MADELINE COX ARLEO, District Judge.
This matter has been opened to the Court by Petitioner Lorenzo Oliver's filing of a pro se Petition for a writ of habeas corpus challenging his civil commitment under the New Jersey SVPA, pursuant to 28 U.S.C. § 2254. For the reasons explained in this Opinion, the Court will deny the Petition and will also deny a certificate of appealability.
This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1),
In re Civil Commitment of L.O., No. A-6241-09T2, 2013 WL 1919573, at *1-4 (App. Div. May 10, 2013). On appeal, L.O. asserted the following arguments through counsel:
Id. at *4. Petitioner also asserted the following arguments pro se:
Id. at *4-5. The Appellate Division rejected his grounds for appeal and affirmed his civil commitment. See Id. at *8. The Supreme Court denied certification. See In re Civil Commitment of L.O., 216 N.J. 4 (2013).
Petitioner submitted the instant Petition for habeas corpus to prison officials for filing on February 10, 2014. (ECF No. 1, Pet. at 11.) The matter was originally assigned to the Honorable Faith S. Hochberg. On April 23, 2014, Petitioner submitted an Amended Petition that raises the same issues he raised on appeal before the New Jersey Appellate Division. (ECF No. 5, Amended Petition at 6-9.) The matter was subsequently transferred to the undersigned. (ECF No. 8.) Respondents filed their Answer to the Amended Petition on November 30, 2015. (ECF No. 13.) Petitioner filed his Reply on January 29, 2016. (ECF No. 16.)
Petitioner also received a yearly review hearing in 2015; following the hearing, the state court entered judgment continuing Petitioner's commitment at the STU and requiring that another review hearing be conducted on April 15, 2016.
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus. The statute reads as follows:
28 U.S.C. § 2254(d).
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") constrains the federal court's power to disturb a state-court's order of civil commitment, and a federal court will reverse a state court's determination of a claim on the merits only if it "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law" or "resulted in a decision that was based on an unreasonable detel nination of the facts in light of the evidence presented in the State court proceeding." See Conover v. Main, 601 F. App'x 112, 114 (3d Cir. 2015) (citing 28 U.S.C. § 2254(d)). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. See Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
"[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of t[he Supreme Court's] decisions," as of the time of the relevant statecourt decision. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d) (1) if the state court "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result." Williams, 529 U.S. at 405-06. Under the `"unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413. With regard to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record. See Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an erroneous factual determination of the state court, two provisions of the AEDPA necessarily apply. First, the AEDPA provides that "a determination of a factual issue made by a State Court shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
A federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must `fairly present' all federal claims to the highest state court before bringing them in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This requirement ensures that state courts "have `an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.' Id. (citing United States v. Bendolph. 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
Even when a petitioner properly exhausts a claim, however, a federal court may not grant habeas relief if the state court's decision rests on a violation of a state procedural rule. See id. (citing Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is "independent of the federal question [presented] and adequate to support the judgment. "Id. at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). Finally, if a federal court determines that a claims has been defaulted, if may excuse the default only upon a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Id. at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that Petitioner's constitutional claims are unexhausted and/or procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) ("Here, because we will deny all of [petitioner's] claims on the merits, we need not address exhaustion"); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) ("Under 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and we take that approach here").
The New Jersey SVPA, N.J.S.A. 30:4-27.24 et seq., provides for the custody, care and treatment of involuntarily committed persons who are deemed to be sexually violent predators ("SVP"). See N.J.S.A. 30:4-27.26. The New Jersey Department of Corrections ("DOC") operates the facilities designated for SVPs, N.J.S.A. 30:4-27.34(a); and the New Jersey Department of Human Services ("DHS") provides for their treatment. See N.J.S.A. 30:4-27.34(b).
The SVPA defines a SVP as:
N.J.S.A. 30:4-27.26(b).
