JEROME B. SIMANDLE, Chief District Judge.
Jacquar Stokes has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petition, Docket Entry 1. Respondent Paul K. Lagana opposes the petition and asserts that several grounds raised by Petitioner are either procedurally defaulted or unexhausted. Answer, Docket Entry 8. Petitioner has requested a stay and abeyance in order to return to the state courts to exhaust his claims. For the reasons stated herein, the request for a stay shall be denied, and Petition is dismissed without prejudice as untimely. Petitioner may file a written statement within thirty (30) days of the date of this Opinion and Order on timeliness.
The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the recitation of the facts as set forth by the New Jersey Superior Court Appellate Division in its opinion denying Petitioner's post-conviction relief ("PCR") appeal:
State v. Stokes, No. A-4355-10, 2012 WL 2327784, at *1-2 (N.J. Super. Ct. App. Div. June 20, 2012); Ra 30.
Petitioner alleged in his pro se submission that trial counsel rendered ineffective assistance for allowing his family members to "emotionally blackmail" him into taking the guilty plea. Id. at 3. He further alleged trial counsel was ineffective for failing to introduce evidence of his psychiatric history and drug and alcohol abuse at sentencing as mitigating factors. Id. Petitioner later provided a certification stating that he arrived in court on the date of the plea hearing expecting to proceed to trial because the State would not agree to a 15-year sentence. PCR Certification, Ra 14 ¶¶ 4-7. The trial court recessed and suggested that Petitioner confer with counsel.
Id. ¶¶ 11-12. He further certified that he had been diagnosed with depression when he was a juvenile and was on several medications. Id. ¶ 15. He stated his trial attorney did not bring that fact, as well as the facts that he had previously been confined in difference psychiatric facilities and had abused drugs and alcohol since he was 10 years old, to the trial court's attention. Id. He subsequently filed a pro se supplemental brief arguing "[t]he sentence is illegal since Defendant is a Corporation as denoted in the criminal code and cannot be subjected to any term of imprisonment." Pro Se Supplemental Brief, Ra 15.
Oral argument on the petition was held on October 29, 2010. 4T. PCR Counsel argued for the first time at the hearing that trial counsel had been ineffective for failing to request a Miranda hearing. 4T29:14 to 30:24. The PCR Court denied the petition without an evidentiary hearing on November 16, 2010. PCR Opinion, Ra 19. The court found the petition to be barred under New Jersey Court Rule 3:22-4 as Petitioner had not raised his ineffective assistance of counsel claims on direct appeal. Id. at 4. It also considered the merits of the petition under Strickland v. Washington, 466 U.S. 668 (1984), but found that Petitioner had not set forth a prima facie case of ineffective assistance of counsel, id. at 5.
Petitioner appealed to the Appellate Division arguing the PCR court erred in concluding his petition was barred and that there was no ineffective assistance of counsel. PCR Appellate Brief, Ra 21. He further alleged the PCR court improperly failed to conduct an evidentiary hearing and address his corporation argument. Id. After the State answered, Ra 24, Petitioner filed a supplemental brief raising a new argument: "The Defendant's sentence is illegal insofar as it violates the separation of powers doctrines [in] both the [United States] and [New Jersey] constitutions, and is wholly repugnant to the supremacy clause." State v. Stokes, No. A-4355-10, 2012 WL 2327784, at *3 (N.J. Super. Ct. App. Div. June 20, 2012) (alteration in original). He thereafter filed a supplemental reply brief with four new arguments:
Pro Se Reply Brief, Ra 26 at 2.
The Appellate Division held that the PCR court erred by applying the procedural bar to the ineffective assistance of counsel claims regarding the plea and sentencing. "Because defendant's claim of ineffective assistance of counsel implicates his constitutional right to counsel and was based on allegations and evidence that lie outside the record of the plea and sentencing, his failure to raise these claims in a direct appeal from his judgment of conviction does not bar the assertion of the claims in a PCR petition." Stokes, No. A-4355-10, 2012 WL 2327784, at *4. It affirmed the denial of those claims on the merits for the reasons given by the PCR court. Id. at *4-6. It concluded the arguments that "the PCR court erred by failing to conduct an evidentiary hearing; [Petitioner] was denied the effective assistance of PCR counsel; and the PCR court erred by failing to address a claim asserted by defendant in a pro se submission" were without sufficient merit to warrant discussion. Id. at *6. It declined to consider the arguments raised in the pro se reply brief as they were raised for the first time on appeal. Id. Petitioner requested review by the New Jersey Supreme Court, Petition for Certification, Ra 31, and the court denied certification on May 9, 2013. State v. Stokes, 65 A.2d 262 (N.J. 2013).
Petitioner filed this § 2254 petition on June 26, 2013. Petition, Docket Entry 1. By Order dated October 23, 2013, the Court informed Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), and ordered him to advise the Court as to how he wished to proceed. Mason Order, Docket Entry 2. Petitioner did not respond to the order; therefore, the Court ordered Respondent to answer the petition on January 16, 2014. Order to Answer, Docket Entry 4. The Court granted Respondents' motion for an extension of time to file their answer due to a delay in the referral of the matter from the Attorney General's Office. Respondents filed their answer to the petition on September 12, 2014 arguing the petition should be dismissed as unexhausted, procedurally defaulted, and meritless. Docket Entry 8. Petitioner conceded several of his claims were unexhausted in the state courts and requested a stay and abeyance so that he could return to the state courts to exhaust his claims. January 20, 2015 Letter, Docket Entry 11.
