 957 

(2005).5 

Even where 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 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 as 

time-barred, an Order will be issued directing Petitioner to 

show cause why his petition should not be dismissed as timebarred. 

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 

 

5

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

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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writing why his petition should not be dismissed as untimely. 

An appropriate order follows. 

 s/Peter G. Sheridan 

 PETER G. SHERIDAN, U.S.D.J. 

March 1, 2013 

 

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