Jones v. Morton

• Decision Date: 27 July 1999
• Docket Number: No. 98-5230,98-5230
• Citation: 195 F.3d 153
• Parties: (3rd Cir. 1999) RONALD JONES, Appellant, v. WILLIS MORTON, WARDEN OF TRENTON STATE PRISON; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 153

195 F.3d 153 (3rd Cir. 1999)

RONALD JONES, Appellant, v. WILLIS MORTON, WARDEN OF TRENTON STATE PRISON; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

No. 98-5230

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Pursuant to Third Circuit LAR 34.1(a) July 27, 1999

Filed October 25, 1999

On Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 97-cv-05606 (Honorable Joseph H. Rodriguez) STEVEN A. FELDMAN, ESQUIRE Feldman & Feldman 1800 Northern Boulevard, Suite 206 Roslyn, New York 11576, Attorney for Appellant:

RICHARD J. GEIGER, ESQUIRE Office of County Counsel 146 West Broad Street P.O. Box 440 Bridgeton, New Jersey 08302, Attorney for Appellee:

Before: SCIRICA and STAPLETON, Circuit Judges, and GREEN, District Judge^*

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Ronald Jones appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. S 2254. The District Court denied the petition on several grounds, and we granted a certificate of appealability to consider whether the petition was properly denied as time-barred under AEDPA's one-year statute of limitations. We agree with the District Court that the petition was time-barred, and accordingly, we will affirm.

I.

A jury in Cumberland County, New Jersey, convicted Jones of first-degree kidnaping, four counts of first-degree aggravated sexual assault, and possession of a weapon for an unlawful purpose. On October 19, 1981, the trial court sentenced Jones to an aggregate term of 55 years of imprisonment with 25 years of parole ineligibility. Jones was represented at trial and sentencing by privately retained counsel.

Eight years after sentencing, Jones asked the Public Defender's Office to file a motion with the Appellate Division of the New Jersey Superior Court for leave to file a direct appeal nunc pro tunc. Jones alleged that trial counsel had ignored his request to file a timely notice of appeal. The Appellate Division remanded the matter for the trial court to make a factual determination as to whether Jones asked counsel to file a notice of appeal within 45 days following entry of the judgment of conviction, which is the time prescribed for an appeal under New Jersey Court Rule 2:41(a).

The trial court held hearings on the issue on September 6 and 19, 1990.¹ Jones and his trial counsel testified on September 6. Jones's uncle, who apparently had retained Jones's trial counsel, testified on September 19. Counsel from the Public Defender's Office represented Jones at the hearings. Jones did not attend the hearing on September 19 due to the trial court's failure to issue a writ to secure his presence.

The trial court determined that Jones did not ask counsel to file a notice of appeal within 45 days of entry of the judgment. The Appellate Division reviewed the record, concluded that there was "an adequate basis to determine that [Jones] made no timely request to his attorney to file an appeal," and on November 1, 1990, denied leave to appeal nunc pro tunc. On April 30, 1992, the New Jersey Supreme Court denied Jones's petition for certification to review the issue.

On January 8, 1993, Jones filed a pro se habeas corpus petition pursuant to 28 U.S.C. S 2254. Although a copy of that petition is not part of the present record, there is no dispute that Jones raised five claims, and on January 24, 1994, the District Court dismissed the petition in its entirety without prejudice due to Jones's failure to exhaust available state court remedies under the New Jersey post conviction review statute.

On March 28, 1995, Jones filed a second pro se S 2254 petition in which he raised three claims: (1) trial counsel's failure to file a timely direct appeal amounted to ineffective assistance of counsel in violation of the Sixth Amendment; (2) Jones's Fourteenth Amendment right to due process was violated when the state courts denied his request for leave to file a nunc pro tunc direct appeal; and (3) the state trial court violated Jones's Fourteenth Amendment right to due process when it failed to issue a writ for his appearance at the second day of the evidentiary hearing. On April 24, 1996, while Jones's petition was pending, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. On July 15, 1996, the District Court granted the State's motion to dismiss the petition, ruling that Jones raised "no federal claim cognizable in a habeas proceeding...." See Dist. Op., July 15, 1996, at 4. In the alternative, the District Court noted that Jones again failed to exhaust available state court remedies, and that his petition must be dismissed for that reason.

