UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
June 8, 2012
JUAN C. SALAS, PETITIONER,
CHARLES WARREN ET AL., RESPONDENTS.
The opinion of the court was delivered by: Noel L. Hillman United States District Judge
MEMORANDUM OPINION & ORDER
This matter comes before the Court upon Petitioner's filing of a habeas petition, pursuant to 28 U.S.C. § 2254, see Docket Entry No. 1, and his motion seeking a stay and abeyance of his petition, and it appearing that:
1. On September 8, 2011, Petitioner filed a Petition for Writ of Habeas Corpus stating that he was convicted in the Superior Court of New Jersey Law Division ("Law Division") on May 13, 2005. See Docket Entry No. 1, at 1. The Court's own research indicates that his conviction was affirmed by the Superior Court of New Jersey Appellate Division ("Appellate Division") on July 3, 2007. See State v. Salas, 2011 WL 204910, at *1 (N.J.Super.Ct.App.Div. Jan. 24, 2011) (referring to the decision reached in State v. Salas, No. A-5553-04 (N.J. Super.Ct.App.Div. July 3, 2007)). It appears that Petitioner did not seek certification from the Supreme Court of New Jersey.
2. Petitioner asserts that he filed his application for post-conviction relief ("PCR") on January 24, 2008. See Docket Entry No. 1, at 2. That PCR application was denied by the Law Division, and the Appellate Division affirmed the denial on January 24, 2011. See Salas, 2011 WL 204910, at *1. Petitioner sought certification from the Supreme Court of New Jersey which denied his application on July 14, 2011. See State v. Salas, 207 N.J. 189 (2011).
3. The habeas petition was executed on August 26, 2011 and filed on this Court's docket on September 8, 2011.*fn1
4. On October 27, 2011, Petitioner moved this Court for a stay and abeyance of his habeas petition stating that, as of October 25, 2011, he had filed (on an unspecified date) a second PCR application with the state.*fn2
5. It appears that Petitioner is concerned that: (a) his second PCR application might be dismissed by the state courts as untimely (and, thus, it might not qualify as an application "properly filed" with the state courts); and (b) such development would disqualify Petitioner from eligibility for statutory tolling of his AEDPA period during the pendency of this second PCR proceeding.*fn3 Correspondingly, it appears that Petitioner is concerned that -- in the event he withdraws his instant petition and files another Section 2254 petition upon having his second PCR application disposed of by the state courts one way or another -- his AEDPA period might be long expired by the time of such second Section 2254 filing, and Petitioner might be time-barred from obtaining federal habeas review.
6. Petitioner's concerns are not unwarranted. Indeed, since strict compliance with this total exhaustion rule can create procedural dilemmas for some petitioners who may be unable to fully exhaust state remedies on mixed claim petitions, the courts have adopted a procedure which may be employed in a limited number of cases: a "stay and abeyance" measure in which the federal habeas petition is stayed pending exhaustion of state remedies by the petitioner. See Rhines v. Weber, 544 U.S. 269 (2005). Yet, while granting a stay and abeyance is an available measure, it is not an automatic course of action. Because the stay and abeyance measure, if used too frequently, can undermine the policies favoring prompt and orderly resolution of state habeas petitions, the Supreme Court has held that:
[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.
Rhines v. Weber, 544 U.S. at 277. Therefore, in order to qualify for a stay and abeyance, the litigant should "satisf[y] the three requirements for a stay as laid out in Rhines: good cause, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics." Heleva v. Brooks, 581 F.3d 187, 192 (3d. Cir. 2009).
7. Here, Petitioner asserts in his motion that his need to file a second PCR application resulted from: (a) his first PCR counsel's failure to submit Petitioner's pro se PCR brief; and
(b) Petitioner's learning of recent Supreme Court decisions that might have relevance to Petitioner, who was a juvenile charged as adult and sentenced to life imprisonment without the possibility of parole. The Court finds Petitioner has provided good cause as to why he could not (or did not) raise the claims asserted in his second PCR application sooner. The Court also finds that Petitioner might have potentially meritorious claims, and finds no indication of intentional dilatory litigation tactics on the part of Petitioner.*fn4
8. Where stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in the one-year statute of limitations. "Thus, district courts should place reasonable time limits on a petitioner's trip to state court and back." Rhines v. Weber, 544 U.S. at 278; see also Crews v. Horn, 360 F.3d 146, 154 (3d Cir. 2004) ("If a habeas petition is stayed, the petitioner should be given a reasonable interval, normally 30 days, to file his application for state post-conviction relief, and another reasonable interval after the denial of that relief to return to federal court. If a petitioner fails to meet either time-limit, the stay should be vacated nunc pro tunc").
9. The Court, therefore, will grant Petitioner's motion, and will explicitly condition the stay on Petitioner's returning to this Court within 30 days after state court exhaustion of Petitioner's second PCR application is complete.*fn5 See Rhines, 544 U.S. at 278.
IT IS, therefore, on this 8th day of June , 2012, ORDERED that Petitioner's Motion for Stay and Abeyance , is GRANTED; and it is further
ORDERED that this matter is stayed; and it is further ORDERED that the Clerk shall administratively terminate this matter by making a new and separate entry on the docket reading, "CIVIL CASE ADMINISTRATIVELY TERMINATED";*fn6 and it is further
ORDERED that Petitioner shall file his all-inclusive amended petition*fn7 with this Court within 30 days from the date of completion of his second post-conviction relief proceedings; and it is further
ORDERED that, in the event Petitioner timely files his amended petition, that amended petition would be deemed timely in the event Petitioner's original petition, docketed in this matter as Docket Entry No. 1, was timely filed; and it is further
ORDERED that, in the event Petitioner timely files his amended petition, the Court will direct the Clerk to reopen this matter and will address Petitioner's amended petition on the merits (provided that all Petitioner's claims are duly exhausted and his original petition was timely filed); and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon Petitioner by certified mail, return receipt requested.
Noel L. Hillman
At Camden, New Jersey