govinfo:USCOURTS-njd-3_23-cv-01854-0

Not for Publication  
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
____________________________________ 
CHARLES E. LUCAS,    :   
       :  
  Petitioner,    : Civ. No. 23-1854 (PGS) 
       :  
 v.      :   
       :  
PATRICK A. NOGAN, et al.    : OPINION 
  Respondents.   : 
____________________________________: 
 
PETER G. SHERIDAN, U.S.D.J. 
Petitioner Charles E. Lucas (“Petitioner”), an individual currently confined at 
East Jersey State Prison in Rahway, New Jersey filed the instant petition for a writ 
of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) 
Respondents filed a motion to dismiss (“Motion”) the Petition as time barred (ECF 
No. 5) and Petitioner filed a reply (ECF No. 6). For the reasons expressed below, 
Respondents’ Motion will be denied. 
I.  BACKGROUND 
 On July 22, 2014, a jury convicted Petitioner of first degree aggravated sexual 
assault of someone he knew or should have known was physically helpless, N.J.S.A. 
§ 2C:14-2(a)(7). (See ECF Nos. 5-12, 5-13.) On April 27, 2016, the Court sentenced 
Petitioner to a term of fifteen -years imprisonment, subject to the No  Early Release 
Act (NERA), N.J.S.A. § 2C:43-7.2. (See ECF Nos. 5-14, 5-15.)  
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 Petitioner filed a notice of appeal and on July 9, 2018, the Appellate Division 
affirmed Petitioner’s conviction. (ECF No. 5-17, State v. Lucas, 2018 WL 3339652 
(App. Div. July 9 , 2018).) On August 3, 2018, Petitioner filed a petition for 
certification with the New Jersey Supreme Court and a notice of motion for leave to 
file a notice of petition for certification as within time. (See ECF No. 5-18.) The New 
Jersey Supreme Court marked the petition for certification as out of time, and noted 
deficiencies in the petition, including that Petitioner needed to submit an original 
and three copies of the petition for certification, together with four copies of his 
Appellate Division briefs and appendices. (See id.) On October 5, 2018, the Clerk of 
the Supreme Court issued a deficiency notice regarding Petitioner’s petition for 
certification, noting the petition was overlength. (See ECF No. 5-19.) On November 
15, 2018, Petitioner’s motion t o file a petition for certification as within time was 
granted. (ECF No. 5-20.) On March 8, 2019, the Supreme Court denied Petitioner’s 
petition for certification. (ECF No. 5-21.)  
 On November 7, 2019, Petitioner filed a Petition for Post-Conviction Relief 
(“PCR”), which was denied by the PCR court on November 23, 2020. (ECF Nos. 5-
22, 5-23.) On November 22, 2021, the Appellate Division affirmed the PCR court’s 
denial of post-conviction relief. (ECF No. 5 -26.) On December 3, 2021, Peti tioner 
filed a petition for certification with the New Jersey Supreme Court . (ECF Nos, 5-
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27, 5-28.) On January 6, 2022, the Clerk of the Supreme Court mailed a deficiency 
notice to Petitioner, advising Petitioner of the following deficiencies:1  
1)  [] An original and three (3) copies of the PC, in 
compliance with R. 2:12 -7(a) and R. 2:6, must be 
submitted as soon as practicable. Four copies of your 
Appellate Division appellant’s brief and appendices must 
also be submitted with the PC. A certification of  service 
must be included with the submission setting forth the 
documents, the date, the party served and their address, 
and the method of service used. 
 
2)  An original and eight (8) copies are required on all 
motions pursuant to R. 2:8 -1(b). We received an original 
and four (4) copies of the above motions. Four additional 
copies of your motions and certification in support are 
required.  
 
