JEROME B. SIMANDLE, Chief District Judge.
Warren Miller, a state prisoner confined at East Jersey State Prison, has submitted a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Second Amended Petition, Docket Entry 21. Respondent Ronald Cathel opposes the petition on the grounds that Petitioner failed to exhaust the available remedies in state court and procedurally defaulted on certain claims. Answer, Docket Entries 24 and 25. For the reasons stated herein, the petition shall be denied and no certificate of appealability shall issue.
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 second post-conviction relief ("PCR") appeal:
State v. Miller, No. A-6015-08, 2011 WL 5299607, at *3-4 (N.J. Super. Ct. App. Div. Nov. 7, 2011); Re 16.
An Atlantic County Grand Jury indicted Petitioner for first-degree murder, N.J. STAT. ANN. § 2C:11-3(a)(1)-(2) (Count One); third-degree possession of a weapon for an unlawful purpose, N.J. STAT. ANN. § 2C:39-4(d) (Count Two); fourth-degree unlawful possession of a weapon, N.J. STAT. ANN. § 2C:39-5(d) (Count Three); and third-degree hindering apprehension, N.J. STAT. ANN. § 2C:29-3(b)(1), (Count Four). State v. Miller, No. A-5279-99, slip op. at 1-2 (N.J. Sup. Ct. App. Div. Mar. 27, 2002); Re 3.
Petitioner proceeded to trial before a jury beginning on March 14, 2000. 1T.
Miller, No. A-6015-08, 2011 WL 5299607, at *4 (alterations in original). The jury ultimately convicted Petitioner of Counts Two and Three and on Count One's lesser-included offense of first-degree aggravated manslaughter. Miller, No. A-5279-99, slip op. at 2. He was acquitted of Count Four. Id. He pled 5T = Trial Transcript dated March 21, 2000; Re 25. guilty to two separate pending indictments charging him with third-degree CDS possession, N.J. STAT. ANN. § 2C:35-10(a), and third-degree terroristic threats, N.J. STAT. ANN. § 2C:12-3(a). Id. Sentencing took place on April 14, 2000. 8T. At that time, the trial court imposed an extended term on the aggravated manslaughter charge, resulting in a life sentence, and an 85% parole disqualifier pursuant to New Jersey's No Early Release Act ("NERA"). Miller, No. A-5279-99, slip op. at 2-3.
Petitioner filed a direct appeal challenging his conviction and sentence. Petitioner's Appellate Brief, Re 1. The court affirmed the convictions and sentence but remanded for further proceedings regarding the NERA parole disqualifier. Miller, No. A-5279-99, slip op. at 4. On remand, the trial court reduced the period of parole ineligibility to twenty-five years, six months. State v. Miller, No. A-3430-04, 2006 WL 1085795, at *1 (N.J. Super. Ct. App. Div. Apr. 26, 2006); Re 11. Petitioner sought review from the New Jersey Supreme Court, but the court denied certification on June 19, 2002. Order Denying Certification — Direct Appeal, Re 6.
Petitioner thereafter filed a timely PCR petition in September 2002. Re 7 at 79-85. His pro se submission raised two points:
Id. at 84. Appointed PCR counsel supplemented the petition, arguing appellate counsel erred by failing to raise the issue of prosecutorial misconduct on direct appeal and failing to communicate with Petitioner during the appeal. Id. at 68-72. PCR counsel also argued trial counsel failed to preserve a videotape allegedly containing exculpatory evidence and failed to present witnesses on Petitioner's behalf. Id. at 73-76. An affidavit submitted by Petitioner added an allegation that trial counsel had not fully explained his right to testify at trial. Id. at 77 ¶ 1.
Oral argument on the motion was held on December 3, 2004. 9T. The PCR court determined Petitioner had not established a prima facie case of ineffective assistance of trial and appellate counsel and, with the exception of the issue of Petitioner's right to testify, denied the petition without an evidentiary hearing.
Petitioner raised two arguments in his appeal to the Appellate Division:
Miller, No. A-3430-04, 2006 WL 1085795, at *1. Petitioner submitted a supplemental pro se brief expanding on his argument that PCR counsel misrepresented his argument regarding the right to testify question to the PCR Court. Re 9. The Appellate Division found no ineffective assistance on the part of appellate or PCR counsel and affirmed the findings of the PCR Court. See generally Miller, No. A-3430-04, 2006 WL 1085795. The Supreme Court denied certification on July 6, 2006. State v. Miller, 902 A.2d 1236 (N.J. 2006); Re 13.
