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August 17, 2005.

ALVIN CAMILLO, Petitioner,
ROY L. HENDRICKS, et al., Respondents.

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).


  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 ...

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