United States District Court, D. New Jersey
Grohs, Pro Se, Mark D. McNally, Deputy Attorney General,
Office of the New Jersey Attorney General, New Jersey
Department of Law & Public Safety, Division of Law,
Health & Human Services Section, Attorney for
B. SIMANDLE U.S. DISTRICT JUDGE.
Grohs (“Grohs”) has submitted a petition
(“Petition”) for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. (ECF 1.) Grohs completed his term
of imprisonment for the crime of attempted luring and
enticing a child, and he has been civilly committed since
2011 as a sexually violent predator. The Administrator of the
Special Treatment Unit and the Attorney General of the State
of New Jersey (collectively, “Respondents”)
oppose the Petition. (Answer, ECF 19.)
Petition, Petitioner challenges his prior criminal
conviction, alleging ineffective assistance of counsel in
pleading guilty without understanding the risk of a
subsequent civil commitment. The principal issues to be
determined are: (1) whether Petitioner, challenging his 2009
criminal conviction, for which imprisonment ended in 2011,
satisfies the “in custody” requirement of §
2254 by his present civil commitment; and (2) whether,
assuming the existence of § 2254 jurisdiction, the state
court's rejection of Petitioner's ineffective
assistance of counsel claim was contrary to, or an
unreasonable application of, the governing federal precedent
in Strickland v. Washington, 466 U.S. 668 (1984),
and its progeny.
reasons stated herein, the Petition shall be denied and no
certificate of appealability shall issue.
September 2008, Petitioner was indicted in Camden County, New
Jersey, on fifteen counts of luring a child, criminal sexual
contact, child welfare endangerment, and related offenses
arising from his contact with a 14-year-old boy when Grohs
was 42. (ECF 19-3.)
December 15, 2008, Petitioner entered a guilty plea to a
charge of Attempted Luring or Enticing a Child in violation
of N.J. Stat. Ann. § 2C:13-6. (ECF 19-4.) Represented by
counsel, Petitioner executed a plea form, setting forth the
conditions of his guilty plea (id. at 1-4), as well
as a supplemental plea form concerning the civil commitment
implications of his guilty plea to sexual offense charges
(“Supplemental Form”). (Id. at 5-8.)
Supplemental Form's “Civil Commitment”
Do you understand that if you are convicted of a sexually
violent offense, such as aggravated sexual assault, sexual
assault, aggravated criminal sexual contact, kidnapping under
2C:13-1(c)(2)(b), criminal sexual contact, felony murder if
the underlying crime is sexual assault, an attempt to commit
any of these offense, or any offense for which the court
makes a specific finding on the record that, based on the
circumstances of the case, the offense should be considered a
sexually violent offense, you may upon completion of your
term of incarceration, be civilly committed to another
facility if the court finds, after a hearing, that you are in
need of involuntary civil commitment?
(Id. at 8 (“Civil Commitment
Provision”).) Petitioner circled the answer
“YES” directly next to this section.
(Id.) He signed and dated the bottom of this form.
December 15, 2008, the Law Division of the Superior Court of
New Jersey (“Law Division”) held Petitioner's
plea hearing. (ECF 19-5.) At the hearing's commencement,
an Assistant Camden County prosecutor, Christine Shah, noted
on the record that she and Petitioner had executed the final
page of the plea form and that he had circled the “Yes,
” to the Civil Commitment Provision. (Id. at
3.) The trial judge, the Honorable Lee A. Solomon, J.S.C.,
now Justice of the New Jersey Supreme Court, discussed the
plea with Petitioner, affording him the opportunity to ask
questions of counsel and the court. (Id. at 4.)
Petitioner's responses to Judge Solomon's questions
on the record demonstrated that: Petitioner spoke to his
counsel, Leslie Jackson, Esquire, before accepting the plea
(id. at 5); Petitioner had received the opportunity
to ask her all of his questions (id.); Ms. Jackson
answered all of Petitioner's questions (id.);
Petitioner had no further questions for Ms. Jackson, Ms.
Shah, or Judge Solomon (id.); and Petitioner was
satisfied with Ms. Jackson's representation.
(Id. at 6.)
Solomon established on the record that Petitioner understood
the significance of his guilty plea and that he accepted the
factual basis for his plea. (Id. at 6-7) (asking
Petitioner's awareness of, inter alia, the fact
he would give up certain federal and state constitutional
rights by virtue of his guilty plea). Judge Solomon further
questioned Petitioner as follows:
COURT: You're pleading guilty here today, are you doing
so of your own free will?
GROHS: Yes, Your Honor.
COURT: Nobody threatened you, coerced you or forced you in
any way to plead guilty?
GROHS: No, sir.
COURT: And once again, you've had a chance to speak to
GROHS: Yes, sir.
COURT: And you're satisfied with the way she's
represented you in this matter?
