BRIAN R. MARTINOTTI, District Judge.
Petitioner was initially sentenced to an aggregate prison term of forty-five years with a twenty-seven-year period of parole ineligibility. (Original J. of Conviction (ECF No. 25-3).) On January 5, 2004, Petitioner filed a Notice of Appeal with the New Jersey Superior Court, Appellate Division. (Notice of Appeal (ECF No. 25-4).) On January 27, 2006, the Appellate Division affirmed Petitioner's conviction and sentence, but remanded for re-sentencing on Count Three (first-degree aggravated sexual assault), which was found to have been incorrectly elevated to a first-degree offense. See State v. Drury, 889 A.2d 1087 (N.J. Super. Ct. App. Div. 2006). Petitioner subsequently filed a petition for certification with the New Jersey Supreme Court; the petition was granted after which the matter was remanded for re-sentencing and correction of the judgment of conviction. State v. Drury, 919 A.2d 813 (N.J. 2007). Petitioner was resentenced on December 12, 2008. See State v. Drury, No. A-5973-09T4, 2012 WL 1205862, at *1 (N.J. Super. Ct. App. Div. Apr. 12, 2012) (providing date of resentencing). Respondent, however, has not referenced nor provided a dated copy of the Amended JOC in its Limited Answer.
While his direct appeal was still pending, Petitioner filed an application for PCR on July 23, 2007, in New Jersey Superior Court, Law Division. (Pro Se PCR (ECF No. 25-7).) On November 13, 2009, the Honorable Mitchel E. Osterer, J.S.C. denied Petitioner's application for PCR (Order Denying Relief (ECF No. 25-8)), and, according to Petitioner's response to this Court's April 23, 2014 Order to Show Cause, Petitioner appealed the denial on August 6, 2010 (Pet. Resp. to OTSC (ECF No. 15) at 1). Respondent has submitted an undated copy of the Notice of Appeal, which states only that the Assistant Public Defender ordered copies of the relevant transcripts on August 6, 2010. (See Notice of Appeal of denial of PCR (ECF No. 25-9).) On April 12, 2012, the Appellate Division addressed Petitioner's PCR claims on the merits and affirmed the denial of Petitioner's PCR petition. See Drury, No. 2012 WL 1205862. On October 25, 2012, the New Jersey Supreme Court denied certification. State v. Drury, 54 A.3d 810 (N.J. 2012).
The Initial Petition in this matter is dated May 1, 2013, and was docketed on May 7, 2013.
On April 23, 2014, the Court issued an Order to Show Cause, directing Petitioner to show cause as to why his Petition should not be dismissed as untimely and administratively terminating the action pending Petitioner's submission. (ECF No. 14.) On May 5, 2014, Petitioner's response to the Order to Show Cause was filed. (ECF No. 15.) On May 12, 2014, the Court directed Respondent to file an answer to the Amended Petition, limited to the issue of timeliness. (ECF No. 16.) Respondent sought two extensions of time within which to file the Limited Answer, which were granted by the Court. (ECF Nos. 19, 21, 23, 24.) On October 8, 2014, Respondent filed its Limited Answer, addressing only the issue of timeliness. (ECF No. 25.)
The only issue currently before the Court is whether the Initial Petition was untimely under the Antiterrorism Effective Death Penalty Act ("AEDPA"). Under AEDPA, Congress prescribed a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners. 28 U.S.C. § 2244(d)(1); see Douglas v. Horn, 359 F.3d 257, 261 (2004). Pursuant to 28 U.S.C. § 2244(d)(1),
Here, Petitioner was resentenced and Respondent has not provided the Amended JOC. As such, the Court does not have sufficient information to determine the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
The Court is also unable to determine whether Petitioner is entitled to tolling for the time during which his PCR petition and appeal of the denial of his PCR petition were pending. Under 28 U.S.C. 2244(d)(2), "[t]he time during which a properly filed application for State postconviction 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 subsection." 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. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003). An application for PCR is considered "pending" within the meaning of 28 U.S.C. § 2244(d)(2) during the period between a lower state court's ruling and the period a petitioner has to seek review of the decision, regardless of whether the appeal was actually sought. Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000). 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 state of limitations under 28 U.S.C. § 2244(d)(2)." Stokes v. D.A. of the Cty. of Phila., 247 F.3d 539, 542 (3d Cir. 2001).
