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Roth v. Yates

United States District Court, D. New Jersey

September 6, 2019

JOHN MARTIN ROTH, Petitioner,
v.
SHERRY YATES, ADULT DIAGNOSTIC AND TREATMENT CENTER, and CHRISTOPHER S. PORRINO, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Respondents.

          OPINION

          John Michael Vazquez United States District Judge.

         I. INTRODUCTION

         Presently before the Court is the petition pursuant to 28 U.S.C. § 2254 (“the Petition”) (ECF No. 1) of John Martin Roth (“Petitioner”). Petitioner is currently incarcerated at the Adult Diagnostic and Treatment Center (“ADTC”) in Avenel, New Jersey (ECF No. 1-2 at 7), where he is serving a New Jersey parole violation term of eighteen years, five months, and eighteen days for a rape conviction and nine hundred sixty-four days for an assault conviction. State of New Jersey v. Roth, No. A-6103-12T2, 2015 WL 5944153, at *1 ( N.J.Super.Ct.App.Div. Oct. 13, 2015); Roth v. New Jersey State Parole Bd., No. A-4473-10T3, 2012 WL 5499896, at *1 ( N.J.Super.Ct.App.Div. Nov. 14, 2012); ECF No. 1-1 at 7-12 and 37; ECF No. 1-2 at 7.

         For the reasons stated herein, the Court denies the Petition with prejudice as procedurally defaulted with respect to Grounds One through Seven and not warranting habeas relief with respect to Grounds Eight and Nine. No. certificate of appealability shall issue.

         II. BACKGROUND

         A. Factual History

         On June 17, 1971, Petitioner was found guilty in New Jersey of rape. He was sentenced to an indeterminate term not to exceed thirty years. He was paroled on November 11, 1978. Roth, 2015 WL 5944153, at *1 n.1; Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 7-8 and 37.

         In March 1979, New Jersey charged Petitioner with breaking and entering and three counts of assault with intent to rob while armed. He returned to custody. Roth, 2015 WL 5944153, at *1 n.1; Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 9-11. On April 23, 1979, he entered a guilty plea on the three counts of assault with intent to rob while armed. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 12 and 37. On May 25, 1979, he was sentenced to three concurrent terms of three to nine years, to run concurrently to any parole violation. Ibid. On June 2, 1981, New Jersey paroled Petitioner to a parole program in the State of Washington. Roth, 2015 WL 5944153, at *1 n.1; Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 37. He agreed to abide by the New Jersey State Parole Board's (“NJSPB”) conditions of parole, including the requirement that he obey all laws and ordinances. (ECF No. 1-1 at 13-14.)

         On September 15, 1981, law enforcement in the State of Washington arrested Petitioner and charged him with rape, robbery, two counts of attempted rape, and attempted robbery. Roth, 2015 WL 5944153, at *1 n.1; Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 37. On November 18, 1981, Petitioner was convicted on all counts. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 15 and 37. On April 22, 1982, the State of Washington sentenced him to an aggregate term of ten years to life imprisonment. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 15-16.

         On December 30, 1982, the NJSPB issued a parole violation warrant because Petitioner failed to obey all laws and ordinances, as evidenced by his Washington convictions. Roth, 2015 WL 5944153, at *1 n.1; Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 17 and 37.

         On December 15, 2010, Washington paroled Petitioner on his sentence there and returned him to custody of the New Jersey Department of Corrections (“NJDOC”). At that time, New Jersey enforced the parole violation warrant. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 35 and 41.

         B. Parole Proceedings

         On January 14, 2011, the NJSPB conducted Petitioner's parole revocation hearing. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 37-39. Based on the evidence in the record, as well as Petitioner's admission of guilt, the NJSPB hearing officer sustained the parole violation charge. The officer found that Petitioner had not shown, by clear and convincing evidence, that good cause existed to excuse parole revocation. Ibid. The officer recommended that Petitioner be referred to ADTC for a Dalonges evaluation.[1] (ECF No. 1-1 at 39.)