Title 28 U.S.C. § 2254 permits a federal court to entertain a petition for writ of habeas custody on behalf of a person in state custody, pursuant to the judgment of a state court, "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a state court, the writ shall not issue unless the adjudication of the claim
28 U.S.C. § 2254(d). A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "[A] state-court decision is an unreasonable application of clearly established [Supreme Court] precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case." White v. Woodall, 134 S.Ct. 1697, 1706, reh'g denied, 134 S.Ct. 2835 (2014). The Court must presume that the state court's factual findings are correct unless Petitioner has rebutted the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner raises seven grounds for relief before this Court:
Petition ¶ 12.
Petitioner's § 2254 petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, federal habeas petitioners must exhaust state court remedies before a federal district court may consider the merits of a claim. "This exhaustion rule promotes `comity in that it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.'" Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004) (quoting Duncan v. Walker, 533 U.S. 167, 179 (2001)).
Petitioner candidly admits several of his raised grounds have not been exhausted in the state courts, and Respondent argues they should be dismissed on this basis pursuant to Rose v. Lundy, 455 U.S. 509 (1982), or as procedurally defaulted as he cannot return to the state courts. Answer at 22-24. Petitioner responds an illegal sentence may be challenged at any time under New Jersey law and requests this Court stay his petition. January 20, 2015 Letter.
When confronted with a "mixed petition" containing unexhausted and exhausted claims as the Court is here, a district court may stay the matter pending state court exhaustion "where there is a danger that dismissal will deny a petitioner federal review" due to AEDPA's statute of limitations. Id. In determining whether to grant a stay, the Court must consider the standard as set forth in Rhines v. Weber, 544 U.S. 269 (2005).
"[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines, 544 U.S. at 2775. "Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.
Petitioner has not presented any explanation as to why he failed to properly exhaust all of his claims. Thus, there is nothing to support a finding of good cause for failure to exhaust. A stay is therefore not appropriate under Rhines. Moreover, a stay would not be warranted because it appears the entire petition is barred by AEDPA's statute of limitations.
AEDPA imposes a one-year period of limitation on a petitioner seeking to challenge his state conviction and sentence through a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the limitation period runs from the latest of:
28 U.S.C. § 2244(d)(1). The judgments of convictions were entered on March 11, 2005. Judgments of Convictions, Ra 9. Petitioner did not file a direct appeal; therefore his convictions became final after the expiration of the period in which he could have filed a timely appeal: April 25, 2005. See N.J. Ct. Rule 2:4-1(a). AEDPA's one-year statute of limitations therefore expired on April 25, 2006, well before this petition was filed in July 2013.
AEDPA also provides that "[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 . . . ." 28 U.S.C. § 2244(d)(2). Petitioner, however, cannot avail himself of statutory tolling because AEDPA's statute of limitations expired prior to the filing of his PCR petition on September 12, 2008.
The statute of limitations is, however, subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010). "There are no bright lines in determining whether equitable tolling is warranted in a given case. Rather, the particular circumstances of each petitioner must be taken into account." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In analyzing whether the circumstances faced by Petitioner were extraordinary, "`the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, . . . but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period.'" Ross v. Varano, 712 F.3d 784, 802-03 (3d Cir. 2013) (quoting Pabon, 654 F.3d at 400) (emphasis in original). There must also be a "causal connection, or nexus, between the extraordinary circumstances he faced and the petitioner's failure to file a timely federal petition." Id.
Here, nothing in the record suggests Petitioner has been pursuing his rights diligently and that some extraordinary circumstance stood in his way. Under these circumstances, equitable tolling of the statute of limitations does not appear to be warranted. "And because nothing indicates that the interests of justice would be better served by addressing the merits of the Petition, this Court will dismiss the Petition as time barred." Daley v. State of New Jersey, No. 16-23, 2016 WL 2990631, at *4 (D.N.J. May 24, 2016).
However, because the Court is raising this issue sua sponte and after the parties' briefs have been submitted, the Court will administratively terminate the petition and retain jurisdiction for 30 days as it cannot rule out the possibility that Petitioner might have valid grounds for statutory and/or equitable tolling, or that he may be able to argue that the limitations period is governed by another subsection of § 2244(d). Within that timeframe, Petitioner may submita written statement setting forth detailed tolling arguments, or other arguments as to why the Petition is not untimely. See Day v. McDonough, 547 U.S. 198, 210 (2006) (before acting on timeliness of petition, court must accord Petitioner fair notice and an opportunity to present his position). Upon submission of Petitioner's arguments within the 30-day timeframe, the Court will reopen the petition for consideration. See Daley, 2016 WL 2990631, at *4 (citing cases). If Petitioner does not contest that his petition was untimely, then his response should so indicate and a final order of dismissal will be entered.
AEDPA provides that an appeal may not be taken to the court of appeals from a final order in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The United States Supreme Court held in Slack v. McDaniel that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." 529 U.S. 473, 484 (2000).
This Court denies a certificate of appealability because jurists of reason would not find it debatable that dismissal of the petition as untimely is correct.
For the reasons stated above, the habeas petition is dismissed as untimely, but the Court shall retain jurisdiction for a period of 30 days in order to afford Petitioner an opportunity to submit a detailed, written argument as to why the petition should not be dismissed as time-barred as of April 25, 2006. A certificate of appealability shall not issue.
An accompanying Order will be entered.