When it appears that a person may meet the criteria a SVP, the "agency with jurisdiction" must provide notice to the New Jersey Attorney General ninety (90) days, or as soon as practicable, before the anticipated release of a person who has been convicted of a sexually violent offense. See N.J.S.A. 30:4-27.27(a)(1). If the Attorney General determines that public safety warrants the involuntary civil commitment of a SVP, the Attorney General may initiate a court proceeding by presenting to a judge for immediate review the certification of two doctors, one of whom must be a psychiatrist, who have examined the person no more than three days before the petition for commitment. See N.J.S.A. 30:4-27.28; 30:4-27.26: see also In the Matter of Commitments of M.G. and D.C., 331 N.J.Super. 365, 373, 751 A.2d 1101 (App. Div. 2000). Once these documents are received by the court, the court must determine whether there is probable cause to believe that the person is a SVP. See N.J.S.A. 30:4-27.28(f). If the court so finds, the court will issue an order authorizing temporary commitment to a secure facility designated for the care, control and treatment of SVPs pending a final hearing, and a final hearing date will be scheduled within twenty (20) days of the temporary commitment. See N.J.S.A. 30:4-27.28(f) and 30:4-27.29(a). The SVPA mandates that the person deemed to be a SVP shall not be released from confinement before the final hearing. See N.J.S.A. 30:4-27.28(f).
The person deemed to be a SVP and his/her counsel shall be provided with the following at least ten (10) days before the final hearing: (1) copies of the clinical certificates and supporting documents, (2) the temporary court order, and (3) a statement of the SVP's rights at the final hearing. See N.J.S.A. 30:4-27.30(a). Under the statute, the individual is afforded the following rights at his/her final hearing: (1) the right to be represented by counsel or, if indigent, by appointed counsel; (2) the right to be present at the court hearing unless the court determines that because of the individual's conduct at the court hearing the proceeding cannot reasonably continue while the individual is present; (3) the right to present evidence; (4) the right to cross-examine witnesses; and (5) the right to a hearing in camera. See Greenfield v. Dep't of Corr, No. CIV.A. 09-1969 JLL, 2011 WL 3203730, at *6 (D.N.J. July 27, 2011) (citing N.J.S.A. 30:4-27.31).
At the final hearing, the court must find by clear and convincing evidence that the SVP is in need of continued involuntary commitment to issue an order of involuntary commitment. See N.J.S.A. 30:4-27.32(a). The psychiatrist on the SVP's treatment team who has conducted a personal examination of the SVP within five (5) days of the final hearing, shall testify at the hearing as to the clinical basis for involuntary commitment as a SVP. See N.J.S.A. 30:4-27.30(b). Other members of the person's treatment team and other witnesses with relevant information, offered by the SVP or by the Attorney General, are also permitted to testify at the final hearing. See id.
Persons committed under the SVPA also receive annual review hearings. See N.J.S.A. 30:4-27.35. A SVP may be released from involuntary civil commitment upon recommendation of the DHS or by the SVP's own petition for discharge. See N.J.S.A. 30:4-27.36.
Respondents first argue that Petition has been rendered moot by Petitioner's subsequent review hearing in 2015. At least one other Court in this district has rejected this same argument finding that although "the original one-year term of civil commitment under the SVPA has expired, [Petitioner's] Petition challenging his commitment under the SVPA is not rendered moot because his subsequent commitment order under the SVPA depends largely on the legality of the original SVPA commitment." Jennings v. Rogers, No. CIV. A. 06-5025 JLL, 2008 WL 2020175, at *9 (D.N.J. May 2, 2008) (citing Rose v. Mayberg, 454 F.3d 958, 960, n. 1 (9th Cir. 2006), cert, denied, 127 S.Ct. 1271 (2007). Judge Linares concluded that "even if cash SVPA re-commitment proceeding is a separate and distinct civil action, as Respondents here contend, the federal court may still address a habeas petition challenging the first SVPA commitment in order to ensure that the claim is fully litigated." Id. (citing Hubbart v. Knapp, 379 F.3d 773, 777-78 (9th Cir. 2004), cert. denied, 543 U.S. 1071 (2005). The Court is not persuaded that Petitioner's claims have been mooted by his subsequent commitment order and will therefore review the claims raised in the Petition.
