United States District Court, D. New Jersey
Stanley R. Chesler, U.S.D.J.
matter has been opened to the Court by Petitioner's
filing of a Petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Having reviewed the Petition,
Respondent's Answer, and the relevant record, the Court
will deny the Petition for the reasons stated in this Opinion
and will also deny a certificate of appealability.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
pleading guilty in August 1997 to two counts of an amended
charge of first-degee aggravated manslaughter, N.J.S.A.
2C:11-(a)(1), and other charges, Scott was sentenced on the
first manslaughter count to a sixty-year term of imprisonment
with a twenty-five year period of parole
ineligibility. The judge determined that he was subject
to sentencing pursuant to the Graves Act, N.J.S.A. 2C:43-6(c)
and -7(c) and N.J.SA. 2C:44-3(d), and found that three
aggravating factors substantially outweighed the non-existent
mitigating factors. Concurrent terms of imprisonment were
imposed based on Scott's guilty plea to the second count
of aggravated manslaughter, two counts of first-degree
robbery, N.J.S.A. 2C:15-1, and one count of third-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The
remaining charges were dismissed pursuant to the plea
filed an appeal in July 2000. Because the transcript of the
sentencing proceedings was not available, the Appellate
Division remanded to the trial court "for reconstruction
of the sentencing hearing." In November 2001, the trial
judge attempted to reconstruct the record, but acknowledged
that the then attorneys for Scott and the State did not then
have access to Scott's sentencing hearing files and were
not in a position to help.
appeal was then placed on a sentencing calendar. In February
2002, after hearing argument, the Appellate Division again
remanded to the trial judge "to reconstruct the record
of the imposition of sentence upon [Scott], such
reconstructed record to include a statement of reasons by the
trial [judge] for the maximum terms imposed." The
Appellate Division did not retain jurisdiction.
February 2002, the trial judge sent a second reconstruction
to counsel and the Appellate Division. Although advised of
the judge's reconstruction, Scott's then appellate
attorney did not apply to have the appeal reinstated.
Consequently, Scott never obtained direct appellate review of
2002, Scott filed a pro se petition for PCR.
See ECF No. 23-12 at 2-5. The trial judge dismissed
the petition without a hearing in October 2005. See
ECF No. 23-13. Scott appealed.
January 23, 2007, the Appellate Division vacated the
dismissal and remanded for an evidentiary hearing. The
Appellate Division also stated that Scott could seek to
amend bis petition to include a claim of ineffective
assistance by his appellate counsel, based upon the failure
to pursue the direct appeal, and provided that the remand
hearing should encompass that issue if the petition was
amended. See ECF No. 23-17. PCR counsel, however,
never sought to amend the petition to raise the issue of
remand hearing on the ineffective assistance claims related
to the plea was held in April and May 2007. See ECF
Nos. 23-17-18. The PCR judge determined that there was no
basis for relief and dismissed the petition. See ECF
No. 19. Scott again appealed. On July 27, 2009, the Appellate
Division affirmed the judge's determination as to the
issues raised in the initial PCR petition but found that PCR
counsel had been ineffective in failing to amend the petition
to raise the issue related to appellate counsel and remanded
for a hearing on that issue. See ECF No. 24-3;
see also State v. Scott, 2009 WL 2209737, at *10
(App. Div. Jul. 27, 2009).
about October 29, 2010, while his PCR was still pending,
Scott submitted what appeared to be a protective habeas
petition, seeking a stay to complete his state court
proceedings. See ECF No. 1. That submission was
administratively terminated because Petitioner failed to
submit the filing fee or an application to proceed in
forma pauperis ("IFP"). Petitioner paid the
filing fee on or about May 23, 2011. See ECF No. 5.
also in May 2011, a different PCR judge ("second PCR
court") held the second remand hearing in state court.
See ECF No. ECF No. 24-6. The second PCR court
determined that PCR and appellate counsel were
constitutionally ineffective with respect to the failure to
pursue the sentencing appeal, but that Scott did not suffer
prejudice because the overall sentence imposed was shorter
than the plea agreement. Id. Scott appealed.
his appeal of the denial of his PCR was pending in state
court, this Court issued an Order To Show Cause
("OTSC") directing Petitioner to show cause as to
why his request for a stay should be granted. ECF Nos. 7-8.
In his Reply to the OTSC, Petitioner clarified that he sought
to raise two claims for relief in his Petition:
Petitioner raises the following two claims for relief in his
§ 2254 habeas corpus petition.
A. GROUND ONE: PETITIONER WAS DEPRIVED OF HIS SDCTH AMENDMENT
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
DURING PLEA NEGOTIATIONS
B. GROUND TWO: PETITIONER WAS DEPRIVED OF HIS SDCTH AMENDMENT
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL ON HIS DIRECT APPEAL
ECF No. 9, OTSC Reply at 4. Petitioner further clarified that
he "filed for a stay and abeyance of his § 2254
petition while the last round of his State court appeals are
in progress...." Id. On December 5, 2012, the
Court granted his request for a stay and administratively
terminated this matter. ECF No. 11.
February 1, 2013, the Appellate Division reversed the PCR
court determination as to Petitioner's sentencing claim
and remanded for resentencing. Scott was resentenced to an
aggregate term of 60 years with a 25-year parole
disqualifier. See ECF No. 23. Respondent's
Answer ("Answer") at 23. Scott appealed, and the
Appellate Division affirmed his sentence on November 23,
2013, see ECF No. 24-10, and the New Jersey Supreme
Court denied certification on June 23, 2014. See ECF
August 22, 2014, Petitioner timely sought to reopen this
matter. See ECF No. 13. On March 10, 2015, the Court
directed Petitioner to file an all-inclusive amended
petition. See ECF No. 16. Petitioner subsequently
clarified that he was not seeking habeas relief on his
recently exhausted illegal sentence claim and sought to
proceed on the habeas petition as filed. ECF No. 19. The
Court directed Respondent to file an Answer. See ECF
Nos. 20, 22.
filed an Answer on June 30, 3015. ECF Nos. 23-24. Petitioner
did not file a reply. The matter is fully briefed and ready
STANDARD OF REVIEW
2254(a) permits a court to entertain only claims alleging
that a person is in state custody "in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Petitioner has the burden of
establishing each claim in the petition. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28
U.S.C. § 2254, as amended by AEDPA (28 U.S.C. §
2244), federal courts in habeas corpus cases must give
considerable deference to determinations of state trial and
appellate courts. See Renico v. Lett, 599 U.S. 766,
2254(d) sets the standard for granting or denying a writ of
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court ...