GROHS: Absolutely, Your Honor.
(Id. at 8.)
response to Judge Solomon's questions, Petitioner also
expressly testified that he reviewed the plea form with Ms.
Jackson and that he understood all of its contents.
Solomon then discussed the civil commitment implications of
Petitioner's guilty plea. Specifically, Judge Solomon
noted that a petition for civil commitment could be filed in
the future, and both Petitioner and Ms. Jackson acknowledged
this fact. (Id. at 8-9.)
February 20, 2009, and pursuant to his guilty plea,
Petitioner was convicted of Attempted Luring or Enticing a
Child. He was sentenced to five years' imprisonment, with
728 days of jail credit. (ECF 19-6; ECF 19-7.) Accordingly,
Petitioner's incarceration for this criminal conviction
would run until February 22, 2012.
February 22, 2011, the Attorney General of the State of New
Jersey petitioned the Law Division to involuntarily civilly
commit Petitioner as a sexually violent predator under New
Jersey's Sexually Violent Predator Act, N.J. Stat. Ann.
§ 30:4-27.24 to -.38 (“SVPA”). (ECF 19-8.)
February 24, 2011, the Superior Court of New Jersey, Law
Division, Cumberland County, involuntarily civilly committed
Petitioner to the Special Treatment Unit (“STU”)
in Avenel, New Jersey. (ECF 19-9.) The Honorable Richard J.
Geiger civilly committed Petitioner pursuant to N.J. Stat.
Ann. § 30:4-27.24, et seq., which provides, in
Certain individuals who commit sex offenses suffer from
mental abnormalities or personality disorders which make them
likely to engage in repeat acts of predatory sexual violence
if not treated for their mental conditions ... [Therefore,
there is a] need for commitment of those sexually violent
predators who pose a danger to others should they be returned
to society ... If the court finds that there is probable
cause to believe that the person is a sexually violent
predator in need of involuntary commitment, it shall issue an
order setting a date for a final hearing and authorizing
temporary commitment to a secure facility designated for the
custody, care and treatment of sexually violent predators
pending the final hearing.
N.J. Stat. Ann. § 30:4-27.25, § 30:4-27.28.
Petitioner's civil commitment in 2011 to the STU followed
expiration of Petitioner's criminal incarceration imposed
14, 2011, Grohs filed a petition for post-conviction relief
(“PCR”) pertaining to his 2009 criminal guilty
plea and sentence. (ECF 19-10.) On August 25, 2011,
Petitioner was assigned PCR counsel to represent him. (ECF
19-11.) On January 25, 2012, Petitioner's PCR counsel
filed his brief in support of PCR, asserting that trial
counsel rendered ineffective assistance for not notifying
Petitioner of the civil commitment ramifications of his
guilty plea. (ECF 19-12.)
26, 2013, following oral argument and supplemental briefing,
the trial court denied PCR in an oral decision. (ECF 19-18.)
In her findings of fact, the Honorable Michele M. Fox, J.S.C.
noted that: Petitioner had circled “yes” next to
the Civil Commitment Provision; he testified under oath that
he had reviewed the plea form in its entirety and understood
it; and the prosecutor had made special note of civil
commitment during his plea hearing. (Id. at 15-16.)
Finding that Petitioner had failed to establish a prima facie
case of ineffective assistance of counsel (“IAC”)
in accordance with Strickland v. Washington, 466
U.S. 668 (1984), Judge Fox determined that Petitioner was not
entitled to an evidentiary hearing as to his ineffective
assistance of counsel claim. (Id. at 17-18.)
November 26, 2013, Petitioner directly appealed the Law
Division's July 26, 2013 Order. (ECF 19-20.)
Petitioner's April 21, 2014 appellate brief argued that
the trial court had established only that he understood the
plea form generally and not necessarily the civil commitment
consequences of his plea. (ECF 19-21 at 14-15.)
January 28, 2015, the Appellate Division of the Superior
Court of New Jersey (“Appellate Division”)
affirmed the Superior Court's denial of Petitioner's
PCR application. (ECF 19-23.)
February 19, 2015, Petitioner sought certification of the
Appellate Division's January 28, 2015 ruling. (ECF 19-24,
ECF 19-25, ECF 19-26.) On March 19, 2015, Petitioner withdrew
that petition for certification (ECF 19-28, ECF 19-29), and
instead filed an April 1, 2015 motion for reconsideration
with the Appellate Division. (ECF 19-30.)
6, 2015, the Appellate Division denied Petitioner's
motion for reconsideration. (ECF 19-31.)
13, 2015, Petitioner again filed a petition for certification
with the New Jersey Supreme Court as to the Appellate
Division's January 28, 2015 decision. (ECF 19-32, ECF
19-33.) On October 9, 2015, the New Jersey Supreme Court