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PERRY v. NASH

August 8, 2005.

BILLY PERRY, Petitioner,
v.
JOHN NASH, et al., Respondents.



The opinion of the court was delivered by: JOSE LINARES, District Judge

OPINION

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 & seizure.
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.

  III. DISCUSSION

  A. Exhaustion

  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 relevant part:
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 ...


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