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 ...