United States District Court, D. New Jersey
JOHN L. ALLEN, JR., Petitioner,
MR. STEPHEN D'ILIO, Respondent.
MEMORANDUM AND ORDER
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE
MATTER has been opened to the Court by Petitioner
John L. Allen, Jr. (“Petitioner”), upon the
filing of his petition for a writ of habeas corpus (the
“Petition”) (ECF No. 1) brought pursuant to 28
U.S.C. § 2254. For the reasons explained in this
Memorandum and Order, Respondents shall file a limited answer
addressing timeliness and exhaustion, including the relevant
record. The limited answer may be in the form of a motion to
Petitioner has filed a § 2254 petition, this Court is
required, pursuant to Rule 4 of the Rules Governing Section
2254 Cases, to screen the Petition and determine whether it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to
relief.” Under this Rule, the Court is
“authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
AEDPA, Congress prescribed a one-year period of limitation
for the filing of federal habeas corpus petitions by state
prisoners. See Douglas v. Horn, 359 F.3d 257, 261
(2004); 28 U.S.C. § 2241(d)(1). Pursuant to 28 U.S.C.
§ 2241(d)(1), [t]he limitation period shall run from the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
pre-AEDPA convictions, which included those cases in which a
prisoner's conviction became final before April 24, 1996,
a state prisoner had a year from April 24, 1996, the
effective date of the AEDPA to seek federal habeas relief.
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
28 U.S.C. 2241(d)(2), “[t]he time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this section.” This exception to the
one-year limitation period is known as statutory tolling and
provides that the one-year limitations period is tolled
during the time a properly filed application for
post-conviction relief is pending. See Merritt v.
Blaine, 326 F.3d 157, 161 (3d Cir. 2003). An application
for post-conviction relief is considered
“pending” within the meaning of § 2244(d)(2)
during the period between a lower state court's ruling
and the period a petitioner has to seek review of the
decision, whether or not the appeal was actually sought.
Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).
However, “the time during which a state prisoner may
file a petition for writ of certiorari in the United States
Supreme Court from the denial of his state post-conviction
petition does not toll the one-year state of limitations
under 28 U.S.C. § 2244(d)(2).” Stokes v. D.A.
of the County of Phila., 247 F.3d 539, 542 (3d Cir.
it appears Petitioner's judgment of conviction became
final before April 24, 1996.Therefore, it appears Petitioner
had one year from April 24, 1996, the effective date of the
AEDPA, to seek federal habeas relief, Burns, 134
F.3d at 111, or to file a petition for postconviction relief.
Section 2244(d)(2) tolls the statute of limitations with
respect to the “time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending.” It also appears Petitioner filed at least one
petition for postconviction relief (“PCR”) prior
to submitting his habeas Petition for filing on July 9, 2014.
(See ECF No. 1 at 3-6); however, Petitioner has not
stated whether he filed more than one PCR or whether any
subsequent PCRs were accepted as properly filed by the state
court. Petitioner has attached to his Petition an Order from
the Supreme Court of New Jersey, denying a petition for
certification, which is dated July 9, 2013. His Petition is
dated exactly one year later, July 9, 2014.
also appears to acknowledge that most of the Grounds for
relief listed in his Petition are unexhausted. This Court may
not grant a writ of habeas corpus under 28 U.S.C. § 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); Toulson
v. Beyer, 987 F.2d 984 (3d Cir. 1993). To satisfy the
exhaustion requirement, “state prisoners must give the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). “The burden is on the habeas petitioner to
prove exhaustion.” DeFoy v. McCullough, 393
F.3d 439, 442 (3d Cir. 2005). 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)).
“Fair presentation means that a petitioner must present
a federal claim's factual and legal substance to the
state courts in a manner that puts them on notice that a
federal claim is being asserted.” Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010) (citations and
internal quotation marks omitted). In sum, the exhaustion
doctrine requires the petitioner to afford the state courts
“the opportunity to resolve the federal constitutional
issues before he goes to the federal court for habeas
relief.” Id. (quoting Zicarelli v.
Gray, 543 F.2d 466, 472 (3d Cir.1976)); see also
Gould v. Ricci, No. CIV. 10-1399 NLH, 2011 WL 6756920,
at *2 (D.N.J. Dec. 19, 2011) (explaining same). The
exhaustion doctrine therefore requires a petitioner
challenging a New Jersey conviction under § 2254 to have
fairly presented each federal ground that is raised in the
petition to all three levels of the New Jersey
courts, that is, the Law Division, the Appellate
Division, and the New Jersey Supreme Court. See
O'Sullivan v. Boerckel, 526 U.S. 838 (1999);
Rose v. Lundy, 455 U.S. 509 (1982).
federal district courts may not adjudicate mixed petitions,
i.e. petitions that contain both exhausted and unexhausted
claims. See Rhines v. Weber, 544 U.S. 273 (2005).
Normally, the Court is directed to dismiss a mixed petition
without prejudice, id. at 274, but a stay and
abeyance may be appropriate when a dismissal without
prejudice would cause Petitioner to run afoul of the habeas
statute of limitations, and lose his opportunity to seek
federal habeas review. See Id. at 275-76. As the
Supreme Court instructed, “stay and abeyance is . . .
appropriate when the district court determines there was good
cause for the petitioner's failure to exhaust his claims
first in state court.” Id. at 277. District
courts should grant a stay instead of dismissing a mixed
petition “if the petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”
Id. at 278. If a stay is not warranted, then the
petitioner may elect to delete the unexhausted claims.
See Gould, 2011 WL 6756920, at *3; if he does not
delete the unexhausted claims, then the Court must either (a)
dismiss the entire § 2254 petition as unexhausted,
id. (citing Rose v. Lundy, 455 U.S. 509
(1982), or (b) deny all grounds raised in the § 2254
petition on the merits, pursuant to 28 U.S.C. §
2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts
of the State”). See, e.g., Carrascosa v.
McGuire, 520 F.3d 249 255 (3d Cir. 2008).
the Court is unable to discern whether the Petition is timely
and because it appears that most of his claims are
unexhausted, the Court will direct Respondents to file a
limited answer addressing (1) the timeliness of the Petition
on a claim by claim basis and (2) whether any of the claims
are unexhausted/procedurally defaulted. In reply to
Respondents' limited answer, Petitioner may provide any
basis he may have for statutory or equitable tolling ...