In Grounds One and Two of his Petition, which were presented by his counsel below, Petitioner argues that State failed to prove by clear and convincing evidence that Petitioner is subject to civil commitment because the State relied on excessive amounts of hearsay and unproven evidence. Petitioner further contends that the court erred in relying on the opinions of Dr. Goldwater and Dr. Stewart because their opinions were based in part on the opinions of nontestifying experts. In Ground Five of his Petition, Petitioner also argues that the trial court violated his right to due process by relying on the state expert's erroneous statement that Petitioner violated parole and probation, when his presentence report stated that he did not violate parole and probation.
The Appellate Division rejected these arguments as follows:
In re Civil Commitment of L.O., 2013 WL 1919573, at *6-7.
From the outset, it appears that Petitioner's hearsay challenge was not raised to the state courts as a federal claim. Petitioner's Appellate Brief relies
To the extent Petitioner contends that the admission of hearsay violates his due process rights, "the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983). "A federal habeas court ... cannot decide whether the evidence in question was properly allowed under the state law of evidence." Keller v. Larkins, 251 F.3d 408, 416 n. 2 (3d Cir. 2001). As explained by another Court in this District, "[a]lthough New Jersey courts have held that the Due Process Clause limits the use of hearsay in sexually violent predator commitment hearings, this Court is not aware of any Supreme Court case clearly establishing that the admission of hearsay in a sexually violent predator commitment hearing constitutes a violation of due process[.]" Baldwin v. Rogers, No. CIV. 07-1741 (PGS), 2009 WL 1228432, at *7 (D.N.J. May 1, 2009).
To the extent that Petitioner asserts that the admission of hearsay— and specifically the expert's reliance on non-testifying experts — violated his rights under the Confrontation Clause, that claim does not warrant habeas relief. The Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. Courts in this District have held that the Sixth Amendment right of confrontation, and its attendant limitations on the use of hearsay evidence, does not attach to civil proceedings such as the civil commitment proceedings under the SVPA. See Greenfield, 2011 WL 3203730, at *14; see also Talbert v. Goodwin, No. 07-4101, 2009 WL 223710 (D.N.J. Jan. 29, 2009); Baldwin v. Rogers, No. CIV. 07-1741 (PGS), 2009 WL 1228432, at *7 (D.N.J. May 1, 2009); Hasher v. Goodwin, No. CIV.A. 08-5787 JLL, 2010 WL 5392702, at *9 (D.N.J. Dec. 21, 2010). Nor does any Supreme Court case hold that the Due Process Clause prohibits the use of hearsay testimony in civil commitment proceedings. Id.; Baldwin, 2009 WL 1228432, at *7 ([T]his court is not aware of any Supreme Court case clearly establishing that the admission of hearsay in a sexually violent predator commitment hearing constitutes a violation of due process); see also Carty v. Nelson, 426 F.3d 1064, 1073 (9th Cir. 2005); In re Civil Commitment of T.J.N, 390 N.J.Super. 218, 225 (App. Div. 2007).
The Appellate Division likewise did not unreasonably apply federal law in rejecting Petitioner's claim that the State's experts' improperly relied on dismissed charges and unproven allegations. Petitioner, in his Appellate Brief, appears to argue that the reliance on dismissed charges and unproven allegations violates Blakely v. Washington, 542 U.S. 296 (2004). (ECF No. 13-8, Appellate Brief at 11-12.) There, a petitioner entered a guilty plea and was sentenced to more than three years above the 53—month statutory maximum of the standard range because he had acted with "deliberate cruelty"; however the facts supporting that finding were neither admitted by petitioner nor found by a jury. Id. at 303. Applying the rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that this procedure violated petitioner's Sixth Amendment right to trial by jury. Id. at 305. The Third Circuit, however, has held that "the Constitution does not demand that a jury trial be provided before an individual is involuntarily committed by the state as a sexually dangerous person." Aruanno v. Hayman, 384 F. App'x 144, 152 (3d Cir. 2010). As such, Blakely is inapposite, and the Court has found no authority to suggest that the New Jersey courts unreasonably applied federal law by considering dismissed charges or unproven allegations during Petitioner's civil commitment proceedings. Furthermore, as explained by the Appellate Division, Dr. Stewart testified that although she considered both charges and convictions, the "charges are not weighed in the same degree as convictions" and also stated that her opinion regarding Petitioner would have remained the same even if she only considered his convictions.
