United States District Court, D. New Jersey
L. LINARES Chief Judge, United States District Court
or about March 21, 2016, Petitioner, Steven Trainer, filed
his petition for a writ of habeas corpus. (ECF No.
Following briefing, this Court entered an Order and Opinion
dated October 19, 2017, which determined that
Petitioner's habeas petition was not properly
exhausted in the state courts, and was subject to dismissal
as a result. (ECF Nos. 17-18). This Court gave Petitioner
forty-five days, however, to request a stay if he so desired,
and informed Petitioner that his petition would be dismissed
without prejudice in the event he did not request a stay.
(ECF No. 18).
Approximately twenty-nine days later, Petitioner submitted to
this Court a letter request for an extension of time within
which to file a notice of appeal as to the Court's
October 19, 2017 decision. (ECF No. 19). This Court granted
that request by way of an Order issued on November 30, 2017,
which gave Petitioner until December 18, 2017, to file a
notice of appeal as to the Court's Order and Opinion
finding Petitioner's habeas petition
December 4, 2017, Petitioner filed a second request for an
extension of time within which to file an appeal which had
been mailed prior to the Court's granting of
Petitioner's previous extension motion. (ECF No. 21).
Because that request was effectively identical to
Petitioner's first extension request, and because this
Court had already granted that request, this Court terminated
that motion. (See generally ECF Docket Sheet).
December 8, 2017, however, Petitioner filed an additional
letter requesting a stay, and noting that the Court had given
him an opportunity to request a stay of this matter pending
exhaustion through a post-conviction relief petition in the
state courts within forty-five days of the date of the Order
and Opinion finding his petition unexhausted. (Id.).
Although Petitioner requests a stay in his letter, he does
not argue or otherwise support his request for a stay pending
this Court previously explained to Petitioner,
[a] district court may only grant a stay of an unexhausted or
mixed petition in "limited circumstances."
Rhines[ v. Weber], 544 U.S. [269, ] 277 [(2005)].
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. 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 Fed.Appx. 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.
(ECF No. 17 at 10-11).
if this Court were to assume that Petitioner's claims are
potentially meritorious and that Petitioner has not been
dilatory, Petitioner has, both in his petition and in his
letter, provided the Court with no good cause for his failure
to exhaust other than his own mistaken belief that his claims
were, in fact, exhausted when he attempted to raise them in
the Appellate Division. As this Court has explained to
Petitioner (see ECF No. 17 at 9-10), however,
raising claims in an appellate court "in a procedural
context in which [their] merits [would] not be
considered" does not exhaust a petitioner's claims
as those claims were not fairly presented to the state
courts. Castille v. Peoples, 489 U.S. 346, 350-51
Thus, the only reason presented in the record for
Petitioner's failure to exhaust his claims in the state
courts was his mistaken belief that he had exhausted or was
not required to exhaust his claims despite the fact that the
Appellate Division refused to hear his ineffective assistance
related claims and informed him, both via the colloquy on
appeal and in the Order affirming his sentence, that he could
address those claims through "filing an application for
post-conviction relief." (See ECF No. 17 at
5-6, Document 4 attached to ECF No. 9). The Third Circuit has
explicitly held, however, that a Petitioner cannot show good
cause for his failure to exhaust where the Appellate Division
told the petitioner "explicitly that the dismissal of
his ... claims [on appeal] was without prejudice, and that he
could pursue his constitutional claims in an application for
post-conviction relief." Ellison v. Rogers, 484
F.3d 658, 662 (3d Cir. 2007). Petitioner's claims thus
mirror those in Ellison almost exactly - he
attempted to pursue ineffective assistance claims on direct
appeal, was not permitted to do so, and was told he could
raise those claims via a post-conviction relief petition.
Under those circumstances, a Petitioner who refuses that
invitation and instead insists on proceeding to file a
federal habeas petition has neither exhausted his
claims, nor shown good cause for his failure to exhaust.
Id. at 660-62. Because Petitioner has failed to show
good cause for his failure to exhaust, his request for a stay
must be denied. Id.
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 claims are unexhausted, and because
jurists of reason could not dispute that Petitioner has
failed to show good cause entitling him to a stay pending
exhaustion, jurists of reason would not debate whether this
Court was correct in finding his petition unexhausted and
concluding it must therefore be dismissed without prejudice.
Petitioner is therefore once again denied a certificate of
conclusion, Petitioner's request for a stay pending
exhaustion is DENIED, Petitioner is DENIED a certificate of
appealability, and this matter shall be DISMISSED WITHOUT