BROWN v. WARDEN
Filing
4
OPINION. Signed by Judge Noel L. Hillman on 11/7/2011. (bdk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID D. BROWN,
Petitioner,
v.
WARDEN SEAN THOMAS,
Respondent.
:
:
:
:
:
:
:
:
:
Civil Action No. 11-1288 (NLH)
OPINION
APPEARANCES:
DAVID D. BROWN, Petitioner pro se
# 191303
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, New Jersey 08330
HILLMAN, District Judge
This matter is before the court pursuant to a petition for a
writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner
David D. Brown (“Brown”), challenging his recent New Jersey state
court conviction and sentence.1
For the reasons stated below,
the petition will be dismissed without prejudice at this time for
failure to exhaust state court remedies.
1
This action was administratively terminated on March 22,
2011 (Docket entry no. 2) because Petitioner failed to pay the
requisite $5.00 filing fee or submit a complete application to
proceed in forma pauperis (“IFP”). Petitioner submitted a
complete IFP application on June 8, 2011, and requested that his
case be re-opened. It appearing that Petitioner qualifies for
IFP status, the Court will direct the Clerk of the Court to reopen this matter and file the petition accordingly.
I.
BACKGROUND
According to the allegations contained in the petition,
Brown is challenging his recent confinement as a result of
violating the conditions of his probation.
Brown states that he
was sentenced to a five-year suspended sentence in the Superior
Court of New Jersey, Atlantic County, after his plea of guilty to
criminal mischief.
imposed.
He does not state when the sentence was
Brown was supposed to be monitored by the Atlantic
County Probation Department, and signed a probation “contract” on
or about December 17, 2010.
He states that he was taken into
custody for violating the conditions of his probation on July 27,
2010, before he signed the probation contract.
Therefore, he
challenges his detention and seeks his release accordingly.
He
admits that he has not sought to exhaust his state court remedies
with respect to his claim of wrongful confinement.
(Petition at
¶ 12).2
2
The Court notes that, on or about July 5, 2011, Brown
filed a nearly identical habeas petition, Brown v. Attorney
General of New Jersey, Civil No. 11-3833 (JBS), without reference
to his earlier-filed matter. Brown v. Attorney General of New
Jersey, Civil No. 11-3833 (JBS) was dismissed for non-exhaustion
of state court remedies by Opinion and Order entered in that
matter on July 14, 2011.
2
II.
A.
ANALYSIS
Pro Se Pleading
Brown brings his habeas petition as a pro se litigant.
A
pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers.
Estelle v. Gamble, 429 U.S.
97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A
pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
See Royce
v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).
B.
Exhaustion Analysis
A state prisoner applying for a writ of habeas corpus in
federal court must first “exhaust[] the remedies available in the
courts of the State,” unless “there is an absence of available
State corrective process[] or ... circumstances exist that render
such process ineffective ... .”3
28 U.S.C. § 2254(b)(1).
See
also Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532
3
Exhaustion of state remedies has been required for more
than a century, since the Supreme Court’s decision in Ex parte
Royall, 117 U.S. 241 (1886). The exhaustion doctrine was first
codified at 28 U.S.C. § 2254 in 1948, see Rose v. Lundy, 455 U.S.
509, 516-18 (1982), and was the subject of significant revisions
in the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. 104-132, 110 Stat. 1217 (April 24, 1996).
3
U.S. 919 (2001) (finding that “Supreme Court precedent and the
AEDPA mandate that prior to determining the merits of [a]
petition, [a court] must consider whether [petitioner] is
required to present [his or her] unexhausted claims to the
[state’s] courts”).
The exhaustion requirement is intended to allow state courts
the first opportunity to pass upon federal constitutional claims,
in furtherance of the policies of comity and federalism.
Granberry v. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at 51618.
Exhaustion also has the practical effect of permitting
development of a complete factual record in state court, to aid
the federal courts in their review.
Rose, 455 U.S. at 519.
A petitioner must exhaust state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims, either on direct appeal or in
collateral post-conviction proceedings.
See, e.g., O’Sullivan v.
Boerckel, 526 U.S. 838 (1999) (“requiring state prisoners [in
order to fully exhaust their claims] to file petitions for
discretionary review when that review is part of the ordinary
appellate review procedure in the State”); Ross v. Petsock, 868
F.2d 639 (3d Cir. 1989); 28 U.S.C. § 2254(c) (“An applicant shall
not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he
has the right under the law of the State to raise, by any
4
available procedure, the question presented.”)
Once a
petitioner’s federal claims have been fairly presented to the
state’s highest court, the exhaustion requirement is satisfied.
Picard v. Connor, 404 U.S. 270, 275 (1971); Castille v. Peoples,
489 U.S. 346, 350 (1989).
The petitioner generally bears the burden to prove all facts
establishing exhaustion.
Cir. 1993).
Toulson v. Beyer, 987 F.2d 984, 987 (3d
This means that the claims heard by the state courts
must be the “substantial equivalent” of the claims asserted in
the federal habeas petition.
Picard, 404 U.S. at 275.
Reliance
on the same constitutional provision is not sufficient; the legal
theory and factual predicate must also be the same.
Id. at 277.
Where any available procedure remains for the applicant to
raise the question presented in the courts of the state, the
applicant has not exhausted the available remedies.
28 U.S.C. §
2254(c).
In the present case, the petition, on its face, shows that
Brown has failed to exhaust his state court remedies with respect
to the claim asserted in this habeas petition.
12).
(Petition at ¶
As a matter of comity then, it is best left to the New
Jersey courts to determine Brown’s constitutional claims and
challenges to his sentence and present custody, which clearly
have not been raised, let alone fully exhausted, on state court
review.
Therefore, based on the allegations represented by Brown
5
in his petition, the Court is constrained to dismiss the entire
petition, without prejudice, for failure to exhaust as required
under 28 U.S.C. § 2254.
III.
See Rose, 455 U.S. at 510.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability 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).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Cockrell, 1537 U.S. 322 (2003).
Miller-El v.
“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.”
Slack v. McDaniel, 529 U.S. 473, 484
(2000).
6
Here, jurists of reason would not find the court’s
procedural disposition of this case debatable.
Accordingly, no
certificate of appealability will issue.
IV.
CONCLUSION
For the foregoing reasons, this Court finds that Brown has
failed to exhaust his available state court remedies or to allege
facts sufficient to excuse failure to exhaust.
The court
therefore will dismiss without prejudice the § 2254 habeas
petition for failure to exhaust available state court remedies.
No certificate of appealability will issue, insofar as
petitioner has failed to make a substantial showing of the denial
of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
/s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
DATED: November 7, 2011
At Camden, New Jersey
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?