(ECF No. 5-28 at 1.) On March 28, 2022, the Clerk of the Supreme Court received 
a “letter -petition for certification” from Petitioner . (ECF No. 5 -29.) On April 5, 
2022, the Clerk issued a second deficiency notice, noting that Petitioner had failed 
to remedy the following deficiency: 
1) An original and eight (8) copies are required on all 
motions pursuant to R. 2:8 -1(b). We received an original 
and four (4) copies of the above motions. Four (4) 
additional copies of your motions and certifications in 
support are required.  
 
 
1 The Supreme Court also noted that “the PC [was] past due” (see ECF No. 55-28 at 1), however, 
as explained above, it appears that the petition for certification was filed on December 3, 2021, 
which was within the twenty-day time period (11 days after the November 22, 2021 denial of his 
PCR petition) allowed for filing a timely petition for certification pursuant to New Jersey Court 
Rule 2:12 -3(a). Therefore, it is unclear why the Supreme Court indicated that the petition for 
certification was past due.  
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(Id.) On June 7, 2022, the New Jersey Supreme Court granted Petitioner’s motion to 
file a petition for  certification as within time. (ECF No. 5 -30.) On November 16, 
2022, the Supreme Court denied Petitioner’s petition for certification. (ECF No. 5 -
31.)  
On March 31, 2023, Petitioner filed the instant petition for writ of habeas 
corpus. (ECF No. 1.) Respondents subsequently filed the instant motion to dismiss, 
arguing that the petition is untimely under the Antiterrorism and Effective Death 
Penalty Act of 1996 (“AEDPA”). (ECF No. 9.) Petitioner filed a reply raising 
equitable tolling arguments. (ECF No. 11.)  The matter is now ripe for decision 
without oral argument. Fed. R. Civ. P. 78(b).    
II.  DISCUSSION 
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. 
L. No. 104 -132, tit. I, § 101 (1996) imposes a one -year period of limitation on a 
petitioner seeking to challenge his state conviction and sentence through a petition 
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). 
Under § 2244(d)(1), the limitation period runs from the latest of: 
(A) the date on wh ich the judgment became final by the 
conclusion of direct review or the expiration of the time for 
seeking such review; 
 
(B) the date on which the impediment to filing an application 
created by State action in violation of the Constitution or laws of 
the United States is removed, if the applicant was prevented from 
filing by such State action; 
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(C) the date on which the constitutional right asserted was 
initially recognized by the Supreme Court, if the right has been 
newly recognized by the Supreme Court and made retroactively 
applicable to cases on collateral review; or 
 
(D) the date on which the factual predicate of the claim or claims 
presented could have been discovered through the exercise of 
due diligence. 
 
