GIBBS v. BARTKOWSKI et al
Filing
57
OPINION. Signed by Judge Noel L. Hillman on 11/19/2015. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
CARNELL GIBBS,
:
:
Petitioner,
:
Civ. No. 11-1137 (NLH)
:
v.
:
OPINION
:
GREG BARTKOWSKI, et al.,
:
:
Respondents.
:
___________________________________:
APPEARANCES:
Carnell Gibbs, # 407358/SBI 399805C
New Jersey State Prison
P.O. BOX 861
Trenton, NJ 08625
Petitioner, Pro se
John J. Santoliquido
Office of the Prosecutor
4997 Unami Blvd.
P.O. Box 2002
Mays Landing, NJ 0833
Counsel for Respondents
HILLMAN, District Judge
This matter is presently before the Court to address a
Motion to Stay (ECF No. 44) filed by Petitioner Carnell Gibbs.
Also pending is Petitioner’s request to amend his Petition and a
request for the appointment of pro bono counsel. (ECF No. 43).
For the reasons set forth below, Petitioner’s request to amend,
request for pro bono counsel, and the Motion to Stay will be
DENIED.
I.
PROCEDURAL HISTORY
Petitioner, a prisoner confined at the New Jersey State
Prison in Trenton, New Jersey, filed this writ of habeas corpus
under 28 U.S.C. § 2254, challenging his 2000 New Jersey state
court conviction. (ECF No. 1).
On August 20, 2012, this Court
dismissed the Petition on as time-barred under 28 U.S.C. §
2244(d)(1)(A). (ECF No. 19).
The case was reopened to address
Petitioner’s motion for reconsideration, which the Court denied,
and the case was again dismissed on March 18, 2013. (ECF No.
24).
Petitioner appealed and, on April 17, 2015, the appellate
court determined that the Petition was not time-barred, vacated
this Court’s March 18, 2013 judgment, and remanded this matter
for further proceedings. (ECF No. 40).
On June 8, 2015, this
Court issued an Order reinstating the action in accordance with
the Mandate of the Third Circuit (ECF No. 46) and Respondents
were required to file an Answer (ECF No. 42).
On May 28, 2015, Petitioner filed a series of letters. (ECF
Nos. 42-44).
By way of these letters, Petitioner requests the
appointment of pro bono counsel. 1
He also seeks to amend his
Petition to assert nine additional grounds for relief.
However,
Petitioner concedes that the additional grounds are unexhausted;
1
Specifically, Petitioner requests a “pool attorney.” (Letter 2,
May 28, 2015, ECF No. 43). The Court construes this request as
a request for the appointment of pro bono counsel.
2
therefore, he filed a Motion to Stay so that he can properly
exhaust these claims before the state court.
Respondents oppose
Petitioner’s Motion to Stay (ECF No. 50), and have filed an
Answer to the Petition (ECF No. 51).
Petitioner submitted a
Letter Memorandum (ECF No. 56) in support of his Motion to Stay,
and in response to Respondents’ Answer to the Petition.
II.
DISCUSSION
A. Pro Bono Counsel
There is no Sixth Amendment right to appointment of counsel
in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551,
555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“Our cases establish
that the right to appointed counsel extends to the first appeal
of right, and no further.”); Parham v. Johnson, 126 F.3d 454,
456–57 (3d Cir. 1997) (noting no statutory or constitutional
right of counsel conferred upon indigent civil litigants); Reese
v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991) (“There is no
‘automatic’ constitutional right to counsel in federal habeas
corpus proceedings.”), superseded on other grounds by statute,
28 U.S.C. § 2254(d).
However, counsel may be appointed to an
indigent habeas petitioner where the “interests of justice so
require.” 18 U.S.C. § 3006A(a)(2)(B); see also 28 U.S.C. §
1915(e)(1) (“The court may request an attorney to represent any
person unable to afford counsel.”).
3
In determining whether the interests of justice require
appointment of counsel, the Court must examine whether or not
the petitioner has presented a meritorious claim. See Dime v.
