United States District Court, D. New Jersey
MEMORANDUM AND ORDER
L. WOLFSON U.S. CHIEF DISTRICT JUDGE.
pro se, Kenneth Bacon-Vaughters
(“Petitioner”), a state prisoner presently
incarcerated at New Jersey State Prison, in Trenton, New
Jersey, seeks to bring a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (See ECF No. 1.)
In conjunction with his Petition, Petitioner filed a motion
“for leave to file a substantially equivalent petition
for writ of habeas corpus” and a motion for a
protective stay of the proceeding. (ECF Nos. 2 & 3.) I
construed the former motion as simply requesting the Court to
accept a petition completed on the wrong district's
habeas form and, having interpreted it as such, granted the
motion. (ECF No. 4.) I denied Petitioner's stay motion,
however, as the Petition did not include any claims that
appeared to be unexhausted. (Id.) In the interests
of justice, I noted that Petitioner's stay motion implied
that his habeas Petition might not contain all of
Petitioner's potential claims and, accordingly, I
permitted Petitioner an opportunity to withdraw his Petition
and submit one all-inclusive habeas petition and, if
applicable, another motion for a protective stay. (See
response, Petitioner filed another motion “for leave to
file a substantially equivalent petition, ” which
included a proposed Amended Petition. (ECF Nos. 6 & 6-1.)
He simultaneously filed another motion for a protective stay.
(ECF No. 5.) The Amended Petition adds a claim, in Ground
Six, that the trial court failed to properly consider
Petitioner's youthfulness when imposing a sentence,
citing Miller v. Alabama, 567 U.S. 460 (2012), and
State v. Zuber, 152 A.3d 197 (N.J.
2017). (ECF No. 6-1 at 12-13.) Petitioner
indicates that this argument was not raised on direct appeal
or during his initial PCR proceeding because Miller
and Zuber were “decided after [his] conviction
and sentence.” (Id.) Petitioner argues that
this habeas proceeding should be stayed because he filed a
motion to correct his sentence in June 2018, which remains
pending before the state courts. (See ECF No. 5.) As
respondents have not yet been served, there is no opposition
to either of Petitioner's motions.
again, it is unclear as to what Petitioner seeks in his
instant motion “for leave to file a substantially
equivalent petition.” Indeed, as the Court previously
granted Petitioner leave to withdraw his original petition
and submit an amended, all-inclusive § 2254 petition,
his proposed Amended Petition, (ECF No. 6-1), will be
accepted as the operative pleading in this matter. Thus, to
the extent this is the relief Petitioner seeks, (ECF No. 6),
it is granted.
is no basis, however, to grant Petitioner's motion for a
protective stay. In Rhines v. Weber, 544 U.S. 269
(2005), the Supreme Court found that a court presented with a
mixed habeas petition-that is, a petition containing both
exhausted and unexhausted claims-may grant a protective stay
to permit the petitioner to exhaust the unexhausted claims
without letting the limitations period expire on the
exhausted claims assuming three elements are satisfied.
See Id. at 275-78. Those three elements are (1)
whether good cause exists for the petitioner's failure to
exhaust all claims in state court, (2) whether the
unexhausted claims are potentially meritorious, and (3)
whether the petitioner is employing the litigation simply as
means of delay. See Id. at 277; Heleva v.
Brooks, 581 F.3d 187, 192 (3d Cir. 2009).
examine first whether Petitioner can show good cause for his
failure to exhaust. As Zuber was not decided until
January 2017, he may be able to show good cause for his
failure to exhaust a claim arising under that case. On the
other hand, Petitioner cannot show good cause for his failure
to exhaust any claim arising under Miller, which was
decided in June 2012-well over a year before Petitioner filed
his first PCR petition in October 2013. (See ECF No.
6-1 at 17.)
to the potential merit of Petitioner's unexhausted claims
requires the Court to determine the nature of those claims.
Petitioner argues that the trial court should have considered
his youthful age at the time of the offense as a mitigating
factor in imposing his sentence. (ECF No. 6-1 at 12.) In
Miller, the U.S. Supreme Court held “that the
Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile
offenders, ” further explaining that a sentencing court
must “take into account how children are different, and
how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Miller, 567
U.S. at 479-80. The Supreme Court of New Jersey subsequently
held, in Zuber, that New Jersey courts must consider
the same concerns before imposing “sentences that are
the practical equivalent of life without parole” or
“consecutive terms that would result in a lengthy over
all term of imprisonment for a juvenile.”
Zuber, 152 A.3d at 201-02.
the manner in which Petitioner has raised the issue, I
construe Ground Six of the Amended Petition as primarily
asserting a claim under Zuber. As Zuber is
a matter of state, not federal, law, however, it creates no
basis for granting federal habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (“We have stated
many times that federal habeas corpus relief does not lie for
errors of state law.” (internal quotation marks
omitted)). To the extent that Ground Six could alternatively
be construed as seeking relief under Miller, it
still would not state a potentially meritorious claim for
habeas relief. The holding of Miller applies to
mandatory sentences of “life in prison without
possibility of parole for juvenile offenders.”
Miller, 567 U.S. at 479. But the state court
sentenced Petitioner to 40 years in prison with an 85% parole
disqualifier, not life without parole. (See ECF No.
6-1 ¶ 3.) Furthermore, the Miller holding
applies only to juvenile offenders. See Jackson v.
Superintendent Mahanoy SCI, No. 18-1311, 2018 WL
3996627, at *1 (3d Cir. May 25, 2018); Graham v.
Superintendent Somerset SCI, No. 17-3660, 2018 WL
2735398, at *1 (3d Cir. Apr. 17, 2018). Thus, it does not
apply to Petitioner, who indicates that he was 18 years old
at the time of the crime. (See ECF No. 6-1 at 12.)
See also State v. Bacon-Vaughters, No. A-0583-11T3,
2013 WL 656248, at *3 ( N.J.Super. Ct., App. Div., Feb. 25,
2013). Accordingly, I do not find that Petitioner can raise a
meritorious federal claim under Miller, and stay
would not be appropriate on this basis.
there is no indication that Petitioner is attempting to use
these processes as a method of delay, and I perceive no way
in which delay would presently help him. Nonetheless, as the
claim Petitioner is seeking to exhaust in state court forms
no basis for federal habeas relief, no reason exists to grant
a protective stay. The denial of a stay results in no
prejudice to Petitioner, because his unexhausted habeas claim
is facially meritless. Accordingly, the motion for a
protective stay is denied.
for the reasons already explained herein, Petitioner's
claim in Ground Six is dismissed upon screening under Rule 4
of the Rules Governing § 2254 Cases. I find no basis,
however, to dismiss any other portion of the Petition under
Rule 4 without an answer and the record. Thus, respondents
shall be served and I direct them to file an answer or a
motion to dismiss on timeliness grounds within 45 days.
IT IS, on this 27th day of June 2019, ORDERED that
Petitioner's motion for leave to file a substantially
equivalent petition for a writ of habeas corpus, (ECF No. 6),
to the extent it simply asks the Court to accept the proposed
Amended Petition despite superficial defects, is GRANTED; and
it is further
that the Clerk of the Court shall docket the proposed Amended
Petition, (ECF No. 6-1), as the operative pleading in this
case; and it is further
that Petitioner's motion for a protective stay this
proceeding, (ECF No. 5), is DENIED; and it is further
that Petitioner's claim for relief in Ground Six of his
Amended Petition (ECF No. 6-1) is dismissed upon screening
under Rule 4 of the Rules ...