28 U.S.C. § 2244(d)(1); see also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). 
“[T]he statute of limitations set out in § 2244(d)(1) should be applied on a claim-by-
claim basis.” Fielder v. Varner, 379 F.3d 113, 118 (3d Cir. 2004). 
Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 pet ition 
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 AEDPA limitations period is tolled during the time a properly filed PCR 
petition is pending in the state courts.  28 U.S.C. § 2244(d)(2); see also Thompson 
v. Adm’r New Jersey State Prison, 701 F. App’x 118, 121 (3d Cir. 2017); Jenkins v. 
Superintendent of Laurel Highlands , 705 F.3d 80, 85 (3d Cir. 2013).  A properly 
filed application is one that the Court accepted for filing by the appropriate court 
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officer and the Petitioner filed the application within the time limits prescribed by 
the relevant jurisdiction.  Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). A properly 
filed PCR petition will continue to be “pending” in the state courts following an 
adverse determination by the PCR court until the time in which a petitioner has to 
file a timely direct appeal in the state courts has run. See Swartz v. Meyers, 204 F.3d 
417, 420-24, 423 n.6 (3d Cir. 2000). 
Here, on March 8, 2019, the New Jersey Supreme Court denied Petitioner’s 
petition for certification. (ECF No. 5-21.) Petitioner did not file a petition for writ of 
certiorari with the United States Supreme Court. Thus, ninety days after March 8, 
2019, or June 6, 2019,  Petitioner’s 90 -day period for seeking certiorari expired. 
Therefore, his conviction became “final” on June 6, 2019 for purposes of the one -
year habeas limitations period in 28 U.S.C. § 2244(d)(1). The AEDPA limitations 
period ran for 175 days before it was statutorily tolled when Petitioner filed his PCR 
petition on November 7, 2019. (ECF No. 5-23.)  
The PCR court denied Petitioner’s petition o n November 23, 2020, and 
Appellate Division affirmed that denial on November 22, 2021. (ECF Nos. 5-22, 5-
23, 5-26.) On December 3, 2021, Petitioner filed a petition for certification with the 
New Jersey Supreme Court. (ECF Nos, 5 -27, 5 -28.) Respondents submit that 
Petitioner’s petition for certification was filed on December 9, 2021, as the Supreme 
Court of New Jersey indicated that the court received the petition on December 9, 
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2021. (See ECF No. 5 at 4; see also ECF No. 5-28.) However, the Court has reviewed 
the state court record in this matter, and Petitioner signed and dated his petition for 
certification on December 3, 2021. ( See ECF No. 5-27.) In addition to his petition 
for certification, Petitioner included a notice of motion to file the notice of petition 
for certification as within time. (See id.) Petitioner indicted that he was including the 
motion to file as within time “as a precaution in case [his] petition for some 
inexplicable reason is not mailed out from this facility in a ti mely manner.” (Id. at 
1.) As noted immediately above, on  November 22, 2021, the Appellate Division 
affirmed the PCR court’s denial of post-conviction relief. (ECF No. 5-26.) Pursuant 
to New Jersey Court Rule 2:12-3(a), Petitioner had twenty days to file a petition for 
certification with the Supreme Court of New Jersey. Therefore, Petitioner had until 
Monday, December 13, 2021, to file a timely petition for certification. See N.J. Ct. 
R. 1:3 -1 (extending the period “until the end of the next day which is nei ther a 
Saturday, Sunday nor legal holiday”). Therefore, even if Petitioner had not filed his 
petition for certification until December 9, 2021 it was still timely filed and the 
AEDPA limitations period remained tolled.  
However, the Clerk of the Supreme Co urt mailed a deficiency notice to 
Petitioner on January 6, 2022, advising Petitioner that his petition was deficient 
based on the failure to provide the appropriate copies of various items pursuant to 
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R. 2:12-7(a), R. 2:6, and R. 2:8-1(b).2 (ECF No. 5-28 at 1.) On March 28, 2022, the 
Clerk of the Supreme Court received a “letter -petition for certification” from 
Petitioner. (ECF No. 5-29.) On April 5, 2022, the Clerk issued a second deficiency 
notice, noting that Petitioner had failed to remedy one of the p reviously noted 
deficiencies. ( Id.) On June 7, 2022, the New Jersey Supreme Court granted 
Petitioner’s motion to file a petition for certification as within time. (ECF No. 5-30.) 
On November 16, 2022, the Supreme Court denied Petitioner’s petition for 
certification. (ECF No. 5-31.)  
Respondents argue that Petitioner’s AEDPA limitations period was not tolled 
during time period during which the Supreme Court had issued its deficiency 
notices. (ECF No. 5 at 8 -9.) Respondents claim that because the Clerk of the  
Supreme Court issued a deficiency notice indicating that Petitioner’s petition for 
certification was “past due” and deficient, the time period from when his twenty -
days to file a timely petition for certification expired until June 7, 2022, when the 
New Jersey Supreme Court accepted the petition for filing did not toll the AEDPA 
statute of limitations. (Id.)  
 
