McClain v. Warren, Civil Action No. 11-7093 (SDW)
| Decision Date | 20 June 2014 |
| Docket Number | Civil Action No. 11-7093 (SDW) |
| Parties | MIKAL MCCLAIN, Petitioner, v. CHARLES WARREN, et. al., Respondents. |
| Court | U.S. District Court — District of New Jersey |
APPEARANCES:
MIKAL MCCLAIN, Petitioner Pro Se
New Jersey State Prison
ESSEX COUNTY PROSECUTOR'S OFFICE
Essex County Courts Building
Petitioner Mikal McClain challenges his 2004 New Jersey state court conviction in this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is dismissed as time-barred under 28 U.S.C. § 2244(d).
In October 2001, Petitioner Mikal McClain was arrested and charged in an Essex County Indictment N0. 02-03-1091, on charges of conspiracy, first degree robbery, unlawful possession of a handgun without a permit, possession of a weapon for an unlawful purpose, resisting arrest by flight, and hindering apprehension or prosecution. (ECF No. 10-2, Ra12,1 Def. Brief on PCR Appeal at 1-2, Da1-8.)
Petitioner thereafter was tried by a jury before the Honorable Betty J. Lester, J.S.C., from October 29, 2003 to November 7, 2003. The jury returned a verdict of guilty on all counts, except the conspiracy count, which had been dismissed by State motion before trial. On February 9, 2004, Petitioner was sentenced to an aggregate term of 20 years in prison with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2a. (Id. at 2.)
On June 23, 2004, Petitioner filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. (Id.) On June 26, 2006, the Appellate Division affirmed the convictions,2 but remanded the matter for resentencing. State v. Mikal McClain, 2006 WL 1725570 (N.J. Super. A.D. Jun. 26, 2006). The Supreme Court of New Jersey denied certification on January 31, 2007. State v. McClain, 189 N.J. 430 (2007).
Petitioner then filed a state post-conviction relief ("PCR") petition on April 17, 2008. (ECF No. 10-1, Ra11.) The state PCR court denied the petition by Order dated March 9, 2009, with a supporting opinion letter filed on March 25, 2009. (ECF Nos. 6, 7, Ra16, Ra17.) Petitioner appealed and the Appellate Division affirmed the denial of the PCR petition in an opinion issued on April 8, 2011. State v. McClain, 2011 WL 1327314 (N.J. Super. A.D. Apr. 8, 2011). The Supreme Court of New Jersey denied certification on October 20, 2011. State v. McClain, 208 N.J. 371 (2011).
Petitioner filed this habeas petition pursuant to 28 U.S.C. § 2254 on November 18, 2011. (ECF No. 1.) The State filed a response to the petition on May 8, 2012. (ECF No. 8.) The State then provided a copy of the relevant state court record on May 11, 2012. (ECF Nos. 9, 10, 11.) On July 9, 2012 Petitioner filed his traverse. (ECF No. 15.) That same day, Petitioner also filed a motion for an Order granting leave to present two additional grounds for habeas relief. (ECF No. 16.) On February 28, 2013, this Court denied Petitioner's motion, finding the request time-barred and the claims unexhausted. (ECF Nos. 21, 22.)
This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the recitation as set forth in the June 26, 2006 opinion of the New Jersey Appellate Division as to Petitioner's direct appeal:
Although defendant did not testify, he presented as an alibi witness Randy Harris, who testified that he and the defendant had been in the bar with two women. Eventually, they left, entering Harris's car to "talk." Defendant returned to the bar shortly before the police's arrival. Harris stated that he did not witness any robbery while he and defendant were together.
State v. Mikal McClain, 2006 WL 1725570, **1-2 (N.J. Super. A.D. Jun. 26, 2006); (ECF No. 8-15, Ra12, App. Div. Op. at 3-17.)
Petitioner raises twenty-two claims for habeas relief in his petition. (ECF No. 1).
The State asserts the affirmative defenses that the petition should be dismissed as time-barred, and that the petition should be dismissed as a "mixed" petition containing both exhausted and unexhausted claims. Alternatively, the State contends that the petition should be dismissed for lack of merit. (ECF No. 8, Respondent's Answer at 13-43.)
The State asserts that this habeas petition is time-barred under 28 U.S.C. § 2244(d), which states in relevant part:
(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 a 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;
...
(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.
Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition requires a determination of, first, when the pertinent judgment became "final," and, second, the period of time during which an application for state post-conviction relief was "properly filed" and "pending." The judgment is determined to be final by the conclusion of direct review, or the expiration of time for seeking such review, including the ninety-day period for filing a petition for writ of certiorari in the United States Supreme Court. See Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012). The statute of limitations is statutorily tolled during the time in which properly filed state post-conviction relief petition is pending. See 28 U.S.C. § 2244(d)(2). 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 statute of limitations under 28 U.S.C. § 2244(d)(2)." Stokes v. Dist. Attorney of the Cnty. of Phila., 247 F.3d 539, 542 (3d Cir.2001).
Here, the New Jersey Supreme Court denied Petitioner's petition for certification on January 31, 2007, and his conviction became final ninety days later, on or about May 1, 2007. Unless the statute of limitations was tolled, the applicable statute of limitations would have expired a year later, on May 1, 2008. Petitioner filed his state PCR petition on April 17, 2008, fourteen (14) days before the one-year limitation would have expired. Thus, statutorily tolling applied while Petitioner's state PCR proceedings remained pending. On October 20, 2011, the Supreme Court of New Jersey denied certification on Petitioner's appeal from denial of his PCR petition. Petitioner had fourteen (14) days remaining on his one-year limitations period, or until November 3, 2011, to timely file his federal habeas petition. However, Petitioner filed this habeas action on November 18, 2011. Accordingly, this federal habeas petition is time-barredunless Petitioner can demonstrate extraordinary circumstances to justify equitable tolling of the limitations period.
The Third Circuit has long held that the doctrine of equitable tolling permits untimely habeas filings in "extraordinary situations." See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (). There are no bright-line rules for determining when extra time should be permitted in a particular case. See Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012). Rather, the unique circumstances of each defendant seeking § 2254 relief must be taken into account. See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Equitable tolling should be applied sparingly, and only when the "principles of equity would make the rigid application of a limitation period unfair." Jenkins v. Superintendent of Laurel Highland, 705 F.3d 80, 89 (3d Cir. 2013) (citations omitted).
The Supreme Court has instructed that equity permits extending the statutory time limit when a defendant shows that (1) "he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Ohler v. Lamas, 542 F. App'x 205, 207 (3d Cir. 2013). Mere excusable neglect is insufficient. See U.S. v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002).
The diligence required for equitable tolling purposes is reasonable diligence, not maximum, extreme, or exceptional diligence. Holland, 560 U.S. at 653; Munchinski v. Wilson, 694 F.3d...
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