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SANABRIA v. MORTON

July 18, 1996

JESUS SANABRIA, Petitioner,
v.
WILLIS E. MORTON, et al., Respondents.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 Jesus Sanabria, currently incarcerated at the New Jersey State Prison in Trenton, New Jersey, petitions this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Because his petition contains both exhausted and unexhausted claims, it must be dismissed. See Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).

 BACKGROUND

 The trial judge sentenced Sanabria to thirty years in prison without the possibility of parole for the murder count, and to a concurrent five-year term plus a VCCB penalty of $ 525.00 for the unlawful possession of a weapon count. The third count was merged into the second count for sentencing purposes.

 Sanabria appealed to the Appellate Division, which affirmed his conviction in an unreported per curiam opinion dated March 24, 1988. In addition, the Appellate Division agreed with the state that the trial court improperly merged Sanabria's convictions on counts II and III, and that the trial court erred by failing to impose a mandatory period of parole ineligibility with respect to count II. The matter was remanded for resentencing. In a judgment of conviction dated January 13, 1989, the trial judge resentenced Sanabria on count II to a concurrent five-year term with a three-year period of parole ineligibility. On count III, the court sentenced him to a concurrent five-year term. Count I remained the same.

 Sanabria's request for certification to the Supreme Court of New Jersey was denied in State v. Sanabria, 113 N.J. 329, 550 A.2d 446 (1988). He then submitted a petition for post-conviction relief on February 21, 1989, which the trial court denied on July 18, 1991. Sanabria again lost on appeal, and the Supreme Court refused certification.

 On February 1, 1995, Sanabria filed this habeas corpus petition, asserting that: (1) the evidence at trial was insufficient to support his conviction; (2) the trial judge failed to properly answer the jury's question regarding the loss of the right to self-defense; (3) the verdict was against the weight of the evidence; (4) the trial judge erred in failing to instruct the jury on lesser crimes, such as manslaughter; (5) the trial court erred in denying post-conviction relief without affording Sanabria an evidentiary hearing; and (6) he was denied the right to adequate trial representation in violation of the Sixth Amendment.

 DISCUSSION

 Before the Court reaches the merits of this habeas corpus petition, it must decide whether Sanabria exhausted all state remedies prior to requesting federal relief. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. at 516. "The [exhaustion] requirement is not a formality. It serves the interest of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). A district court must dismiss a habeas petition that contains both unexhausted and exhausted claims. Rose, 455 U.S. at 522. The state asserts that Sanabria failed to exhaust his state remedies as to five of the six claims asserted here. The Court concludes that Sanabria failed to exhaust at least one of his claims, thus creating a mixed petition which much be dismissed. Id.

 Claim I: Ineffective assistance of counsel.

 The state concedes that Sanabria exhausted all state remedies with respect to his ineffective assistance of counsel claim. Indeed, on several occasions, he "fairly presented" his Sixth Amendment claim to the state courts, Picard, 404 U.S. at 275, which utilized the familiar standard articulated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), to assess the viability of the claim. Since the New Jersey state courts have had an initial opportunity "to pass upon and correct" this alleged violation of Sanabria's federal rights, the ineffective assistance of counsel claim is suitable for habeas corpus review. Picard, 404 U.S. at 275.

 Claim II: Evidence Insufficient to Support a Murder Conviction. *fn1" ...


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