Finally, the Court finds that the Appellate Division did not unreasonably apply federal law in rejecting Petitioner's due process claim regarding the admission of erroneous testimony from the State's expert that Petitioner violated his parole/probation on several occasions. The Court defers to the Appellate Division's factual finding that Petitioner disobeyed the terms of his probation, even if technically the VOP was ultimately dismissed, and also agrees that any alleged error in admitting the erroneous information was harmless, as Dr. Stewart only found his VOP to be an exacerbating factor, and not a significant basis for her opinion.
In sum, the New Jersey courts did not unreasonably apply federal law in rejecting Petitioner's challenges to the evidence presented at his commitment hearing, and the Court's review the relevant record shows that there was clear and convincing evidence to commit Petitioner under the New Jersey SVPA.
Petitioner next argues in Grounds Three and Four of the Petition that his civil commitment violates the ex post facto clause and is punitive as applied. The Appellate Division rejected these claims as follows:
In re Civil Commitment of L.O., 2013 WL 1919573, at *7.
Although the New Jersey Appellate Division relied on state law in rejecting Petitioner's ex post facto challenge, its reasoning is entirely consistent with federal law. The ex post facto clause "applies to a statute or policy change which `alters the definition of criminal conduct or increases the penalty by which a crime is punishable.' Richardson v. Penn. Bd. of Probation & Parole, 423 F.3d 282, 287 (3d Cir. 2005) (quoting Calif. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3 (1995)); U.S. Const. art. I, § 10. The Supreme Court has held that the ex post facto clause applies only to penal statutes. See Kansas v. Hendricks, 521 U.S. 346, 370-71 (1997); see also E.B. v. Verniero, 119 F.3d 1077, 1092 (3d Cir.), reh'g en banc denied, 127 F.3d 298 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998); Aruanno v. Goodwin, No. CIV.A. 07-5205 KSH, 2013 WL 3821474, at *8 (D.N.J. July 22, 2013) (explaining same). The Third Circuit has held that facial challenges to the constitutionality of New Jersey's SVPA statute are barred by Hendricks. See Conover v. Main, 601 F. App'x 112, 114 (3d Cir. 2015). Likewise, the Third Circuit has held that Seling v. Young, 531 U.S. 250, 121 S.Ct. 727 (2001), bars Petitioner from arguing that the statute is unconstitutionally punitive "as applied[.]"
Because the Appellate Division did not unreasonably apply federal law in rejecting Petitioner's ex post facto claim and the related "punitive as applied" claim, the Court will deny habeas relief on Grounds Three and Four.
Petitioner's remaining claims allege that he received ineffective assistance of counsel in his civil commitment hearing. As noted above, an SVP is not permitted to appear at the hearing without counsel, and he will be appointed counsel if indigent. See N.J.S.A. 30:4-27.29(c). The Court assumes without deciding that the Due Process Clause entitles Petitioner to the effective assistance of counsel during his review hearings and appeal, see, e.g., Greenfield v. Dept of Corr., No. 09-1969, 2011 WL 3203730 at *7-9 (D.N.J. July 27, 2011) (the Sixth Amendment does not apply to civil commitment hearings, but the Due Process Clause of the Fourteenth Amendment may entitle a civil committee subjects to the SVPA to effective counsel); Aruanno v. Yates, No. CV 15-7405 (JLL), 2016 WL 4951047, at *8 (D.N.J. Sept. 14, 2016) (same) certificate of appealability denied sub nom., JOSEPH ARUANNO v. ADMINISTRATOR ADULT DIAGNOSTIC, ET AL (Oct. 20, 2016). The Court also assumes that the standard set forth in Strickland v. Washington, 466 U.S. 668. 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs such ineffective assistance of counsel claims. See Greenfield, 2011 WL 3203730, at *9.
