United States District Court, D. New Jersey
August 8, 2005.
BILLY PERRY, Petitioner,
JOHN NASH, et al., Respondents.
The opinion of the court was delivered by: JOSE LINARES, District Judge
Billy Perry, an inmate confined in the Federal Correctional
Institution at Fort Dix, New Jersey, filed a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a
conviction entered in the Superior Court of New Jersey, Essex
County, on March 30, 2004, based on a guilty plea. Having
thoroughly examined Petitioner's grounds for relief and
supporting factual assertions, the Court summarily dismisses the
Petition without prejudice for failure to exhaust state court
remedies and declines to issue a certificate of appealability.
See 28 U.S.C. §§ 2253(c), 2254. I. BACKGROUND
Petitioner challenges a conviction entered on March 30, 2004,
in the Superior Court of New Jersey, Law Division, Essex County,
after he pled guilty to possession of a controlled dangerous
substance with intent to distribute within 1000 feet of a school,
unlawful possession of a weapon, and possession of police
scanner. The trial judge imposed a four-year sentence, with a
two-year mandatory minimum. Petitioner asserts that he did not
appeal from the judgment of conviction. He further asserts that
he has no petition or appeal, other than this action, pending in
any court as to the judgment under attack.
The Petition raises two grounds, which are quoted below:
Ground One: Conviction obtained by use of evidence
gained pursuant to an unconstitutional search &
Supporting FACTS: On March 23, 2002 officers of the
Newark Police Dept. answered a call of possible drug
activity on Vermont Ave. Newark. Instead of
responding to Vermont Ave. Nwk., they proceeded to
821 S. Orange Ave. East Orange, N.J. without the aid
of East Orange Police or County Sheriff, a
jurisdictional violation of authority and conducted a
warrantless search of my person and my sisters car
and seized a small amount of drugs and a weapon.
Ground Two: Conviction obtained by use of evidence
obtained pursuant to an unlawful arrest.
Supporting FACTS: Upon finding these items they
placed me under arrest without first obtaining a
warrant for the search of the vehicle, or an arrest
warrant for my person a clear violation of my civil
liberties and their authority these officers have
been arrested themselves for corruption.
(Compl. ¶ 12.A., 12.B.) II. STANDARD OF REVIEW
"Habeas corpus petitions must meet heightened pleading
requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition must "specify all the grounds for relief" and set forth
"facts supporting each of the grounds thus specified." See
28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004).
"Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face."
McFarland, 512 U.S. at 856; see also United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000); Siers v. Ryan,
773 F.3d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
Habeas Rule 4 requires the Court to examine a petition prior to
ordering an answer and to summarily dismiss the petition if "it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court."
28 U.S.C. § 2254 Rule 4.
A district court may not grant a writ of habeas corpus under §
2254 unless the petitioner has exhausted State court remedies for
all grounds presented in the petition, or such process is
unavailable or ineffective to protect the petitioner's rights.
28 U.S.C. § 2254(b)(1)(A), (b)(1)(B); Lambert v. Blackwell,
134 F.3d 506, 513 (3d Cir. 1997). Specifically, § 2254 provides in
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears
that (A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)(i) there is an absence of available State
corrective process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1)(A) & (B); see also Henderson v. Frank,
155 F.3d 159
, 164 (3d Cir. 1998); Lambert, 134 F.3d at 513;
Toulson v. Beyer, 987 F.2d 984
, 987-89 (3d Cir. 1993).
Moreover, § 2254 provides that "[a]n applicant shall not be
deemed to have exhausted the remedies available in the courts of
the State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. § 2254(c).
The Exhaustion Doctrine requires a petitioner to fairly present
each federal claim to all levels of the state court system,
including an application for discretionary review by the State's
highest court. O'Sullivan v. Boerckel, 526 U.S. 838 (1999);
Rose v. Lundy, 455 U.S. 509, 515 (1982); United States ex rel.
Kennedy v. Tyler, 269 U.S. 13, 17 (1925); Burkett v. Love,
89 F.3d 135, 138 (3d Cir. 1996). "[S]tate prisoners must give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process." O'Sullivan, 526 U.S. at 845. A
petitioner in the custody of the State of New Jersey exhausts his
federal claims by fairly presenting them to the Law Division of
the Superior Court, the Appellate Division of the Superior Court,
and in a petition for certification filed in the New Jersey
Supreme Court. Toulson, 987 F.2d at 987-89.
The habeas petitioner carries the burden of proving total
exhaustion. Lambert, 134 F.3d at 513; Toulson,
987 F.2d at 987. "Thus, . . . if the petitioner fails to satisfy the
exhaustion requirement prior to filing a federal habeas petition and none of
the exceptions apply, the federal court is precluded from
granting habeas relief to the petitioner." Lambert,
134 F.3d at 513-14.
In this case, the face of the Petition shows that Petitioner
did not present his claims to either the Appellate Division of
the Superior Court of New Jersey or to the New Jersey Supreme
Court. Thus, Petitioner has not exhausted his claims before all
three levels of the New Jersey courts. Unless exhaustion is
excused or the Petition does not raise even a colorable federal
claim, § 2254 imposes a duty on this Court to dismiss the
Petition without prejudice as unexhausted. Lambert at 515;
28 U.S.C. § 2254(b)(1).
B. Circumstances Excusing Exhaustion
Section 2254(b)(1)(B)(i) excuses exhaustion where there is "an
absence of available State corrective process."
