RENÉE MARIE BUMB, District Judge.
This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 filed by Petitioner Mansfred J. Younger ("Petitioner"), an inmate presently confined in New Jersey State Prison in Trenton, New Jersey. (Pet., ECF No. 1.) Respondents filed an answer opposing habeas relief and arguing that the petition should be dismissed as a "mixed petition,"
Following a jury trial, on May 20, 2011, a judgment of conviction ("JOC") was entered against Petitioner in New Jersey Superior Court, Camden County upon his conviction by a jury of first-degree murder, N.J. Stat. Ann. § 2C:11-3A(1); first-degree attempted murder, N.J. Stat. Ann. §§ 2C:5-1, 2C:11-3A(1); second-degree aggravated assault, N.J. Stat. Ann. § 2C:12-1B(1); third-degree aggravated assault, N.J. Stat. Ann. § 2C:12-1B(1); first-degree conspiracy to commit murder, N.J. Stat. Ann. §§ 2C:5-2, 2C-11:3A(1); second-degree possession of a weapon for an unlawful purpose, N.J. Stat. Ann. § 2C:39-4A; third-degree unlawful possession of a weapon, N.J. Stat. Ann. § 2C:39-5B; and two counts of third-degree endangering of an injured victim, N.J. Stat. Ann. § 2C:12-1.2. (Answer, Ex. 3, ECF No. 8-3, at 1, 4.) Petitioner was sentenced to a sixty-year term of imprisonment, subject to an 85% parole disqualifier under the No Early Release Act ("NERA"), on the first-degree murder conviction; and a consecutive 18-year prison term on the first-degree attempted murder conviction, also subject to an 85% parole disqualification period under NERA. (
Petitioner filed an appeal of his conviction and sentence with the New Jersey Superior Court, Appellate Division. (Answer, Ex. 4, ECF No. 8-4, at 82.) On appeal, Petitioner raised five issues: (1) that the trial court erred in not properly instructing the jury on how to evaluate Petitioner's out-of-court statements;
(2) that the trial court erred in ordering that jury selection be restarted after improper references were made to the custodial status of certain witnesses and defendant's federal sentence on unrelated charges; (3) that the trial court erred in admitting prejudicial testimony that defendant was indifferent to the victim's death; (4) that the prosecutor committed misconduct during her summation; and (5) that Petitioner's aggregate 78 year sentence was manifestly excessive. (
On March 31, 2015, Petitioner filed a petition for postconviction relief ("PCR") with the Superior Court, Law Division, Camden County. (Answer, Ex. 12, ECF No. 8-12.) In his PCR petition, Petitioner raised several ineffective assistance of counsel claims, arguing that his trial counsel was constitutionally deficient for failing to communicate with him and failing to call as witnesses at trial Richard Barge, Antoine Albert, and Henry Cole, who he claimed would have offered exculpatory testimony. (Answer, Ex. 13, ECF No. 8-13, at 11-13.)
The Superior Court held on evidentiary hearing on Petitioner's claim that counsel should have called Barge as a witness at trial. (Answer, Ex. 78, ECF No. 8-78.) Both Barge and Petitioner's trial counsel testified at the evidentiary hearing. (
28 U.S.C. § 2254(b)(1)(A) provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." To fully exhaust state court remedies, a petitioner must fairly present his federal claims in one complete round of the State's established appellate review process.
In Ground One, Petitioner asserts that his conviction should be vacated and a new trial held based on newly discovered evidence that demonstrates that he is actually innocent. (Pet. 9-18.) The so-called "newly discovered" evidence presented by Petitioner are affidavits from Richard Barge, Allan Davis, and Manuel Concepcion that Petitioner alleges contain exculpatory information. (See
Nevertheless, the Court construes the Petition to argue that because Petitioner claims he is actually innocent, the Court should excuse his default under the "`actual innocence' exception . . . to procedural bars to relief." (
Accordingly, the Court finds that Ground One is subject to dismissal for failure to exhaust state remedies.
In Ground Two, Petitioner claims that his counsel was ineffective in violation of the Sixth Amendment for failing to call Barge and Davis as witnesses at trial and for not properly investigating their testimony in a way that would have led him to Concepcion. (Pet. 18-21.) Respondents concede that Petitioner duly exhausted his claim that his counsel was ineffective for failing to call Barge as a witness at trial, Petitioner having raised this claim at all levels of New Jersey's established review process. (Answer 36-37.) Petitioner's other ineffective assistance of counsel claims, however, were never presented to the New Jersey state courts and are thus unexhausted.
In Ground Three, Petitioner raises several claims related to his sentence, arguing that it is manifestly excessive, that New Jersey's statute for enhanced sentences on first-degree murder convictions is unconstitutionally vague, that his sentence violates the Eighth Amendment, and that the trial court erroneously required an 85% parole disqualification period under New Jersey's No Early Release Act ("NERA"). (Pet. 24-26.) Respondents argue that the only claim related to Petitioner's sentence that was raised in state court was that the sentencing judge abused his sentencing discretion. (Answer 27.) Respondents argue that the remaining sentencing claims, including his federal constitutional claims, are unexhausted as they were never presented to the state court. The Court agrees. A review of the relevant record of Petitioner's direct appeal demonstrates that he did not present his federal constitutional claims related to his sentence or his claim that NERA should not have applied to his sentence to the New Jersey Courts. Thus, these claims are unexhausted.
Because it is apparent that the Petition contains a mix of exhausted and unexhausted claims, it is a "mixed petition" that is subject to dismissal under
At this time, the Court is unprepared to deny the Petition on the merits. Nevertheless, the Court is cognizant that if it were to dismiss the Petition without prejudice as a mixed petition, it is possible that by the time Petitioner exhausts his state court remedies, the AEDPA's one-year statute of limitations would be expired.
If Petitioner wishes to return to state court to exhaust his claims, he may file a motion for stay and abeyance pursuant to
Conversely, however, Petitioner may choose to withdraw his unexhausted claims and proceed only on his exhausted claims. If Petitioner chooses this option, he should be advised that he may be precluded from bringing any additional habeas claims pursuant to the statute of limitations and the limitation on second or successive habeas petitions in 28 U.S.C. § 2244(b)(3).
Petitioner has presented a mixed habeas petition, which this Court is required to dismiss. Petitioner will first be given the opportunity to file a motion seeking a stay and abeyance while he returns to state court to exhaust his unexhausted federal claims. If Petitioner chooses this option, he should describe in a motion for stay and abeyance his good cause for failing to exhaust his federal claims before bringing his habeas petition and explain why his unexhausted claims are not plainly meritless. Alternatively, Petitioner may withdraw his unexhausted claims and proceed only on his exhausted claims. An appropriate order follows.