MARIA JOSE CARRASCOSA, Petitioner pro se, #648144/41464412E, Clinton, New Jersey.
ANNMARIE COZZI, ESQ., BERGEN COUNTY PROSECUTOR'S OFFICE, Hackensack, New Jersey, Counsel for Respondents.
SUSAN D. WIGENTON, District Judge.
Petitioner Marie Jose Carrascosa ("Petitioner" or "Carrascosa"), a convicted state prisoner presently confined at the Edna Mahan Correctional Facility in Clinton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her December 23, 2009 New Jersey state court judgment of conviction. herein, the Petition will be dismissed without prejudice as unexhausted and procedurally barred at this time.
I. PROCEDURAL AND FACTUAL BACKGROUND
The facts pertaining to Petitioner's criminal proceeding are quite involved and have been set forth in significant detail in prior litigation brought by Petitioner in the District of New Jersey. See e.g., Carrascosa v. McGuire, Civil No. 07-0355 (DRD), 2007 WL 496459 (D.N.J. Feb. 8, 2007), aff'd, 520 F.3d 249 (3d Cir. 2008). Simply stated, Carrascosa has been challenging her detention since November 2006, and now her New Jersey state criminal conviction in this habeas proceeding, which resulted from her violations of custody and civil contempt orders issued by the Superior Court of New Jersey in a contentious divorce and custody battle. This Court relies substantially on the February 8, 2007 Opinion issued by the Honorable Dickinson R. Debevoise, in Carrascosa's prior habeas action, Civil No. 07-0355 (DRD), as follows.
Carrascosa, a citizen of Spain, married Peter Innes, a U.S. citizen, in 1999. They had a daughter, born in April 2000, who has dual citizenship in Spain and the United States by virtue of her parents' citizenship. Carrascosa and Innes eventually separated in early 2004. On October 8, 2004, Carrascosa and Innes signed a custody agreement regarding their daughter that, inter alia, prohibited either parent from traveling outside of the United States (or a 90-mile radius from Fort Lee, New Jersey) with their daughter without the written consent of the other party. The daughter's U.S. and Spanish passports were held in trust by Mitchell A. Liebowitz, Esq. Carrascosa v. McGuire, 2007 ME, 496459 at *1.
On December 10, 2004, Innes filed for divorce from Carrascosa in New Jersey. He sought joint custody of their daughter. On December 15, 2004, Carrascosa filed an action in Spain seeking recognition of the nullification of her marriage and for custody of their daughter. On January 12, 2005, Carrascosa removed her daughter to Spain without the written consent or knowledge of Innes. Id. .
In the New Jersey state court proceedings, on February 4, 2005, an order was entered requiring the return of the daughter from Spain and directing that Innes and Carrascosa abide by their earlier October 8, 2004 custody agreement. Carrascosa appealed, and on March 14, 2005, the Appellate Division denied her appeal. Thereafter, on March 22, 2005, the New Jersey court granted temporary custody of the child to Innes, and ordered that the child be returned from Spain within three weeks. The order further stated that, if the child was not returned from Spain, a warrant would issue immediately for the arrest of Carrascosa. The child was not returned as directed by the court order. Id. at *2.
On June 14, 2005, Innes filed an application in the Spanish Court seeking the immediate return of his daughter pursuant to the terms of the Hague Convention's Civil Aspects of International Child Abduction and 41 U.S.C. 11601 et seq., the International Child Abduction Remedies Act ("ICARA"), and the New Jersey court order. In mid-2005, the Spanish Court ordered that the child was prohibited from leaving Spain for delivery to the custody of Innes in the United States. Carrascosa, 2007 MI, 496459 at *2. In light of the Spanish Court's order, on November 4, 2005, the Honorable Edward V. Torack, J.S.C., who replaced the prior judge in the New Jersey divorce and custody proceedings, vacated all orders relating to custody and parenting time, child support and the arrest of Carrascosa, but retained jurisdiction over the property rights and financial issues in the divorce proceedings. id. at *3.
However, on November 11, 2005, the Spanish Court reversed itself due to lack of international jurisdiction, because both spouses did not have a habitual residence in Spain at the time the petition was filed in Spanish Court. On December 9, 2005, Judge Torack promptly reinstated the action in the Superior Court of New Jersey and ordered that Carrascosa return the child from Spain to New Jersey by December 22, 2005, or face sanctions. Judge Torack also ordered that the parties submit to custody evaluations, but Carrascosa failed to report for her custody evaluation. A final judgment of divorce was entered on August 23, 2006. id. at **3, 4.
The Bergen County Prosecutor's Office issued an arrest warrant for Carrascosa based on her violations of Judge Torack's contempt and custody orders pertaining to the return of the child from Spain. Carrascosa was arrested on November 30, 2006.
On December 19, 2006, a Bergen County Grand Jury returned a nine count indictment (Indictment No. 06-12-02222-I) against Petitioner, charging Petitioner with four counts of interference with the custody of children in violation of N.J.S.A. 2C:13-4A(1) and (2); four counts of violating a custody and visitation order, in violation of N.J.S.A. 2C:13-4A(4); and one count of contempt of a judicial order, in violation of N.J.S.A. 2C:29-9A. (Ra1,  Indictment No. 06-12-02222-I.)
On November 12, 2009, after trial before a jury and the Honorable Donald R. Venezia, J.S.C., the jury returned a guilty verdict on all charges. On December 23, 2009, Judge Venezia sentenced Petitioner to an aggregate prison term of 14 years. (Ra2.)
On February 9, 2010, Petitioner filed a notice of appeal from the judgment of conviction with the Superior Court of New Jersey, Appellate Division. No conforming brief on appeal was filed by Carrascosa. On November 2, 2011, the Appellate Division issued an Order dismissing Petitioner's appeal for failure to correct noted deficiencies in her appellate brief within the time period provided. (Ra3.) On December 7, 2011, the Appellate Division denied Carrascosa's motion to vacate dismissal and to reinstate her appeal. (Ra4.) The Appellate Division stated that the "appeal will be reinstated upon the following conditions: (1) the merits brief must be filed no later than 1/27/12; (2) the brief may be prepared by an attorney on behalf of appellant or by appellant pro se.... If the brief is not filed by 1/27/12, the dismissal will become permanent." (id.) Petitioner did not comply with the Appellate Division's Order as directed.
Instead, Petitioner timely filed this habeas petition under 28 U.S.C. 2254, on August 13, 2012, with hundreds of pages of unverified typed and handwritten documents, letters and accounts to support her petition. (ECE No. 1.) On September 4, 2012, Carrascosa filed a brief and appendix, which were mostly illegible or duplicative of her prior submissions. (ECF Nos. 4, 5.) On September 28, 2012, Petitioner filed a motion to expand the record, again submitting more of the same, repetitive documentation and arguments. (ECF No. 7.) She also filed a motion for appointment of counsel and to proceed as an indigent on October 2, 2012. (ECE No. 8.) In an Order issued on April 2, 2013, this Court granted Carrascosa's application to proceed in forma pauperis, but denied appointment of counsel without prejudice. (ECF No. 23.) This Court also dismissed Petitioner's motion to expand the record as moot, finding that Petitioner's submission "actually appears to only he an amended brief in support of her petition, with additional exhibits." ( Id. )
On January 3, 2013, this Court issued an Order directing Respondents to file a limited answer addressing issues of timeliness and exhaustion. (ECF No. 13.) The State responded on February 4, 2013, asserting that the petition should be dismissed as unexhausted and procedurally defaulted. On February 14, 2013, Carrascosa filed a motion to strike the response and for entry of default, (ECF No. 19), which was denied by Order dated April 2, ...