United States District Court, D. New Jersey
August 18, 2005.
FRANKLIN JACK BURR, II, Petitioner,
LYDELL SHERRER, Warden, et al., Respondents.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Petitioner Franklin Jack Burr, II, a prisoner currently
confined at Northern State Prison in Newark, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The respondents are Northern State Prison Warden
Lydell Sherrer and the Attorney General of the State of New
Jersey. I. BACKGROUND
This statement of background facts is taken from the petition
and is accepted as true for purposes of this Opinion and
Petitioner was convicted pursuant to a jury trial of Sexual
Assault in the second degree, in violation of N.J.S.A. 2C:14-2,
and Endangering the Welfare of a Child in the third degree, in
violation of N.J.S.A. 2C:24-4. He was sentenced on April 22,
2005, to a term of imprisonment of six years and is currently
incarcerated pursuant to that conviction and sentence.
Petitioner contends that his current confinement is
unconstitutional, and he seeks release, on the following grounds:
(1) the conviction was obtained in violation of numerous
constitutional rights,*fn1 (2) the trial court's refusal to
admit him to bail pending appeal was unreasonable, and (3) he has
been subjected to cruel and unusual punishment at Northern State
Prison, as evidenced by a guard's assault and threats against him
on June 29, 2005.
With respect to Petitioner's claim that he is entitled to bail
pending appeal, Petitioner attaches to his Petition a letter from his counsel, dated July 21, 2005, advising him that the
Superior Court of New Jersey, Appellate Division, denied
Petitioner's motion to admit him to bail pending appeal, and
advising against appealing to the New Jersey Supreme Court,
because the chances of success are so negligible.*fn2 With
respect to the claim that the conviction was obtained in
violation of his constitutional rights, Petitioner does not
describe in the Petition, or attach any documents suggesting, any
pursuit of his state court direct appeal or post-conviction
relief remedies. Petitioner alleges, instead, that there is no
exhaustion requirements, or that he has exhausted his state
remedies, or that no state remedies exist.
As amended by the Antiterrorism and Effective Death penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties
of the United States. A. The Eighth Amendment Claim
Petitioner contends that he is entitled to release because he
has been subjected to cruel and unusual punishment while
By this claim, Petitioner does not challenge the legality of
his confinement, but rather the conditions of his confinement.
Release is not a proper remedy for unconstitutional conditions of
confinement. See, e.g., Glaus v. Anderson, 408 F.3d 382
(7th Cir. 2005) and cases cited therein. Instead, the proper
remedies for unconstitutional conditions of confinement are
monetary damages and/or injunctive relief. Id.
It is not appropriate for this Court to construe this claim as
a claim pursuant to 42 U.S.C. § 1983. Petitioner has neither paid
the civil action filing fee of $250 nor applied for leave to
proceed in forma pauperis. Indeed, as there are significant
financial and other consequences to a prisoner proceeding with a
civil rights claim in forma pauperis, see
28 U.S.C. § 1915(b) (payment of the filing fee) and (g) (three-strikes
provision), it would not be appropriate for this Court sua
sponte to convert this action to a civil rights action even if
Petitioner had sought leave to proceed with his habeas action
in forma pauperis. Moreover, it is not apparent that the
Respondent in the habeas action would be the appropriate
defendant in a civil rights action. The events complained of
occurred so recently that it does not appear that any statute of limitations issues would
arise from dismissal at this time. Accordingly, this claim will
be dismissed without prejudice.
B. Exhaustion of State Court Remedies
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 Rose v. Lundy, 455 U.S. 509, 515
(1982); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997),
cert. denied, 532 U.S. 919 (2001) (finding that "Supreme Court
precedent and the AEDPA mandate that prior to determining the
merits of [a] petition, [a court] must consider whether
[petitioner] is required to present [his or her] unexhausted
claims to the [state's] courts").
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.