Aviles, No. 15-1410, 2015 WL 1114143, at *1 (D.N.J. Mar. 10,
2015) (citing Reese v. Fulcomer, 946 F.2d 247, 263-64 (3d Cir.
1991)) (other citations omitted).
Next, the Court must
determine whether the appointment of counsel will benefit the
petitioner and the Court by examining the legal complexity of
the case and the petitioner's ability to present his claims and
investigate facts. See id. (citing Reese, 946 F.2d at 264;
Parham v. Johnson, 126 F.3d 454, 457-58 (3d Cir. 1997)) (other
citations omitted). “Where these issues are ‘straightforward and
capable of resolution on the record,’ or when the petitioner has
‘a good understanding of the issues and the ability to present
forcefully and coherently his contentions,’ the court would not
abuse its discretion in declining to appoint counsel.” Id.
(citations and quotations omitted); see also Paul v. Attorney
General of New Jersey, 1992 WL 184358 at * 1 (D.N.J. July 10,
1992) (stating that the factors the court should consider in
appointing counsel include: “(i) the likelihood of success on
the merits; (ii) the complexity of the legal issues raised by
the complaint; and (iii) the ability of the prisoner to
investigate and present the case.”).
4
Even assuming that the instant Petition presents
meritorious, non-frivolous claims, the Court finds that the
appointment of counsel at this time will not benefit the Court
and Petitioner.
In reviewing the docket of this case and the
content of Petitioner’s submissions, it appears that Petitioner
has “a good understanding of the issues and the ability to
present forcefully and coherently his contentions.” Dime, No.
15-1410, 2015 WL 1114143, at *1 (quoting La Mere v. Risley, 827
F.2d 622, 626 (9th Cir. 1987)).
Petitioner has concisely
presented his grounds for relief and he has provided facts in
support of each ground.
Through his requests and motions,
Petitioner has demonstrated an understanding of the procedural
requirements, including exhaustion, and his submissions include
citations to relevant case law.
Finally, the Court notes that the procedural history of
this case is not in dispute and the overall allegations of the
Petition do not appear to be either factually or legally
complicated.
The record provided by Respondents should provide
the Court with the information needed to resolve this case.
Therefore, the Court denies Petitioner's application to
appoint counsel, without prejudice, as it does not appear that
the appointment of counsel would benefit both Petitioner and the
Court at this time.
In the event that future proceedings
demonstrate the need for counsel, the matter may be reconsidered
5
either sua sponte by the Court or upon a motion properly filed
by Petitioner. See e.g., Saunders v. Warren, No. 13-2794, 2014
WL 6634982, at *3 (D.N.J. Nov. 21, 2014) (denying without
prejudice motion for the appointment of pro bono counsel);
Laster v. Samuels, No. 06-6017, 2007 WL 2300747, at *1 (D.N.J.
Aug. 6, 2007) (same).
B. Motion to Stay
1. Standard
A petitioner seeking federal habeas review must exhaust
state court remedies for all grounds for relief asserted in a
habeas petition. 28 U.S.C. § 2254(b)(1)(A); Crews v. Horn, 360
F.3d 146, 151 (3d Cir. 2004).
It is therefore proper and
routine for district courts to dismiss habeas petitions
containing both unexhausted and exhausted claims (so-called
“mixed petitions”) so as to allow the State courts the first
opportunity to address the petitioner's constitutional claims.
Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379
(1982).
Despite this “total exhaustion” rule, the Third Circuit has
recognized that, in some circumstances, dismissing a “mixed
petition” may time-bar a petitioner from federal court under the
one-year statute of limitations for § 2254 claims imposed by the
Antiterrorism Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 3344(d). See Crews, 360 F.3d at 151 (“AEDPA's
6
limitations period may act to deprive a petitioner of a federal
forum if dismissal of the habeas petition is required”) (citing
Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001)).
Accordingly, the Third Circuit has held that “[s]taying a habeas
petition pending exhaustion of state remedies is a permissible
and effective way to avoid barring from federal court a
petitioner who timely files a mixed petition.” See Crews, 360
F.3d at 151.
