The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter is before the Court on petitioner Alvin Camillo's
application for habeas corpus relief under 28 U.S.C. § 2254. For
the reasons stated below, the petition for habeas relief will be
denied for failure to make a substantial showing of a federal
statutory or constitutional deprivation.
Petitioner, Alvin Camillo ("Camillo"), is a state prisoner
presently confined at the New Jersey State Prison in Trenton, New
Jersey, pursuant to a state court judgment of conviction. On
November 22, 1985, Camillo was sentenced to a 30-year prison term with a 15-year mandatory minimum for felony murder, pursuant to
N.J.S.A. 2C:11-3. (Ra4-Ra-5).*fn1 On November 6, 1987,
Camillo was sentenced to a 12-year prison term with a four-year
mandatory minimum for robbery, pursuant to N.J.S.A. 2C:15-1.
(Ra9-Ra10). The robbery sentence was imposed consecutive to the
felony murder sentence. (Id.). Subtracting 473 days of jail
credits, Camillo's mandatory minimum term expired on August 6,
2003. Thus, Camillo's parole eligibility date was August 7, 2003.
(Ra1-Ra2). In its answer to the petition the State calculated
Camillo's actual maximum release date to be January 22, 2008,
based upon his aggregated term of incarceration minus commutation
and other credits. (Id.). The New Jersey Department of
Corrections website offender search confirms that Camillo is
currently in state custody and that his maximum release date is
September 27, 2007. There is no current parole eligibility date.
Camillo filed this federal habeas petition on or about March
21, 2003, challenging his prison sentence on the grounds that the
Ex Post Facto Clauses of the New Jersey and United States
Constitution were violated.*fn2 He claims that he was
sentenced under new laws not in effect at the time he committed
his crime and was convicted. Camillo also alleges that he is serving beyond his maximum
aggregate sentence, and that he did not receive the maximum
commutation credits to which he was entitled. He states that he
received only 1465 days of an allotted 6288 days for an
aggregated term of 42 years. Under N.J.S.A. 30:4-140, Camillo
contends that he is entitled to "any maximum sentence in excess
of 30 years shall earn 192 credits for each full month."
(Petitioner's Brief at pg. 1).
Camillo next argues that his due process rights were violated
when the State refused to aggregate his consecutive sentences as
mandated by N.J.S.A. 30:4-123.1. He cites State v. Richardson,
208 N.J. Super. 399 (App.Div. 1986) in support of his argument.
Camillo seeks immediate release from prison.
The State answered the federal habeas petition on January 26,
2004. First, the State contends that the petition should be
dismissed because the claims are unexhausted. Second, the State
argues that petitioner is not entitled to immediate release
because commutation and work credits cannot serve to reduce a
mandatory-minimum term pursuant to N.J.S.A. 40:123.51a. Finally,
the State contends that there was no ex post facto violation
because the statute restricting the application of commutation
and work credits to reduce a mandatory minimum term was in effect
at the time Camillo committed his crime. II. EXHAUSTION REQUIREMENT
It is well established that a state prisoner applying for a
writ of habeas corpus in federal court must first "exhaust? the
remedies available in the courts of the State," unless "there is
an absence of available State corrective process? or . . .
circumstances exist that render such process ineffective. . . ."
28 U.S.C. § 2254(b)(1); see also 28 U.S.C. § 2254(c); Rose v.
Lundy, 455 U.S. 509, 510 (1982); Johnson v. Pinchak,
392 F.3d 551, 556 (3d Cir. 2004). A petitioner exhausts state remedies by
presenting his federal constitutional claims to each level of the
state courts empowered to hear those claims, either on direct
appeal or in collateral post-conviction proceedings. See,
e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)
("requiring state prisoners [in order to fully exhaust their
claims] to file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the
State"); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)
(collateral attack in state court is not required if the
petitioner's claim has been considered on direct appeal);
28 U.S.C. § 2254(c) ("An 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.") Once a petitioner's federal claims have
been fairly presented to the state's highest court, the exhaustion requirement is satisfied.
Castille v. Peoples, 489 U.S. 346, 350 (1989); Picard v.
Connor, 404 U.S. 270, 275 (1971).
The petitioner generally bears the burden to prove all facts
establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987
(3d Cir. 1993). This means that the claims heard by the state
courts must be the "substantial equivalent" of the claims
asserted in the federal habeas petition. Picard,
404 U.S. at 275. Reliance on the same constitutional provision is not
sufficient; the legal theory and factual basis must also be the
same. Id. at 277. To meet the exhaustion requirement, the claim
need not be discussed in a state court decision nor even be
considered by the state court. Picard, 404 U.S. at 275.
Here, the State contends that Camillo never raised the federal
habeas claims asserted here in any state court proceedings. Thus,
the petition is unexhausted and should be dismissed accordingly.
To the extent that the claims in this petition were not fully
presented to the highest state court, the Court will nevertheless
review the claims under its discretion pursuant to
28 U.S.C. § 2254(b)(2),*fn3 because they are clearly without merit.
See Lambert, 134 F.3d at 514-15 (district court may deny federal habeas petition on the merits, pursuant to
28 U.S.C. § 2254(b) (2), when "it is perfectly clear that an
applicant does not raise even a colorable federal claim");
Duarte v. Hershberger, 947 F. Supp. 246 (D.N.J. 1996).
III. ANALYSIS OF PETITIONER'S CLAIMS
The Court liberally construes petitioner's claims as alleging a
violation of the due process and ex post facto clauses of
the United States Constitution.*fn4 Essentially, Camillo
seeks immediate release based on his assertion that commutation
and work credits were not applied to his sentence pursuant to the
statutes in existence at the time he was sentenced. The State
counters that the existing law at the time was applied, and that
law did not permit commutation and work credits to be applied to
mandatory minimum sentences. A. Ex Post Facto Claim
The Court first addresses petitioner's contention that the
State's denial of commutation and work credits to reduce his
sentence violates the Ex Post Facto Clause.
The Ex Post Facto Clause of the U.S. Constitution bars any
"enactments, which by retroactive operation, increase the
punishment for a crime after its commission." Garner v.
Jones, 529 U.S. 244, 249-50 (2000) (citations omitted) (emphasis
added). A changed agency policy can violate the Ex Post Facto
Clause if it has the effect of changing substantive law.
Chrysler Corp. v. Brown, 441 U.S. 281, 301-03 (1979); U.S. ex
rel. Forman v. McCall, 709 F.2d 852, 859-63 (3d Cir. 1983), on
appeal after remand, 7 ...