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Dennis v. Johnson

United States District Court, D. New Jersey

November 17, 2017

ANDRE DENNIS, Petitioner,
v.
STEVEN JOHNSON, et al., Respondents.

          MEMORANDUM AND ORDER

          Freda L. Wolfson, U.S.D.J.

         This matter has been opened to the Court by Petitioner's filing of an Amended Petition and a second motion to stay the petition (ECF Nos. 13, 14) so that Petitioner can exhaust his state court remedies with respect to Grounds Seven, Eight, and Nine of the Petition. For the reasons explained below the Court will deny the motion for a stay, construe Grounds Seven, Eight, and Nine of the Amended Petition as gateway claims under Martinez v. Ryan, 566 U.S. 1, 9, 17 (2012), and order supplemental briefing as to Grounds Seven, Eight, and Nine of the Amended Petition.

         Petitioner is a convicted state prisoner who has filed a habeas Petition challenging his New Jersey state court conviction pursuant to 28 U.S.C. § 2254.[1] (ECF No. 1.) After the Court directed Respondent to Answer the Petition (ECF No. 2), Petitioner filed a motion to stay the petition, which was docketed on July 15, 2016. (ECF No. 5.) On August 12, 2016, Respondent submitted its Answer. (ECF No. 8.) The Court subsequently denied without prejudice Petitioner's motion to stay because Petitioner failed to include his unexhausted grounds in his Petition. (See ECF No. 12). The Court permitted Petitioner to file an (1) an amended petition that includes all federal grounds for relief that he wishes to raise in his § 2254 petition (both exhausted and unexhausted), and (2) a new motion for a stay that complied with the requirements of Rhines v. Weber, 544 U.S. 269 (2005).

         The Amended Petition includes Nine Grounds for relief, and Grounds Seven, Eight, and Nine appear to be unexhausted. (See ECF No. 13, at 35-50.) Grounds Seven, Eight, and Nine each allege that Petitioner's initial PCR counsel was ineffective for failing to raise appellate counsel's failure to raise trial counsel's ineffectiveness. (See id.)

         Respondent has opposed Petitioner's motion for a stay and have attached a copy of a Promis/Gavel Motions sheet that appears to show that Petitioner filed a second PCR in state court on February 22, 2017, which was dismissed pursuant to N.J. Ct. R. 3:22-12 on March 16, 2017. (ECF No. 15-1.) That rule requires, in relevant part, a petitioner to file a second PCR alleging ineffective assistance of first PCR counsel not more than one year after denial of the first PCR. See N.J. Ct. R. 3:22-(a)(2)(C). Here, as pointed out by Respondent, Petitioner's second PCR was filed on February 22, 2017, more than one year after the denial of his first PCR on January 8, 2014. (ECF Nos. 8-17, 8-27, Exs. 16, 26 to Respondent's Answer.) The current version of N.J. Ct. R. 3:22-12(c), which is applicable here, states that the Rule shall not be relaxed, except as provided in the Rule itself.

         From the record before the Court, it appears that the trial court has rejected Petitioner's attempt to file a second PCR as barred by N.J. Ct. R. 3:22-12.[2] Although it is not clear (1) whether Petitioner's second PCR sought relief on Grounds Seven, Eight, and Nine or (2) whether Petitioner appealed the denial of his second PCR to every level of the state court, the Court finds that that Grounds Seven, Eight, and Nine, which allege ineffective assistance of PCR counsel, are not cognizable on habeas review. Pursuant to 28 U.S.C.A. § 2254(i), “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” As such, Petitioner's allegation that his PCR attorney was ineffective for failing to raise Petitioner's appellate and trial counsel's ineffectiveness in not cognizable for on federal habeas review.[3] Thus, exhausting Grounds Seven, Eight, and Nine in state court would not provide a basis for habeas review by this Court.[4] The Court will therefore deny Petitioner's motion for a stay to exhaust Grounds Seven, Eight, and Nine of the Amended Petition.

         Having reviewed the facts of Petitioner's claims, and in light of his pro se status, however, the Court will liberally construe Grounds Seven, Eight, and Nine, to allege ineffective assistance of trial counsel, and will treat Petitioner's allegation of ineffective assistance of PCR counsel as a gateway claim under Martinez v. Ryan, 566 U.S. 1, 9, 17 (2012) (holding that inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial).[5] So construed, Ground Seven challenges trial counsel's failure to move for the exclusion of certain inflammatory evidence regarding the death of the victim in light of the fact that Petitioner was not being trial for murder. Ground Eight alleges that trial counsel, during summation, conceded Petitioner's guilt of the underlying predicate crime in the felony murder prosecution. (Id. at 45-50.) Ground Nine alleges that trial counsel failed to object to prosecutorial misconduct during summation. (Id. at 50.)

         At this time, the Court will also direct Respondent to submit a supplemental answer within 45 days that provides the relevant record and legal arguments with respect to Grounds Seven, Eight, and Nine of the Amended Petition. For completeness, Respondent shall also provide the full record of Petitioner's second PCR, including any appeals. Within 45 days of his receipt of Respondent's submission, Petitioner may submit a supplemental response, including his arguments as to why his claims should not be procedurally defaulted pursuant to Martinez v. Ryan, 566 U.S. 1, 17 (2012).

         It is therefore on this 17th day of November, 2017, ORDERED that the motion to stay the § 2254 Amended Petition (ECF No. 14) is DENIED for the reasons stated in this Memorandum and Order; and it is further

         ORDERED that Respondent shall submit a supplemental answer within 45 days that provides the relevant record and legal arguments with respect to Grounds Seven, Eight, and Nine of the Amended Petition (ECF No. 13); and it is further

         ORDERED that Respondent shall also provide the full record for Petitioner second PCR, including any appeals; and it is further

         ORDERED that within 45 days of his receipt of Respondent's supplemental answer, Petitioner may file a supplemental response; and it is further

         ORDERED that the Clerk shall send this Order by regular mail upon ...


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