Michael Blacknall South Woods State Prison Bridgeton, NJ, Petitioner pro se.
JOEL A. PISANO, District Judge.
Petitioner Michael Blacknall, a prisoner currently confined at South Woods State Prison in Bridgeton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Christopher Holmes and the Attorney General of New Jersey.
For the reasons stated herein, the Petition shall be stayed.
Petitioner is a state prisoner serving a 10-year sentence upon his conviction of aggravated assault and related offenses. According to the Petition, judgment was imposed on December 13, 2008, following a jury trial in the Superior Court of New Jersey, Monmouth County, Criminal Division.
On direct appeal, the Superior Court of New Jersey affirmed the conviction and sentence. State v. Blacknall, 2011 WL 2582561 ( N.J.Super. A.D. July 1, 2011) (on appeal of Monmouth County Indictment No. 07-08-1722). On February 27, 2012, the Supreme Court of New Jersey denied certification. State v. Blacknall , 209 N.J. 430 (2012). According to the Petition, Petitioner did not file a petition for certiorari in the United States Supreme Court. (Petition, ¶ 9.)
On May 24, 2012, Petitioner filed a state petition for post-conviction relief, (Pet., ¶ 10(e)), which remained pending when Petitioner submitted this federal Petition on September 3, 2012. This Petition asserts nine grounds for relief. Petitioner acknowledges that Ground Nine, denial of the right to effective assistance of counsel on direct appeal, has not been exhausted, because it was first asserted in the state petition for post-conviction relief that remains pending.
On September 21, 2012, this Court entered its Opinion and Order [2, 3] administratively terminating this action for failure to prepay the filing fee or to submit an application for leave to proceed in forma pauperis. In its Opinion and Order, this Court also provided the notice required by Mason v. Meyers , 208 F.3d 414 (3d Cir. 2000), regarding the consequences of filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. In its prior Opinion and Order, this Court also noted that the Petition was a "mixed" petition containing both exhausted and unexhausted claims and that none of the one-year federal habeas limitations period, see 28 U.S.C. § 2244, had lapsed before Petitioner filed his state petition for post-conviction relief. Accordingly, this Court ordered Petitioner to advise the Court how he wished to proceed. Petitioner was advised to choose from the following options: (a) to have the pending Petition ruled upon as filed, knowing that it would likely be dismissed without prejudice as a "mixed" petition, or (b) to withdraw the unexhausted Ground Nine and proceed only with the exhausted claims, or (c) to withdraw the pending Petition and file one all-inclusive § 2254 petition subject to the one-year statute of limitations.
In his Response , Petitioner selected none of the above options, but instead asked this Court to stay this Petition until Petitioner had exhausted his state remedies with respect to the unexhausted Ground Nine. As justification for the request, Petitioner asserted that he anticipates that he will no longer be in custody, for purposes of bringing a § 2254 petition, by the time his state remedies are exhausted. Thus, he contends that the combination of his short sentence and the time it takes to exhaust state remedies renders the state procedures ineffective to protect his right to utilize § 2254 to challenge his state conviction. (Letter Response .)
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").
The exhaustion requirement is intended 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 (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.
A petitioner must exhaust 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 (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"); Ross v. Petsock , 868 F.2d 639 (3d Cir. 1989); 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. Picard v. Connor , 404 U.S. 270, 275 (1971); Castille v. ...