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Suarez v. Johnson

United States District Court, D. New Jersey

November 7, 2017

WILLIAM SUAREZ, Petitioner,
v.
STEVEN JOHNSON, Respondent.

          OPINION

          KEVIN MCNULTY, United States District Judge

         I. INTRODUCTION

         The petitioner, William Suarez, is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Mr. Suarez now moves for a protective stay of the case to allow him to exhaust some of his claims in state court. For the following reasons, this motion will be granted.

         II. BACKGROUND AND PLEADINGS

         In 2006, Mr. Suarez was convicted in New Jersey Superior Court, Law Division, Union County, of four criminal counts: first-degree murder, under N.J. Stat. Ann. § 2C:11 -3(a)(1) or (2); second-degree possession of a handgun for an unlawful purpose, under N.J. Stat. Ann. § 2C:39-4(a)(1); and two counts of third-degree possession of a handgun for an unlawful purpose, under N.J. Stat. Ann. § 2C:39-5(b). That court sentenced Mr. Suarez to a total of 70 years' imprisonment, with no parole eligibility for 53 years. Mr. Suarez appealed the conviction and the sentence to the Superior Court, Appellate Division, which affirmed both. Mr. Suarez sought certification from the Supreme Court of New Jersey, which was denied.

         In August 2010, Mr. Suarez filed a verified petition for post-conviction relief ("PCR"), asserting that he received ineffective assistance of counsel at trial. The Superior Court apparently assigned counsel for the PCR proceeding, but Mr. Suarez also filed his own pro se supplementary brief advancing various arguments regarding his representation at trial. The Superior Court denied the PCR petition, and Mr. Suarez appealed this decision. The Appellate Division affirmed the denial, and the Supreme Court again declined to grant certification.

         Mr. Suarez filed a second PCR petition on February 14, 2017, asserting that he received ineffective assistance of counsel during his initial PCR proceeding. While Mr. Suarez identifies two grounds for relief, he in fact seems to raise three distinct theories of what his PCR counsel should have argued: (1) that trial counsel was ineffective by failing to sufficiently investigate and challenge an allegedly false affidavit used to acquire a search warrant ("the Warrant Argument"); (2) that trial counsel was ineffective by failing to sufficiently argue that an initial, warrantless entry and a resulting protective sweep were improper and by failing to obtain testimony from Mr. Suarez's landlord in connection with that entry ("the Entry Argument"); and (3) that the New Jersey Supreme Court's holding in State v. Davila, 203 N.J. 97 (2010), should have been applied retroactively as to the propriety of the protective sweep ("the Davila Argument").[1] On March 15, 2017, the Superior Court denied this petition as untimely under R. 3:22-12(a)(2)(C). Mr. Suarez appealed this decision to the Appellate Division, and this appeal remains pending.

         Meanwhile, Mr. Suarez filed this habeas petition, dated April 10, 2017 (received by the Court April 21, 2017). Mr. Suarez lists five grounds upon which he challenges his conviction: (1) that the trial court erred by denying a motion to suppress evidence based on an allegedly improper entrance into Mr. Suarez's residence by a police officer; (2) that Mr. Suarez was deprived a fair trial by a police officer's reference in trial testimony to "a person 1 can't mention"; (3) that trial counsel was ineffective by failing to call as a witness Mr. Suarez's landlord to testify regarding the propriety of the police entry into Mr. Suarez's residence; (4) that PCR counsel was ineffective by failing to argue that trial counsel was ineffective on the basis that he failed to challenge a police officer's affidavit used to obtain a search warrant for Mr. Saurez's residence; and (5) that PCR counsel was ineffective by failing to argue that Mr. Suarez's appellate counsel should have raised that trial counsel failed to sufficiently argue for suppression based on an improper entry into Mr. Suarez's residence and that PCR counsel should have raised arguments as to the New Jersey Supreme Court's holding in Davila. Grounds four and five seem to be identical to the arguments raised in the second PCR petition, comprising the Warrant Argument, the Entry Argument, and the Davila Argument. Respondent filed a timely response to the petition on July 28, 2017.

         Mr. Suarez now moves for a protective stay of this action to permit him to exhaust in state court the arguments raised in grounds four and five of his petition. He concedes that these arguments are presently unexhausted as he raised them in his second PCR petition, which is still pending before the Appellate Division. Mr. Suarez asserts that if he were forced to complete his second PCR proceeding without a protective stay, his already-exhausted claims would become time barred before he could again raise his claims before this Court. Respondent filed no timely opposition to this motion.

         III. LEGAL STANDARDS AND APPLICATION

         The petition in this proceeding is currently a "mixed petition, " under Rose v. Lundy, 455 U.S. 509 (1982), as it contains both exhausted and unexhausted claims. Id. at 510, 522. When presented with a mixed petition, a court may, in certain circumstances, grant a protective stay to permit the petitioner to exhaust the unexhausted claims while suspending the limitations period on the exhausted claims. See Rhines v. Weber, 544 U.S. 269, 275-78 (2005). Before granting such a stay, the Court must examine whether good cause exists for the petitioner's failure to exhaust all claims in state court, whether the unexhausted claims are potentially meritorious, and whether the petitioner is employing the litigation simply as means of delay. See Rhines, 544 U.S. at 277; Gerber v. Varano, 512 Fed.Appx. 131, 135 (3d Cir. 2013).

         The Court must first explore the exact nature of the claims Mr. Suarez raised in his second PCR proceeding. In his motion papers, Mr. Suarez explains those claims as follows:

Point One:
Initial PCR counsel proved to be ineffective by failing to investigate and raise upon petitioner's request, that trial counsel was prejudicially ineffective for failing to adequately investigate, raise and challenge the veracity of the affidavit for the search warrant, arguing that the finding of probable cause supporting the issuance of the search warrant depended on intentional false and fraudulent statements of material facts and willfully false statements made in reckless disregard for the truth by Detective Stephen ...

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