AVILA v. WARDEN OF NEW JERSEY STATE PRISON

Filing 7

MEMORANDUM OPINION AND ORDERED that the Clerk shall reopen this matter, etc.; ORDERED that Petitioner's amended petition 3 , is dismissed, without prejudice, as unexhausted; ORDERED that no certificate of appealability shall issue; ORDERED that Petitioner's Notice 5 , and his Application 6 , are dismissed as moot; ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon Petitioner by regular mail, together with a blank 2254 petition form (sent); ORDERED that the Clerk shall close the file on this matter. Signed by Judge Noel L. Hillman on 5/31/2011. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ABDIEL F. AVILA,
Petitioner,
v.
WARDEN OF NEW JERSEY STATE
PRISON,
Respondent.

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Civil Action No. 10-5318 (NLH)

MEMORANDUM OPINION AND ORDER

IT IS APPEARING THAT:
1.

Petition, together with two other individuals, submitted a
joint § 2254 petition challenging their convictions and
ensuing sentences rendered by New Jersey courts.
Entry No. 1.

That joint petition gave rise to Civil Action

No. 10-4360 (NLH).
2.

See Docket

See id.

To address improper joinder, the Court reserved Civil Action
No. 10-4360 for the litigant named first in that joint
petition and directed the Clerk to open two separate matters
for the remaining litigants, one of whom was Petitioner.
See id.

The Clerk duly complied with the Court’s directive,

initiating the instant matter for Petitioner.
3.

The Court’s order directing commencement of the instant
matter also directed Petitioner to submit an amended
petition stating solely Petitioner’s own § 2254 challenges.
See id.

4.

Petitioner submitted such amended petition.
Entry No. 3.

See Docket

This submission made a multitude of legal

arguments having no relevance to habeas law and asserting
factual and legal claims difficult, if not impossible, to
discern. See id.
5.

Petitioner describes his seven grounds for relief as
follows:
Ground
Ground
Ground
Ground

I:
II:
III:
IV:

Ground V:

Ground VI:
Ground VII:

PETITIONER MOVES PRO SE.
SUA SPONTE FACTS WITH PERFORMANCE REQUIRED.1
THERE IS A CONTROVERSY IN LAW AND EQUITY.1
PETITIONERS RIGHTS WHERE CONSTITUTIONALLY
VIOLATED UNDER THE THIRTEENTH AND FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY
CONSTITUTION WHEN THE STATE LEGISLATURE
ENCROACHED UPON THE SOVEREIGN WHEN IT FAILED
TO INCLUDE THE TERM “MAN” WITHIN THE
DEFINITION OF PERSON IN ANY OF THE STATE
STATUTES, CONSTITUTING HUMAN RIGHTS
VIOLATIONS.
PETITIONERS CONSTITUTIONAL RIGHTS GUARANTEED
BY THE FOURTH AND FOURTEENTH AMENDMENT OF THE
U.S. CONSTITUTION AND ARTICLE I, PAR. I OF
THE NEW JERSEY CONSTITUTION WHEN ALL OF THE
LOWER COURTS FAILED TO ESTABLISH JURISDICTION
ON THE RECORD THEREBY CAUSING IMPRISONMENT
TO BE UNCONSTITUTION [sic].
FATAL DEFECTS IN THE STATE GOVERNMENT
CHARGING INSTRUMENTS.
THE STATE GOVERNMENT LACKED STATE
LEGISLATIVE, TERRITORIAL OR ADMIRALTY
JURISDICTION OVER THE LOCUS QUO.

Docket Entry No. 3, at 5-6.

1

It appears from his Grounds II and III that Petitioner is
a “redemptionist.” See Murakush Caliphate of Amexem Inc. v. New
Jersey, 2011 U.S. Dist. LEXIS 51887, at *3-9 (D.N.J. May 13,
2011) (detailing the gist of “redemptionist” movement and abusive
use of legal filings).
2

6.

