United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE
is a state prisoner currently incarcerated at South Woods
State Prison. He is proceeding with a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. After screening the Petition, the Court
determined that the Petition was untimely and directed
Petitioner to show cause as why the Court should not dismiss
the petition as untimely. (ECF No. 3). Petitioner submitted a
response and documentation, contending that his mental health
issues warrant equitable tolling. At this time, the Court
declines to determine whether the Petition is timely but
concludes that Petitioner's submissions are sufficient to
allow the Petition to proceed beyond the screening stage, at
least on the issue of timeliness. 28 U.S.C. §
Court may now complete the screening of the Petition.
“Habeas corpus petitions must meet heightened pleading
requirements.” McFarland v. Scott, 512 U.S.
849, 856 (1994). Habeas Rule 2(c) requires a § 2254
petition to “specify all the grounds for relief
available to the petitioner, ” “state the facts
supporting each ground, ” “state the relief
requested, ” be printed, typewritten, or legibly
handwritten, and be signed under penalty of perjury. 28
U.S.C. § 2254 Rule 2(c). Habeas Rule 4 requires a judge
to sua sponte dismiss a § 2254 petition without
ordering a responsive pleading “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” 28 U.S.C. § 2254 Rule 4; see Mayle v.
Felix, 545 U.S. 644, 655 (2005). Thus, “[f]ederal
courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its
face.” McFarland, 512 U.S. at 856; see
also Harrison v. Schultz, 285 Fed.Appx. 887, 889 (3d
Cir. 2008) (“A District Court is authorized to
summarily dismiss a habeas corpus petition if it plainly
appears from the face of the petition that the petitioner is
not entitled to relief.”) (citing 28 U.S.C §
relevant in the present case, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), prohibits a district
court from granting habeas relief under § 2254 unless
the petitioner has “exhausted the remedies available in
the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). In order to exhaust state remedies, a
petitioner must “‘fairly present' all federal
claims to the highest state court before bringing them in
federal court.” Stevens v. Delaware Corr.
Ctr., 295 F.3d 361, 369 (3d Cir. 2002) (citing
Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002)).
This requirement ensures that state courts “have
‘an initial opportunity to pass upon and correct
alleged violations of prisoners' federal
rights.'” United States v. Bendolph, 409
F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v.
Serrano, 454 U.S. 1, 3 (1981)).
is “fairly presented” when a petitioner presents
the claim at all available levels of the state judicial
system. See Anderson v. Harless, 459 U.S. 4, 7
(1982); Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir.
2012). A petitioner fails to exhaust if the petitioner
“has the right under the law of the State to raise, by
any available procedure, the question presented.” 28
U.S.C. § 2254(c); Stevens, 295 F.3d at 369.
Moreover, the exhaustion doctrine is a “total”
exhaustion rule; that is, “a district court must
dismiss habeas petitions containing both unexhausted and
exhausted claims [(‘mixed' petitions)].”
Rose v. Lundy, 455 U.S. 509, 522 (1982).
those principles in mind, the instant Petition is a mixed
petition, presenting two claims which are exhausted and one
unexhausted claim. Britton v. Lanigan, No. 17-3701,
2019 WL 928415, at *1 (D.N.J. Feb. 26, 2019). More
specifically, Petitioner alleges that: (1) he did not have
the requisite intent to commit the crimes because of a drug
and alcohol induced blackout; (2) the “evidence in
[his] case indicates that self-defense explains the facts as
well or does manslaughter”; and (3) his plea was not
knowing or voluntary because of drug induced incompetence
during the plea hearing. (ECF No. 1, at 7-9). Petitioner
concedes that he did not exhaust ground three. (Id.
district courts may not adjudicate mixed petitions, and
instead have four options: “(1) stay the petition
pending the outcome of state proceedings; (2) allow the
petitioner to delete the unexhausted claims and proceed on
the exhausted claims; (3) dismiss the petition without
prejudice as unexhausted; or (4) deny the unexhausted claims
on the merits under 28 U.S.C. 2254(b)(2).” Barr v.
Warden of N.J. State Prison, No. 15-5797, 2016 WL
589675, at *4 (D.N.J. Feb. 11, 2016); see also Mahoney v.
Bostel, 366 Fed.Appx. 368, 371 (3d Cir. 2010).
Court recognizes, however, that if it were to dismiss the
Petition without prejudice for lack of exhaustion, there is a
chance that the New Jersey state courts could dismiss
Petitioner's potential second PCR petition as untimely.
See N.J. Ct. R. 3:22-12(a)(2) (explaining the time
limitations for second or subsequent PCR petitions).
Additionally, if the second PCR is untimely, it would not
toll the AEDPA statute of limitations. Morris v.
Horn, 187 F.3d 333, 338 (3d Cir. 1999). Nor did the
instant Petition toll the AEDPA statute of limitations.
See Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
Consequently, Petitioner would likely be time-barred from
filing another petition in this Court, under § 2254.
those reasons, the Court shall give Petitioner the
opportunity to do one of the following:
a. File a motion to stay this proceeding in order that he may
exhaust his Unexhausted Claim . . . in state court. In that
motion, Petitioner must demonstrate all of the following: (i)
that there is good cause why the Court should stay, rather
than dismiss, the mixed . . . Petition, (ii) that the . . .
Petition sets forth potentially meritorious claims, and (iii)
that he has not engaged in intentionally dilatory tactics by
failing to exhaust the claims made in the . . . Petition; or
b. Submit a letter to this Court stating that he wants to
dismiss . . . the Unexhausted Claim in the . . .Petition
and to proceed in this matter only on the Exhausted Claim[s.]
Britton, 2019 WL 928415, at *1. If Petitioner fails
to file any such motion or letter, the Court may dismiss his
Petition as a mixed petition. Rose, 455 U.S. at 522.