United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE
Gary L. Desrosiers (“Petitioner”), a prisoner
currently confined at New Jersey State Prison in Trenton, New
Jersey, is proceeding pro se with a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (the
“Petition”). Presently pending before the Court
is Petitioner's motion for a stay and abeyance of his
habeas petition. For the reasons set forth below, the Court
will deny Petitioner's motion and dismiss the petition
without prejudice for failure to exhaust state court
January 2008, Petitioner was convicted by a jury of two
counts of second-degree sexual assault, N.J. Stat. Ann.
§ 2C:14-2(b) (counts one and two); three counts of
second-degree endangering the welfare of a child, N.J. Stat.
Ann. § 2C:24-4(a) (counts three, nine, and thirteen);
four counts of first-degree aggravated sexual assault, N.J.
Stat. Ann. § 2C:14-2(a)(2)(a) and (c) (counts four,
five, six, and ten); and four counts of third-degree
aggravated criminal sexual contact, N.J. Stat. Ann. §
2C:14-3(a) (counts seven, eight, eleven, and twelve) in the
Superior Court of New Jersey, Law Division, Burlington
County. (See ECF No. 1 at p. 2). On January 9, 2009,
Petitioner was sentenced to forty-five years of
incarceration. (See id.). Petitioner filed a notice
of appeal, and the Superior Court of New Jersey, Appellate
Division, affirmed his conviction. See State v.
G.L.D., No. A-4122-08, 2011 WL 2341080 (
N.J.Super.Ct.App.Div. June 8, 2011). He then filed a petition
for certification, which the New Jersey Supreme Court denied
on March 9, 2012. See State v. G.L.D., 209 N.J. 596
(N.J. Sup. Ct. 2012). Petitioner did not petition for
certiorari to the United States Supreme Court.
March 21, 2012, Petitioner filed his first post-conviction
relief (“PCR”) petition, which the Law Division
denied on November 13, 2013. (See ECF No. 1 at p.
22). Petitioner filed an appeal, which the Appellate Division
denied on March 18, 2016. See State v. G.L.D., No.
A-1740-13, 2016 WL 1064400 ( N.J.Super.Ct.App.Div. Mar. 18,
2016). Petitioner sought certification from the New Jersey
Supreme Court, which denied his application on February 1,
2017. See State v. G.L.D., 229 N.J. 15 (N.J. Sup.
April 10, 2017, Petitioner filed a second PCR petition,
arguing that his first PCR counsel was ineffective for
failing to raise the claim that trial counsel was ineffective
for failing to challenge the amended indictment.
(See ECF No. 1 at p. 18). Petitioner claims that he
sent his first PCR counsel a supplemental pro se brief
raising this issue and that PCR counsel advised him against
filing the supplemental brief. (See ECF No. 4-2 at
pp. 3-4). Petitioner's second PCR petition is currently
pending before the Law Division and counsel has been assigned
to represent him. (See Id. at p. 4; ECF No. 1 at p.
August 7, 2017, Petitioner filed a pro se habeas petition
pursuant to 28 U.S.C. § 2254 in this Court. The Petition
raises the following claims: (1) insufficient evidence to
support his convictions; (2) ineffective assistance of trial
counsel; (3) violation of Petitioner's constitutional
rights due to the State's amendment of the indictment;
and (4) violation of Petitioner's constitutional rights
due to the PCR court's limitation of his evidentiary
hearing. (See ECF No. 1 at pp. 7-19). Petitioner
indicates in the Petition that all state remedies have not
been exhausted on ground three as his second PCR petition is
currently pending before the Law Division. (See Id.
at p. 18). Petitioner now moves to stay the Petition because
he has not exhausted his state-court remedies with respect to
claim three. (See ECF No. 4-2 at pp. 1-5).
Motion for a Stay and Abeyance
certain, limited circumstances, a district court may stay a
habeas petition and hold it in abeyance while a petitioner
returns to state court to exhaust any previously unexhausted
claims. Rhines v. Weber, 544 U.S. 269, 275-76 (2005)
(“Once the petitioner exhausts his state remedies, the
district court will lift the stay and allow the petitioner to
proceed in federal court.”); see also Williams v.
