RALPH BAKER, Trenton, New Jersey Petitioner Pro Se
MEREDITH L. BALO, Assistant Prosecutor, UNION COUNTY PROSECUTOR, Elizabeth, New Jersey, Attorneys for Respondents in Civ. No. 09-3654 (KM).
NANCY A. HULETT, Assistant Prosecutor, MIDDLESEX COUNTY PROSECUTOR New Brunswick, New Jersey, Attorneys for Respondents in Civ. No. 09-3710 (JAP).
KEVIN MCNULTY, District Judge.
On July 1, 2013, this Court consolidated two § 2254 habeas corpus cases brought by Ralph Baker. The first, Civil Number 09-3654, challenges a judgment of conviction and seven year sentence entered in the Superior Court of New Jersey, Union County, in 2004, after a jury found Baker guilty of theft and third-degree unlawful possession of a weapon. The second habeas petition, Civil No. 09-3710, challenges a life sentence imposed in November 2005 in the Superior Court of New Jersey, Middlesex County. Because the issues are parallel, I granted Baker's motion to consolidate the two cases by order and opinion dated June 28, 2013. (09-3654 Docket No. 46) In that opinion I reserved certain issues, which I now decide.
In each case, the State's Answer maintains that the petition should be dismissed because it is untimely, because Baker failed to exhaust available state court remedies or because he has procedurally defaulted his claims. In each case, Baker has filed a Reply. For the reasons expressed below, I find that Baker has not procedurally defaulted his claims, but has failed to exhaust available state court remedies. I will retain jurisdiction and order that each petition be stayed while Baker returns to state court to exhaust his state remedies on each of these claims.
Without prejudging the issues, I note that two of Baker's claims - based on later-discovered DNA evidence, and denial of the right to counsel on appeal - have sufficient merit to warrant further scrutiny. The State should also strongly consider whether the appointment of counsel, as directed by Judge Stern of the Appellate Division, would be the appropriate course. A wrongful failure to appoint counsel, if not remedied, may constitute a constitutional deprivation, and may also support a finding of "cause and prejudice" that would enable a federal court to consider claims despite their having been procedurally defaulted in state court. The preferable course would be for the State to have the first full opportunity to review these claims, and for Baker to have the assistance of counsel in that process.
In their Answers, both Union County and Middlesex County argue that this Court should deny a stay because Baker's Amended Petitions were untimely. In both cases, the limitations period began running on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The New Jersey Supreme Court denied certification on direct review in both cases on October 20, 2008, and the 90-day period to file a petition for certiorari in the United States Supreme expired on January 19, 2009. See Lawrence v. Florida, 549 U.S. 327, 332-333 (2007); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Thus the limitations period began to run on the next day, January 20, 2009. Baker's two habeas petitions were dated July 20 and 21, 2009, and were filed by the clerk on July 22, 2009. (Civ. No. 09-3654, ECF No. 1; Civ. No. 09-3710, ECF No. 1). Thus they were timely, with six months to spare.
Middlesex County argues that Civil No. 09-3710 is untimely because certain interstitial periods, such as the time elapsed between state court rulings and the filing of appeals, should count toward the statute of limitations. See Answer, Civ. No. 09-3710 at ECF No. 18, p. 10. That is incorrect. As to any time before January 20, 2009, it is not a question of the limitations period running intermittently. The statute of limitations did not begin running at all until January 20, 2009, when "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A)).
Union County acknowledges the final judgment rule, which implies that the original Petition was filed timely in July 2009. See Civ. No. 09-3654, Docket No. 17 at 8. It argues, however, that the Amended Petition was untimely because Baker filed it "on or about March 30, 2010, " about three months after the statute of limitations expired. Id. at 5. Unless the Amended Petition relates back to the date of filing of the original Petition, Union County is correct.
Where an amended habeas petition "clarifies or amplifies a claim or theory in a [timely filed] petition, " an amendment "relate[s] back to the date of that petition if and only if the petition was timely filed and the proposed amendment does not seek to add a new claim or insert a new theory into the case." United States v. Thomas, 221 F.3d 430, 431 (3d Cir. 2000). The original Union County Petition raised five claims: (1) denial of confrontation of a victim/witness who had returned to Turkey; (2) denial of right to counsel on direct appeal from orders denying new trial motions; (3) actual innocence claim based on newly discovered evidence that DNA from the ski mask matched that of another robbery suspect; (4) denial of transcripts of motion for a new trial; (5) violation of Fourth Amendment when Baker's DNA sample was taken. See Civ. No. 09-3654, Dkt. 1-1 at 10-13. The Amended Petition raised four claims: (1) newly discovered DNA evidence of actual innocence; (2) denial of counsel on direct review from orders denying new trial motions; (3) Kyles/Brady violation based on allegedly exculpatory evidence recovered from Baker and from his car at the time of arrest; (4) denial of confrontation right when the court admitted the statement of an unavailable victim/witness. Id., Docket No. 6, at 5-10.
Grounds one, two and four of the Amended Petition are essentially identical to grounds raised in the original, timely Petition. Accordingly, under Thomas, those three grounds clearly relate back, and must be considered timely.
That leaves Ground Three, which is new. The Court might consider it as an amendment under Federal Rule of Civil Procedure 15(c)(1)(B), which permits a party to raise a new claim or defense, even if untimely, if it "arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." Hodge v. United States, 554 F.3d 372, 377 (3d Cir. 2009). Interpreting Rule 15 in the habeas context, the Supreme Court has held that the new claim and the original, timely claim(s) must be "tied to a common core of operative facts." Mayle v. Felix, 545 U.S. 644, 664 (2005); accord Hodge, 554 F.3d at 378. I believe that the Kyles/Brady claim was not anticipated by the original Petition, and that it is "supported by facts that differ in both time and type from those the original pleading set forth." Mayle, 545 U.S. at 650.
