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Scott v. Ricci

United States District Court, D. New Jersey

December 18, 2018

MICHELLE R. RICCI, et al., Respondent.


          Stanley R. Chesler, U.S.D.J.


         This 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.


         After 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.[1] 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 agreement.

         Scott 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.

         The 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.

         In 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 his sentence.

         In May 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.

         On 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 appellate counsel.

         The 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).

         On or 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.

         Meanwhile, 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.[2] Id. Scott appealed.

         While 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.

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.

         On February 1, 2013, the Appellate Division reversed the PCR court determination as to Petitioner's sentencing claim and remanded for resentencing.[3] Scott was resentenced to an aggregate term of 60 years with a 25-year parole disqualifier.[4] 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 No. 24-11.

         On 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.

         Respondents filed an Answer on June 30, 3015. ECF Nos. 23-24. Petitioner did not file a reply. The matter is fully briefed and ready for disposition.


         Section 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, 772 (2010).

         Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:

(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 ...

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