Petitioner thereafter filed a petition for writ of habeas corpus on November 19, 2006. The petition as filed did not state a claim for relief but merely discussed the exhaustion and procedural default doctrines and requested the Court read the petition liberally. See Petition, Docket Entry 1. The Court issued a Notice and Order pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), on January 8, 2007. Petitioner responded to the order on May 30, 2007 by requesting a stay and abeyance as he had "issues to present in state court that [he] must exhaust." Mason Response, Docket Entry 3. After soliciting the State's position and receiving an amended petition setting forth the arguments Petitioner wanted to exhaust, the Court granted the motion for the stay on February 21, 2008. Order Granting Stay, Docket Entry 14.
Petitioner filed a second PCR petition in the state courts arguing that the fact that several of the State's witnesses had testified while wearing prison clothing and shackles violated his due process and fair trial rights, and that his trial, appellate, and first PCR attorneys were ineffective for failing to raise the issue. Re 14 at 104-20. He also reasserted his Blakely claim in light of the New Jersey Supreme Court's decision in State v. Natale, 878 A.2d 724 (N.J. 2005). Id. at 149-50. The PCR Court determined that the second PCR was barred under state law as Petitioner had not shown excusable neglect for failing to raise his claims regarding the witnesses' clothing within five years of the judgment and that it would not be in the interest of justice to relax the time bar. 10T7:6-23. In spite of holding the time bar applied, the PCR court addressed the merits of the petition "in the interest of — of a comprehensive resolution of the issues. . . ." 10T7:23 to 8:1-2. It reserved its decision on the Blakely/Natale issue and asked the parties for supplemental briefing. 10T14:16 to 15:8. On February 5, 2009, the court issued a written decision denying the Blakely/Natale claim. Re 14 at 173-75. Petitioner appealed, and the Appellate Division concluded that the second PCR was barred under New Jersey Court Rule 3:22-4(b)(1) and should be dismissed on that basis. State v. Miller, No. A-6015-08T4, 2011 WL 5299607, at *7 (N.J. Super. Ct. App. Div. Nov. 7, 2011). The Supreme Court denied certification on May 3, 2012. State v. Miller, 42 A.3d 890 (N.J. 2012).
After completing his return to the state courts, Petitioner moved to reopen his habeas proceedings on June 7, 2012. The Court granted the motion and directed Petitioner to file a second amended petition containing all of the grounds he wished the Court to consider. The Second Amended Petition was filed on September 20, 2013, Docket Entry 21, and Respondent's answer was filed on February 28, 2014, Docket Entries 24 and 25. Petitioner submitted a traverse on May 5, 2014. Docket Entry 27.
Petitioner raises the following grounds in his second amended petition for this Court's review:
Second Amended Petition. Respondent argues the claims raised in the second PCR petition are procedurally defaulted and the other claims are unexhausted.
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).
Respondent argues the claims raised in Petitioner's second PCR should be dismissed as time-barred. Petitioner did not address this argument in his traverse. The Court finds that Petitioner has procedurally defaulted on the claims regarding the witnesses' clothing at trial, presented as Grounds III, IV,
"Procedural default occurs when a state court determines that `the prisoner . . . failed to meet a state procedural requirement.'" Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 540 (3d Cir. 2014) (quoting Coleman v. Thompson, 501 U.S. 722, 730 (1991)). If the state court decision "involving a federal question . . . is based on a rule of state law that is independent of the federal question and adequate to support the judgment[,]" Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)), federal courts may not review the merits of the claim unless "the petitioner establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (quoting Lines v. Larkin, 208 F.3d 153, 159-60 (3d Cir. 2000)).
Here, the Appellate Division concluded Petitioner's second PCR was barred by Rule 3:22-4. State v. Miller, No. A-6015-08, 2011 WL 5299607, at *7 (N.J. Super. Ct. App. Div. Nov. 7, 2011). Rule 3:22-4 states in relevant part that a second or subsequent PCR petition "shall be dismissed unless . . . it is timely under R. 3:22-12(a)(2)." N.J. Ct. R. 3:22-4(b)(1). The Appellate Division analyzed the claims under all three factors of Rule 3:22-12 and determined the second PCR was untimely under all of them. Miller, 2011 WL 5299607, at *5-7. Thus, "the last state court rendering a judgment in the case `clearly and expressly' state[d] that its judgment rest[ed] on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)). Petitioner has therefore procedurally defaulted on his prison garb claims. Thus, the Court may only review the merits of the claims if Petitioner can demonstrate cause and prejudice or a miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 746-47 (1991).