Ground Three may still be saved, however, by virtue of a prior Order of this Court and the equitable tolling doctrine. As noted above, Baker timely filed his original Petition on July 22, 2009, some six months before the expiration of the one-year AEDPA statute of limitations. On January 19, 2010 (one day before the expiration of the statute of limitations), Judge Wigenton filed a memorandum opinion and order dismissing the petition because it was not submitted on the court-provided standard habeas form. That dismissal, however, was "without prejudice to the filing of an amended §2254 petition on the § 2254 form provided by the Clerk within 30 days of the entry of this Order." The opinion briefly instructed the petitioner that he would be permitted present all federal grounds only after they were all exhausted in state court proceedings. (09cv3654, Docket No. 3) The accompanying order provided as follows:
[The original petition is] DISMISSED without prejudice to the filing of an amended petition on the § 2254 form provided by the Clerk; and it is further... ORDERED that, within 30 days of the date of the entry of this Order, Petitioner shall file with the Clerk an amended petition on the § 2254 form provided by the Clerk; and it is further
ORDERED that, if Petitioner files such an amended petition within 30 days of the date of the entry of this Order, then this Court will reopen the case and screen the amended petition for dismissal as unexhausted or otherwise, as required by Habeas Rule 4; and it is further
ORDERED that the Clerk shall serve this Order and the accompanying Opinion upon Petitioner by regular mail, together with a blank § 2254 form, AO 241 (Rev. 10/07)....
(09cv3654, Docket No. 2)
Baker did file an amended petition, which included as Claim Three a "Kyles-Brady violation of with holding [ sic ] evidence...." ( Id., Docket No. 4 at docket p. 9) It was filed by the clerk on February 17, 2010, within the 30 day deadline imposed by Judge Wigenton's order. ( Id., Docket No. 4) Because the new petition attempted to combine allegations regarding both the Union and Middlesex County convictions, by order filed March 5, 2010, Judge Wigenton rejected it. She "ORDERED that, within 30 days of the date of the entry of this Order, Petitioner shall file with the Clerk an amended petition which includes all available federal grounds to challenge the Union County judgment.... [I]f Petitioner files such an amended petition within 30 days of the date of the entry of this Order, then this Court will reopen the case...." ( Id., Docket No. 5)
Within 30 days of that Order, Baker filed the operative, Amended Petition that is now before the Court. ( Id., Docket No. 6) This petition, too, contains the Kyles/Brady issue.
In short, this Court retained jurisdiction over the timely filed habeas petitions, invited Baker to file an all-inclusive amended petition within a specified time (which he did), and did not indicate to Baker that any new claims would nevertheless be time-barred. The order of the court came on the eve, almost literally, of the expiration of the statute of limitations. Baker, however, having filed his initial petition some six months earlier, cannot be faulted for lack of diligence.
This, in my view, presents a case for equitable tolling of the AEDPA statute of limitations as to Claim Three. See Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). Equitable tolling is warranted when "principles of equity would make the rigid application of a limitation period unfair." Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012) (quoting Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). A petitioner is entitled to tolling if he shows: (1) that some extraordinary circumstance stood in his way and prevented timely filing; and (2) that he has been pursuing his rights diligently. Id .; Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). "One... potentially extraordinary situation is where a court has misled a party regarding the steps that the party needs to take to preserve a claim." Munchinski, 694 F.3d at 329-330 (quoting Urcinoli v. Cathel, 546 F.3d 269, 275 (3d Cir. 2008)).
Judge Wigenton's dismissals of Baker's petitions without prejudice to refilling within 30 days were a compassionate and entirely proper response to a pro se petitioner who was apparently trying his best to conform to court procedures. It appears that she intended to retain jurisdiction over any subsequent amended petition and did not intend that a petitioner who complied with her 30-day order would be time-barred. Consequently, the "misleading" terminology of Munchinski might itself be misleading in this context; Judge Wigenton was not misleading anyone.
Nevertheless, if (for purposes of argument) Judge Wigenton's Order were interpreted as having led Baker to miss the statute of limitations, it would have been "sufficiently misleading as to constitute an extraordinary circumstance [if it] later operated to prevent [Baker] from pursuing his rights." Munchinski, 694 F.3d at 330 (citation and internal quotation marks omitted). That would be inequitable. Since Baker exercised "reasonable diligence" in pursuing his claims, Holland, 130 S.Ct. at 2565, this Court holds that the statute of limitations was equitably tolled. Baker's Ground Three in the Amended Petition relates back and is timely filed. See, e.g., Munchinski, 694 F.3d at 330-332; Urcinoli, 546 F.3d at 275; Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).
Thus all four grounds of the Amended Petition (09cv3654 Docket No. 6) are timely filed under AEDPA.
II. EXHAUSTION AND PROCEDURAL DEFAULT OF STATE REMEDIES
The state system is the primary guarantor of state defendants' rights. For that reason, a federal court may consider habeas relief only if the state courts have had the opportunity to address the grounds raised by the petitioner. In short, for habeas review to occur, ordinarily there must be nothing left for the state courts to do. That can happen in two ways: First (and far preferable) is for the petitioner to have exhausted his state court remedies. If a federal constitutional issue remains, the federal court may consider it on habeas. Second is for the petitioner to have missed out on state review by "procedural default" - for example, by blowing a deadline to appeal or failing to raise an issue at all. Generally that is fatal to a habeas claim, unless the ...