Hodges v. Attorney Gen.
| Decision Date | 16 June 2020 |
| Docket Number | Case No. 3:15-cv-5951 (BRM) |
| Parties | CEDRICK HODGES, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondent. |
| Court | U.S. District Court — District of New Jersey |
Petitioner, Cedrick Hodges, is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pled guilty in 2004 to robbery, aggravated sexual assault, and kidnapping. He is currently serving an aggregate term of fifteen years imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to New Jersey's No Early Release Act ("NERA"). N.J. Stat. Ann. § 2C:43-7.2. For the reasons set forth below, and for good cause appearing, the Petition is denied and a certificate of appealability shall not issue.
In 2004, Petitioner pled guilty to, and was convicted of, first-degree robbery in violation of N.J. Stat. Ann. § 2C:15-1; first-degree aggravated sexual assault in violation of N.J. Stat. Ann. § 2C:14-2; and first-degree kidnapping in violation of N.J. Stat. Ann. § 2C:13-1(b). (See ECF No. 6-2.) Petitioner was initially sentenced on June 9, 2004 to twenty years imprisonment subject to NERA.
On March 30, 2006, almost two years after his sentence, Petitioner filed a direct appeal with the New Jersey Appellate Division. (See ECF No. 12-3 at 52-53.) Although his appeal was untimely, the Appellate Division granted Petitioner's motion to file his appeal nunc pro tunc. (See id. at 53.) On April 2, 2009, in an unpublished opinion, the Appellate Division affirmed Petitioner's conviction but remanded the matter back to the trial court for resentencing because the trial court had not "express[ed] its reasons on the record" for finding that certain aggravating factors applied. See State v. Hodges, Indictment Nos. 01-08-1116 and 01-08-1117 and Accusation No. 04-02-0155, 2009 WL 857407, at *12 (N.J. Super. Ct. App. Div. Apr. 2, 2009). Petitioner appealed this ruling, but the New Jersey Supreme Court denied certification. (See ECF No. 12-3 at 84.) Petitioner was subsequently resentenced on July 23, 2012 to an aggregate term of fifteen years imprisonment subject to NERA. (See ECF No. 12-1 at 1.) Petitioner did not seek an appeal of this sentence. (See ECF No. 14 at 3-4.)
On March 11, 2010, while Petitioner was awaiting his resentencing, he submitted his first petition for Post-Conviction Relief ("PCR"). (See ECF No. 12-3 at 85.) On April 17, 2012, oral argument on the petition was held before the Honorable Robert C. Billmeier, J.S.C. (See ECF No. 6-3 at 4.) On June 4, 2012, Judge Billmeier issued a written opinion denying in part and granting in part Petitioner's PCR. (See id. at 1-12.) The PCR granted only Petitioner's claim requesting to be resentenced in accordance with the Appellate Division's April 2, 2009 decision. (See id.) The PCR court denied the remainder of Petitioner's PCR for having been filed out of time. (See id. at 8-9.) Under New Jersey Court Rule 3:22-12, Petitioner had five years from the date of his judgment of conviction to file his PCR. (See id.) However, Petitioner failed to file his PCR until five years and nine months after his judgment of conviction, thereby making his PCR was untimely. (See id.) The PCR court also held that, assuming arguendo Petitioner had filed his PCR within time, his petition still would have been denied because the claims he raised were wholly without merit. (See id.) Petitioner appealed the PCR court's decision, and on October 6, 2014, the Appellate Divisionaffirmed the denial of Petitioner's PCR for "essentially the reasons" stated in the PCR court's thorough written opinion. State v. Hodges, Indictment No. 01-08-1116, 2014 WL 4956737, at *2 (N.J. Super. Ct. App. Div. Oct. 6, 2014). Petitioner thereafter filed a petition for certification to the New Jersey Supreme Court, but that petition was denied on April 2, 2015. State v. Hodges, 112 A.3d 591 (N.J. 2015).
Petitioner filed the instant habeas action in August 2015. (See ECF No. 1.) After screening the Petition for summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases, it appeared that Petitioner's filing was untimely. (See ECF No. 2.) The Court issued an order directing Respondents to file a limited response on the issue of timeliness and permitting Petitioner to file a reply and raise any applicable equitable tolling arguments. (See id.) On September 25, 2015, Respondent's filed a limited answer and Petitioner filed a response shortly thereafter. (See ECF Nos. 5, 8.)
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress set forth a one-year period of limitation for the filing of federal habeas corpus petition by state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004); 28 U.S.C. § 2241(d)(1). The governing statute of limitations is codified under 28 U.S.C. § 2244(d), and it states, in pertinent part:
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. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003). 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). An application is deemed "properly filed" when it is submitted in compliance with the state's procedural requirements. See id.; see also Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). Importantly, it is well established that a petition for state post-conviction relief that was rejected by the state courts as untimely is not deemed "properly filed" under § 2244(d)(2). See Pace, 544 U.S. at 414 () (internal quotation marks and citation omitted); see also Allen v. Siebert, 552 U.S. 3 (2007).
Here, Petitioner's judgment of conviction was entered on June 9, 2004. (See ECF No. 6-2.) He was resentenced on July 23, 2012. (See ECF No. 14-1.) In New Jersey, a defendant has forty-five days to file a notice of appeal with the Appellate Division. See N.J. Ct. R. 2:4(a). Thus, on September 6, 2012, forty-five days after Petitioner was resentenced, Petitioner's time to file a direct appeal with the Appellate Division expired, and his conviction became final for the purpose of § 2244(d). The following day, on September 7, 2012, Petitioner's habeas statute of limitations began to run, and it elapsed one year later, on September 7, 2013. See 28 U.S.C. § 2244(d)(1)(a). Petitioner filed the instant habeas action in July 2015, over two-and-a-half (2 ½) years later.
The fact that Petitioner filed a PCR while he was awaiting resentencing does not induce statutory tolling of Petitioner's one-year habeas deadline because Petitioner's PCR was not "properly filed." See Pace, 544 U.S. at 414; see also Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004) (). Under New Jersey Court Rule 3:22-12, a petition for PCR must be filed within five years of the date of entry of a judgment of conviction. See e.g., Pressler, Current N.J. Court Rules, cmt. 2 on N.J. Ct. R. 3:22-12 (2015) (); State v. Dillard, 506 A.2d 848, 850 (N.J. Super. Ct. App. Div.), certif. denied, 523 A.2d 169 (1986) ().
In Petitioner's case, the PCR court held that his submission was untimely because more than five years elapsed between Petitioner's judgment of conviction on June 4, 2004, and Petitioner's filing of his PCR on March 11, 2010. (See ECF No. 6-3 at 8-9.) While the PCR court also decided Petitioner's claim on the merits, the United States Supreme Court has held that this has no bearing on the fact that the application was untimely. See Pace, 544 U.S. at 414. A finding that a PCR is untimely is "the end of the matter, regardless of whether it also addressed the merits of the claim or whether its timeliness ruling was 'entangled' with the merits." Id. (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)). Thus, since Petitioner's PCR was not "properly filed," he is not entitled to statutory tolling for the pendency of his PCR proceedings.
If, however, a petitioner can demonstrate extraordinary circumstances to warrant "equitable tolling," then a court may relax the one-year limitations period. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84-85 (3d Cir. 2013). In Holland v. Florida, 560U.S. 631, 649-50 (2010), the Supreme Court held that AEDPA's one-year limitations period is subject to equitable tolling in appropriate instances to be determined on a case-by-case basis. See e.g., Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). A litigant seeking equitable tolling bears the burden of establishing two elements: "(1) that he has...
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