Jones timely appealed and applied for a certificate of appealability. On January 13, 1997, we entered a summary order denying the request for a certificate of appealability "for failure to exhaust state court remedies." See C.A. No. 96-5471. We denied Jones's timely petition for a panel rehearing on February 14, 1997.

Rather than present his claims to the state courts, Jones filed a third pro se S 2254 petition on November 3, 1997. He raised the same three claims that he had raised in the second petition. The State moved to dismiss the petition, arguing that: Jones had again failed to satisfy the exhaustion requirement; the petition was barred under AEDPA's one-year statute of limitations, see S 2244(d)(1); the petition was "second or successive" or an "abuse of the writ" and required certification from this Court before it could be filed in the District Court, see S 2244(b); and the claims raised in the petition lacked merit.

On April 9, 1998, the District Court denied the petition with prejudice as "successive" because Jones had presented the same three claims in his previous petition, and the District Court had denied that petition on the merits. The District Court also ruled that the petition was barred under the statute of limitations, finding that, "even if it was appropriate to begin the limitation period from the July 15, 1996, denial of his second petition (which it is not), petitioner is time barred." Dist. Ct. Op. at 6. Assuming it could reach the merits, the District Court denied Jones's ineffective assistance of counsel claim in light of the state court's finding that Jones had not asked his attorney to file a timely notice of appeal. The District Court ruled that "petitioner's attorney's failure to file an appeal was not unreasonable given that petitioner did not make such a request. Furthermore, petitioner has not shown that his attorney's performance resulted in any prejudice-he has not sufficiently shown that he would have had any success on appeal of either his conviction or sentence." Id. at 7-8. The District Court also ruled that the state courts did not violate due process in denying Jones's request to appeal nunc pro tunc or in failing to issue a writ to secure his presence at the second day of the evidentiary hearing. The District Court denied a certificate of appealability, and this timely appeal followed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. S 2254(a). We have jurisdiction pursuant to 28 U.S.C. SS 1291, 2253. As noted, we granted a certificate of appealability limited to the issues of whether the District Court properly dismissed Jones's petition as time-barred under the statute of limitations, and whether Jones was entitled to any tolling of the limitations period pursuant to either 28 U.S.C. S 2244(d)(2) or the holding in Miller v. New Jersey State Dep't of Corr., 145 F.3d 616 (3d Cir. 1998). Our review of the statute of limitations issue is plenary. See Algrant v. Evergreen Valley Nurseries Ltd. Partnership, 126 F.3d 178, 181 (3d Cir. 1997).²

III.

A state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. S 2254 must comply with a statute of limitations that provides, in relevant part, as follows:

(d)(1) A 1-year period of limitation 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[.]

. . .

(d)(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 subsection.

28 U.S.C. S 2244(d)(1)-(2).

Under S 2244(d)(1)(A), a state court criminal judgment becomes "final," and the statute of limitations begins to run, "at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires." Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999); see also Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. Aug. 9, 1999). Jones was sentenced on October 19, 1981. Under New Jersey law, he had 45 days to file a direct appeal. He failed to file an appeal within the time allowed. In 1989, Jones sought leave to file an appeal nunc pro tunc. The Appellate Division denied that request, and the New Jersey Supreme Court affirmed on April 30, 1992. It is clear that Jones's conviction became "final" prior to AEDPA's enactment on April 24, 1996.

In Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), we concluded that "applying S 2244(d)(1) to bar the filing of a habeas petition before April 24, 1997, where the prisoner's conviction became final before April 24, 1996, would be impermissibly retroactive." Id. at 111. Accordingly, we held that "habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with S 2244(d)(1)'s time limit." Id. We also held that "a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court." Id. at 113. Thus, under Burns, Jones was required to deposit his...