United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge
January 11, 2018, Petitioner, Philip Patrick, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in which he seeks to challenge his state court
conviction and sentence. (ECF No. 1).
Because Petitioner has paid the appropriate filing fee, Rule
4 of the Rules Governing Section 2254 Cases requires the
Court to screen Petitioner's habeas petition and
determine whether it “plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief.” Pursuant to this rule, a district court is
“authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
Pursuant to 28 U.S.C. § 2254(b)(1), habeas relief may
not be granted to an individual confined pursuant to an order
of the state courts unless the petitioner has
“exhausted the remedies available in the courts of the
State, ” there is an absence of process in the state
courts, or there are circumstances which render the state
process ineffective. A petitioner generally satisfies this
exhaustion requirement when he has presented each of his
claims to the highest level of the state courts. See
Picard v. Connor, 404 U.S. 270, 275 (1971); Tinsley
v. Johnson, No. 10-3365, 2011 WL 5869605, at *3 (D.N.J.
Nov. 22, 2011); see also Ragland v. Barnes, No.
14-7924, 2015 WL 1035428, at *1-3 (D.N.J. March 10, 2015).
“Where any available procedure remains for the
applicant to raise the question presented in the courts of
the state, the applicant has not exhausted the available
remedies.” Tinsley, 2011 WL 5869605 at *3;
see also 28 U.S.C. § 2254(c). A New Jersey
state prisoner will therefore only have properly exhausted
his claims where he has presented all of his claims “to
the Superior Court of New Jersey, Law and Appellate
Divisions, and to the New Jersey Supreme Court.”
Barnes, 2015 WL 1035428 at *1.
his habeas petition, Petitioner states that he was convicted
and sentenced in 2014. (ECF No. 1 at 1). Petitioner appealed,
and his conviction was affirmed in October 2016.
(Id. at 2). The New Jersey Supreme Court thereafter
denied certification on January 24, 2017. (Id. at
2-3). Petitioner thereafter filed a post-conviction relief
petition in the state courts, which still remains pending
before the PCR trial level court. (Id. at 3). While
some of Petitioner's claims appear to have been exhausted
on direct appeal, all of the ineffective assistance of
counsel claims contained in his current petition appear to
have been first presented to the state courts in his PCR
petition, which remains pending at this time. Those claims
have thus never been squarely presented to the Appellate
Division or the New Jersey Supreme Court, and it is clear
that Petitioner has failed to exhaust his ineffective
assistance claims. As Petitioner has not otherwise shown that
process is unavailable or ineffective in the state courts,
and indeed suggests to the contrary to the extent he is
pursuing PCR relief in the state courts, Petitioner's
habeas petition is an unexhausted mixed petition.
Barnes, 2015 WL 1035428 at *1-3.
Where a District Court is faced with a habeas petition that
contains unexhausted claims, the District Court has four
options: “(1) dismiss the petition without prejudice;
(2) stay the proceedings and hold them in abeyance until the
claims are exhausted; (3) allow [Petitioner] to delete his
unexhausted claims [and proceed on any exhausted claims
presented in the petition]; and (4) deny the petition if [the
District Court] found all of [Petitioner's] unexhausted
claims to be meritless under § 2254(b)(2).”
Mallory v. Bickell, 563 F. App'x 212, 215 (3d
Cir. 2014) (citing Rhines v. Weber, 544 U.S. 269,
274-78 (2005)). Because this Court cannot determine the
merits of Petitioner's claims on the information
contained in his habeas petition, this Court cannot deny his
claims, and must either dismiss the petition, permit
Petitioner to withdraw his unexhausted claims, or permit
Petitioner to seek a stay of this matter pending exhaustion.
A district court, however, may only grant a stay of an
unexhausted or mixed petition in “limited
circumstances.” Rhines, 544 U.S. at 277.
Specifically, the petitioner must have “good cause for
his failure to exhaust, his unexhausted claims [must be]
potentially meritorious, and there [can be] no indication
that the petitioner engaged in intentionally dilatory
litigation tactics.” Id. at 278. Even where
these requirements are met, a stay will generally only be
warranted in those cases where a dismissal of the petition
without prejudice would result in the petitioner being unable
to timely file his habeas petition within the one year
statute of limitations period. See Crews v. Horn,
360 F.3d 146, 152 (3d Cir. 2004) (“where an outright
dismissal could jeopardize the timeliness of a collateral
attack” a stay is appropriate); Williams v.
Walsh, 411 F. App'x 459, 461 (3d Cir. 2011)
(“[w]here the timeliness of a habeas corpus petition is
at issue . . . a District Court has discretion to stay”
the petition); Ragland, 2015 WL 1035428 at *2.
Here, Petitioner has provided no explanation for his filing
of his habeas petition prior to the conclusion of his PCR
litigation. At least three months of his one year limitation
period remain as his state court conviction did not
become final until April 24, 2017, when the time for the
filing of a petition for certiorari expired following the
denial of relief by the New Jersey Supreme Court. As such,
this Court finds that Petitioner has not shown that a stay
pending exhaustion would be warranted in this manner.
Crews, 360 F.3d at 152; Williams, 411 F.
App'x at 461; Ragland, 2015 WL 1035428 at *2.
This Court will therefore dismiss Petitioner's current
habeas petition without prejudice for lack of exhaustion.
However, if Petitioner would prefer to proceed only on his
unexhausted claims, he is free to delete his unexhausted
claims and refile his habeas petition within thirty days.
Pursuant to 28 U.S.C. §2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court
conviction unless he has “made a substantial showing of
the denial of a constitutional right.” “A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a [Certificate of
Appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Because jurists of reason could not
disagree with this Court's conclusion that
Petitioner's ineffective assistance claims are
unexhausted and that Petitioner's habeas petition should
be dismissed without prejudice as a result, Petitioner's
habeas petition is inadequate to deserve encouragement to
proceed further at this time, and Petitioner must be denied a
certificate of appealability as to this Court's dismissal
of his petition for lack of exhaustion.
conclusion, Petitioner's petition for a writ of habeas
corpus (ECF No. 1) shall be DISMISSED WITHOUT PREJUDICE for
lack of exhaustion, and Petitioner shall be DENIED a
certificate of appealability. If Petitioner wishes to refile
his petition without his unexhausted claims, he may do so
within thirty days. An appropriate order follows.
 Because the habeas limitations period
is statutorily tolled while a properly filed collateral
attack is pending in the state courts, see, e.g.,
Munchinski v. Wilson, 694 F.3d 308, 327 (3d Cir. 2012),
he may well have significantly more time remaining, and the
at least three months which remainwould not begin to run
until his PCR litigation ceases to be ...