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Rabaia v. State

United States District Court, D. New Jersey

February 19, 2019

HAJES RABAIA, Petitioner,
v.
STATE OF NEW JERSEY, et al., Respondents.

          Hajes Rabaia, Pro Se

          Christopher S. Porrino, Esquire Attorney General of New Jersey Emily R. Anderson, Esquire Deputy Attorney General of New Jersey Division of Criminal Justice, Appellate Bureau Attorneys for Respondents

          OPINION

          JEROME B. SIMANDLE U.S. District Judge.

         I. INTRODUCTION

         Hajes Rabaia (“Rabaia”) has submitted an amended petition (“Fourth Petition”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF 11.) The Attorney General of the State of New Jersey and Willie Bond as Administrator of South Woods State Prison (collectively, “Respondents”) oppose the Fourth Petition. (Answer, ECF 17.) For the reasons stated herein, the Fourth Petition shall be denied and no certificate of appealability shall issue.

         II. BACKGROUND

         On July 6, 2007, Petitioner and his seventy-two year old victim N.D. were at an Atlantic City casino, seated at a three-card poker table. After N.D. won roughly $10, 000, he cashed out $9, 800 and took the remaining $200 in chips. State v. Rabaia, No. A-1470-12T2, 2014 WL 7466553, at *1 ( N.J.Super.Ct.App.Div. Jan. 6, 2015) (“Rabaia I”). Shortly thereafter, a casino security officer observed Petitioner and N.D. “tussling on the floor” near the restroom. After several other officers arrived on the scene, Petitioner tried to run from the scene but tripped. Petitioner was taken away and found in possession of $10, 000 in cash. Id.

         N.D. said that he did not know Petitioner and had not placed any bets for him. He stated that when he went to the restroom, Petitioner entered, grabbed him from behind, took the money from his pocket, and hit him. N.D. grabbed Petitioner's shirt to stop him from taking his money. Id.

         Petitioner told a different story. He said that he had met N.D. at the poker table and told him that he needed money to settle a court case. Petitioner stated that he gave N.D. $200 in chips to play for him. Petitioner said that when N.D. won $4, 800 in one hand, he and N.D. began to jump excitedly. Petitioner could not, however, explain why the security videotapes did not show this. (Id.) Petitioner stated that he expected to get half of N.D.'s winnings. They went together to the cashier, and N.D. allegedly told the cashier that $200 of his winnings belonged to Petitioner. Petitioner and N.D. went to the restroom, where they argued about splitting the money. (Id.) According to Petitioner, N.D. pushed him against the wall. At that point, the money fell out of N.D.'s pocket. (Id.) Petitioner grabbed the money. N.D. started screaming. Petitioner said that he and N.D. agreed that Petitioner would keep the money in his pocket, each would get $200 to play, and they would play until Petitioner had to leave. Petitioner stated that when they left the restroom, there were ten people in the area. Petitioner testified that N.D. got nervous and said that Petitioner beat him and took his money. Petitioner denied hitting or touching N.D. Id.

         Petitioner was charged with second degree robbery in violation of N.J. Stat. Ann. § 2C::15-1(a)(1). (ECF 17-4.)

         After a three-day trial, the jury found Petitioner guilty of second-degree robbery. (ECF 17-27 at 37-38.)

         On June 3, 2008, Judge Michael Donio sentenced Petitioner to fifteen years of incarceration, with an eighty-five percent period of parole ineligibility as prescribed by the No. Early Release Act, N.J. Stat. Ann. § 2C:43-7.2 (“NERA”). (ECF 17-5; ECF 17-29 at 79-85; ECF 17-15 at 31-37.)

         On October 20, 2008, Petitioner filed a notice of appeal of his June 3, 2008 judgment of conviction. (ECF 17-15 at 38.) His public defender filed a supporting brief and appendix dated December 22, 2009, raising three issues of alleged trial court error and one issue of excessive and improper sentence. (ECF 17-6 at 2-3 and 42.)

         On February 2, 2011, the Appellate Division of the Superior Court of New Jersey (“Appellate Division”) denied Petitioner's direct appeal and affirmed his conviction and sentence. (State v. Rabaia, 2011 WL 309172, at *1, *5 ( N.J.Super.Ct.App.Div. Feb. 2, 2011) (“Rabaia II”).)

         On September 9, 2011, the New Jersey Supreme Court denied certification. (ECF 17-14.)

         Petitioner next submitted a pro se petition for post-conviction relief (“PCR”), dated October 25, 2011. (ECF 17-15 at 54-59.) His petition “alleg[ed] the ineffective assistance of trial counsel [“IAC”] by way of inadequately investigating and preparing for trial, failing to subpoena necessary witnesses and to cross-examine State witnesses during trial, and failing to correct errors in the adult pre-sentence report and/or to argue the presence of and preponderance of appropriate mitigating factors at sentencing.” (ECF 17-15 at 62.) According to Vincent James Milita, Esquire, the private counsel who represented Petitioner in PCR proceedings, Petitioner voluntarily withdrew his pro se petition. (ECF 17-15 at 67.)

         On August 13, 2011, Petitioner, then represented by private counsel, filed another PCR petition. (ECF 17-15 at 60-66.) On September 15, 2012, Petitioner's counsel filed a brief in support of PCR (ECF 17-15 at 66-76), alleging five claims of IAC by trial counsel. (ECF 17-15 at 62-64 (counsel failed to (1) “adequately consult and confer” with Petitioner; (2) “meaningfully investigate the facts”; (3) “adequately prepare for trial”; (4) “adequately prosecute Petitioner's motion for a new trial”; and (5) “adequately prepare for the sentencing hearing” (issues (1)-(5) collectively referred to as “PCR Issues”)).)