The Supreme Court likewise has acknowledged there could be
circumstances where dismissal of a mixed petition for exhaustion
would result in the one-year habeas statute of limitations
expiring before the petitioner was able to return to federal
court. See Rhines v. Weber, 544 U.S. 269, 272–73 (2005).
The
Court held that, in limited circumstances, district courts have
discretion to hold a habeas proceeding in stay and abeyance
while the petitioner exhausts his unexhausted claims in state
court. Id. at 277.
A stay and abeyance is available only when
the petitioner had good cause for failing to exhaust his claims;
and only if the claims have potential merit. Id. at 277–78.
2. Analysis
In this case, Petitioner seeks a stay and abeyance so that
he can return to state court and exhaust an additional nine
claims for relief. (Mot. 5, ECF No. 44).
Petitioner lists the
nine additional grounds for relief in an attachment to one of
7
his May 26, 2015 letters. (Letter 3, 5, May 28, 2015, ECF No.
45).
However, Petitioner’s Motion is devoid of any argument
demonstrating “good cause” for why he has failed to exhaust
these claims.
More specifically, Petitioner does not explain
why these claims were not, or could not have been, previously
exhausted.
In his Motion, Petitioner does not provide any reason for
his failure to bring these claims in his state court
proceedings.
Instead, Petitioner simply states that these new
claims were discovered, “with the help of a paralegal here at
the prison and petitioner pouring over the trial transcripts[.]”
(Mot. 5, ECF No. 44).
This statement, alone, is insufficient to
establish the “good cause” required by Rhines.
Moreover, the Court notes that many of the claims
Petitioner wishes to exhaust in state court, and add to his
Petition, are plainly without merit.
Specifically, in claims 2-
6, and 8 Petitioner asserts, in part, that he was deprived of
effective assistance of counsel in his Post-Conviction Relief
(“PCR”) hearings. 2 (Letter 3, 5, ECF No. 45).
2
However,
In Claim Two Petitioner alleges that his PCR counsel was
ineffective for failing to raise a claim that his trial lawyer
gave erroneous advice related to sentencing; in Claim Three
Petitioner alleges, in part, that his PCR counsel was
ineffective for failing to investigate why Petitioner was not
able to be present at the PCR hearing; in Claim Four Petitioner
states that his PCR counsel was ineffective for failing to raise
obviously meritorious issues; in Claim Five Petitioner states
8
allegations regarding ineffective assistance of PCR counsel do
not state a claim on federal habeas review. See 28 U.S.C. §
2254(i) (“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under section
2254.”); see also Coleman v. Thompson, 501 U.S. 722, 752–53, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding no constitutional
right to counsel in state post-conviction relief proceedings
and, consequently, no federal habeas relief for ineffective
assistance of counsel in state post-conviction relief
proceedings); Taylor v. Horn, 504 F.3d 416, 437 n. 17 (3d Cir.
2007) (same).
Claim Seven, likewise, appears to be without merit.
In
Claim Seven, Petitioner asserts that his constitutional rights
were violated because consecutive sentences were imposed based
on the sentencing judge’s findings of fact by a preponderance of
the evidence. (Letter 3, ECF No. 45).
The Court construes this
that his PCR counsel was ineffective for failing to raise an
issue relating to the state’s failure to provide Petitioner’s
independent expert with the seventh shell casing, and for
failing to submit Petitioner’s independent expert’s report into
evidence; in Claim Six Petitioner asserts that PCR counsel was
ineffective for failing to raise an issue with the fact that one
of the defense witnesses at trial was wearing prison clothing;
finally, in Claim Eight, Petitioner implies, generally, that his
PCR counsel was deficient and he asks that his case be remanded
with instructions that new PCR counsel be appointed. (Letter 3,
5, ECF No. 45).
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claim as asserting an argument under the Apprendi 3 line of cases,
which address improper sentencing based on factors not found by
a jury. See, e.g., Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding that, other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt).
