JOHN MICHAEL VAZQUEZ, District Judge.
This matter is before the Court upon Petitioner's letter request for judicial notice (ECF No. 16), and her self-styled application for an "Order to Show Cause for a Preliminary Injunction and a Temporary Restraining Order." (ECF No. 17.) For the reasons discussed below, the Court construes the request for judicial notice as a motion to amend, and denies the application for an order to show cause for a preliminary injunction and temporary restraining order.
The procedural history of this case was recently summarized by the Third Circuit Court of Appeals:
In re Carrascosa, No. 16-3993, 2016 WL 6677632 (3d Cir. Nov. 14, 2016) (per curiam).
The Third Circuit denied Carrascosa's petition for a writ of mandamus, stating, in pertinent part:
Id. at *2. Petitioner's Judgment and Conviction, submitted with the state court record, shows that she received credit for time served from November 21, 2006 until December 23, 2009, for a total of 1,129 days. Id. at *2, n.1; (ECF No. 10-2 at 2.) The record does not show any other credits that Petitioner received when she was released from Bergen County Jail in April 2015.
In her request for judicial notice, Petitioner raised a new ground(s) for habeas relief under 28 U.S.C. § 2254, based on the execution of her sentence. A habeas petition must "(1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested." Rule 2(c), Rules Governing Section 2254 cases in the United States District Courts. Therefore, the Court will treat Petitioner's request for judicial notice as a motion to amend her petition to add an additional claim(s) for relief.
Petitioner filed her amended habeas petition under 28 U.S.C. § 2254 on August 7, 2015. (ECF No. 4.) She advised the Court that she had been released from Bergen County Jail on April 24, 2015, and is under parole supervision by Parole Officer Kevin O'Brien. (ECF No. 15-1 at 19-20.) On August 17, 2016, in the cover letter to her request for judicial notice, Petitioner stated:
(ECF No. 16-1.)
Also in the request for judicial notice, Petitioner asked the Court to summon her parole officers and his superiors to confirm that they do not have a copy of the file "for the false institutional charges." (ECF No. 16 at 4.) Petitioner argued that false institutional charges added time to her sentence, but she did not describe the charges or why they were false. (Id.) She further stated, "I HAVE SERVED the sentence above and beyond the statutory time, above and beyond 66%, and I continue over 870 days serving a time for a sentence already served and that was illegal from the get go." (Id. at 15.)
A petitioner must raise all claims for relief from a state court conviction and sentence in one habeas petition under § 2254. See Rose v. Lundy, 455 U.S. 509, 520 (1982) ("strict enforcement of the exhaustion requirement will encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition"). If a petitioner fails to do so, she risks being barred from raising new claims in a second or successive petition, unless:
28 U.S.C. § 2244(b)(2)(A-B).
In Benchoff v. Colleran, the Third Circuit addressed the application of the second or successive provisions of 28 U.S.C. § 2244(b)(2) in a case where the petitioner challenged his state court conviction and sentence in his first § 2254 petition, and then filed a subsequent § 2254 petition challenging the administration of his sentence by the parole board. 404 F.3d 812, 818 (3d Cir. 2005). The Third Circuit noted that there was no statutory or precedential authority distinguishing between § 2254 petitions that challenge the conviction and sentence from petitions that challenge the administration of the sentence arising from that conviction. Id. at 819. Therefore, where the petitioner had knowledge of the factual basis for his challenge to the parole board's administration of his sentence before he filed his first § 2254 habeas petition, the substantive and procedural requirements of § 2244(b)(2) applied to the petitioner's subsequent petition. Id. at 820.
In Petitioner's case, it is unclear when she learned the factual predicate for her claim challenging the computation of her sentence. She came under parole supervision on April 24, 2015, and she filed her amended habeas petition on August 7, 2015. In any event, the Court will permit Petitioner to file an amended habeas petition raising her new claim(s). Petitioner should be aware that she must provide more information about this claim(s) in her amended petition, including how her sentence was calculated and when, the deficiencies in the calculation of her sentence, and how she exhausted her claim at the state level that the sentence calculation was incorrect.