         At an October 19, 2012 hearing, Judge Michael A. Donio, J.S.C. denied PCR. (ECF 17-30.)

         On November 30, 2012, Petitioner filed a Notice of Appeal of denial of PCR. (ECF 17-15 at 86-87.) Petitioner's public defender filed a supporting brief dated September 11, 2013, raising only the following issue: “the PCR court erred in denying [PCR] without an evidentiary hearing ... [T]he PCR court could not make the factual findings required to reach a legal conclusion as to whether counsel's performance was deficient without an evidentiary hearing.” (ECF 17-15 at 2, 14 and 20.)

         On January 6, 2015, the Appellate Division affirmed denial of PCR. (ECF 17-17 at 6-7 (the PCR court correctly determined that Petitioner was not denied effective assistance of counsel, and the court did not abuse its discretion in deciding the matter without an evidentiary hearing because “[t]he existing record was sufficient to resolve defendant's claims”).)

         Petitioner filed an Amended Notice of Petition for Certification, dated January 22, 2015. (ECF 17-18.) His public defender's supporting brief framed the issue presented as whether “the appellate court err[ed] in affirming the denial of [PCR] without an evidentiary hearing.” (ECF 17-19 at 10.)

         On May 12, 2015, the New Jersey Supreme Court denied certification. (ECF 17-21.)

         On June 17, 2015, Petitioner filed a petition for habeas corpus (“First Petition”) pursuant to 28 U.S.C. § 2254. (ECF 1 at 9 and 13.) That petition asserted two grounds for relief: (1) IAC for “failing to obtain evidence that would have supported [Petitioner's] version of events [and] fail[ing] to call supporting witnesses”; and (2) “improper[] ... extended term.” (Id. at 4.)

         On July 13, 2015, the Court administratively terminated the case for Petitioner's failure to use the correct form, pay the filing fee, or submit an in forma pauperis application. (ECF 2.)

         On or about July 24, 2015, Petitioner submitted another § 2254 petition (“Second Petition”), alleging the same two grounds as the First Petition. (ECF 3 at 6 and 8.)

         On August 31, 2015, the Court dismissed the Second Petition without prejudice, pursuant to Habeas Rules 2 and 4, for failure to plead Petitioner's claims with particularity. (ECF 4; ECF 5.) On October 2, 2015, the Court granted Petitioner an extension of time to file a new § 2254 petition. (ECF 7.)

         On October 30, 2015, Petitioner filed another amended petition (“Third Petition”). (ECF 8.) The Third Petition was not on the proper form required by Local Civil Rule 81.2. Instead, the Third Petition included what appeared to be Petitioner's direct appeal brief as the stated grounds for relief. (ECF 8 at 7-32; ECF 17-6 at 16-41.)

         On January 12, 2016, the Court administratively terminated the case, allowing Petitioner to re-open the case by notifying the Court of such intent within thirty days. (ECF 9; ECF 10.)

         On February 2, 2016, Petitioner filed another amended petition, the Fourth Petition. (ECF 11.) Similar to the Third Petition, the Fourth Petition includes what appears to be his direct appeal brief as the stated grounds for relief. (ECF 11 at 17-42; ECF 17-6 at 16-41.) The Fourth Petition's recitation of its four grounds (ECF 11 at 17-42) are a mirror image of Petitioner's direct appeal brief (ECF 17-6 at 16-41) in both its form and content. Dating his signature on January 31, 2016, Petitioner certified that the Fourth Petition constitutes his one, all-inclusive § 2254 petition. (ECF 11 at 16.)

         On February 16, 2016, the Clerk of this Court re-opened Petitioner's case.

         On December 23, 2016 (ECF 12), this Court ordered Respondents to submit an answer to Petitioner's Fourth Petition. (ECF 12 at 1.)

         On April 20, 2017, Respondents filed their response (“Answer”). (ECF 17.)

         On June 8, 2017, Petitioner filed a letter regarding certain factual contentions in the Answer. (ECF 18.)

         Having reviewed the submissions of the parties, the Court now denies the Fourth Petition and denies a Certificate of Appealability, for the reasons explained below.

         III. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) permits a federal court to entertain a petition for writ of habeas corpus on behalf of a person in state custody, pursuant to the judgment of a state court, “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         With respect to any claim adjudicated on the merits by a state court, the writ shall not issue unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is “contrary to” Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “[A] state-court decision is an unreasonable application of clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 134 S.Ct. 1697, 1706, reh'g denied, 134 S.Ct. 2835 (2014). Habeas courts must presume that state court factual findings are correct unless petitioners rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Federal courts may not grant a writ of habeas corpus under § 2254 unless the petitioner has exhausted the remedies available in the courts of the State or exhaustion is excused under 28 U.S.C. § 2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The exhaustion doctrine mandates that the claim “must have been ‘fairly presented' to the state courts.” Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). The doctrine therefore requires a petitioner challenging a New Jersey conviction under § 2254 to have fairly presented each federal ground raised in the petition to all three levels of New Jersey courts - i.e., the Law Division, the Appellate Division, and the New Jersey Supreme Court. See O'Sullivan v. Boerckel, 526 U.S. 838, 838 (1999); Rose v. Lundy, 455 U.S. 509 (1982).

         IV. ...


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