United States District Court, D. New Jersey
MICHAEL D. DARBY, Petitioner,
WARDEN OF NEW JERSEY STATE PRISON, Respondent.
Michael Darby, New Jersey State Prison Trenton, Plaintiff Pro se.
NOEL L. HILLMAN, District Judge.
Petitioner Michael D. Darby, a prisoner currently confined at the New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging an unspecified conviction. Also pending is a "Motion to Stay, Motion to Remand and Motion to Appoint Counsel." Motion to Stay, Motion to Remand and Motion to Appoint Counsel, Darby v. Warden of New Jersey State Prison, No. 15-0622 (D.N.J. Feb. 17, 2015), ECF No. 2. For the reasons set forth below, the Petition is dismissed and the Motions are denied.
In the "Procedural History" section of his Motion to Stay, Petitioner states that he was denied post-conviction relief ("PCR") in state court; though he does not specify from what conviction he sought this relief or when it was denied. In any event, it appears that Petitioner appealed the PCR Court's decision on July 22, 2014. It also appears that Petitioner filed a number of motions with the Appellate Court, including: a motion to proceed as indigent, which was granted; a motion for free transcripts, which was denied; and a subsequent "MOTION TO RELY ON ACCOMPANYING ATTEMPT TO ABBREVIATE THE RECORD[, ]" which was also denied. Id. at 18. On January 21, 2015, the appeal was dismissed for failure to prosecute. Id. at 23.
In a letter dated January 12, 2015, Petitioner filed with this Court a two page document which he describes as a "notification of a second habeas corpus writ petition." Petition for Writ of Habeas Corpus, Darby v. Warden of New Jersey State Prison, No. 15-0622 (D.N.J. Jan. 29, 2015), ECF No. 1. Little information regarding the substance of his Petition is provided; therefore it is unclear what precisely Petitioner intends to challenge by way of this Petition.
In a submission dated February 9, 2015, Petitioner filed with this Court documents titled "PROTECTIVE MOTION for ORDER OF STAY; REMAND TO THE STATE COURT APPELLATE DIVISION with INSTRUCTIONS TO EXTEND FULL, ADEQUATE APPELLATE PROCEDURE; GRANT CONTINUED IFP LEAVE TO PROCEED and; RECOMMENDATION FOR REFERRAL FOR APPOINTMENT OF COUNSEL[.]" Motion to Stay, Darby, No. 15-0622, ECF No. 2. In this filing, Petitioner argues that the Appellate Division improperly denied his request for transcripts and his request to abbreviate the record. He further asserts that the denial of his motions and the subsequent dismissal of his appeal deprived him of "the equal protection and due process of law in the state appellate court proceeding, " and constituted an "infringement of his state and federal Constitutional right to unrestricted access to the courts or so much as access to the appellate process." Id. at 13.
Petitioner does not indicate the date of, or the subject of, the proceedings to which the transcripts relate; nor does he provide information regarding the underlying conviction from which he sought relief in the PCR court. Additionally, beyond the caption of these submissions, Petitioner does not further address his request for a stay or his request for appointment of counsel.
A. Challenge to the PCR Court's Decision
To the extent Petitioner means to challenge the Appellate Court's decision to dismiss his appeal of the PCR Court decision, this Court will dismiss the Petition for lack of jurisdiction as a successive petition, and deny a certificate of appealability.
Presumably - and because Petitioner has not indicated otherwise - the PCR proceeding which Petitioner challenges by way of this Petition relates to Petitioner's original conviction. As noted above, Petitioner has previously challenged his original conviction. In his first § 2254 petition, Darby v. Ricci, Civ. No. 08-4929 (NLH), this Court dismissed the Petition as untimely and denied a certificate of appealability in an Order entered April 28, 2009. Thereafter, Petitioner submitted a motion to reopen the case and argued that his claim was not time-barred. By Order and accompanying Opinion entered May 20, 2009, this Court reopened the case, considered Petitioner's arguments that the Petition should not be dismissed as untimely, dismissed the Petition with prejudice as untimely, and denied a certificate of appealability. Petitioner then filed a Motion to Stay and a Rule 60(b) Motion, which this Court denied in an Opinion and Order dated December 13, 2010.
Less than one year later Petitioner filed another habeas petition. See Darby v. Bartkowski, Civ. No. 11-4182 (PGS). In an Opinion dated August 4, 2011, Judge Sheridan noted the previous habeas filing and, relying on Burton v. Stewart, 549 U.S. 147, 152 (2007), dismissed the Petition for lack of jurisdiction as a successive petition, and denied a certificate of appealability.
The Petition presently before this Court is yet another "second or successive" habeas application for which Petitioner has not sought or obtained authorization from the Court of Appeals to file in this Court. Several times now Petitioner has "brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his [subsequent] ...