In spite of previously demonstrating his familiarity with the procedural default doctrine, see Petition, Docket Entry 1 at 2-3, Petitioner did not address Respondent's argument in his traverse beyond asserting "the PCR Court addressed his issues and was not procedurally barred." Traverse at 13. As Petitioner has not established either cause and prejudice or a fundamental miscarriage of justice to excuse the default, the Court cannot consider the merits of these arguments. See McCandless v. Vaughn, 172 F.3d 255, 263 (3d Cir. 1999) (noting court was not free to consider merits of procedurally defaulted arguments when petitioner did not argue cause and prejudice or miscarriage of justice exceptions). Grounds III, IV, V, VII, and IX are dismissed as procedurally defaulted.
Respondent argues that Grounds I and II should be dismissed as Petitioner has failed to exhaust his state court remedies on those claims. "A federal court will not grant a state prisoner's petition for a writ of habeas corpus unless available statecourt remedies on the federal constitutional claim have been exhausted. The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (internal citations omitted).
"To `fairly present' a claim, 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." McCandless, 172 F.3d at 261. Petitioner failed to fairly present to the New Jersey Supreme Court his arguments that trial counsel was ineffective for failing to preserve a videotape and failing to speak with or present character witnesses; they are therefore unexhausted.
Both of these claims were raised in his first PCR petition and arguably raised before the Appellate Division.
Petition for Certification, Re 11 at 3. Petitioner argued in the brief that "[t]he Appellate Court's reasoning was misplaced because the Petitioner's argument under Point II was not that Petitioner made a prima facie case on the right to testify matter, but that the PCR attorney's performance was ineffective, causing the failure to make a prima facie case." Id. It is clear that Petitioner only asked the state Supreme Court to decide whether PCR counsel effectively represented him during his first PCR proceedings, not whether trial counsel was ineffective. Moreover, the petition only referenced trial counsel's alleged failure to properly advise Petitioner on his right to testify, not his alleged failure to secure the videotape or call witnesses at trial. Id. Therefore, these claims have not been fairly presented to each level of the New Jersey state courts.
As Petitioner did not exhaust these claims and he cannot return to the state courts to exhaust them now,
Petitioner has not established cause and prejudice or that a miscarriage of justice will result absent a determination of the merits. His traverse does not address either requirement and only asserts that he exhausted both claims. Traverse at 3. Having found that he has not exhausted the claims, and Petitioner not having established cause and prejudice or a miscarriage of justice, the Court therefore cannot consider the merits of these arguments. Grounds I and II are dismissed as procedurally defaulted.
In Grounds VI and VIII, Petitioner argues his sentence violates Blakely v. Washington, 542 U.S. 296 (2004). Respondent argued Petitioner also procedurally defaulted on this claim, however it is not clear that the Appellate Division found it to be barred under state law. In denying Petitioner's second PCR appeal, the Appellate Division only discussed the claims relating to the witnesses' clothing as being time-barred. See State v. Miller, No. A-6015-08T4, 2011 WL 5299607, at *5-7 (N.J. Super. Ct. App. Div. Nov. 7, 2011). All other raised claims were determined to be without merit. Id. at *7. The Court therefore considers the state courts to have ruled on the merits of this claim.
In Blakely, the Supreme Court held that the sentencing of a defendant to more than the statutory maximum based on a judge's finding of deliberate cruelty violated the Sixth Amendment as that fact was not submitted to a jury and proved beyond a reasonable doubt. Petitioner argues the life sentence imposed violates Blakely because the sentencing court applied aggravating factors not found by a jury. Relying on Natale,
Petitioner was sentenced on April 14, 2000. 8T. Direct review ended on September 19, 2002, 90 days after the New Jersey Supreme Court denied certification on his direct appeal. The fact that his direct appeal was pending at the time Apprendi was decided does not entitle him to relief under Blakely.
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas proceeding where that petitioner's detention arises out of his state court conviction unless he has "made a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to make a substantial showing that he was denied a constitutional right. As jurists of reason could not disagree with this Court's resolution of his claims, either on the merits or on procedural grounds, the Court shall deny Petitioner a certificate of appealability.
For the reasons stated above, the second amended petition is denied. A certificate of appealability shall not issue. An accompanying Order will be entered.