28 U.S.C. § 2254(b)(1)(B)(i);; see also Duckworth v. Serrano, 454 U.S. 1,
3 (1981) (per curiam). A petition containing claims which are
unexhausted but procedurally barred will not be dismissed as
unexhausted. "Although the unexhausted claims may not have been
presented to the highest state court, exhaustion is not possible
because the state court would find the claims procedurally
defaulted." Toulson, 987 F.2d at 987; accord Coleman v.
Thompson, 501 U.S. 722, 730-32 & n. 1 (1991); Harris v. Reed,
489 U.S. 255 (1989).*fn1 "If a claim has not been fairly presented to the state courts but state law clearly
forecloses review . . . exhaustion is excused." Carpenter v.
Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citations omitted).
In determining whether State court review is "available" under
§ 2254(b)(1)(B) and (c), this Court must "turn [its] attention to
the actuality that the state courts would refuse to entertain"
the petitioner's federal claims. Lambert, 134 F.3d at 516;
Christy, 115 F.3d at 207. Most importantly, "unless a state
court decision exists indicating that a habeas petitioner is
clearly precluded from state court relief, the federal habeas
claim should be dismissed for nonexhaustion, even if it appears
unlikely that the state will address the merits of the
petitioner's claim." Lambert, 134 F.3d at 517.
In this case, no New Jersey court has determined that
Petitioner is procedurally barred from raising his claims. This
Court holds that further collateral review of Petitioner's claims
is not "clearly foreclosed." Petitioner's failure to exhaust his
claims is not excused under § 2254(b)(1)(B)(i). See Toulson v.
Beyer, 987 F.2d 984 (3d Cir. 1993).
Failure to exhaust may also be excused where "circumstances
exist that render [State corrective] process ineffective to
protect the rights of the applicant."
28 U.S.C. § 2254(b)(1)(B)(ii). State corrective process is ineffective where
"`state remedies are inadequate or fail to afford a full and fair
adjudication of the federal contentions raised, or where
exhaustion in state court would be futile.'" Lambert,
134 F.3d at 516 (quoting Christy v. Horn, 115 F.3d 201, 207 (3d Cir.
1997)); see also Gibson, 805 F.2d at 138. Petitioner's
failure to exhaust is not excused under this provision, however, because New Jersey's
appellate review procedures are not inadequate to adjudicate his
C. Colorable Federal Claim
Section 2254(b)(2) provides that "[a]n application for a writ
of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State." 28 U.S.C. § 2254(b)(2). The Third Circuit
determined that § 2254(b)(2) codifies the holding in Granberry
v. Greer, 481 U.S. 129 (1987), "by conferring upon the district
court the authority to deny a habeas petition on the merits
despite the petitioner's failure to exhaust state remedies."
Lambert, 134 F.3d at 514.
In Granberry, the Court held that where a state failed to
raise the exhaustion defense in the district court, the court of
appeals may examine the exhaustion issue under the following
The court should determine whether the interests of
comity and federalism will be better served by
addressing the merits forthwith or by requiring a
series of additional state and district court
proceedings before reviewing the merits of the
petitioner's claim. . . . [I]f it is perfectly clear
that the applicant does not raise even a colorable
federal claim, the interests of the petitioner, the
warden, the state attorney general, the state courts,
and the federal courts will all be well served even
if the State fails to raise the exhaustion defense,
the district court denies the habeas petition [on the
merits], and the court of appeals affirms the
judgment of the district court forthwith.
Granberry, 481 U.S. at 134-135.
Thus, a district court may deny an unexhausted petition on the
merits under § 2254(b)(2) only "if it is perfectly clear that the
applicant does not raise even a colorable federal claim."
Lambert, 134 F.3d at 515 (quoting Granberry,
481 U.S. at 135). Under this standard, "if a question exists as to whether the petitioner has stated a
colorable federal claim, the district court may not consider the
merits of the claim if the petitioner has failed to exhaust state
remedies and none of the exceptions set forth in sections
2254(b)(1)(B)(i) and (ii) applies." Lambert, 134 F.3d at 515.
In this case, Petitioner asserts that his conviction was
obtained by use of evidence gained in an unconstitutional search
and seizure. This presents a colorable federal claim. See
Stone v. Powell, 428 U.S. 465, 494 n. 37 (1976)*fn2
(prisoner may challenge a state conviction under the Exclusionary
Rule of the Fourth Amendment in a § 2254 proceeding upon a
showing that he was denied an opportunity for a full and fair
litigation of the claim at trial and on direct review); but see
Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a
criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims . . . that occurred prior
to the entry of the guilty plea. He may only attack the voluntary
and intelligent character of the guilty plea"). Because it is not
perfectly clear that the Petition does not raise a colorable
federal claim, the Court may not reach and dismiss the Petition
on the merits pursuant to § 2254(b)(2). Lambert,
134 F.3d at 515.
Because Petitioner has not exhausted any federal grounds,
because New Jersey's appellate processes are neither unavailable
nor inadequate to protect his federal rights, and because the Petition raises at least one colorable federal claim, the Court
is constrained to dismiss the Petition without prejudice for
failure to exhaust state court remedies. See
28 U.S.C. § 2254(b) and (c).*fn3
D. Certificate of Appealability
Because jurists of reason would not find the Court's dismissal
of the Petition for non-exhaustion debatable or incorrect, the
Court declines to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c). See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000); Walker v. Government of Virgin Islands,
230 F.3d 82, 89 (3d Cir. 2000); Fed.R.App.P. 22(b)(1); 3d Cir. L.A.R.
The Court dismisses the Petition without prejudice and declines
to issue a certificate of appealability under
28 U.S.C. § 2253(c).