SALAS v. WARREN et al

Filing 9

MEMORANDUM OPINION & ORDER APPLIES TO BOTH ACTIONS: ORDERED that the Clerk shall TERMINATE Civil Action No. 11-4275 as duplicative. The Clerk shall REOPEN Civil Action No. 11-5154. Ordered that stay of 11-5154 is extended for 90 days to allow Petitioner an opportunity to reflect on his options and make his elections, etc. The Clerk shall ADMINISTRATIVELY TERMINATE 11-5154. Order/Blank 2254 forms sent to Petitioner. Signed by Judge Noel L. Hillman on 4/25/2013. (drw)n.m

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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

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Civil Action
No. 11-5154 (NLH)

Civil Action
No. 12-4275 (NLH)

MEMORANDUM OPINION & ORDER
APPLIES TO BOTH ACTIONS

IT APPEARING THAT:
1.

On September 8, 2011, the Clerk received Petitioner’s § 2254
habeas application that gave rise to Salas v. Warren
(“Salas-I”), Civil Action No. 11-5154 (NLH) (D.N.J.).
Salas-I, Docket Entry No. 1.

See

The Salas-I petition indicated

that Petition was convicted in the New Jersey Superior Court
Law Division on May 13, 2005.

See id. at

1.

The Court’s

own research determined that his conviction was affirmed by
the 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)).

Petitioner did not seek certification from the Supreme Court
of New Jersey with regard to Petitioner’s direct appellate
challenges.

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

(“Defendant did not seek certification from the Supreme
Court”).
2.

The Salas-I petition asserted that Petitioner filed an
application for post-conviction relief (“PCR”) on January
24, 2008.

See Salas-I, Docket Entry No. 1, at 2.

That PCR

application was denied by the Law Division on the merits,
and the denial was affirmed by the Appellate Division on
January 24, 2011.

See Salas, 2011 WL 204910.

Petitioner

sought certification from the Supreme Court of New Jersey as
to that PCR; his application to that effect was denied on
July 14, 2011.
3.

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

On October 27, 2011, Petitioner moved this Court for stay
and abeyance of his Salas-I petition indicating that, as of
October 25, 2011, he had already filed his second PCR
application with the state courts.
Entry No. 3.

See Salas-I, Docket

The Court granted Petitioner’s request and, on

June 8, 2012, ordered a stay.

See id., Docket Entry No. 6.

In conjunction with ordering stay, this Court informed
Petitioner of his rights, pursuant to the holding of Mason
v. Meyers, 208 F.3 414 (3d Cir. 2000).
Entry No. 6, at 8-9, n. 7.

2

See Salas-I, Docket

4.

On June 19, 2012, Petitioner submitted in Salas-I a letter
indicating that: (a) his second PCR application was denied
by the Law Division as untimely (seemingly, without reaching
the merits of Petitioner’s second PCR challenges); but (b)
he, nonetheless, wished to include in his Salas-I federal
habeas application the very challenges raised and dismissed
in that second untimely PCR application.
Entry No. 8.

See id., Docket

The letter closed with a request to provide

Petitioner with a blank Section 2254 petition form in order
to enable his execution of an all-inclusive amended
petition.
5.

See id. at 1.

Less than two weeks later, the Clerk received another § 2254
habeas application from Petitioner; that submission gave
rise to Salas v. Warren (“Salas-II”), Civil Action No. 124275 (NLH) (D.N.J.).

6.

See

Salas-II, Docket Entry No. 1.

It appears self-evident that Petitioner’s Salas-II action is
duplicative of his Salas-I proceeding.
The power of a federal court to prevent
duplicative litigation is intended “to foster
judicial economy and the 'comprehensive
disposition of litigation,'” Curtis v. Citibank,
N.A., 226 F.3d 133, 138 (2d Cir. 2000) (quoting
Kerotest Manufacturing Co. v. C-O-Two Fire
Equipment Co., 342 U.S. 180, 183 (1952)), and “to
protect parties from 'the vexation of concurrent
litigation over the same subject matter.'” Id.
(quoting Adam v. Jacobs, 950 F.2d 89, 93 (2d Cir.
1991)).

3

Porter v. NationsCredit Consumer Disc. Co., 2003 Bankr.
LEXIS 933, at *33 (Bankr. E.D. Pa. 2003).

Thus, the Court

will direct the Clerk to terminate Salas-II and will proceed
solely with Petitioner’s Salas-I action; the election in
favor of Salas-I is made order to eliminate any statute of
limitations concerns.1

See Urcinoli v. Cathel, 546 F. 3d

269, 272 (3d Cir. 2008).
7.

However, taking notice of Petitioner’s letter indicating
that he wishes to raise, in Salas-I: (a) all his state and
federal law based challenges raised on direct appeal to the
Appellate Division but not challenged before the Supreme
Court of New Jersey; (b) all his state and federal law based
challenges raised, during his first PCR, to the Law
Division, Appellate Division and the Supreme Court of New
Jersey; and (c) all his state and federal law based
challenges raised and dismissed as untimely during his
second PCR, this Court finds it warranted to note the
following legal concepts which Petitioner should consider
prior to executing his all-inclusive petition.
a.

