United States District Court, D. New Jersey
MCNULTY, United States District Judge
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
BACKGROUND AND PLEADINGS
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.
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.
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"). 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.
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.
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.
LEGAL STANDARDS AND APPLICATION
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).
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:
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