United States District Court, D. New Jersey
Madeline Cox Arleo, District Judge
matter is opened to the Court by Petitioner Soladeen Bass
Taylor ("Petitioner"), upon the filing of his
petition for a writ of habeas corpus (the
"Petition") (ECF No. 1) brought pursuant to 28
U.S.C. § 2254. For the reasons set forth below, the
Court finds that the Petition currently pending before the
Court is a "second or successive" habeas petition
pursuant to 28 U.S.C. 2244(b) for which Petitioner has not
sought or received authorization from the Court of Appeals to
file in the District Court. As such, the Court is without
jurisdiction to consider the Petition at this time and must
either dismiss the Petition or transfer it to the Court of
Appeals for the Third Circuit. For the reasons explained
below, the Court will dismiss the Petition without prejudice
to Petitioner's filing of the Petition in the Third
Circuit Court of Appeals but declines to transfer the
Petition pursuant to 28 U.S.C. § 1631.
Petitioner has filed a § 2254 petition this Court is
required, pursuant to Rule 4 of the Rules Governing Section
2254 Cases, to screen the Petition and determine whether it
"plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief."
Under this Rule, the Court is "authorized to dismiss
summarily any habeas petition that appears legally
insufficient on its face." McFarlandv. Scott,
512 U.S. 849, 856 (1994).
on Petitioner's habeas petition and the available
portions of the state court and federal record, it appears
that, following a jury trial, defendant was convicted of four
counts of first-degree robbery, N.J.S.A. 2C: 15-1; two counts
of aggravated assault, N.J.S.A. 2C:12-1(b)(1), (4); and one
count of possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); attempted murder, N.J.S.A. 2C:5-1, 11-3;
and unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(2).
See State v. Taylor, No. A-6320-08T1, 2011 WL
5902620, at *1 ( N.J.Super.Ct.App.Div. Nov. 28, 2011).
Defendant was sentenced to an aggregate custodial term of
fifty-five years, subject to twenty-seven and one-half years
of parole ineligibility. Id. Save merger of one
aggravated assault count with the attempted murder
conviction, the judgment of conviction was affirmed on
appeal. State v. Bass, No. A-0061-94 (App. Div. Feb.
6, 1996). The Supreme Court denied defendant's petition
for certification. State v. Bass, 145 N.J. 371
meantime, on March 8, 1996, on the State's motion
pursuant to State v. Haliski, 140 N.J. 1 (1995), the
trial court resentenced defendant, as a second-time Graves
Act offender, to a mandatory extended term, N.J.S.A.
2C:43-6c; N.J.S.A. 2C:43-7c; N.J.S.A. 2C:44-3(d); State
v. Franklin, 184 N.J. 516, 534 (2005), consisting of:
forty-years with a twenty-year parole disqualifier on the
four robbery counts; a concurrent eighteen months on the
aggravated assault charge; a consecutive ten years with a
five-year parole disqualifier on the attempted murder
conviction; and a consecutive five years with a
two-and-one-half year parole disqualifier on the unlawful
possession of a weapon charge. Defendant's aggregate
sentence was fifty-five years in prison, with a twenty-seven
and one-half parole disqualifier. See Taylor, 2011
WL 5902620, at *1.
29, 1996, defendant filed a PCR petition, which was denied on
October 20, 1997. The Appellate Division affirmed, State
v. Bass, No. A-2171-97 (App. Div. May 21, 1999), and the
Supreme Court denied defendant's petition for
certification. State v. Bass, 162 N.J. 129 (1999).
September 1, 2000, Petitioner filed a petition for writ of
habeas corpus, which was docketed in this District and
assigned to the Honorable Faith S. Hochberg. (Civ. Act. No.
00-4298). On September 8, 2000, Judge Hochberg provided a
Mason notice to Petitioner (id. at ECF No.
2) On January 23, 2002, Judge Hochberg denied the Petition.
(Id. at ECF No. 8.) Petitioner appealed, and on
January 15, 2003, the Third Circuit denied a certificate of
appealability, finding that the Petition was untimely and
that he failed to establish a basis for statutory or
equitable tolling. (PACER, 3d Cir. Dkt. No. 02-1655).
years later, on February 15, 2006, defendant filed a motion
in state court to correct an illegal sentence on state law
grounds,  and the motion judge denied the
application, finding no merit to defendant's excessive
sentence claim. Taylor, 2011 WL 5902620, at *2. The
Appellate Division affirmed on November 28, 2011.
Taylor, 2011 WL 5902620, at *2. It does not appear
that Petitioner filed a petition for certification.
instant habeas petition was docketed nearly six years later
on September 15, 2017 and appears to allege that his sentence
is unconstitutional. At issue is whether the Petition filed
in this matter is an unauthorized second or successive
Petition. As explained by the Supreme Court,
[t]he Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) established a stringent set of procedures that a
prisoner "in custody pursuant to the judgment of a State
court, " 28 U.S.C. § 2254(a), must follow if he
wishes to file a "second or successive" habeas
corpus application challenging that custody, §
2244(b)(1). In pertinent part, before filing the application
in the district court, a prisoner "shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application." §
2244(b)(3)(A). A three-judge panel of the court of appeals
may authorize the filing of the second or successive
application only if it presents a claim not previously raised
that satisfies one of the two grounds articulated in §
2244(b)(2). § 2244(b)(3)(C); Gonzalez v.
