United States District Court, D. New Jersey
Anthony Rullan Petitioner Pro se
L. HILLMAN, U.S.D.J
Anthony Rullan, a prisoner presently incarcerated at South
Woods State Prison in Bridgeton, New Jersey, has filed an
Amended Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254, ECF No. 11, and a Motion to Stay Pending Appeal,
ECF No. 10, both on June 19, 2017. Petitioner filed both
documents in response to the Court's Memorandum Opinion
and Order dated May 24, 2017, in which the Court directed
Petitioner to file one amended petition which includes all
claims to be raised as well as information regarding the
exhaustion of each claim, and, if any claim remained
unexhausted, a motion to stay.
See ECF Nos. 8, 9.
2011, Petitioner was convicted in New Jersey state court of
two counts of offensive touching, one count of endangering
the welfare of a child, and two counts of sexual assault. ECF
No. 11 at 2, ¶ 5 (Amended Petition). Petitioner's
conviction was affirmed on direct appeal on September 14,
2015, and the New Jersey Supreme Court denied certification
on January 15, 2016. Id. at 3.
After conducting a screening of the initial Petition, the
Court concluded that claims may be unexhausted and ordered
Petitioner to show cause why it should not be dismissed for
that reason. ECF No. 2. After reviewing Petitioner's
response, ECF No. 3, the Court found that the claims in the
initial Petition were unexhausted and subject to dismissal
for failure to exhaust under 28 U.S.C. § 2254(b)(1). ECF
Nos. 4, 5. In that opinion and order, the Court specifically
noted that a stay of the Petition would be inappropriate
because the statute of limitations for federal habeas relief
had not yet begun to run in this case. See ECF No. 4
that Order, the Court gave Petitioner permission to file a
motion for reconsideration if the state court determined that
Petitioner's PCR petition was untimely. See ECF
No. 8 at 3, ¶ 4. Petitioner filed a Motion for
Reconsideration on August 28, 2016. ECF No. 7.
response to the Motion for Reconsideration which referenced
additional unexhausted claims not contained in the Petition,
the Court denied the Motion for Reconsideration and directed
Petitioner to file an Amended Petition containing all claims
he wishes to raise with specific information as to the
exhaustion of each claim, and, if any claim were to be
unexhausted, a motion to stay pending exhaustion in state
court. ECF No. 8.
June 19, 2017, Petitioner filed an Amended Petition and a
Motion to Stay. ECF Nos. 10, 11. The Amended Petition
includes claims that were exhausted on direct appeal,
see ECF No. 11 at 3, ¶ 9, but also includes
claims that are in the process of being exhausted through PCR
Specifically, in the Amended Petition, Petitioner states that
he filed a Petition for Post-Conviction Relief
(“PCR”) for the claims not raised on direct
appeal on February 10, 2016, which was denied by the Superior
Court on September 26, 2016. Id. at 4, ¶ 11.
After this denial, Petitioner's PCR counsel filed an
appeal of the PCR petition to the Appellate Division, which
appeal is still pending. See, e.g.,
id. at 7, ¶ 12(d)(6). Because these claims are
pending review by the Appellate Division, they are
order to exhaust state remedies, a petitioner must
“‘fairly present' all federal claims to the
highest state court before bringing them in federal
court.” Stevens v. Delaware Corr. Ctr., 295
F.3d 361, 369 (3d Cir. 2002) (citing Whitney v.
Horn, 280 F.3d 240, 250 (3d Cir. 2002)).
Here, Petitioner states that his PCR petition is still
pending before the Appellate Division for claims that were
not exhausted on direct appeal. See, e.g.,
ECF No. 11 at 7, ¶ 12(d)(6) (“awaiting appellate
court decision”). Accordingly, those claims presently
pending in the PCR petition are unexhausted. As such, the
Amended Petition is subject to dismissal for failure to
exhaust under 28 U.S.C. § 2254(b)(1)(A) & (c).
Petitioner has also filed a document styled “Motion to
Stay” pending appeal of his unexhausted federal habeas
claims, as he was directed to do by Order dated May 24, 2017.
ECF No. 10. The document, however, fails to present any