SALAS v. WARREN et al

Filing 6

MEMORANDUM OPINION & ORDER: ORDERED that Petitioner's 3 Motion to Stay is GRANTED; this matter is STAYED. The Clerk shall ADMINISTRATIVELY TERMINATE this matter. Petitioner shall file his AMENDED PETITION w/in 30 days, etc. The Clerk shall serve this Memorandum Opinion & Order upon Petitioner by certified mail. Signed by Judge Noel L. Hillman on 6/8/2012. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JUAN C. SALAS,
Petitioner,
v.
CHARLES WARREN et al.,
Respondents.

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Civil Action
No. 11-5154 (NLH)

MEMORANDUM OPINION & ORDER

This matter comes before the Court upon Petitioner’s filing of
a habeas petition, pursuant to 28 U.S.C. § 2254, see Docket Entry
No. 1, and his motion seeking a stay and abeyance of his petition,
and it appearing that:
1.

On September 8, 2011, Petitioner filed a Petition for Writ of
Habeas Corpus stating that he was convicted in the Superior
Court of New Jersey Law Division (“Law Division”) on May 13,
2005.

See Docket Entry No. 1, at 1.

The Court’s own research

indicates that his conviction was affirmed by the Superior
Court of New Jersey Appellate Division (“Appellate Division”)
on July 3, 2007.

See State v. Salas, 2011 WL 204910, at *1

(N.J.Super.Ct.App.Div.

Jan.

24,

2011)

(referring

to

the

decision reached in State v. Salas, No. A-5553-04 (N.J.
Super.Ct.App.Div. July 3, 2007)).

It appears that Petitioner

did not seek certification from the Supreme Court of New
Jersey.

2.

Petitioner asserts that he filed his application for postconviction relief (“PCR”) on January 24, 2008.
Entry No. 1, at 2.

See Docket

That PCR application was denied by the Law

Division, and the Appellate Division affirmed the denial on
January

24,

2011.

See

Salas,

2011

WL

204910,

at

*1.

Petitioner sought certification from the Supreme Court of New
Jersey which denied his application on July 14, 2011.

See

State v. Salas, 207 N.J. 189 (2011).
3.

The habeas petition was executed on August 26, 2011 and filed
on this Court’s docket on September 8, 2011.1

4.

On October 27, 2011, Petitioner moved this Court for a stay
and abeyance of his habeas petition stating that, as of
October 25, 2011, he had filed (on an unspecified date) a
second PCR application with the state.2

1

According to the “prison mailbox rule,” an inmate’s
petition is deemed filed on the date when he actually submits his
petition to his prison authorities for mailing to this Court.
See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003)
(relying on Houston v. Lack, 487 U.S. 266(1988)). It is selfevident that such filing cannot occur prior to the date of the
inmate’s execution of his petition or after the date of the
Clerk’s receipt of the same.
2

New Jersey Court Rule 3:22-12, which poses a five-year
limitation period for the filing of post-conviction relief
petitions, Rule 3:22-4, which bars any ground for relief not
raised in a prior post-conviction relief proceeding, and Rule
3:22-5, which provides that a prior adjudication upon the merits
of any ground for relief is conclusive, are subject to
relaxation. See State v. Preciose, 129 N.J. 451, 454, (1992);
State v. Mitchell, 126 N.J. 565 (1992); State v. Johns, 111 N.J.
Super 574, 576 (App. Div. 1970). This Court, however, stresses
that no statement made in this Memorandum Opinion and Order shall
2

5.