Petitioner’s brief, accompanying his amended petition, also
lists seven Grounds, the first six of which are the same as
stated in the amended petition, while the seventh Ground –
being, enigmatically enough, designated as the eighth –
reads as follows: “THE SOVEREIGN, MAN IS IMMUNE AND EXEMPT
FROM ENFORCEMENT OF STATE STATUTES AND ITS JURISDICTION.”
Docket Entry No. 4, at 33.

7.

On June 25, 2009, Petitioner was sentenced in state court to
seventy-five years imprisonment, subject to an 85% parole
disqualifier pursuant to the No Early Release Act.2

See

<<https://www6.state.nj.us/DOC_Inmate/details?x=1427004&n=0>
>; State v.

Avila, 2011 WL 1466299 (N.J. Super. Ct. App.

Div. Apr. 18, 2011).
8.

On direct appeal, Petitioner filed counseled challenges
(asserting numerous points having no relevance to the
2

Petitioner was convicted on the bases of offenses he
committed against his stepdaughter at the time when she was
thirteen and fourteen years old. Petitioner planted in his
stepdaughter’s backpack a “typewritten letter addressed to her
from the ‘Sisterhood.’ The letter informed her that she was
required to undergo sexual training prior to turning eighteen
years old, and part of that training was to have sex with
[Petitioner, who was, allegedly,] the person . . . responsible
for her training. The letter made references to people that
would appeal to youth, such as popular musical artists, and said
that these people had undergone such training. [Petitioner] told
[his stepdaughter] that she had to engage in sexual activities
with him, and if she did not, people close to her, such as her
mother and her godfather, . . . ‘would probably get hurt.’ Those
threats were also contained in the letter.” See State v. Avila,
2011 WL 1466299, at *3-5. Consequently, Petitioner continued
raping his stepdaughter for eight months, until she reported the
ordeal in a note to her grandfather. See id.
3

grounds asserted in the amended petition) and also asserted
claims in a pro se brief.
1466299.

See State v. Avila, 2011 WL

In his pro se brief, Petitioner asserted the

following challenges:
POINT I

POINT II

POINT III

DEFENDANTS RIGHTS TO DUE PROCESS AND
EQUAL PROTECTION OF THE LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT
TO THE U.S. CONSTITUTION AND ARTICLE I,
P[A]RAGRAPHS 1 AND 22, OF THE NEW JERSEY
CONSTITUTION WHERE VIOLATED WHEN THE
STATE FAILED TO PROPERLY SEQUESTER THE
ALLEGED VICTIM AND FURTHER DENIED THE
DEFENSE TO DISQUALIFY HER AT TRIAL AND
ALL OTHER WITNESSES, COURTS DENIAL TO
THE DEFENSE ALLOW THE STATE'S USE OF THE
INITIAL WRITINGS, STATEMENTS, RECORDS OF
VITAL STATISTICS, STATES EXHIBITS BE
ENTERED TO EVIDENCE, AND TESTIMONY OF
THE ALLEGED VICTIM, AND OF ALL OTHER
WITNESSES WHICH ALL WERE INADMISSIBLE
AND FAILED TO BE RELIABLE TRUSTWORTHY,
AND FAILED TO PROVE THE ELEMENTS OF THE
OFFENSES.
DEFENDANTS' DUE PROCESS RIGHTS AND EQUAL
PROTECTION OF THE LAW, AS GUARANTEED BY
THE FOURTEENTH AMENDMENT TO THE U.S.
CONSTITUTION, AND ARTICLE I, PARAGRAPH
1, OF THE NEW JERSEY CONSTITUTION WHERE
VIOLATED BY THE STATES' WITHHOLDING OF
EVIDENCE, OMISSIONS OF THE FACTS AND
MATERIAL FACTS, OF SUA SPONTE EVIDENCE
AND TRUISM.
DEFENDANT–APPELLANTS RIGHTS WAS
CONSTITUTIONALLY VIOLATED UNDER THE
THIRTEENTH AND FOURTEENTH AMENDMENT OF
THE UNITED STATES CONSTITUTION AND
ARTICLE I, PARAGRAPH 1, OF THE NEW
JERSEY CONSTITUTION WHEN THE STATE
LEGISLATURE ENCROACHED AND FAILED TO
DEFINE THE “MAN” IN ANY OF THE STATUTES
ADJUDICATED THE CONSTITUTIONALITY OF THE
STATUTES ARE CHALLENGUED, ARE VAGUE AND
HAVE A BROAD DEFINITION TO A ‘PERSON’
WHICH FAILED TO INCLUDE THE “MAN” THAT
4

