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Myrtle v. State

United States District Court, D. New Jersey

August 15, 2019

JOEL MYRTLE, Petitioner,



         Before this Court is the Amended Petition (ECF No. 6) for a writ of habeas corpus filed by Petitioner Joel Myrtle (“Petitioner”), and this Court's order directing petitioner to show cause why his petition should not be dismissed as either time barred or unexhausted. (ECF No. 14.) Petitioner filed a response to that order. (ECF No. 15.) For the reasons expressed below, Petitioner's amended petition is DISMISSED WITHOUT PREJUDICE for lack of exhaustion and Petitioner is DENIED a certificate of appealability as to that dismissal.

         I. Factual Background And Procedural History

         As this Court summarized in the order to show cause:

Petitioner's Judgment of Conviction (“JOC”) is dated May 20, 2005. (ECF No. 12-1 at 28-29, JOC.) Petitioner's Notice of Appeal was stamped “Received” on June 17, 2005. On April 2, 2008, the Appellate Division affirmed Petitioner's conviction and sentence in an unpublished decision. See State v. Myrtle, No. A-5540-04T4, 2008 WL 860956, at *14 ( N.J.Super.Ct.App.Div. Apr. 2, 2008). The Supreme Court denied certification on June 12, 2008. 196 N.J. 85 (Jun. 12, 2008.)
Petitioner subsequently filed a pro se petition for post-conviction relief (“First PCR”), which is dated March 15, 2010 and is stamped “Received” on May 19, 2010. It appears that the First PCR was subsequently dismissed without prejudice by Order dated February 24, 2012, and Petitioner's original filing date was explicitly preserved in the Order.
It appears that on September 16, 2014, Petitioner reinstated his PCR (“Second PCR”), which was stamped “Received” on September 23, 2014.

(ECF No. 14 at 2-3 (record citations omitted).) According to Petitioner's response to the Court's order to show cause, he had this second PCR “dismissed with prejudice by the Superior Court of New Jersey . . . [t]hen turned to the District Court” through his initial habeas petition. (ECF No. 15 at 12.) Petitioner did not appeal this dismissal, instead believing he was free to pursue his claims in this Court by claiming that exhaustion would have been futile. (Id.)

         II. Standard Of Review

         “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” 28 U.S.C. § 2254, Rule 4. Dismissal without the filing of an answer is warranted “if it appears on the face of the petition that petitioner is not entitled to relief.” Id.; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at 437 (noting that a habeas petition may be dismissed where “none of the grounds alleged in the petition would entitle [the petitioner] to relief”).

         III. Decision

         As Petitioner appears to admit in his response to this Court's order to show cause, Petitioner's amended habeas petition is an unexhausted mixed petition as all of the claims raised only through his PCR petitions, including his alleged newly discovered evidence claim, have not been properly exhausted before the state courts. As this Court previously explained,

Under AEDPA, 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 thus 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. 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 ...

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