UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
February 15, 2000
DAVID RAY A/K/A ERIC SOMMERS, PETITIONER
JOHN NASH, WARDEN, ET AL., RESPONDENTS
The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
ORDER DENYING APPLICATION FOR HABEAS CORPUS RELIEF PURSUANT TO 28 U.S.C. § 2254
It appearing that:
1. David Ray, the petitioner in an application for Habeas Corpus under 28 U.S.C. § 2254, is presently incarcerated at FCI Raybrook pursuant to a 151 month sentence imposed by Judge Rendell of the Eastern District of Pennsylvania on May 15, 1995, on guilty pleas to four counts of an indictment charging petitioner with various charges relating to the possession and distribution of cocaine. The presentence investigation report indicates that his offense level, after all adjustments, was 32, and that his criminal history category was III based on 6 criminal history points. Ray received the minimum sentence within a guideline range of 151 months to 188 months. Since his guilty plea was not entered until the day fixed for trial and because Ray did not provide a statement concerning his offense conduct, he did not receive a reduction of an additional offense level pursuant to U.S.S.G. 3E1.1(b). (See ¶ 15 of presentence report dated April 10, 1995).
2. Five of his six criminal history points resulted from three convictions in 1985 in the New Jersey Superior Court, two for possession of a handgun (Indictment #s 676-03-85 and 0572-03-85) and one for possession of cocaine (Indictment # 1366-06-85). On June 17, 1985, Ray pled guilty to illegal possession of a handgun (Indictment # 0572-03- 85), and on August 2, 1985 was sentenced to three years probation and a fine. He received one criminal history point for this conviction. Less than two months later, on October 1, 1985, Ray pled guilty to the Seventh Count of Indictment 1366-06-85 charging possession of cocaine and to the First Count of Indictment# 676-03-85 charging illegal possession of a handgun. On January 2, 1986, Ray was sentenced on both charges to five years probation with a condition that he serve 270 days in the Camden County Jail. As part of the plea bargain, a more serious charge of possession with intent to distribute cocaine (Eighth Count of indictment 1366-85) was dismissed. He received two criminal history points for each of these two convictions. His attorney for both charges and on the earlier gun charge was Aaron Denker, Esq. His sixth criminal history point resulted from a municipal court conviction on November 7, 1985, which does not appear to be implicated in the instant petition.
3. The impact of the three Superior Court convictions in 1985 on his federal sentence in 1995 was substantial. Not only did they operate to elevate his criminal history category to III, but they also deprived him of the possibility of getting "safety valve" relief under U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6). *fn1
4. There appears to have been a violation of probation charge lodged against Ray in all three of his 1985 Superior Court convictions based on his 1995 federal conviction. At a hearing on May 3, 1996, the trial court terminated his probation on all three 1985 convictions and sentenced Ray to a four year custodial term on indictment 1366-85, to run concurrently with his federal sentence.
5. Up to this point petitioner had never filed a direct appeal or collateral attack on his three 1985 Superior Court convictions. However, on August 25, 1996, Ray filed a pro se petition for post- conviction relief pursuant to New Jersey Rule 3:22-1, five years and seven months beyond the five year filing limit provided in Rule 3:22-12.
6. In his petition he asserted actual innocence of the 1985 drug charge (Indictment # 1366-06-85), claiming that he pled guilty only on the advice of counsel to get a low sentence. He asserts that his counsel never advised him that his guilty plea could lead to an enhanced sentence in the future should he be convicted of a subsequent crime. There is some confusion as to whether Ray's arguments applied just to the narcotics charge or to the two 1985 gun convictions. In any case Judge Isaiah Steinberg, J.S.C., denied the petition as being out of time. His order of September 30, 1997, was captioned under Indictment # 676-03-85. The transcript of the hearing held before Judge Steinberg on September 10, 1997, is captioned under Indictments #s 0572-03-85 and 1366-06-85. However, a review of the Public Defender's brief to Judge Steinberg and the decision of the Appellate Division opinion make it clear that the only conviction being attacked was the cocaine charge in Indictment # 1366-06-85. Moreover, there is no doubt that the State of New Jersey considers Ray's claims with respect to that conviction to be procedurally defaulted. See Wainwright v. Sykes, 433 U.S. 72 (1977) and Coleman v. Thompson, 501 U.S. 722 (1991).
7. Counsel was appointed to represent petitioner before Judge Steinberg and on appeal to the Appellate Division and the New Jersey Supreme Court. The New Jersey courts rejected Ray's argument that warnings by certain unidentified Camden Police officers to stay out of Camden justified the more than five year delay in filing his petition under Rule 3:22-12. Ray's Petition for Certification to the Supreme Court of New Jersey was denied on July 6, 1999. The instant petition in this court followed on September 22, 1999.
8. Although his current petition makes clear that Ray is challenging all three 1985 convictions, his factual assertions focus primarily on the two pleas entered on October 1, 1985, with respect to Indictments #s 1366-06-85 (drugs) and 676-03-85 (weapon possession). He lists as his grounds for relief, police corruption, prosecutorial misconduct, ineffectiveness of counsel and miscarriage of justice. He repudiates the admissions made during the plea colloquy and argues that the Camden police were engaged in extorting money from drug dealers, that the prosecutor fabricated evidence, that he is innocent of the charges, and that he pled guilty on the advice of counsel who did not advise him that these convictions might later be used to enhance a sentence should he commit another crime.
