New Jersey Court Rule 3:22-1 provides that any person convicted of a crime may file a petition for post-conviction relief within five years. If one files beyond that time frame, the rules allow for a relaxation of that five year time bar if the petitioner can demonstrate “excusable neglect” under N.J.R. 3:22-12. In considering the relaxation of the five year time limit, Rule 3:22-12(a)recognizes:
- The difficulties associated with a fair and accurate reassessment of the critical events, years after their occurrence.
- The need for achieving finality of judgments to allay the uncertainty associated with the unlimited possibility of re-litigation, thus strongly encouraging those believing that they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a Court to render Justice.
In recent years, New Jersey case law has not been favorable to litigants on post-conviction relief with respect to the five year time bar. This is particularly problematic for individuals who have been detained by ICE due to convictions that are over 5 years old. Given the lag in administrative enforcement within the Department of Homeland Security, it is not uncommon for non-citizens to be detained by ICE officials ten or even twenty years after he or she was convicted of a deportable crime.
These individuals face stark opposition from the prosecutor due to the fact that older convictions are difficult to reprosecute given the time that has passed. This means police officers’ memories may have faded, and they are unable to recall the events to the crime. Additionally, evidence may have been destroyed, or witnesses may have passed away or may be unavailable. All of these factors are challenges the State faces when confronted with the prospect of trying revisit an old conviction. This is why filing post-conviction relief in New Jersey has a five year time bar limit, and the legislature in drafting these rules were so keen on limiting post-conviction relief applications to within five years of the conviction.
There are, however, considerations the court must given to litigants who file post-conviction relief applications beyond the five time bar. New Jersey Court Rule 3:22-12 rule allows for a relaxation of that bar if the defendant can demonstrate “excusable neglect.” But what does “excusable neglect” really mean? I often describe it in the simplest terms: it means do you have a reasonable excuse for filing so late. Was there new evidence in your case that only came about recently, such as DNA evidence? Did you just learn of an error in your conviction that was unknown previously, such as ICE deportation? Or lastly, were you never told about post-conviction relief by the court or your attorney at the trial level? All of these questions are relevant to a finding of excusable neglect. In a prior article, I discussed how I have been successful in dealing with the five year time bar on behalf of my post-conviction relief clients based on Due Process and notice issues though New Jersey Supreme Court case law.