         At Petitioner's final parole revocation hearing on March 24, 2011, a two-member NJSPB Panel (“Board Panel”) reviewed the record and the hearing officer's January 14, 2011 decision. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 40-44. The Board Panel adopted the hearing officer's recommendation, reaffirmed the decision to revoke Petitioner's parole, ordered that he serve the adjusted maximum term as determined by the NJDOC, determined that he would receive parole consideration for his sex offender sentence when referred by the Special Classification Review Board (“SCRB”), and referred him to the ADTC for a Dalonges evaluation. The Board Panel stated that it would reconsider its decision when it received the Dalonges evaluation. (ECF No. 1-1 at 36, 40, and 44.)

         Following the Dalonges evaluation, the two-member Board Panel re-affirmed its decision to revoke Petitioner's parole. The Board Panel stated that future consideration of parole would occur after any SCRB referral. Roth, 2012 WL 5499896, at *1.[2]

         On or about March 27, 2011, Petitioner administratively appealed the Board Panel's March 24, 2011 decision to the full Board. (ECF No. 1-1 at 47-54.) On October 26, 2011, the full NJSPB affirmed (“Final Agency Decision”) the Board Panel's decisions. Roth, 2012 WL 5499896, at *1; ECF No. 1-1 at 55-59.

         Direct appeal and post-conviction relief (“PCR”) proceedings followed. Given the complexity and length of Petitioner's manner of expressing his direct appeal and PCR claims (see ECF No. 1 at 4-12; ECF No. 1-1 at 62-97; ECF No. 1-2 at 49-51; ECF No. 7-3; Roth, 2012 WL 5499896, at *1-3; Roth, 2015 WL 5944153, at *1-3), and given their relevance to this Court's analysis, the Court will summarize them below.

         C. Direct Appeal Proceedings

         On direct appeal of the Final Agency Decision, Petitioner argued as follows:

(1) The balance of a former sentence's parole term runs “during the period of the new imprisonment.” He alleged that his incarceration for his March 2011 parole violation was therefore “an ex post facto violation” (ECF No. 7-3 at 3 and 8 (“Direct Appeal Claim 1”));
(2) Under the double jeopardy principle, Petitioner had an “expectation of finality” as to his incarceration period, but then the NJSPB “illegal[ly] [took] jurisdiction over [him] by extend[ing] his maximum term of sentence” (id. at 3 and 19 (“Direct Appeal Claim 2”)); and
(3) The “philosophy of the Sex Offender Act under which [Petitioner] was convicted is that [he] require[s] treatment, not punishment. (Id. at 3 and 28 (“Direct Appeal Claim 3”).)

         On November 14, 2012, the Appellate Division affirmed the Final Agency Decision. Roth, 2012 WL 5499896, at *1 and *3; Roth, 2015 WL 5944153, at *1 and *3. Petitioner expressly acknowledges that he did not seek review by the New Jersey Supreme Court during direct appeal proceedings. (ECF No. 1 at ¶ 3(c) (“Petitioner did not seek further review by a higher state court”).)

         Instead, he filed a petition for PCR. (Id. at ¶ 4(a).)

         D. Post-Conviction Relief Proceedings

         Petitioner's PCR petition raised the following claims:

(1) The NJSPB failed to comply with the time constraints of the Interstate Agreement on Detainers, N.J. Stat. Ann. § 2A:159A-1 to -15 (“IAD”)[3], as to Petitioner's revocation hearing. The NJSPB's detainer against Petitioner prevented him from being eligible for Washington State's Sex Offender Treatment Program for fifteen years (ECF No. 1 at 7; ECF No. 1-1 at 84-86; ECF No. 1-2 at 82) (“PCR Claim 1”);
(2) The NJSPB “erred in revoking parole, as it misapplied the law existing at the time of [Petitioner's] 1982 parole warrant, resulting in [Petitioner] being subject to additional punishment in violation of ex post facto” (ECF No. 1 at 7; ECF No. 1-1 at 70-72; ECF No. 1-2 at 82-83) (“PCR Claim 2”);
(3) New Jersey courts “misappl[ied] N.J. Stat. Ann. § 2C:44-5, under which Petitioner's additional parole violation sentence should have been served concurrently” (ECF No. 1 at 7) (“PCR Claim 3”);
(3) Petitioner was “entitled to relief as a matter of public policy because his sexual offense and treatment abuse programs provided by Washington State were essentially ignored by the NJSPB” (ECF No. 1 at 7; ECF ...

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