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OLSACK v. LEWIS

March 17, 1994

EARL OLSACK, Petitioner
v.
DONALD LEWIS, Superintendent and EDWARD F. BORDEN, M. GERRAMANO, SETH R. BELSON, and ROBERT DEL TUFO, Attorney General of the State of New Jersey, Respondents



The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, District Judge:

 Petitioner, Earl Olsack, currently incarcerated in Riverfront State Prison, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents filed a motion to dismiss the petition for failure to exhaust state remedies and for failure to state a claim cognizable on habeas review. This motion raises the following issue: Should the requirement of exhaustion of remedies be waived where more than twelve months of delay in petitioner's post-conviction remedy hearing in state court is attributable to a succession of his state court-appointed counsel, where petitioner seeks to challenge the effectiveness of trial and appellate counsel? This issue is compounded by the fact that it arises in a context where the petitioner had made previous efforts to raise his ineffective assistance of trial counsel claim on direct appeal from his conviction, but state court-appointed appellate counsel failed to advance that claim on petitioner's behalf.

 For the reasons which follow, the court will grant respondents' motion because petitioner has failed to exhaust his available state remedies.

 Factual and Procedural Background

 On August 31, 1990, petitioner was convicted of possession of a controlled dangerous substance under N.J.S.A. § 2C:35-10a(1) in the Superior Court, Camden County, New Jersey. He was sentenced to a term of imprisonment of seven years, with a period of parole ineligibility of three and one-half years, which is about to expire.

 Petitioner brings his case to the attention of the federal court on a petition for a writ of habeas corpus because of frustration with the state legal system and the succession of state-appointed counsel. It is alleged that the state-appointed public defender who represented petitioner at trial was ineffective for several reasons, the most serious of which regards counsel's alleged failure to strike a juror who lived in petitioner's neighborhood and knew petitioner, and who is alleged to have been personally familiar with petitioner's previous drug use and drug distribution activities. Petitioner alleges that he informed the public defender of these facts, but that his attorney failed to strike the juror, opining that the case would be won regardless of the presence of this individual on the jury. Petitioner did not address the court himself until sentencing, at which time he was given an opportunity to speak, and at which time he brought the matter to the attention of the trial judge. The trial judge refused to entertain this objection because it had not been raised at trial.

 Petitioner also brings other complaints about the conduct of his trial attorney to this court's attention on the instant petition. He states that, despite repeated assurances of his trial attorney that a suppression motion would be made before trial, no such motion was ever made. In addition, petitioner informs this court that an individual who was a friend of one of the jurors was present in the courtroom during an oral argument during which the prosecutor made a proffer of the testimony of a rebuttal witness who was ultimately not permitted to testify. Petitioner fears that excluded evidence might have been communicated with the juror, as the trial judge did not specifically address the individual's presence in the courtroom until the following day.

 Petitioner's letter to his attorney, a copy of which was forwarded to the trial judge, specifically requested that counsel file a motion for a mistrial on the three grounds previously discussed. It does not appear from the record presented that such a motion was made.

 On petitioner's appeal to the Appellate Division, a new public defender was assigned to represent petitioner. This public defender raised only two grounds for relief in the appellate court: (1) the trial court erred in denying the defense's objection to the officer's opinion testimony; and (2) the sentence imposed on petitioner is excessive for conviction of the crime of possession of CDS. However, petitioner requested, in a handwritten letter to his appeal counsel, that his attorney raise the three items discussed above pertaining to his claim of ineffective assistance of trial counsel in his appeal. Petitioner's appeal attorney failed to raise these issues in a formal brief, opting instead to attach a cover sheet entitled "Pro Se Brief on Behalf of Defendant-Appellant" to the handwritten letter forwarded to him by petitioner and forwarding same to the court. Not surprisingly, the per curiam Opinion issued by the Appellate Division made no reference to the grounds for appeal raised in the letter from petitioner to counsel, and petitioner's conviction was affirmed after consideration of the two grounds raised by petitioner's counsel in his brief. It appears from the record that no petition for certification was filed in the Supreme Court of New Jersey.

 The failure of the state-appointed attorneys to pursue petitioner's claims concerning the presence of an acquaintance on petitioner's jury, the presence in the courtroom of a friend of a juror, and the matter of a suppression hearing in the state courts apparently continues to this day. On March 24, 1993, petitioner filed a pro se petition for post-conviction relief in the Superior Court, Camden County. On April 19, 1993, petitioner was informed that Seth R. Belson, Esquire, of the Gloucester County Public Defender's Office, was appointed to represent petitioner in that action. On April 30, 1993, petitioner wrote to Mr. Belson requesting that the case be expedited, and that the originally-submitted petition be amended to raise certain of the issues discussed herein. No response was ever received from Mr. Belson. On May 13, 1993, petitioner wrote to the Honorable Isaiah Steinberg, Assignment Judge of the Superior Court, to complain that petitioner's assigned attorney was not responding to petitioner's correspondence. In addition, petitioner states that he has placed calls to Robert Lipscher, Administrative Director of the Courts, between May 13, 1993 and July 10, 1993, to no avail.

 By letter dated November 23, 1993, petitioner received notification that the deputy public defender had assigned a new attorney to represent him in the post-conviction proceeding, and on December 5, 1993 petitioner wrote the substituted attorney to again request amendment of the post-conviction relief petition. Certif. of Ann Marie Donio, Esquire PP 4-5. As of March 4, 1994, substituted counsel had not yet met with petitioner to discuss the case. Id. P 12. It appears that the hearing on the post-conviction petition has been scheduled on multiple occasions, and that multiple continuances have been granted upon the request of counsel for petitioner for reasons allegedly unknown to petitioner. Id. PP 9-10. Presently, that hearing is scheduled for April 26, 1994. Id. P 12. The upshot is that petitioner's application for post-conviction relief has been sitting dormant in the state court for approximately one year despite petitioner's apparently diligent efforts on his own behalf.

 On July 15, 1993, petitioner filed the instant petition for a writ of habeas corpus. Petitioner, proceeding pro se at the time of filing, framed certain of the grounds for relief in his habeas corpus petition as based upon the fact of the inaction of the respondents in the state court post-conviction proceedings. Thus, Ground One and Ground Two read:

 
Because of the Actions and Inactions, Practices and Policies of the Respondents, Not to Respond Properly to My Petition for Post-Conviction Relief, I am Being Denied Meaningful Access to the Courts For Redress of My Grievances, In Violation of the First ...

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