Walsh, 411 Fed.Appx. 459, 461 (3d Cir. 2011)
(“Where the timeliness of a habeas corpus petition is
at issue, 28 U.S.C. § 2244(d)(1), a District Court has
the discretion to stay a mixed habeas petition to allow
complete exhaustion in state court.”). The Supreme
Court has “cautioned that ‘[s]tay and abeyance,
if employed too frequently, has the potential to
undermine' the purposes of ... (AEDPA): reducing delays
in the execution of sentences, encouraging petitioners to
seek collateral state court relief in the first instance, and
giving petitioners an incentive to exhaust all their claims
in state court prior to filing their federal petition.”
Grundy v. Pennsylvania, 248 Fed.Appx. 448, 451 (3d
Cir. 2007) (quoting Rhines, 544 U.S. at 277).
Therefore, a stay “‘should be available only in
limited circumstances.'” Ellison v.
Rogers, 484 F.3d 658, 662 (3d Cir. 2007) (quoting
Rhines, 544 U.S. at 277).
granting a stay, the district court must examine whether good
cause exists for the petitioner's failure to exhaust all
claims in state court, whether the unexhausted claims are
potentially meritorious, and whether the petitioner is
employing the litigation simply as means of delay. See
Rhines, 544 U.S. at 277; Gerber v. Varano, 512
Fed.Appx. 131, 135 (3d Cir. 2013). “Good cause”
typically requires a showing that requiring exhaustion will
result in a prisoner's petition being time-barred under
28 U.S.C. § 2244. See Heleva v. Brooks, 581
F.3d at 187, 192 (3d Cir. 2009).
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), petitions for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 are subject to a
one year statute of limitations. See 28 U.S.C.
§ 2244(d)(1); Ross v. Varano, 712 F.3d 784, 798
(3d Cir. 2013). Generally, that limitations period runs from
the date on which the judgment became final by the conclusion
of direct review, or the expiration of time for seeking such
review, including the 90-day period for filing a petition for
writ of certiorari in the United States Supreme Court.
Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012).
Additionally, a properly filed PCR petition will normally
statutorily toll the AEDPA limitations period. See
28 U.S.C. § 2244(d)(2). A state PCR petition is
“properly filed” as required to toll the AEDPA
statute of limitations when its delivery and acceptance are
in compliance with the applicable laws and rules governing
filings. See Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Petitioner cannot satisfy the “good cause”
requirement of the Rhines test as timeliness
concerns with respect to AEDPA's one-year limitations
period do not appear to be implicated. Petitioner was
sentenced on January 9, 2009, filed a timely direct appeal,
and requested certification from the New Jersey Supreme
Court. (See ECF No. 1 at p. 22). The New Jersey
Supreme Court denied certification on March 9, 2012. (See
id.). Thus, Petitioner's conviction would not have
become final-and the AEDPA statute of limitations would not
being to run-until the conclusion of the ninety-day period
for filing a petition for writ of certiorari in the United
States Supreme Court. See Gonzalez, 132 S.Ct. at
653-54. However, on March 21, 2012, before the conclusion of
the ninety-day period, Petitioner filed his first PCR
petition. (See ECF No. 1 at p. 22). The PCR petition
tolled the AEDPA statute of limitations until January 27,
2017, when the New Jersey Supreme Court denied certification.
See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir.
2000). On April 10, 2017, Petitioner filed his second PCR
petition, which is still pending. (See ECF No. 1 at
p. 22). Because the second PCR petition was filed within one
year of the denial of the first PCR petition and ineffective
assistance of PCR counsel is being alleged, it appears to be
timely filed under New Jersey law and will toll the AEDPA
limitations period. See N.J. Ct. R.
3:22-12(a)(2)(C); 28 U.S.C. § 2244(d)(2).
on this timeline, approximately two months ran from
Petitioner's federal habeas one-year limitations period.
As such, Petitioner cannot show that a stay is necessary,
because after his second PCR concludes, he has ample time to
refile his federal habeas petition. See Rullan v. State
of New Jersey, No. 16-2332, 2016 WL 4033950, at *4
(D.N.J. July 26, 2016) (denying stay of habeas petition where