2 The Court again notes that t he Supreme Court also indicated that “the PC [was] past due” ( see 
ECF No. 55-28 at 1), however, as explained above, it appears that the petition for certification was 
filed within the twenty -day time period allowed for filing a timely petition for certification 
pursuant to New Jersey Court Rule 2:12 -3(a). Without further evidence or argument, the Court 
cannot find that Petitioner’s petition for certification was untimely.  
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The Court finds two issues with Respondents’ argument. First, the Court has 
already explained that based on the record before the Court, it appears t hat 
Petitioner’s petition for certification was timely. Thus, Respondents’ argument that 
Petitioner’s petition for certification was untimely fails and Petitioner’s AEDPA 
statute of limitations period remained tolled with the filing of his timely petition for 
certification.  
Second, the Court finds Respondents’ claim that Petitioner’s AEDPA time 
limitations period was not tolled during the Supreme Court’s issuance of the 
deficiency notices unavailing. The Court recognizes that the AEDPA limitations 
period is tolled during the time a “properly filed” PCR petition is “pending” in the 
state courts.  28 U.S.C. § 2244(d)(2) . The Court further recognizes that t he word 
“pending” and the phrase “properly filed” are terms of art having a technical 
meaning qualitatively different from that a layperson may perceive reflecting solely 
on the dates when the first document is mailed to the trial court and when the highest 
court issues its ruling. See Jenkins , 705 F.3d 80.  Rather, as detailed in Artuz v. 
Bennett, 531 U.S. 4, 8–9 (2000), and elaborated upon in Evans v. Chavis, 546 U.S. 
189 (2006), the statutory tolling does not apply “starting from the point in time when 
a not-perfected . . . application for certification as to affirmance of denial of PCR [] 
was received/recorded by the state courts and until the point in time when the 
inmate’s submission is duly perfected under the requirements posed by the state 
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law.” See Jenkins, 705 F.3d at 86 –88, n. 11 (“[W]e note that [the inmate ’s PCR 
submission] was not properly filed [within the meaning of Artuz ] until he perfected 
it”). Respondents appear to argue that because the New Jersey Supreme Court issued 
deficiency notices,  Petitioner’s petition for certification was not “perfect” and 
therefore was not “properly filed”, rendering the petition unable to toll the AEDPA 
limitations period. However, a review of the Supreme Court’s deficiency notices 
does not make it clear that the court did not accept the petition for filing. Rather, the 
January 6, 2022, notice indicated that “failure to correct the above deficiencies may 
result in the dismissal of this matter” (ECF No. 5 -28 at 1) and the April 5, 2022, 
notice indicated that “failure to correct the noted deficiency may affect the 
submission of this matter to the Court for its consideration.” (ECF No. 5-29 at 1.)  
A reading of the language used in the deficiency notices indicates that the 
Supreme Court did in fact accept Petitioner’s petition for certification for filing and 
Petitioner’s failure to remedy the deficiencies noted by the court would have resulted 
in dismissal of the petition. Without a clear indication that the state court ceased to 
consider the petition for certificat ion pending, the Court finds that the petition for 
certification remained pending and continued to toll the AEPDA limitations period 
until November 16, 2022, when the Supreme Court denied Petitioner’s petition for 
certification. (ECF No. 5-31.)  
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When the N ew Jersey Supreme Court denied Petitioner’s petition for 
certification on November 16, 2022, the PCR petition was no longer “pending”, and 
Petitioner’s AEDPA statute of limitations period resumed running with 190 days 
remaining. Stokes v. D.A. of the County of Phila., 247 F.3d 539, 542 (3d Cir. 2001). 
Therefore, Petitioner had until May 25, 2023  to file a timely habeas petition. 
Petitioner’s instant Petition was filed on March 31, 2023. Thus, the Petition was 
timely filed.   
III.  CONCLUSION 
 For the reasons stated above, Respondent’s Motion to Dismiss is DENIED 
without prejudice. In the filing of a full answer, Respondents may clarify their 
arguments that (1) Petitioner’s petition for certification was out of time and (2) that 
the petition was not pending during the deficiency notices, if Respondents have 
additional support from the state court record. An appropriate order follows. 
 
       s/Peter G. Sheridan,  U.S.D.J.   
       PETER G. SHERIDAN, U.S.D.J.   
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