Crosby, 545 U.S. 524, 529-530, 125 S.Ct. 2641, 162
L.Ed.2d 480 (2005); see also Felker v. Turpin, 518
U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827
Burton v. Stewart, 549 U.S. 147, 152-53 (2007).
Thus, a prisoner who presents a claim not previously raised
may file a second/successive § 2254 petition on]yjf he
first obtains an order from the appropriate circuit court
authorizing the district court to consider the motion.
See 28 U.S.C. § 2244(b)(3)(A). Absent such
authorization, the district court lacks jurisdiction to
address the merits of such a petition. See 28 U.S.C.
§ 2244(b)(4). Here, based on the available record, the
Petition challenges the same Judgment of Conviction and
sentence that Petitioner challenged in his first habeas
petition before Judge Hochberg, and that Petition was
adjudicated and dismissed on timeliness grounds in 2002. As
such, Petitioner's filing in this matter amounts to a
second or successive Petition under 28 U.S.C. § 2244(b)
and does not fall into recognized exceptions to the
"second or successive" rule. See, e.g.,
Slack v. McDaniel, 529 U.S. 473, 485-86 (2000)
(explaining that "[a] habeas petition filed in the
district court after an initial habeas petition was
unadjudicated on its merits and dismissed for failure to
exhaust state remedies is not a second or successive
petition); Magwood v Patterson, 561 U.S. 320, 342
(2010) (explaining that first habeas petition challenging a
new sentence is not second or successive under
§ 2244(b) even though Petitioner had previously filed a
habeas petition challenging prior sentence with respect to
the same judgment). By contrast, courts are generally in
agreement that the dismissal of a first federal petition as
untimely constitutes an adjudication on the merits, rendering
any later-filed petition "second or successive."
See, e.g., McNabb v. Yates, 576 F.3d 1028, 1030 (9th
Cir. 2009) ("We therefore hold that dismissal of a
section 2254 habeas petition for failure to comply with the
statute of limitations renders subsequent petitions second or
successive for purposes of the AEDPA ....") (cited with
approval in Stokes v. Gehr, 399 Fed.Appx. 697, 699
n. 2 (3d Cir. 2010)); Villanueva v. United States,
346 F.3d 55, 58 (2d Cir. 2003) (holding that a petition that
has been dismissed as time-barred has been decided on the
merits and renders any petition "second or
successive" under the AEDPA); see also Candelaria v.
Hastings, No. 12-3846, 2014 WL 2624766, at *3 (D.N.J.
June 12, 2014); Terry v. Bartkowski, No. 11-0733,
2011 WL 5142859, at *3 (D.N.J. Oct. 28, 2011); Pierce v.
United States, No. CIV. 14-0758 NLH, 2015 WL 4653326, at
*2 (D.N.J. Aug. 6, 2015)
Petitioner did not receive permission from the Third Circuit
to file his second Petition, that Petition must either be
dismissed for lack of subject matter jurisdiction or
transferred to the Third Circuit pursuant to 28 U.S.C. 1631.
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
2002) ("When a second or successive habeas petition is
erroneously filed in a district court without the permission
of a court of appeals, the district court's only option
is to dismiss the petition or transfer it to the court of
appeals pursuant to 28 U.S.C. § 1631").
deciding whether it is in the interest of justice to transfer
a second or successive petition to the appropriate court of
appeals, a district court may properly consider whether a
petitioner "ha[s] alleged facts sufficient to bring his
petition within the gatekeeping requirements of § 2244,
which permits 'second or successive' petitions based
upon newly discovered evidence or a new rule of
constitutional law." See Hatches v. Schultz,
381 Fed.Appx. 134, 137 (3d Cir. 2010) (affirming the district
court's dismissal of a second or successive petition
brought pursuant to § 2255 and noting that "this
inquiry as to the factual premise of [Petitioner's]
claims did not require-and the District Court did not
express-any opinion on the merits of the claims").
however, the Petition also fails to comply with Rule 2 of the
Habeas Rules. "Habeas corpus petitions must meet
heightened pleading requirements." McFarland v.
Scott,512 U.S. 849, 856 (1994). The Habeas Rules
require the habeas petition to specify the grounds for
relief, state the facts supporting each ground, and state the
relief requested. See 28 U.S.C. § 2254 Rule
2(c) & (d), applicable through Rule 1(b); see also In
re Advanta Corp. Sec. Litig.,180 F.3d 525, 534 (3d Cir.
1999) (explaining that "factual allegations" are
descriptions of "the who, what, when, where, and how:
the first paragraph of any newspaper story"). "A
prime purpose of Rule 2(c)'s demand that habeas
petitioners plead with particularity is to assist the
district court in determining whether the State should be
ordered to 'show cause why the writ should not be
granted.' [28 U.S.C.] § 2243. Because the Petition
does not clearly state the grounds for relief, the Court is
unable to determine whether it meets the gatekeeping
requirements for a second or successive ...