POINT IV

POINT V

POINT VI

POINT VII

POINT VIII

POINT [IX]

IS CURRENTLY IMPRISONED CONSTITUTING
INTERNATIONAL HUMAN RIGHTS VIOLATIONS.
DEFENDANTS' ‘CONSTITUTIONAL RIGHTS
GUARANTEED BY THE 4th, 14th AMENDMENT TO
THE U.S. CONSTITUTION AND ARTICLE I,
PARAGRAPH 1, OF THE STATE OF NEW JERSEY
CONSTITUTION WHERE VIOLATED WHEN BOTH
THE LOWER COURT FAILED TO ESTABLISH
JURISDICTION ON THE RECORD, THEREBY
CAUSING IMPRISONMENT TO BE FALSE AND
UNCONSTITUTIONAL.
DEFENDANTS GUARANTEED RIGHTS UNDER THE
FOURTH AMENDMENT OF THE U .S.
CONSTITUTION AND ARTICLE I, PARAGRAPHS
1, 6, 7, 8, 9, 10, OF THE NEW JERSEY
CONSTITUTION WHERE VIOLATED DUE TO FATAL
DEFECTS IN THE STATE GOVERNMENT'S
CHARGING INSTRUMENTS.
DEFENDANT GUARANTEED RIGHTS UNDER THE IV
AMENDMENT OF T[H]E U.S. CONSTITUTION AND
ARTICLE I, PARAGRAPHS 1, 7, 8 OF THE NEW
JERSEY CONSTITUTION WHERE VIOLATED WHEN
THE STATE GOVERNMENT LACKED STATE
LEGISLATIVE, TERRITORIAL OR ADMIRALTY
JURISDICTION OVER THE LOCUS QUO.
DEFENDANT–APPELLANT RIGHTS UNDER THE
FOURTEENTH AMENDMENT TO THE U.S.
CONSTITUTION, AND ARTICLE I, PARAGRAPHS
1 AND 6 OF THE NEW JERSEY CONSTITUTION
WHERE VIOLATED DUE TO THE JURY'S VERDICT
WAS A MANIFEST DENIAL OF JUSTICE UNDER
THE LAW.
DEFENDANT–APPELLANT RIGHTS UNDER THE
FOURTEENTH AMENDMENT TO THE U.S.
CONSTITUTION, AND ARTICLE I, PARAGRAPHS
1 OF THE NEW JERSEY CONSTITUTION WHERE
VIOLATED DUE TO SENTENCING DISPARITIES.
DEFENDANT–APPELLANT RIGHTS UNDER THE
FOURTEENTH AMENDMENT TO THE U.S.
CONSTITUTION, AND ARTICLE I, PARAGRAPHS
1 OF THE NEW JERSEY CONSTITUTION WHERE
VIOLATED DUE TO SENTENCING IMPROPER
IMPOSITION OF EXTENDED TERM AND ENHANCED
SENTENCE.

Id. at *2-3.

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9.

On April 18, 2011, the Appellate Division affirmed
Petitioner’s conviction and sentence; Petitioner’s abovequoted pro se points were dismissed as not “warrant[ing]
discussion in a written opinion.”

10.

Id. at *12.

Petitioner’s amended petition in this matter was filed on
November 30, 2010, that is, four and a half month prior to
the Appellate Division’s resolution of Petitioner’s
challenges.

11.

See Docket Entries Nos. 3 and 4.

As of now, there has been no determination made by the
Supreme Court of New Jersey as to Petitioner’s challenges.
See <<http://www.judiciary.state.nj.us/opinions/index.htm>>
(listing New Jersey Supreme Court’s decisions for 20102011).

