FREDA L. WOLFSON, District Judge.
This matter has been opened by pro se Petitioner Rogelio Tapia ("Petitioner") on a Petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons explained in the foregoing Opinion, the Court finds that the Petition is untimely under the one-year statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") and denies a certificate of appealability.
The Court addresses only the facts that are relevant to this Opinion. Following a jury trial in state court, Petitioner was found guilty of kidnapping and related charges and was sentenced by the trial court on July 18, 2003, to an aggregate sentence of fifteen years, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act ("NERA").
On February 6, 2006, Petitioner filed his first petition for post-conviction relief ("first PCR") in the Superior Court of New Jersey, Law Division. (ECF No. 7-19, 7-17, Ex. 16, 17.) On January 26, 2007, the PCR Court denied petitioner's first PCR petition without an evidentiary hearing. (See ECF No. 7-24; 7-25, Ex. 21-22.) Petitioner appealed, and, on January 20, 2009, the Appellate Division, in an unpublished opinion, affirmed the trial court's order denying Petitioner's first petition for PCR. (ECF No. 7-29, Ex. 26.) On May 8, 2009, the Supreme Court of New Jersey denied Petitioner's petition for certification. See State v. Tapia, 199 N .J. 516 (2009).)
On June 15, 2009, Petitioner filed his second petition for PCR in the Superior Court of New Jersey, Law Division. (ECF No. 7-36, Ex. 33.) On March 11, 2010, the PCR court dismissed Petitioner's second petition for PCR without an evidentiary hearing. (ECF No. 7-38, Ex. 35, at pg. 15.) The PCR court found that Petitioner's second PCR petition was time barred pursuant to N.J. Court Rule 3:22-12 because it had been filed more than one year after the expiration of the five-year limitations period, (see id. at pg. 9-11); the PCR court also found that the Petition was procedurally barred pursuant to N.J. Court Rule 3:22-4 because all of Petitioner's claims were based upon occurrences at trial and were known to petitioner in time to be raised on direct appeal or in his first petition for PCR (see id. at pg. 11-12); finally the PCR court found that the Second Petition was substantively meritless because Petitioner's allegations failed to establish a prima facie case of ineffective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) (see id. at Ex. 35, at pg. 12-15).
Petitioner appealed, and the Appellate Division affirmed the dismissal of the Second PCR as follows:
State v. Tapia, No. A-5130-09T4, 2012 WL 3263707, at *3 (N.J. Super. Ct. App. Div. Aug. 13, 2012) (See also ECF No. 7-38, Ex. 38 at pg. 5-7.) Petitioner's petition for certification was denied by the New Jersey Supreme Court on March 13, 2013. State v. Tapia, 213 N.J. 388 (2013).
Petitioner's habeas petition is dated June 6, 2012; however, it was docketed with this Court on June 6, 2013. (ECF No. 1, Pet. at 10.) His cover letter to the Court lists the date as May 6, 20134 [sic].
Here, the threshold issue before the Court is whether the Petition is untimely. As explained below, the Court finds that the Petition is untimely under the one-year statute of limitation for the filing of federal habeas corpus petitions by state prisoners, and will dismiss the Petition on that basis.
Under AEDPA, Congress prescribed a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (2004); 28 U.S.C. § 2241(d)(1). Pursuant to 28 U.S.C. § 2241(d)(1), [t]he limitation period shall run from the latest of—
Under 28 U.S.C. 2241(d)(2),"[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 shall not be counted toward any period of limitation under this section." This exception to the one-year limitation period is known as statutory tolling and provides that the one-year limitations period is tolled during the time a properly filed application for post-conviction relief is pending.
A petitioner is only entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d) (2) for the time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2). To fall within the AEDPA tolling provision, the petition for state post-conviction review must have been both pending and "properly filed." Fahy v. Horn, 240 F.3d 239, 243 (3d Cir.), cert. denied, Horn v. Fahy, 534 U.S. 944 (2001).
In determining whether a petition is "properly filed" under the AEDPA, a federal court "must look to the state law governing when a petition for collateral relief is properly filed." Douglas, 359 F.3d 262 (citing Fahy, 240 F.3d at 243); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000). An application is "filed" when it "is delivered to, and accepted by, the appropriate court officer for placement into the official record." Artuz, 531 U.S. at 8 (citations omitted). An application is "properly" filed
Artuz, 531 U.S. at 8-9 (citations omitted);
It is well established that a petition for state post-conviction relief that was rejected by the state courts as untimely is not "properly filed" under § 2244(d)(2), and the petitioner is not entitled to statutory tolling under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction relief petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)") (internal quotation marks and citation omitted); see also Allen v. Siebert, 552 U.S. 3 (2007).
Here, the New Jersey Supreme Court denied Petitioner's petition for certification on his direct appeal on October 7, 2005. See State v. Tapia, 185 N.J. 295 (2005). His direct review concluded and the limitations period began to run on January 5, 2006, when his time for petitioning for a writ of certiorari to the Supreme Court of the United States expired. See Swartz, 204 F.3d at 424. The limitations period ran until February 6, 2006, when it was tolled by the filing of Petitioner's first PCR. The first PCR remained pending until the New Jersey Supreme Court denied Petitioner's petition for certification on May 8, 2009. See State v. Tapia, 199 N.J. 516 (2009).
Petitioner filed a second PCR on June 22, 2009, but that second PCR was rejected by the PCR court, which found the second PCR to be time barred pursuant to N.J. Court Rule 3:22-12 because it had been filed more than one year after the expiration of the five-year limitations period. (See ECF No. 7-35, Ex. 35 at pp.9-11.) The PCR court also found that the second PCR was procedurally barred pursuant to N.J. Court Rule 3:22-4 (see id. at pg. 11-12), and that the second PCR was substantively meritless (see id. at Ex. 35, at pg. 12-15). The Appellate Division subsequently affirmed the dismissal of the second PCR for the reasons expressed by the PCR court, stating that "Defendant's PCR petition, filed six years after the judgment of conviction without any claim of excusable neglect, is clearly time-barred" and "barred by Rule 3:22-4 as they could have been raised either on direct appeal or in defendant's previous PCR petition." State v. Tapia, No., 2012 WL 3263707, at *3 (citing N.J. Ct. R. 3:22-12). Petitioner's petition for certification was denied by the New Jersey Supreme Court on March 13, 2013. State v. Tapia, 213 N.J. 388 (2013).
A petition for state post-conviction relief that was rejected by the state courts as untimely is not "properly filed" under § 2244(d)(2) and the petitioner is not entitled to statutory tolling under § 2244(d)(2). See Pace, 544 U.S. at 414. That the PCR court and Appellate Division also found in the alternative that Petitioner's claims in the second PCR were substantively meritless does not alter the Court's analysis. See Carey, 536 U.S. at 225-26. Because the state court rejected Petitioner's second PCR as untimely, his limitations period ran for more than three years, from the day after the New Jersey Supreme Court denied his petition for certification on his first PCR on May 9, 2009, until Petitioner filed the instant habeas petition on June 6, 2013. The Court therefore dismisses the Petition as untimely under AEDPA's one-year statute of limitations.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability ("COA"), 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 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." Didiano v. Balicki, Civil Action No. 09-2315 (FLW), 2010 WL 1752191, at *6-7 (Apr. 29, 2010) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, reasonable jurists would not find the Court's procedural ruling debatable. Accordingly, no certificate of appealability shall issue.
The Court dismisses the instant habeas Petition as untimely under AEDPA's one-year statute of limitations and denies a certificate of appealability. An appropriate Order follows.