9. Under New Jersey Rule 3:22-12 a petition for post conviction relief must be filed within five years of "rendition of the judgment or sentence sought to be attacked." The only exceptions are "petitions to correct an illegal sentence" and delay "due to defendant's excusable neglect." With respect to Ray's state petition attacking his cocaine conviction (Indictment # 1366-06-85), Judge Steinberg ruled:
Accordingly, I do feel that the time bar does apply. This petition was filed more that five years after the expiration of the time bar. And there has not been a showing of excusable neglect or an illegal sentence. (Transcript, 9/10/97, p.21)
Judge Steinberg rejected Ray's argument that his delay was "excusable neglect" because one of the officers who arrested him allegedly threatened him and told him to stay out of Camden. Given the population of Camden and the availability of the U.S. mail, Judge Steinberg felt that the ten year old threat did not amount to "excusable neglect." (Transcript, 9/10/97, p.19-20).
The decision of the Appellate Division on April 28, 1999, affirmed "substantially for the reasons expressed by Judge Steinberg in his September 10, 1997 oral opinion." (Docket A-2028-97T4, unpublished). The New Jersey Supreme Court denied without opinion a petition for certification. Judge Steinberg did discuss petitioner's claim that his lawyers were ineffective because they failed to inform him that his guilty plea might be used to enhance the sentence should he commit a future crime. However, the Appellate Division opinion makes it clear that Judge Steinberg's views on this subject (there is no such obligation) were dicta, although the court did indicate agreement with those views. *fn2
10. In a case where the petitioner has "failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is a procedural default for purposes of habeas corpus . . . ." Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Harris v. Reed, 489, U.S. 255, 269-70 (1989) (O'Connor, J., concurring). The federal habeas court may excuse exhaustion when it is a procedurally barred claim in the state court only if state review is "clearly foreclosed." Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir. 1997).
11. Judge Steinberg's opinion makes clear that Indictment #1366- 06-85 is procedurally defaulted which satisfies the exhaustion requirement. The other two indictments were never brought before the State of New Jersey on direct appeal or by petition for post conviction relief. While a federal court should be cautious in finding procedural default absent an express finding by the state courts, the fifteen year passage of time and the decision in Indictment #1366-06-85 make it abundantly clear that the New Jersey courts would not now entertain a petition for post conviction relief. Thus, Indictments #s 676-03-85 and 0572-03-85 are also procedurally defaulted and the exhaustion requirement has been satisfied. N.J. Rule 3:22-4; Lambert, 134 F.3d at 517. *fn3
12. Where there has been a procedural default, the federal courts must use the "cause and prejudice" test when reviewing the petition for habeas relief. The petitioner must demonstrate either (a) good cause for failure to follow the rule of state procedure and actual prejudice resulting therefrom, or (b) that a miscarriage of justice would result if the court did not address the merits of the petitioner's claim. Wainwright v. Sykes, 433 U.S. 72 (1977); Coleman v. Thompson, 501 U.S. 722 (1991).
13. Ray's claim that in 1985 a Camden police officer told him to stay out of Camden is not, as found by Judge Steinberg, a good (or rational) explanation for the long delay in filing his original New Jersey petition for post conviction relief (August 26, 1996). Almost certainly, the reason for the delay is that after serving his 270 day sentence in 1985, petitioner had no interest in attacking his guilty pleas until he committed another crime and was sentenced ten years later in federal court and suffered the consequences under the Sentencing Guidelines of his prior state convictions. Delaying the filing of a § 2254 petition until being caught in a new criminal act does not amount to "good cause" under Wainwright. Any contrary rule would put the government in the position of trying to defend a habeas claim years or even decades after the original convictions at a time when files are hard to retrieve, witnesses have died or disappeared and memories have dimmed.
14. Under Wainwright and Coleman the court must also consider whether a miscarriage of justice would result if the court did not address the merits of the petitioner's claim. A court must be sensitive to a claim of actual innocence, particularly if it is supported by new or compelling evidence. In this case the only real evidential support for petitioner is his own extended version of what he now claims happened. There are no affidavits or sworn testimony of any other witness. Petitioner's story is further tainted by the simple fact that in 1985 he stood in open court and admitted his crimes to a New Jersey Superior Court Judge. See transcript of plea colloquy before Judge Fluharty on October 1, 1985, with respect to Indictment #s 1366-06-85 and 676-03-85, at pages 6-8. It is not a miscarriage of justice to disregard a petitioner's unsupported recantation of sworn testimony he gave in court fifteen years earlier.
For the reasons set forth above,
IT IS on this 15th day of February, 2000, ORDERED THAT:
1. Petitioner's claim for relief under 28 U.S.C. 2254 is hereby DENIED; and
2. No certificate of appealability shall issue as provided in 28 U.S.C. 2253(c).
JOSEPH E. IRENAS U.S.D.J.