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 post-conviction 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 application for State PCR must have been both pending and "properly filed."
Notably, the "properly filed" requirement also applies to a petitioner's applications appealing or otherwise seeking review of the trial court's post-conviction determinations. In Swartz, the Third Circuit explained, "it is not clear from [the text of 28 U.S.C. § 2244] whether the term `properly filed application' refers only to the initial PCRA [("Pennsylvania Post conviction Relief Act")] application, or whether it also applies to all related applications for appeal" but "assum[ed] arguendo that an untimely request for allowance of appeal is considered not `properly filed.'" Swartz, 204 F.3d at 421 n.3. The Third Circuit has subsequently held that applications for appeal must be "properly filed" in order to entitle the petitioner to statutory tolling under 28 U.S.C. § 2244(d)(2). See Douglas, 359 F.3d at 262 (holding that the petitioner's notice of appeal nunc pro tunc filed in the Pennsylvania Supreme Court after the deadline for filing a notice of appeal was not "properly filed"); Jenkins, 705 F.3d at 86-88, nn.6, 8 (explaining that a petitioner who filed an untimely appeal of his PCRA is not entitled to statutory tolling from the date when, under state law, the prisoner's time to appeal denial of his PCRA (or to seek certification of its affirmance) expired until when an application to file such an appeal nunc pro tunc (or to seek certification nunc pro tunc) is granted); see also Alvarenga v. Lagana, No. 13-4604, 2016 WL 3610156, at *1 (D.N.J. July 1, 2016) ("When an out-of-time appeal is filed, even if the appeal is accepted as properly filed by the state appeals court, statutory tolling does not include the period between the expiration of time to appeal and when the appeal was actually filed."), certificate of appealability denied sub nom, Alvarenga v. Admin N. State Prison, No. 16-3538 (3d Cir. Dec. 14, 2016).
Here, the record shows a large interval of time between the denial of Petitioner's PCR on November 12, 2009, and his Notice of Appeal of that denial. (ECF No. 25-8.) Respondent, however, has submitted only an undated copy of the Notice of Appeal. (See ECF No. 25-9.) As such, the Court is unable to determine whether Petitioner is entitled to tolling for the entire period of time during which his PCR and related appeal were pending.
For the reasons explained above, the Court is unable to determine whether the Initial Petition is untimely based on the record provided by Respondent. Therefore, Respondent is ordered to provide a full and complete answer to the Amended Petition. If Respondent raises timeliness as a defense in its full and complete answer, it shall provide (1) the Amended JOC, and any subsequent appeal thereof, and (1) a date-stamped copy of Petitioner's Notice of Appeal of the denial of his PCR (or its equivalent), and (3) any other documents and legal analysis relevant to the timeliness issue. Petitioner may file a reply within forty-five days of his receipt of the State's answer.
If Respondent raises a timeliness defense, Petitioner shall provide all evidence in support of equitable tolling he wishes the Court to consider. The courts have recognized the statute of limitations may be equitably tolled where extraordinary circumstances so warrant. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013). Equitable tolling should be granted sparingly and only when the principles of equity would make the rigid application of a limitation period unfair. See id., at 174 (citing Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). A petitioner must establish he has diligently pursued his rights and that extraordinary circumstances stood in his way and prevented timely filing in order to be eligible for equitable tolling. Id. (citing Holland v. Florida, 560 U.S. 631, 651 (2010)). Mere excusable neglect is not sufficient. Id. As summarized by the Third Circuit, "[g]enerally, a litigant seeking equitable tolling [of the AEDPA's one-year statute of limitations] 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." Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013) (citing Pace, 544 U.S. at 418). Notably, "[t]his obligation does not pertain solely to the filing of the federal habeas petition, rather it is an obligation that exists during the period appellant is exhausting state court remedies as well." Id. at 799 (citing LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005)). A determination of whether a petitioner has exercised reasonable diligence is made under a subjective test: it must be considered in light of the particular circumstances of the case. See Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) ("Due diligence does not require the maximum feasible diligence, but it does require diligence in the circumstances.") (citation omitted).
Rule 5 of the Habeas Rules; and it is further
