United States District Court, D. New Jersey
August 31, 2005.
MICHAEL NEWMAN, Petitioner,
JACK TERHUNE, et al., Respondents.
The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge
Petitioner Michael Newman, currently confined at the Special
Treatment Unit at Kearny, New Jersey, has submitted a petition
for a writ of habeas corpus pursuant to
28 U.S.C. § 2254.*fn1 For the reasons set forth below, the Petition must
be dismissed without prejudice. I. BACKGROUND
On May 13, 1993, in the Superior Court of New Jersey, Law
Division Criminal, for Ocean County, Petitioner pleaded guilty
to two counts of aggravated sexual assault and two counts of
endangering the welfare of a child. On November 19, 1993,
Petitioner was sentenced to an indeterminate sentence of fifteen
years incarceration with a seven and one-half year mandatory
On June 21, 1993, in the Superior Court of New Jersey, Law
Division Criminal, for Burlington County, Petitioner pleaded
guilty to one count of aggravated sexual assault. Also on
November 19, 1993, Petitioner was sentenced to a term of seven
years incarceration. The sentences imposed in Ocean County and
Burlington County were to run concurrently.
As Petitioner was nearing the completion of his term of
incarceration, the Attorney General of New Jersey petitioned in
the Superior Court of New Jersey, Law Division, Middlesex County
for the civil commitment of Petitioner pursuant to the New Jersey
Sexually-Violent Predators Act, N.J.S.A. 30:4-27.24 et
seq.,*fn2 (Answer, Ex. 3.) A temporary commitment order was issued by the
Honourable Serena Peretti, Judge of the Superior Court of New
Jersey, Law Division, Essex County, on June 14, 2002. (Answer,
Ex. 4.) At a plenary hearing on September 9, 2002, the court
found Petitioner to be a sexually-violent predator and committed
him to the Special Treatment Unit for further custody, care, and
treatment; the court scheduled a review hearing for September 3,
2003. (Answer, Ex. 1.)
Petitioner appealed the September 9, 2002, judgment of
conviction to the Superior Court of New Jersey, Appellate
Division, alleging (1) that the state failed to prove by clear
and convincing evidence that Petitioner suffered from a current
mental abnormality predisposing him to commit future acts of
sexual violence, (2) the state failed to show by clear and
convincing evidence that Petitioner posed a high risk to
re-offend because the risk assessment methods were improper, and
(3) the court erred in relying on hearsay in reaching its
decision. The Appellate Division affirmed. (Answer, Ex. 7.)
Petitioner did not seek a petition for certification from the
Supreme Court of New Jersey. At the review hearing on September 3, 2003, the court remanded
Petitioner to the STU for further custody, care, and treatment
and scheduled a review hearing for August 23, 2004. (Answer, Ex.
5.) Petitioner did not appeal the September 3, 2003, judgment of
Petitioner's next review hearing was rescheduled to October 7,
2004. Again, the trial court remanded Petitioner to the STU for
further custody, care, and treatment and scheduled the next
review hearing for September 21, 2005. (Answer, Ex. 6.)
Petitioner did not appeal the October 7, 2004, judgment of
Petitioner filed this Petition asserting, inter alia, that
the actions of the Respondents were arbitrary and capricious, and
that the statutory criteria for civil commitment fails to provide
adequate protection to the person subject thereto, all in
violation of his right to due process under the
Fourteenth Amendment to the U.S. Constitution. (Petition, ¶¶ 30, 31, 37.)
Notice has been given pursuant to Mason v. Meyers,
208 F.3d 414 (3d Cir. 2000). Respondents filed an answer on March 11,
2005, asserting that the Petition must be dismissed for failure
to exhaust state remedies. Petitioner has not filed a reply in
support of the Petition. Accordingly, this matter is now ripe for
determination. II. ANALYSIS
It is apparent that the Petition is unexhausted, and it must be
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
A petitioner exhausts state remedies by presenting his federal
constitutional claims to each level of the state courts empowered
to hear those claims. 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). A petitioner in custody
pursuant to the judgment of a New Jersey court exhausts his
federal claims by presenting them to the Superior Court of New
Jersey, Law Division, to the Superior Court of New Jersey,
Appellate Division, and in a Petition for Certification to the
Supreme Court of New Jersey.
Exhaustion is designed to allow state courts the first
opportunity to pass upon federal constitutional claims, in
furtherance of the policies of comity and federalism. Granberry
v. Greer, 481 U.S. 129, 131, 134-35 (1987); Rose,
455 U.S. at 516-18. Exhaustion also has the practical effect of permitting
development of a complete factual record in state court, to aid
the federal courts in their review. Rose, 455 U.S. at 519.
Failure to exhaust may be excused on the basis that state
process is unavailable, but "state law must clearly foreclose
state court review of unexhausted claims." Toulson, 987 F.2d at 987. In addition, the Court of Appeals for the Third Circuit has
stated that, "if a prisoner could establish that the activities
of the state authorities made the prisoner's resort to the state
procedures in effect unavailable, exhaustion would be excused."
Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.), cert.
denied, 484 U.S. 946 (1987).
Here, in his direct appeal of the September 9, 2002, commitment
order, Petitioner failed to raise the constitutional claims he
asserts here. It does not appear that he has ever challenged in
state court, on the federal constitutional grounds asserted here,
his commitment or the New Jersey Sexually Violent Predator Act.
Moreover, the only state-court appeal he initiated, he failed to
exhaust fully, to the Supreme Court of New Jersey. Nor has
Petitioner asserted any deficiency in the state court system of
review that would excuse his failure to exhaust. Accordingly, the
Petition must be dismissed without prejudice.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue "only if the applicant
has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). "When the district court
denies a habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling." Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Here, jurists of reason would not find it debatable that the
Petition is subject to dismissal for failure to exhaust. No
certificate of appealability will issue.
For the reasons set forth above, the Petition must be dismissed
without prejudice. An appropriate order follows.
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