Trainer v. Nogan

          OPINION

          JOSE L. LINARES JUDGE, UNITED STATES DISTRICT COURT

         Presently before the Court is the petition for a writ of habeas corpus of Steven Trainer ("Petitioner") brought pursuant to 28 U.S.C. § 2254 challenging Petitioner's state court conviction (ECF No. 1). Following the denial of their motion to dismiss the petition as time barred (see ECF Nos. 4-8), Respondents filed a response to the petition (ECF No. 9), to which Petitioner has replied. (ECF No. 16). For the following reasons, this Court will dismiss the petition without prejudice as unexhausted and will deny Petitioner a certificate of appealability.

         I. BACKGROUND

         On May 24, 2012, Petitioner, Steven Trainer, pled guilty pursuant to a plea agreement to two counts of second degree robbery in violation of N.J. Stat. Ann. § 2C:15-1 and one count of third degree theft by unlawful taking in violation of N.J. Stat. Ann. § 2C:20-3 in the Superior Court of New Jersey - Law Division, Bergen County. (Document 3 attached to ECF No. 9 at 1). Following his guilty plea, but before he was sentenced, Petitioner filed a. pro se motion in which he sought to withdraw his guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009) (motions to withdraw a guilty plea can be granted only where warranted by a balancing of four factors -whether a colorable claim of innocence has been made, the nature and strength of the reason for withdrawal, the existence of a plea bargain, and whether withdrawal would cause undue prejudice to the state). (See Document 9 attached to ECF No. 9). The chief basis of Petitioner's motion to withdraw his plea was his assertion that his plea counsel had been constitutionally ineffective by failing to investigate Petitioner's criminal case, failing to file a motion to suppress Petitioner's statement to police, failing to file a motion to suppress evidence seized from Petitioner and his vehicle, and by failing to file a motion to dismiss certain counts of Plaintiff indictment. (Document 5 attached to ECF No. 9 at 34-49).

         On January 11, 2013, Petitioner's trial judge held a hearing on Petitioner's motion to withdraw his guilty plea.^[1] (Document 9 attached to ECF No. 9). At that hearing, both Petitioner and his plea counsel testified. (Id.). At the hearing, Petitioner's counsel generally testified that he had had extensive meetings and discussions with Petitioner, that he had discussed the motions and investigated Petitioner's assertions and concluded that, while Petitioner's motions were not without merit, those motions were ultimately unlikely to succeed. (Id. at 77-86). Counsel further testified that he explained this to Petitioner, and recommended that they negotiate a plea deal. (Id.). Counsel also stated that while Petitioner at times was not interested in pursuing a plea prior to a decision on his motions, he ultimately agreed to the plea deal after counsel explained to him that the negotiated plea offer of a nine year sentence would be withdrawn if Petitioner insisted on having his motions ruled upon prior to the entry of a guilty plea. (Id.). Counsel ultimately therefore testified that Petitioner understood that his motions were unlikely to succeed and would result in the loss of a favorable plea deal, and thus chose to accept the plea rather than risk a considerably longer sentence after trial. (Id.).

         Based on the testimony at the hearing, the trial judge issued a final decision denying Petitioner's motion to withdraw his guilty plea on the record on January 29, 2013. (Document 10 attached to ECF No. 9). In that decision, the trial court concluded that, based on plea counsel's highly credible testimony, there was no evidence of ineffective assistance of counsel as counsel had met with Petitioner extensively, advised him that it was in his best interests to plead guilty rather than pursue his motions, and that Petitioner had agreed with that course of action. (Id. at 6-27). Because the trial court found no ineffective assistance of counsel, the court in turn concluded that Petitioner had failed to show that any of the Slater factors weighed in favor of permitting him to withdraw his guilty plea, and thus denied Petitioner's motion. (Id.). The Court thereafter sentenced Petitioner to a concurrent nine year prison term on the charges to which he pled guilty on that same day, January 29, 2013. (Id.; see also Document 3 attached to ECF No. 9 at 1).

         Petitioner then requested that the public defender file an appeal on his behalf. (Document 5 attached to ECF No. 9 at 80). The public defender then filed a timely notice of appeal on Petitioner's behalf on April 5, 2013. (Id. at 81). In its appellate documents, however, the public defender indicated that Petitioner sought only to appeal his sentence, and Petitioner's appeal was docketed on the Superior Court of New Jersey - Appellate Division's Excessive Sentence calendar. (Id. at 82). In May 2013, Petitioner sought to file an out-of-time notice of appeal raising additional claims - specifically a challenge to the trial court's finding that Petitioner had failed to show ineffective assistance of counsel. (Id. at 84-85). The Appellate Division clerk's office, however, rejected that second notice of appeal and returned it to Petitioner unfiled as Petitioner already had a docketed appeal, and that any filings should be made in that matter, not through a second out of time notice to appeal. (Id. at 86).

         Following discussions with his appellate counsel, Petitioner sent a letter to appellate counsel in September 2013, requesting that his appeal be moved from the Excessive Sentence calendar, which provided only an opportunity to argue the impropriety of Petitioner's sentence without full briefing, to a plenary appeal calendar so Petitioner's ineffective assistance claims could be heard by the Appellate Division following full briefing. (Id. at 87-92). Petitioner also attempted to file a pro se motion with the Appellate Division requesting his appeal be moved to a plenary calendar so that briefing could be conducted and so that Petitioner could amend his appeal to raise his ineffective assistance claims. (Id. at 93-95).

         On September 25, 2013, Petitioner's appellate counsel appeared before the Appellate Division for the Excessive Sentence argument on Petitioner's appeal. (Id. at 96). At that argument, the following colloquy took place between Judge Fuentes of the Appellate Division and Petitioner's appellate counsel:

JUDGE FUENTES: State v. Trainer, it must be the day for ineffective assistance of counsel in the [Excessive Sentence] calendar.

[Counsel]: Yes, it is, Your Honor....

Where do I begin with [Petitioner]? [Petitioner] filed a pro se motion to withdraw his plea before sentencing. On September 4th I had over an hour video conference with [Petitioner] and I thought we had agreed that since that's what he filed and that's what the judge heard and decided that we should argue the appeal on that basis. The problem is that this is some sort of a hybrid proceeding.

And the way I view it is that [Petitioner] in his motion to withdraw the plea used as the second factor for Slater [a claim of] ineffective assistance of counsel, which I have explained to him and he agrees - whether he agrees or not is not the point - but that this Court is not here to decide whether there's been . . . ineffective assistance of counsel. Now yesterday in the morning's mail I got a certified letter from [Petitioner] in which he says this is not a Slater issue. This is ineffective assistance of counsel. Now his ...