Nor has Petitioner indicated in any of his numerous

filings (including an “Application for Emergency Relief” and
“Notice of Failure to Order the Executive Branch to Appear”)
that he has attempted to present his challenges dismissed by
the Appellate Division to the Supreme Court of New Jersey.
Hence, Petitioner’s challenges stated in his amended
petition and accompanying brief are facially unexhausted.

3

3

We also note that Petitioner’s Seventh Ground (designated
as Petitioner’s “eight” Ground for the purposes of his brief) was
not included in the list of “points” Petitioner presented to the
Appellate Division in his pro se brief filed on direct appeal
(and no such challenge was made part of his counseled brief on
direct appeal). To the extent this claim presents a valid
challenge, it was not presented to the intermediate state
appellate court.
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12.

It does not appear necessary to detail to Petitioner the
exhaustion requirement associated with filing a § 2254
petition, since soon after his conviction, another judge of
this court dismissed an earlier filed § 2254 petition as
unexhausted.

See Avila v. Taylor, 2009 U.S. Dist. LEXIS

65217 (D.N.J. July 23, 2009).

In his decision, the judge

extensively detailed the workings of the exhaustion
requirement.

See id.

Therefore, there is no reason to

repeat it here.
13.

Consequently, the Court will dismiss the amended petition as
unexhausted.

Such dismissal will be without prejudice to

Petitioner’s filing of a duly exhausted petition.

In

addition, in light of the nature of Petitioner’s challenges
asserted in his amended petition and accompanying brief, the
Petitioner is urged to assert only legally cognizable claims
and not vague assertions of “sovereign citizenship” and
“redemptionism” beliefs.

Failure to do so may result in a

preclusion order or other sanctions.

See Murakush Caliphate

of Amexem Inc. v. New Jersey, 2011 U.S. Dist. LEXIS 51887,
at *4, 80 and nn. 2 and 27 (D.N.J. May 13, 2011) (detailing
the concepts of “sovereign citizenship” and “redemptionism,”
pointing out the abuses of legal process perpetrated on the
bases of these concepts, and entering orders of preclusion
against those “sovereign citizens/redemptionists” who relied

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on the Treaty with Morocco in order to define themselves as
“vessels,” over which state courts should not have
jurisdiction to convict and whom prison officials should not
have jurisdiction to hold in confinement).
14.

As jurisdiction was asserted under 28 U.S.C. § 2254, this
Court will determine whether a certificate of appealability
(“COA”) should issue.

Pursuant to 28 U.S.C. § 2253(c),

unless a circuit justice or judge issues a COA, an appeal
may not be taken from a final order in a proceeding under 28
U.S.C. § 2254.

A COA may issue “only if the applicant has

made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2). “When 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.”
(2000).

Slack v. McDaniel, 529 U.S. 473, 484

Here, jurists of reason would not find it debatable

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whether this Court is correct in its ruling.

Accordingly,

no COA shall issue.
IT IS, therefore, on this 31st

day of

May

, 2011,

ORDERED that the Clerk shall reopen this matter for the
purposes of this Court’s examination of Petitioner’s amended
petition, Docket Entry No. 3, by making a new and separate entry
on the docket reading “CIVIL CASE REOPENED”; and it is further
ORDERED that Petitioner’s amended petition, Docket Entry No.
3, is dismissed, without prejudice, as unexhausted; and it is
further
ORDERED that no certificate of appealability shall issue;
and it is further
ORDERED that Petitioner’s “Notice” (seeking this Court’s
order directing service of the amended petition upon Respondent),
Docket Entry No. 5, and his “Application” (the content of which
cannot be ascertained), Docket Entry No. 6, are dismissed as
moot; and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Petitioner by regular U.S. mail, together with a
blank § 2254 petition form, which the Court strongly encourages
Petitioner to utilize for the purposes of Petitioner’s future §
2254 application, if any; and it is finally
ORDERED that the Clerk shall close the file on this matter
by making a new and separate entry reading “CIVIL CASE CLOSED.”
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/s/Noel L. Hillman
NOEL L. HILLMAN,
United States District Judge
At Camden, New Jersey

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