United States District Court, D. New Jersey
L. LINARES JUDGE, UNITED STATES DISTRICT COURT
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
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).
January 11, 2013, Petitioner's trial judge held a hearing
on Petitioner's motion to withdraw his guilty
plea. (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.).
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).
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).
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).
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]
[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 ...