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Duarte v. Hurley

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


October 28, 1998

NELSON O. DUARTE,
PETITIONER,
V.
JOHN M. HURLEY & ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, WENDY ALICE WAY,
DEFENDANTS.

The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge

OPINION

JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE

Before the Court is petitioner's application for appointment of counsel. Defendants have not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, petitioner's application is denied.

BACKGROUND

On June 19, 1980, petitioner was indicted for various offenses arising out of the March 25, 1980, riot at the Essex County Jail in Newark, New Jersey. The New Jersey Superior Court, Law Division, conducted a jury trial that lasted ten days, and the jury convicted petitioner of (1) third degree attempted escape, (2) committing acts of riot in the fourth degree, and (3) third degree possession of an implement of escape. The trial court sentenced petitioner to ten years in prison for attempted escape and possession of an implement of escape. Petitioner appealed his conviction to the appellate division of the superior court, which affirmed his convictions and sentence in an opinion dated November 13, 1985. Subsequently, petitioner sought review by the Supreme Court of New Jersey, but was denied certification on October 15, 1986.

"Duarte then slumbered for ten years before filing [his first] application for a writ of habeas corpus on May 7, 1996." Duarte v. Hershberger, 947 F. Supp. 146, 147 (D.N.J. 1996). Judge Wolin dismissed without prejudice Duarte's first petition because at that time he had failed to exhaust state remedies for his claim of ineffective assistance of counsel. Further, Judge Wolin declined discretionary review of petitioner's application under 28 U.S.C. § 2254(c). See Duarte, 947 F. Supp. at 150. Duarte then filed his current petition for a writ of habeas corpus on January 22, 1998.

DISCUSSION

A plaintiff in a civil suit has neither a constitutional nor a statutory right to counsel. A court, however, has the discretionary authority to appoint counsel to represent an indigent plaintiff under 28 U.S.C. § 1915 (d). See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). When deciding whether to appoint counsel under Section 1915, the Court must be persuaded that the plaintiff's claim has some merit in law and fact. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If it finds the plaintiff's claim has merit, the Court must then weigh a variety of factors to decide whether it is appropriate to appoint counsel.

According to Tabron, the district court has broad discretion in deciding whether to grant a motion for appointment of counsel, pursuant to 28 U.S.C. § 1915 (d). See Tabron, 6 F.3d at 153. As a threshold matter, the Tabron guidelines state that the case must have arguable legal and factual merit. See id. at 155. If the court finds that the indigent plaintiff's claim has arguable merit in law and fact, the court then examines a number of additional factors such as the plaintiff's ability to present the case, the complexity or degree of difficulty of the legal issues involved, the degree to which factual investigation will be required and the ability of the plaintiff to pursue such investigation, and the extent to which the case will turn on credibility determinations and experts. See id. at 156. Finally, the court should consider any factors weighing against appointing counsel, the limited supply of competent lawyers willing to undertake such representation without compensation, and the value of lawyers' time. See id. at 157.

I. LEGAL AND FACTUAL MERIT

In 1996, Congress overhauled the statutes regulating post conviction relief in the federal courts by passing the Antiterrorism and Effective Death Penalty Act (AEDPA), which was subsequently signed by the President. In so doing, Congress sought to curb abuse of the writ and to stem frivolous prisoner litigation. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 616 (3d Cir. 1998); id. at 618. The revised statute became effective on April 24, 1996, and contains an amended section 2244(d), which relates to a new statute of limitations:

(d)(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 the 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;

(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;

(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.

(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. 28 U.S.C.A. § 2244(d)(1)-(2) (Supp. 1998). See also Miller, 145 F.3d at 617-18 (holding that § 2244(d)(1) is a statute of limitations and not a jurisdictional bar).

Cases decided since the effective date of the statute explain that the limitations period applies to a habeas case only if the case was filed after the date of the Act. See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997). An exception applies, however, for petitioners whose claims arose before April 24, 1996, but did not file until after that date. In such a case, the petitioner has one year from the effective date of the amended statute in which to file his claim. See Duarte v. Hershberger, 947 F. Supp. 146, 149 (D.N.J. 1996) (determining that such petitioners "receive a grace period equal to the new limitations period.").

In the case at bar, defendant allegedly violated petitioner's constitutional rights in the early 1980s. Congress made the AEDPA effective on April 24, 1996. Petitioner then filed his petition for a writ of habeas corpus on January 22, 1998. It appears that petitioner has exceeded the limitation period, because he had to have filed no later than April 23, 1997, which is one year after the date the revised statute became effective.

Due to his unexplained delay, it is highly unlikely that petitioner will prevail on the merits of his petition for a writ of habeas corpus. The Court will, nonetheless, discuss petitioner's constitutional claims and the serious obstacles confronting him.

A. INEFFECTIVE TRIAL COUNSEL

Nothing has changed in the two years since Judge Wolin rejected petitioner's ineffective assistance of counsel claim. See Duarte v. Hershberger, 947 F. Supp. 146, 149-50 (D.N.J. 1996). Petitioner now attempts to dress his ineffective assistance claim in the robes of a Fifth or Sixth Amendment violation, but it appears that, with regard to the alleged failings of petitioner's trial counsel, the content of the first and second petitions is substantially the same. Thus, Judge Wolin's December 2, 1996, opinion applies with equal force today as it did two years ago.