As
an initial matter, this claim is nearly identical to a claim
Petitioner previously raised before the PCR court, see (PCR
Opinion 7, ECF No. 51-28), and which appears in his Amended
Petition as his thirteenth ground for relief, see (Am. Pet. 24,
ECF No. 15).
Therefore, this claim appears to be exhausted and
will be addressed at the time the Court addresses the merits of
the Amended Petition.
Moreover, “the Court of Appeals for the Third Circuit
generally has held that the rules announced in the Apprendi line
of cases are not applicable retroactively to cases on federal
collateral review.” Pena v. Balicki, No. 08-0360, 2009 WL
260786, at *5 (D.N.J. Feb. 4, 2009) (collecting cases and
discussing Blakely); see also State v. Natale, 184 N.J. 458, 878
A.2d 724 (2005) (holding that the rules established in the
3
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000).
10
Apprendi line of cases applied retroactively only to cases in
the pipeline as of the date of this decision, i.e., to
defendants with cases pending on direct appeal and to those
defendants who raised Blakely claims at trial or on direct
appeal).
Petitioner’s sentence was affirmed by the court of
appeals in 2003, see State v. Gibbs, No. A-0758-02 (App. Div.
June 9, 2003) (unpublished), before the rules of law established
in Blakely and Natale.
Accordingly, to the extent Petitioner
means to assert a new claim based on the Apprendi line of cases,
such a claim would lack merit because the rules of law
established in these cases do not apply retroactively.
Further, as Respondents point out, Claim Nine is simply an
assertion that Petitioner’s claims are not procedurally-barred
or time-barred.
Thus, it does not present a claim for federal
habeas relief.
Remaining, then, is Claim One — in which Petitioner alleges
ineffective assistance of trial counsel due to counsel’s failure
to advise him of his possible sentencing exposure. (Letter 3,
ECF No. 45).
However, as discussed above, Petitioner offers no
explanation for why he was unable to exhaust this claim sooner.
Because this claim relates to his trial counsel’s performance
during — or prior to — trial, this claim should have been known
to Petitioner when he first brought his state PCR petition,
which included other claims of ineffective assistance of
11
counsel.
This Court also notes that Petitioner filed pro se
supplemental briefs with the state courts and, thus, could have
raised this claim on his own.
Petitioner has failed to show
good cause for his failure to exhaust this claim.
Furthermore, Petitioner does not offer any supporting facts
or elaborate upon the claims he seeks to add.
Therefore, in
addition to the fact that Petitioner has not adequately
explained his failure to exhaust, Petitioner has likewise not
shown that any of these claims have potential merit.
Accordingly, a stay is not warranted and Petitioner’s request to
amend his Petition to add the nine unexhausted claims is denied. 4
III. CONCLUSION
For the foregoing reasons, Petitioner’s request for pro
bono counsel and request to amend his Petition (ECF No. 43) is
4
Leave to amend under Rule 15(a) should be “freely given when
justice so requires.” FED. R. CIV. P. 15(a); see also Foman v.
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)
(“In the absence of any apparent or declared reason — such as
undue delay, bad faith or dilatory motive on the part of the
movant, . . . , futility of amendment, etc. — [leave to amend]
should be ‘freely given.’”). In this case, as discussed above,
the claims Petitioner seeks to add are either lacking in merit,
or could have been raised in earlier state proceedings, prior to
filing this habeas Petition. In light of the futility of
amendment and Petitioner’s undue delay in exhausting these
claims, amendment will be denied. See, e.g., Burgos v. Ricci,
No. 08-5892, 2012 WL 933205, at *13 (D.N.J. Mar. 19, 2012)
(finding that amendment would be inappropriate, in part, due to
petitioner’s undue delay in failing to exhaust claims before
state court).
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DENIED.
Petitioner’ Motion to Stay (ECF No. 44) is likewise
DENIED.
Petitioner has filed a Letter Memorandum in support of
his Petition (ECF No. 56) and briefing is now complete.
The
Court will rule on the Petition in due course.
An appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: November 19, 2015
At Camden, New Jersey
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