United States District Court, D. New Jersey
Jose L. Linares, United States District Judge.
May 10, 2017, Petitioner, Donald Higgs, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
which he seeks to challenge his conviction and sentence for
carjacking and robbery. (ECFNo. 1).
Because Petitioner has paid the appropriate filing fee, Rule
4 of the Rules Governing Section 2254 Cases requires the
Court to screen Petitioner's habeas petition and
determine whether it "plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief." Pursuant to this rule, a district court is
"authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face."
McFarland v. Scott, 512 U.S. 849, 856 (1994).
Pursuant to 28 U.S.C. § 2254(b)(1), habeas relief may
not be granted to an individual confined pursuant to an order
of the state courts unless the petitioner has "exhausted
the remedies available in the courts of the State, "
there is an absence of process in the state courts, or there
are circumstances which render the state process ineffective.
A petitioner generally satisfies this exhaustion requirement
when he has presented each of his claims to the highest level
of the state courts. See Picardv. Connor, 404 U.S.
270, 275 (1971); Tinsley v. Johnson, No. 10-3365,
2011 WL 5869605, at *3 (D.N.J. Nov. 22, 2011); see also
Ragland v. Barnes, No. 14-7924, 2015 WL 1035428, at *l-3
(D.N.J. March 10, 2015). "Where any available procedure
remains for the applicant to raise the question presented in
the courts of the state, the applicant has not exhausted the
available remedies." Tinsley, 2011 WL 5869605
at *3; see also 28 U.S.C. § 2254(c). A New
Jersey state prisoner will therefore only have properly
exhausted his claims where he has presented all of his claims
"to the Superior Court of New Jersey, Law and Appellate
Divisions, and to the New Jersey Supreme Court."
Barnes, 2015 WL 1035428 at *1.
his habeas petition, Petitioner states that he was convicted
and sentenced in May 2016. (ECF No. 1 at 2). Petitioner
further states that he filed a direct appeal of his
conviction and sentence with the Appellate Division, but that
his appeal remains pending. (Id. at 3). Petitioner
has thus not yet squarely presented his claims to the
Appellate Division or the New Jersey Supreme Court, and it is
clear that Petitioner has failed to exhaust any of the claims
he now wishes to present to this Court in this petition. As
Petitioner has not otherwise shown that process is
unavailable or ineffective in the state courts, and indeed
suggests to the contrary to the extent he is appealing his
sentence, Petitioner's claims are unexhausted, and this
Court cannot grant Petitioner relief until such time as his
claims are exhausted. Barnes, 2015 WL 1035428 at *
Where a District Court is faced with a habeas petition that
contains unexhausted claims, the District Court has the
following four options: "(1) dismiss the petition
without prejudice; (2) stay the proceedings and hold them in
abeyance until the claims are exhausted; (3) allow
[Petitioner] to delete his unexhausted claims [and proceed on
any exhausted claims presented in the petition]; and (4) deny
the petition if [the District Court] found all of
[Petitioner's] unexhausted claims to be meritless under
§ 2254(b)(2)." Mallory v. Bickell, 563
F.App'x 212, 215 (3d Cir. 2014) (citing Rhines v.
Weber, 544 U.S. 269, 274-78 (2005)). As Petitioner has
not exhausted any of his claims and the Court cannot
conclusively determine that all of Petitioner's claims
are meritless based on the record before the Court, only two
options are available to this Court - stay Petitioner's
habeas petition until he exhausts his claims in state court,
or dismiss his petition without prejudice. Id.
district court may only grant a stay of an unexhausted or
mixed petition in "limited circumstances."
Rhines, 544 U.S. at 277. Specifically, the
petitioner must have "good cause for his failure to
exhaust, his unexhausted claims [must be] potentially
meritorious, and there [can be] no indication that the
petitioner engaged in intentionally dilatory litigation
tactics." Id. at 278. Even where these
requirements are met, a stay will generally only be warranted
in those cases where a dismissal of the petition without
prejudice would result in the petitioner being unable to
timely file his habeas petition. See Crews v. Horn,
360 F.3d 146, 152 (3d Cir. 2004) (stating that a stay is
appropriate "where an outright dismissal could
jeopardize the timeliness of a collateral attack");
Williams v. Walsh, 411 F.App'x 459, 461 (3d Cir.
2011) ("[w]here the timeliness of a habeas corpus
petition is at issue ... a District Court has discretion to
stay" the petition); Ragland, 2015 WL 1035428
this matter, it is clear that Petitioner has yet to complete
his direct appeal, and his one year habeas limitations period
has therefore not yet begun to run. See, e.g., Figueroa
v. Buechele, No. 15-1200, 2015 WL 1403829, at *2 (D.N.J.
Mar. 25, 2015). As such, there is no danger that Petitioner
will be unable to timely file his habeas petition if this
Court dismisses his petition without prejudice, and a stay is
therefore not warranted in this matter. Rhines, 544
U.S. at 277; Williams, 411 F.App'x at 461.
Because a stay is not warranted, only a single option remains
-the dismissal of Petitioner's current petition without
prejudice as unexhausted. Mallory, 563 F.App'x
at 215. Petitioner's petition will therefore be dismissed
without prejudice as unexhausted. Id.
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court
conviction unless he has "made a substantial showing of
the denial of a constitutional right." "A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further." Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). "When the
district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional
claim, a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000). Because jurists of reason could not disagree
with this Court's conclusion that Petitioner's habeas
claims are unexhausted and that Petitioner's habeas
petition should be dismissed without prejudice as a result,
Petitioner's habeas petition is inadequate to deserve
encouragement to proceed further at this time, and Petitioner
must be denied a certificate of appealability as to this
Court's dismissal of his petition for lack of exhaustion.
the reasons stated above, Petitioner's petition for a
writ of habeas corpus (ECF No. 1) shall be DISMISSED WITHOUT
PREJUDICE for lack of exhaustion, and Petitioner shall be
DENIED a ...