It appears that Petitioner is concerned that: (a) his second
PCR application might be dismissed by the state courts as
untimely (and, thus, it might not qualify as an application
“properly

filed”

with

the

state

courts);

and

(b)

such

development would disqualify Petitioner from eligibility for
statutory tolling of his AEDPA period during the pendency of
this second PCR proceeding.3 Correspondingly, it appears that

be construed as expressing this Court’s position as to whether
Petitioner’s second PCR was timely or was untimely but could
qualify for relaxed application of state law. Such matters are
for the state courts.
3

On April 24, 1996, Congress enacted the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), which provides that “[a]
1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2244(d)(1). The
limitations period runs from “the date on which the judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). A
state-court criminal judgment becomes “final” within the meaning
of §2244(d)(1) by the conclusion of direct review or by the
expiration of time for seeking such review, including the 90-day
period for filing a petition for writ of certiorari in the United
States Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419
(3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir.
1999); U.S. Sup. Ct. R. 13. Where a litigant does not seek
certification from the Supreme Court of New Jersey as to his
direct appeal, his judgment of conviction becomes final, and his
AEDPA period of limitations begins to run, when his time to file
such petition for certification expires, see Kapral v. United
States, 166 F.3d 565, 577 (3d Cir. 1999), i.e., forty-five days
after the Appellate Division entered its decision. See N.J.
Rules 2:4-1(a) (“Appeals from final judgments of courts . . .
shall be taken within 45 days of their entry”). The statute of
limitations under § 2244(d) is subject to statutory tolling for
“[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending,” 28 U.S.C. § 2244(d)(2),
provided that the application to the state court seeking
3

Petitioner is concerned that – in the event he withdraws his
instant petition and files another Section 2254 petition upon
having his second PCR application disposed of by the state
courts one way or another – his AEDPA period might be long
expired by the time of such second Section 2254 filing, and
Petitioner might be time-barred from obtaining federal habeas
review.
6.

Petitioner’s concerns are not unwarranted.

Indeed, since

strict compliance with this total exhaustion rule can create
procedural dilemmas for some petitioners who may be unable to
fully exhaust state remedies on mixed claim petitions, the
courts have adopted a procedure which may be employed in a
limited number of cases: a “stay and abeyance” measure in
which the federal habeas petition is stayed pending exhaustion
of state remedies by the petitioner. See Rhines v. Weber, 544
U.S. 269 (2005).

Yet, while granting a stay and abeyance is

an available measure, it is not an automatic course of action.
Because the stay and abeyance measure, if used too frequently,
can

undermine

the

policies

favoring

prompt

and

orderly

resolution of state habeas petitions, the Supreme Court has
held that:
[S]tay and abeyance should be available only in
limited circumstances.
Because granting a stay
effectively excuses a petitioner's failure to

collateral review was filed during the AEDPA period.
4

present his claims first to the state courts, stay
and abeyance is only appropriate when the district
court determines there was good cause for the
petitioner’s failure to exhaust his claims first in
state court.
Moreover, even if a petitioner had
good cause for that failure, the district court
would abuse its discretion if it were to grant him
a stay when his unexhausted claims are plainly
meritless.
Rhines v. Weber, 544 U.S. at 277.
qualify

for

a

stay

and

Therefore, in order to

abeyance,

the

litigant

should

“satisf[y] the three requirements for a stay as laid out in
Rhines: good cause, potentially meritorious claims, and a lack
of intentionally dilatory litigation tactics.”

Heleva v.

Brooks, 581 F.3d 187, 192 (3d. Cir. 2009).
7.

Here, Petitioner asserts in his motion that his need to file
a second PCR application resulted from: (a) his first PCR
counsel’s failure to submit Petitioner’s pro se PCR brief; and
(b) Petitioner’s learning of recent Supreme Court decisions
that might have relevance to Petitioner, who was a juvenile
charged as adult and sentenced to life imprisonment without
the possibility of parole.

The Court finds Petitioner has

provided good cause as to why he could not (or did not) raise
the claims asserted in his second PCR application sooner. The
Court

also

finds

that

Petitioner

5

might

have

potentially

meritorious claims, and finds no indication of intentional
dilatory litigation tactics on the part of Petitioner.4
8.

Where stay and abeyance is appropriate, the district court’s
discretion

in

structuring

the

stay

is

limited

by

the

timeliness concerns reflected in the one-year statute of
limitations.