Importantly, if Petitioner amends her habeas petition to include the challenge to the calculation of her sentence and such claim has not been exhausted, the Court is required to dismiss the petition until all claims have been exhausted. Habeas courts must dismiss mixed petitions, those containing exhausted and unexhausted claims. Rose, 455 U.S. at 522. If the amended petition is a mixed-petition, Petitioner runs the risk of being barred by the statute of limitations when she refiles her habeas petition after exhausting her new claim(s). Rhines v. Weber, 544 U.S. 269, 275 (2005). Under certain circumstances, a habeas court can stay a mixed-petition to avoid the statute of limitations problem. Id. at 277.
Id. If Petitioner chooses not to amend her petition to add a new claim(s), she must notify the Court in writing that she has chosen to proceed with her present petition as filed, in other words, without contesting her sentence calculation. See Mason v. Myers, 208 F.3d 414, 418 (3d Cir. 2000) (a district court must notify a petitioner that she may have her petition ruled upon as filed, however future petitions may be subject to the second or successive provisions of 28 U.S.C. § 2244(b)(2); or a petitioner may withdraw the petition and file one all-inclusive petition, subject to the one-year statute of limitations, after exhausting all claims).
On September 16, 2016, Petitioner filed an application for an order to show cause and for a preliminary injunction and temporary restraining order in this matter, pursuant to Federal Rule of Civil Procedure 65. (ECF No. 17.) For relief, Petitioner requested the following:
(ECF No. 17-2.)
A court considering a motion for temporary restraining order should consider "(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest." Miller v. Skumanick, 605 F.Supp.2d 634, 641 (M.D. Pa. 2009) (quoting Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir. 2001)). For a preliminary injunction, a movant must establish a likelihood of success on the merits. Snee v. Barone, 359 F. App'x 281, 284 (3d Cir. 2009).
Here, Petitioner has not shown a likelihood of success on the merits of her petition because her claims of actual innocence and cause and prejudice to excuse procedural default are not likely to succeed. Under the circumstances, granting preliminary relief is not in the public interest.
First, as to cause and prejudice, it appears that Petitioner is largely to blame for the failure to timely file a conforming brief to perfect her direct appeal, despite clear notice and a reasonable opportunity to do so. Petitioner did not heed the Appellate Division's instructions to not challenge the findings of the New Jersey Family Court decision in her criminal appeal. (See e.g. ECF No. 10-14.) Additionally, she did not file the Appendix to her brief without special assistance because she believed the prison administrators or others would tamper with the evidence if she placed it in the prison mail. (See e.g. ECF Nos 10-11; 10-12 at 5.)
Second, Petitioner's claim of actual innocence is not likely to succeed in excusing her procedural default. Petitioner's evidence that she took her daughter to Spain because her exhusband was poisoning her and her daughter is not persuasive. (See e.g., ECF No. 10-12 at 79, 84.) Moreover, Petitioner's claims that she notified her ex-husband of her plans to remove her daughter from the United States, that they were never legally married, and that all proceedings against her were based on fraudulent evidence are equally unpersuasive. (See e.g., ECF No. 10-12 at 75-82, 90-91.)
Petitioner cannot obtain relief from the state court's divorce and child custody decision through a § 2254 proceeding. See Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 511 (1982) (finding lack of jurisdiction under § 2254 to relitigate a state court's determination of parental rights.) Petitioner has also asked this Court for adjustment of her immigration status, but she must seek relief from an Immigration Judge not the district court. See e.g. Vakker v. Attorney General of U.S., 519 F.3d 143, 149 (3d Cir. 2008). Finally, a habeas petition is not the proper vehicle by which to seek money damages. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). For all of these reasons, the Court denies Petitioner's Order to Show Cause.
In response to Petitioner's request for judicial notice, the Court permits Petitioner to file an amended petition
An appropriate order follows.