Petitioner makes no claim that he has remedied the exhaustion deficiencies highlighted by Judge Wolin. Therefore, petitioner is likely to fail in his attempt to obtain a writ of habeas corpus based on his first ground for relief. That failure is directly traceable to petitioner's failure to exhaust state remedies. This alone is enough to cast doubt on the success of petitioner's claim, as all his claims will likely be dismissed because he failed to exhaust state remedies for one of them. See Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996) (determining that if a § 2254 petition includes any unexhausted claims, it "must be dismissed without prejudice for failure to exhaust all state created remedies."). The Court will, however, in the interest of complete adjudication, address his three remaining alleged constitutional violations.

B. STATE TRIAL COURT'S FAILURE TO GRANT NEW TRIAL OR TO CONDUCT VOIR DIRE OF THE JURY

As discussed above, the statutes governing habeas corpus relief were revised in 1996. The amended Section 2254(d) of Title 28, United States Code, provides that habeas relief shall not be granted for a claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.A. 2254(d) (Supp. 1998).

Furthermore, Section 2254(e)(1) of Title 28, United States Code, now provides:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.A. 2245 (e)(1) (Supp. 1998).

As explained by the Third Circuit, the new amendments to the habeas statutes instruct federal courts not to disturb state court judgments unless there exists grave error that can be characterized as unreasonable. See Berryman v. Morton, 100 F.3d 1089, 1103 (3d Cir. 1996).

Here, petitioner's criminal conviction was appealed to the New Jersey Superior Court, Appellate Division. See State v. Duarte, No. A- 255-82T4, slip op. (N.J. Super. Ct. App. Div. Nov. 13, 1985). The appellate division evaluated a litany of alleged constitutional infirmities that petitioner claimed deprived him of a fair trial. See id. at 3-4. That court specifically addressed and rejected petitioner's claim that the trial court abused its discretion by (1) denying the motion for a mistrial based on a witness's inadvertent statement that the defendant was imprisoned for bank robbery and (2) failing to conduct voir dire of a juror who happened to be a bank teller. See id. at 6-7. In accordance with the deferential standards of review contained in the 1996 amended §§ 2254(d) and 2254(e) of Title 28, United States Code, a federal court will not likely disturb the state court rulings.

C. TRIAL COURT'S REFUSAL TO PERMIT CERTAIN QUESTIONS DURING CROSS EXAMINATION OF A WITNESS

The rules of law set forth in Part I(B) above also apply to this prong of Duarte's petition. Although the appellate division did not specifically address at length petitioner's contention that he was unable to cross examine certain witnesses effectively, that court did state that it considered petitioner's other contentions "and the arguments advanced in support of them and [found] they [were] clearly without merit." See State v. Duarte, No. A-255-82T4, slip op. at 10 (N.J. Super. Ct. App. Div. Nov. 13, 1985) (citing R. 2:11-3(e)(2) (N.J. Court Rule) (permitting appellate division to affirm if an argument is without merit and does not warrant discussion in a written opinion)). Thus, the state court examined petitioner's contentions concerning cross examination, opined that they were without merit, and rejected them without written discussion. Unless that is unreasonable, a federal court cannot disturb that conclusion.

D. LACK OF JURISDICTION BY THE STATE CRIMINAL TRIAL COURT

Again, the appellate division addressed and rejected this claim. See State v. Duarte, No. A-255-82T4, slip op. at 6 (N.J. Super. Ct. App. Div. Nov. 13, 1985). Considering that it was an administrative error that petitioner was incarcerated for several hours past the deadline for his return to federal custody, and further considering that the appellate division found that an order was subsequently signed that extended state custody until the end of his state criminal trial, a federal court will not likely upset the appellate division's finding, which it should be noted was made more than twelve years ago. Thus, petitioner is unlikely to prevail on the merits of his habeas corpus petition.

II. FURTHER CONSIDERATIONS

In order to go forward with the analysis, the Court must assume arguendo that petitioner is likely to succeed on the merits. As discussed supra, Tabron instructs that if petitioner shows his case has legal and factual merit the Court must then consider additional factors in deciding whether or not to appoint counsel. Even if petitioner has established legal and factual merit, the additional Tabron factors do not enure to the him.

Petitioner's pleadings in this case have been succinct and concise. Further, he seems able to understand the detailed rules of federal practice. Indeed, petitioner successfully appealed Judge Wolin's January 22, 1998, order dismissing the petition. In a one page Order, the Third Circuit remanded the petition to the district court for Judge Wolin's consideration. See Duarte v. Hurley, No. 98-5115, Order of Judge Becker (3d Cir. May 27, 1998). Petitioner also appears to have an adequate understanding of written English, cf. Tabron v. Grace, 6 F.3d at 156, and should have little difficulty presenting his petition, which is not complex. Finally, there is likely little need for expert testimony.

In summary, the Court is confident that petitioner can manage his case without the assistance of counsel. As such, the appointment of counsel is not appropriate, and petitioner's motion is denied.

CONCLUSION

For the reasons stated above, petitioner's application for appointment of counsel is denied. An appropriate Order follows.

Orig: Clerk

cc: Hon. Alfred M. Wolin

All parties

File

ORDER

JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE

Before the Court is petitioner's application for appointment of counsel. Defendants have not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth in the attached opinion, petitioner's application is

DENIED.

JOEL A. PISANO UNITED STATES MAGISTRATE JUDGE

Orig: Clerk cc: Hon. Alfred M. Wolin

All parties

File

19981028

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