“Thus, district courts should place reasonable

time limits on a petitioner’s trip to state court and back.”
Rhines v. Weber, 544 U.S. at 278; see also Crews v. Horn, 360
F.3d 146, 154 (3d Cir. 2004) (“If a habeas petition is stayed,
the petitioner should be given a reasonable interval, normally
30 days, to file his application for state post-conviction
relief, and another reasonable interval after the denial of
that relief to return to federal court. If a petitioner fails
to meet either time-limit, the stay should be vacated nunc pro
tunc”).
9.

The Court, therefore, will grant Petitioner’s motion, and will
explicitly condition the stay on Petitioner’s returning to
this Court within 30 days after state court exhaustion of

4

It appears that, in a gray-area scenario, the court
should grant a habeas litigant the benefit of the doubt. See
Gully v. Ortiz, 2007 U.S. Dist. LEXIS 77825 (D.N.J. Oct. 19,
2007); accord Williams v. Ricci, 2009 U.S. Dist. LEXIS 57582
(D.N.J. July 6, 2009) (relying on Urcinoli v. Cathel, 546 F.3d
269, 272 (3d Cir. 2008), for the observation that, “the overall
gist of the pertinent law suggests that, when faced with an
ambiguous situation, the District Court should, out of abundance
of caution, err on the side of ensuring that the litigant's
opportunity to seek full federal habeas review is preserved”).
6

Petitioner's second PCR application is complete.5 See Rhines,
544 U.S. at 278.
IT IS, therefore, on this

8th

day of

June , 2012,

ORDERED that Petitioner’s Motion for Stay and Abeyance [3], is
GRANTED; and it is further
ORDERED that this matter is stayed; and it is further
ORDERED that the Clerk shall administratively terminate this
matter by making a new and separate entry on the docket reading,
“CIVIL CASE ADMINISTRATIVELY TERMINATED”;6 and it is further
ORDERED that Petitioner shall file his all-inclusive amended
petition7

with

this

Court

within

30

days

from

the

date

of

5

The Court stresses that its grant of a stay and abeyance
shall not be construed as this Court's opinion about the validity
or invalidity of Petitioner's claims for the purposes of federal
habeas review: the Rhines test of "potential meritoriousness" is
qualitatively different from that applied at habeas review, where
the court may grant a writ only if the state courts failed to
identify the correct governing legal principle from the Supreme
Court's decisions or identified the correct principle but
unreasonably applied it to the facts of the prisoner's case. See
Williams v. Taylor, 529 U.S. 362, 413 (2000).
6

Administrative termination is not a dismissal on merits.

7

The Court takes this opportunity to inform Petitioner
that -- under the AEDPA -- petitioners challenging the legality
of their detention pursuant to a State decision must raise in one
§ 2254 application all the arguments they have to collaterally
attack that decision. See 28 U.S.C. § 2244(d). Therefore, all
claims that Petitioner wishes to assert for the purposes of
federal habeas review must be stated in his amended petition. If
Petitioner fails to include in his amended petition some claims
he wishes to present for federal habeas review, then Petitioner
will lose his ability to file a second or successive application
under § 2254, absent certification by the Court of Appeals and
extraordinary circumstances. Thus, Petitioner's amended petition
7

completion of his second post-conviction relief proceedings; and it
is further
ORDERED that, in the event Petitioner timely files his amended
petition, that amended petition would be deemed timely in the event
Petitioner’s original petition, docketed in this matter as Docket
Entry No. 1, was timely filed; and it is further
ORDERED that, in the event Petitioner timely files his amended
petition, the Court will direct the Clerk to reopen this matter and
will address Petitioner’s amended petition on the merits (provided
that all Petitioner’s claims are duly exhausted and his original
petition was timely filed); and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and
Order upon Petitioner by certified mail, return receipt requested.

s/Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
At Camden, New Jersey

must state all his claims.

See Mason v. Meyers, 208 F.3d 414.
8