Filed: Mar. 12, 2020
Latest Update: Mar. 12, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 17-1579 LUIS DE JESUS, Appellant v. ADMINISTRATOR NEW JERSEY STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY On Appeal from the United States District Court for the District of New Jersey (No. 2-14-cv-06494) District Judge: Hon. Claire C. Cecchi Submitted pursuant to Third Circuit L.A.R. 34.1(a) January 24, 2020 Before: AMBRO, MATEY, and ROTH, Circuit Judges (Filed: March 12, 2020) OPINION* * This disposition
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 17-1579 LUIS DE JESUS, Appellant v. ADMINISTRATOR NEW JERSEY STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY On Appeal from the United States District Court for the District of New Jersey (No. 2-14-cv-06494) District Judge: Hon. Claire C. Cecchi Submitted pursuant to Third Circuit L.A.R. 34.1(a) January 24, 2020 Before: AMBRO, MATEY, and ROTH, Circuit Judges (Filed: March 12, 2020) OPINION* * This disposition ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-1579
LUIS DE JESUS,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
On Appeal from the United States District Court
for the District of New Jersey
(No. 2-14-cv-06494)
District Judge: Hon. Claire C. Cecchi
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
January 24, 2020
Before: AMBRO, MATEY, and ROTH, Circuit Judges
(Filed: March 12, 2020)
OPINION*
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
MATEY, Circuit Judge.
Luis De Jesus seeks a writ of habeas corpus to challenge his convictions for felony
murder and aggravated assault. The District Court dismissed his petition as untimely, a
decision we will affirm.
I. BACKGROUND
In July 1998, a fight left one person dead and several more injured. As a result, De
Jesus was charged with, and found guilty of, felony murder and aggravated assault.
Following sentencing, the Appellate Division of the New Jersey Superior Court affirmed
De Jesus’s convictions. But it held the trial court erroneously applied New Jersey’s No
Early Release Act (“NERA”) when sentencing De Jesus for felony murder. It also held that
the sentencing court needed to explain its reasoning for imposing consecutive sentences
for aggravated assault.
After the New Jersey Supreme Court denied De Jesus’s petition for certification, De
Jesus was resentenced on May 17, 2005. De Jesus did not appeal his resentencing. Instead,
he petitioned for post-conviction relief, which the Superior Court denied. The Appellate
Division affirmed that denial, and the New Jersey Supreme Court again denied review.
On October 20, 2014, De Jesus filed a § 2254 petition in federal court. The District
Court dismissed that petition as untimely, but gave De Jesus “30 days [to] present
arguments . . . as to why [he] is entitled to equitable tolling, or any other argument regarding
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the timeliness of [his] Petition.” (App. at 2.) Declining that opportunity, De Jesus noticed
his appeal to this Court on March 8, 2017.1
II. DISCUSSION
A. De Jesus’s § 2254 Petition Was Untimely
Petitions filed under 28 U.S.C. § 2254 are subject to a one-year statute of limitations
that begins running on “the date on which the judgment [at issue] 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 District Court calculated that De Jesus’s conviction became
final on September 2, 2004, ninety days after the New Jersey Supreme Court first denied
review, when De Jesus could no longer petition the United States Supreme Court. Jimenez
v. Quarterman,
555 U.S. 113, 119–20 (2009); 28 U.S.C. § 2101(c). But that analysis did
not consider De Jesus’s resentencing on May 17, 2005. Because De Jesus did not appeal
his new sentence, his conviction became final on July 1, 2005, see N.J. Ct. R. 2:4-1
(providing a 45-day appeal period), making his § 2254 petition due by July 1, 2006. Yet
the extra time does not help, since his October 2014 petition was still more than eight years
too late.2
1
The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and exercise plenary review over the
District Court’s timeliness determination. Swartz v. Meyers,
204 F.3d 417, 419 (3d Cir.
2000).
2
Section 2254’s statute of limitations is tolled when “a properly filed application
for State post-conviction . . . review . . . is pending[.]” 28 U.S.C. § 2244(d)(2). De Jesus
filed a PCR petition on August 16, 2006. Although this petition was timely under state law,
see N.J. Ct. R. 3:22-12 (providing a five-year statute of limitations for PCR petitions), the
District Court held that it had no tolling effect because it was filed after the expiration of
§ 2254’s limitations period. Correcting the District Court’s error does not bring De Jesus’s
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B. De Jesus is Not Entitled to Equitable Tolling
Perhaps recognizing this, De Jesus appropriately concedes his petition is late. (See
Opening Br. at 17 (“DeJesus’ federal habeas petition appears to be technically
untimely[.]”).) Instead, he argues that the District Court should have equitably tolled the
limitations period. See Holland v. Florida,
560 U.S. 631, 645 (2010) (holding that § 2254’s
limitations period “is subject to equitable tolling in appropriate cases”). We disagree.
First, De Jesus waived this argument when he declined the opportunity—one might
say the invitation—to raise it earlier. (See App. at 2 (District Court order dismissing De
Jesus’s § 2254 petition without prejudice, noting that De Jesus “may, within 30 days of the
date of entry of this Order, present arguments, . . . as to why [he] is entitled to equitable
tolling, or any other argument regarding the timeliness of [his] [p]etition[.]”).)
Second, De Jesus offers no reason why he is entitled to tolling. See
Holland, 560
U.S. at 649 (“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.” (internal quotation marks omitted)). He argues that
he was unaware of his May 17, 2005 resentencing and that the judgment entered following
it “was never docketed.” (Opening Br. at 29.) But the transcript of that proceeding reveals
PCR petition within the one-year federal limitations period. August 16, 2006, after all, is
more than one year after July 1, 2005. In any event, De Jesus does not argue that the filing
of his PCR petition should have any effect on our analysis.
4
that he was in fact in attendance and was informed that he had 45 days from that date to
appeal.3
Finally, he argues that he deserves an evidentiary hearing to establish his innocence.
While a potential “miscarriage of justice” can excuse § 2254’s statute of limitations, this
exception applies only where “new evidence shows it is more likely than not that no
reasonable juror would have convicted” the petitioner. McQuiggin v. Perkins,
569 U.S.
383, 394–95 (2013) (internal quotation marks omitted). De Jesus, however, does not allege
any facts that would support this claim.
III. CONCLUSION
Because De Jesus’s § 2254 petition was untimely, and because his argument in favor
of equitable tolling is both waived and unmeritorious, we will affirm the District Court’s
order dismissing that petition.
3
De Jesus notes that this judgment fails to reflect the Superior Court’s cure of its
NERA sentencing error. But the correction of that clerical error in 2014 did not restart the
time to appeal his resentence or extend the time to file a § 2254 petition. See City of Newark
v. Fischer,
70 A.2d 733, 735 (N.J. 1950) (“The general rule is that . . . an amendment
relat[ing] solely to the correction of a clerical or formal error in a judgment . . . does not
toll the time for appeal.”).
5