The Appellate Division rejected Petitioner's ineffective assistance of counsel claims as follows:
In re Civil Commitment of L.O., 2013 WL 1919573, at *7-8.
Here, the Appellate Division did not unreasonably apply federal law in determining that Petitioner failed to state a claim under Strickland. To make out a claim under Strickland, a petitioner must first show that "counsel's performance was deficient. This requires [the petitioner to show] that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." 466 U.S. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective assistance claim, a petitioner must also show that counsel's allegedly deficient performance prejudiced his defense such that the petitioner was "deprive[d] of a fair trial . . . whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299. In evaluating whether counsel was deficient, the "proper standard for attorney performance is that of `reasonably effective assistance.'" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005).
Even where a petitioner is able to show that counsel's representation was deficient, the Petitioner must still affirmatively demonstrate that counsel's deficient performance prejudiced the petitioner's defense. Id. at 692-93. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. The petitioner must demonstrate that "there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Shedrick, 493 F.3d at 299. "Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98]," courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002); Judge v. United States, 119 F.Supp.3d 270, 280-81 (D.N.J. 2015).
Finally, when a federal habeas petition under § 2254 is based upon an ineffective assistance of counsel claim, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable," which "is different from asking whether defense counsel's performance fell below Strickland's standard." Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Id. (internal quotation marks omitted) (emphases in original). "A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself." Id. Federal habeas review of ineffective assistance of counsel claims is thus "doubly deferential." Id. (quoting Pinholster, 131 S.Ct. at 1403). Federal habeas courts must "take a highly deferential look at counsel's performance" under Strickland."through the deferential lens of § 2254(d)." Id. (internal quotation marks and citations omitted).
Here, the Court finds that the Appellate Division did not unreasonably apply federal law in determining that Petitioner failed to establish the prejudice prong of Strickland with respect to his claims that his attorney (1) failed to secure witnesses who could testify that Petitioner's completion of certain treatment programs made him less likely to reoffend and (2) failed to call an expert witness to testify that Petitioner's aging would make him less likely to offend, as Petitioner did not provide sufficient evidence to establish a prima facie case that he suffered prejudice.
Likewise, the Court finds that the Appellate Division did not unreasonably apply federal law when it cited R. 2:11-3(e)(1)(E) and rejected Petitioner's remaining claim that his attorney was ineffective for failing to give Petitioner full copies of the psychiatric evaluations performed by Dr. Jackson and Dr. Franks. To the extent his counsel erred, the failure was not so serious to suggest that his counsel was not functioning as counsel. Furthermore, Petitioner has not provided any authority for the proposition that his attorney was required to provide him with full copies of these evaluations; absent such authority, his attorney could not have been deficient in failing to procure them for Petitioner.
Because the Appellate Division did not unreasonably apply Strickland in denying Petitioner's ineffective assistance of counsel claims, the Court will deny habeas relief on Grounds Six, Seven, Eight, and Nine of the Petition.
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas proceeding unless he has "made a substantial showing of the denial of a constitutional right." "A petitioner-satisfies this standard by demonstrating at 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, jurists of reason could not disagree that Petitioner's claims are lacking in merit. Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See Fed. R. App. 22(b)(1); 3d Cir.L.A.R. 22.2.
For the reasons expressed in this Opinion, the Court denies the Petition and denies a certificate of appealability. An appropriate Order follows.
Conover, 601 F. App'x at 115 n.3 (finding that Court need not reach issue of exhaustion or procedural default as it rejected claim on the merits).