Addressing Petitioner's allegation that there are no remedies
available in state court, the Court notes that Petitioner
appealed his request for bail pending sentencing to the Supreme
Court of New Jersey and that the letter from counsel specifically
addresses the likelihood of success on appeal to the Supreme
Court of New Jersey with respect to the claim for bail pending appeal (of the conviction, itself). Moreover, New Jersey
Court Rule 2:9-4 (Bail After Conviction) specifically notes that
bail may be allowed by the Supreme Court if denied by the lower
courts. Accordingly, it is clear that New Jersey law provides for
a remedy by the Supreme Court of New Jersey on the claim for bail
pending appeal of the conviction.
In addition, New Jersey law provides for both direct appeal of
a criminal conviction, see, e.g., New Jersey Court Rules Part
II (Rules Governing Appellate Practice), Rule 2:2-3 (Appeals to
the Appellate Division from Final Judgments, Decisions, Actions
and from Rules; Tax Court), and for collateral post-conviction
relief, see, New Jersey Court Rule 3:22 (Post-conviction
Instead, it appears that Petitioner has simply failed to
exhaust his state court remedies. Petitioner has failed to
present any facts suggesting exhaustion of his claim for bail
pending appeal or of his claims regarding the conviction itself.
To the contrary, with respect to the bail claim, Petitioner
attaches a letter from his counsel, dated July 2005, recommending
against appeal to the Supreme Court of New Jersey. Petitioner
provides no information of later date on the bail claim. With
respect to the claims regarding the conviction, itself,
Petitioner indicates that he has grounds for appeal in the state
court, such grounds being a basis for his request for bail
pending appeal, but he was sentenced only in April of this year and he provides no information regarding direct appeal or motions
for post-conviction relief.
Accordingly, Petitioner will be ordered to show cause why the
remaining claims asserted in the Petition should not be dismissed
for failure to exhaust state remedies.
C. The Claim for Bail Pending Appeal
Petitioner contends that he should be granted bail pursuant to
New Jersey Court Rule 2:9-4, but he fails to articulate any error
in the state courts' treatment of his request.
It is well-established that the violation of a right created by
state law is not cognizable as a basis for federal habeas relief.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("We have stated
many times that `federal habeas corpus relief does not lie for
errors of state law.'" (quoting Lewis v. Jeffers, 497 U.S. 764,
680 (1990))). Accordingly, to the extent Petitioner relies
directly upon an error of the state courts in applying Rule
2:9-4, he is not entitled to relief in this Court.
Moreover, bail after conviction is not constitutionally
guaranteed. See Finetti v. Harris, 609 F.2d 594, 597 (2d Cir.
1979) ("there is no absolute federal constitutional right to bail
pending appeal after a conviction in the state courts") (cited
with approval in Landano v. Rafferty, 970 F.2d 1230, 1240 (3d
Cir. 1992) (dicta) and Marks v. Zelinski, 604 F.Supp. 1211,
1213 (D.N.J. 1985)). See also Young v. Hubbard, 673 F.2d 132
(5th Cir. 1982). Nevertheless, "once a state makes provision for such
bail, the Eighth and Fourteenth Amendments require that it not be
denied arbitrarily or unreasonably." Finetti, 609 F.2d at 599.
In reviewing state court proceedings denying bail,
"considerations of federal-state comity require that federal
courts . . . must presume regularity on the part of the state
courts and . . . denial of bail without a statement of reasons is
not arbitrary per se." Id. Instead, "the defendant bears the
burden of showing that there is no rational basis in the record
for the denial of bail." Id. at 601.
As Petitioner has failed to set forth any allegation that the
state courts acted "arbitrarily or unreasonably" in denying
post-conviction bail, or any facts that would support such an
allegation, he will be ordered to show cause, to the extent the
bail claim is exhausted, why it should not be dismissed with
prejudice for failure to allege a constitutional or statutory
violation cognizable in a § 2254 proceeding. III. CONCLUSION
For the reasons set forth above, the Eighth Amendment claim
will be dismissed without prejudice and Petitioner will be
ordered to show cause why the remaining claims in the Petition
should not be dismissed. An appropriate order follows.
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