United States District Court, D. New Jersey
MEMORANDUM AND ORDER
Madeline' Cox Arleo, District Judge United States
matter has been opened to the Court by Petitioner's
filing of a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 and a motion for leave to file his
Traverse as within time. (ECF No. 17.) It appearing that:
Petition raises fifty-eight (58) claims for relief, many of
which assert ineffective assistance of Petitioner's trial
and appellate counsel. (ECF No. 3-1 at 3.) Respondents filed
their Answer on November 6, 2017. (ECF Nos. 12-13.) Based on
the record provided, it appears that a substantial number of
Petitioner's claims are unexhausted, as they were not
fairly presented to all three levels of the state
particular, the record provided by Respondents reflects that
Petitioner submitted a. pro se supplemental brief on
appeal of the denial of his PCR that was apparently
overlooked by the Office of the Public Defender and belatedly
submitted to the New Jersey Appellate Division, along with a
motion to accept the submission as within time. (See
ECF No. 12-17, Ex. 14.) The motion and Petitioner's pro
se supplemental brief is stamped received by the Appellate
Division on November 12, 2013. (Id.)
November 19, 2013, the Appellate Division issued its decision
affirming the denial of PCR. The only issue
addressed by the Appellate Division decision is
Petitioner's claim that his attorney on direct appeal was
ineffective for failing to challenge the outcome of the
Wade hearing, which resulted in the admission of
Petitioner's confession. See Slate v. Coleman,
2013 WL 6063389, at * 1-2 (Nov. 19, 2013). This issue was
raised by Petitioner's counsel on appeal from denial of
his PCR. Neither the motion to accept Petitioner's pro
se supplemental brief as within time nor the
specific issues contained in the pro se supplemental
brief are referenced in the Appellate Division's November
19, 2013 decision.
his Petition and his Traverse, Petitioner contends that he
filed a second PCR, which was denied on December 17, 2014,
and Respondents appear to concede that Promis/Gavel, the
statewide computerized criminal history case system, reflects
that a second PCR was denied by the trial court on that date.
(See ECF No. 18, Pet. Traverse at ¶ 11; ECF No.
12, Answer at ¶ 11.) Respondents otherwise claim that
they have no knowledge of this second PCR. (ECF No. 12,
Answer at ¶ 11.) It is not entirely clear which claims
were raised in this second PCR or if these claims are the
same claims raised in Petitioner's pro se supplemental
brief on appeal from the denial of his first PCR.
Based on the record before the Court, it appears that the
issues raised in Petitioner's pro se
supplemental brief were not fairly presented to the Appellate
Division and were likewise not presented to the Supreme Court
in a petition for certification (see ECF No. 13-2),
and thus remain unexhausted. A petitioner generally satisfies
the exhaustion requirement by fairly presenting 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). Where the state appellate courts have not yet
ruled on a petitioner's claims, see Castille v.
Peoples, 489 U.S. 346, 350 (1989), and "any
available procedure remains for the [petitioner] 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 can
therefore satisfy the exhaustion requirement only by fairly
presenting his claims to the Superior Court of New Jersey,
Law and Appellate Divisions, and to the New Jersey Supreme
Court." Ragland v. Barnes, No. 14-7924, 2015 WL
1035428, at *l-3 (D.N.J. March 10, 2015). It is likewise not
sufficient that a petitioner has merely "been through
the state courts, " a claim will only be said to have
been fairly presented, and thus properly exhausted, where the
state courts had the "opportunity to hear the claim
sought to be vindicated." Picard, 404 U.S. at
276. Notably, a claim is not "fairly presented"
sufficient to satisfy the exhaustion requirement where some
available process remains and the claim was only presented to
the state appellate courts "in a procedural context in
which its merits will not be considered."
Castille, 489 U.S. at 351.
Here, Petitioner'spro se supplemental brief in
connection with his PCR appeal was belatedly submitted to the
Appellate Division by the Office of the Public Defender,
along with a motion to accept it as within time, and was
stamped received a week before the Appellate Division issued
its decision affirming the denial of PCR. Furthermore, the
November 19, 2013 opinion makes no reference to the
motion or the pro se supplemental brief. As such, it
appears that the Appellate Division did not consider the
pro se supplemental brief in affirming the denial of
Petitioner's PCR. Furthermore, Petitioner has not
clarified in his Petition or Traverse whether he has
exhausted some or all of the claims in the second PCR, and
Respondent has not provided the relevant record for the
second PCR. As such, the Petition appears to be a mixed
Federal district courts may not adjudicate mixed petitions,
i.e. petitions that contain both exhausted and
unexhausted claims. Rhines v. Weber, 544 U.S. 269,
273 (2005). Normally, the Court is directed to dismiss a
mixed petition without prejudice, id. at 274, but a
stay and abeyance is appropriate when a dismissal without
prejudice would cause Petitioner to run afoul of the habeas
statute of limitations, and lose his opportunity to seek
federal habeas review. See Id. at 275-76. As the
Supreme Court instructed, "stay and abeyance is ...
appropriate when the district court determines there was good
cause for the petitioner's failure to exhaust his claims
first in state court." Id. at 277. District
courts should grant a stay instead of dismissing a mixed
petition "if the petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics."
Id. at 278.
Court will provide Petitioner with thirty (30) days to (1)
clarify whether he has exhausted all the claims in his
Petition to the highest level of the state court, (2)
state the claims he raised in his second PCR, and (3) explain
whether he has duly exhausted the claims in his second PCR.
The Court emphasizes that to exhaust his claims, he must have
raised the claims in the Petition to every level of the
state court. To the extent any of the claims are
unexhausted, Petitioner may request a stay under
Mines to go back to state court to attempt to
exhaust the unexhausted claims or he may withdraw the
unexhausted claims and proceed only on the exhausted claims.
Petitioner is notified that if he fails to respond to this
Order by either requesting a stay or withdrawing his
unexhausted claims, the Court will dismiss the Petition
without prejudice as a mixed petition, and Petitioner may
lose his opportunity for habeas relief.
Within thirty (30) days of the date of this Order,
Respondents shall clarify by letter whether they have
provided the entire record for Petitioner's PCR
proceedings, including any Order granting or denying the
Public Defender's motion and the available record for
Petitioner's second PCR. If Respondents have not provided
the entire record of Petitioner's PCR proceedings, they
shall supplement the record accordingly.
this time, the Court will also grant Petitioner's motion
requesting that the Court accept his Traverse as within time.
IS THEREFORE, on this 12th day of April 2018,
ORDERED that Petitioner's motion request
to have the Court accept his Traverse as within ...