“In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the

1

Hence, if Petitioner § 2254 habeas petition was timely at
the date of Petitioner’s handing of his Salas-I petition to his
prison officials, Petitioner’s federal habeas challenges would be
deemed timely regardless of any and all procedural developments
that have taken place in Salas-I and Salas-II.
4

Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28
U.S.C. § 2254(a); accord Barry v. Bergen County
Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997).
“Federal courts hold no supervisory authority over
state judicial proceedings and may intervene only to
correct wrongs of constitutional dimension.”
Phillips, 455 U.S. 209, 221 (1982).

Smith v.

“If a state

prisoner alleges no deprivation of a federal right, §
2254 is simply inapplicable.

It is unnecessary in such

a situation to inquire whether the prisoner preserved
his claim before the state courts.”
456 U.S. 107, 120 n.19 (1982).

Engle v. Isaac,

“[E]rrors of state law

cannot be repackaged as federal errors simply by citing
the Due Process Clause.”

Johnson v. Rosemeyer, 117

F.3d 104, 110 (3d Cir. 1997).

Moreover, "it is well

established that a state court's misapplication of its
own law does not generally raise a constitutional
claim."

Smith v. Horn, 120 F.3d 400, 414 (3d Cir.

1997) (citation

omitted); see also Smith v. Zimmerman,

768 F.2d 69, 71, 73 (3d Cir. 1985).

Therefore,

Petitioner’s challenges should be limited to, and only

5

to, claim based on federal law that were duly exhausted
in the state courts.2

2

The petitioner generally bears the burden to prove all
facts establishing exhaustion. See Toulson v. Beyer, 987 F.2d
984, 987 (3d Cir. 1993). This means that the claims heard by the
state courts must be the “substantial equivalent” of the claims
asserted in the federal habeas petition. See 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 with regard to each particular claim. See id. at 277.
For instance, if – during his/her state litigations – a
petitioner asserts two different factual predicates (i.e., two
different sets of factual events) and two different federal
claims, with each claim being correlated to its particular
factual predicate, the petitioner cannot later “cris-cross” these
factual predicates and claims for the purposes of his federal
habeas proceedings. To illustrate, if – during his/her state
proceedings – a petitioner asserts that: (a) his/her counsel
provided ineffective assistance by failing to object to certain
remarks made by the prosecutor, and (b) that his/her trial court
violated the petitioner’s rights by denying him/her an
opportunity to cross-examine a certain witness, the petitioner
cannot later “repackage” or “cross-match” these challenges during
his/her federal habeas proceedings into claims asserting that:
(a) his counsel was ineffective by failing to seek an opportunity
to cross-examine that witness; and (b) the trial court violated
the petitioner’s rights by failing to instruct the jurors to
ignore the prosecutor’s remark. The rationale of the
“substantial equivalent” requirement is self-evident in light of
the standard of review applicable to federal habeas actions:
habeas relief focuses on whether the state court’s adjudication
of the petitioner claim “resulted . . . or involved an
unreasonable application of . . . Supreme Court precedent.” 28
U.S.C. § 2254(d). If the legal theory and/or the factual
predicate of each claim presented to the state courts differed
from the legal theory and factual predicate of the claim
presented for federal habeas review, the federal court has no
basis to conclude that the state courts unreasonably applied the
governing Supreme Court precedent, because each Supreme Court
precedent (and any legal precedent) is composed of a particular
factual predicate and a particular rule of law, and so this
precedent can only be applied to substantially same set of
circumstances and legal challenges.
6

b.

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.”

28 U.S.C. § 2254(b)(1); Rose v. Lundy,

455 U.S. 509, 515 (1982); Toulson v. Beyer, 987 F.2d
984, 987 (3d Cir. 1993); Duarte v. Hershberger, 947 F.
Supp. 146 (D.N.J. 1996); see also Lambert v. Blackwell,
134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532
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

courts of a state must be afforded an “opportunity to
pass upon and correct alleged violations of its
prisoners’ federal rights.”3

3

Wilwording v. Swenson,

Exhaustion is not a jurisdictional requirement; rather,
it is designed to allow state courts the first opportunity to
pass upon federal constitutional claims, in furtherance of the
policies of comity and federalism. See Granberry v. Greer, 481
U.S. 129 (1987); Rose, 455 U.S. at 516-18; Evans, 959 F.2d at
1230; O’Halloran v. Ryan, 835 F.2d 506, 509 (3d Cir. 1987).
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. See Rose, 455 U.S. at 519;
Castille v. Peoples, 489 U.S. 346, 349 (1989).
7

404 U.S. 249, 250 (1971); Picard v. Connor, 404 U.S.
270, 275 (1971); Evans v. Court of Common Pleas, Del.
Cty., Pa., 959 F.2d 1227, 1230 (3d Cir. 1992), cert.
dismissed, 506 U.S. 1089 (1993).
i.

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 postconviction proceedings.

See Ross v. Petsock, 868

F.2d 639 (3d Cir. 1989); see also 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”); 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 available procedure, the
question presented”).

Only if a petitioner’s

federal claims have been fairly presented to each
level of the state court, including the state’s
highest court, the exhaustion requirement is

8

satisfied.

See Picard, 404 U.S. at 275; Castille,

489 U.S. at 350.
ii.

Where any available procedure remains, even only a
theoretical or hypothetical one, for the applicant
to raise the question presented in the courts of
the state, the petitioner has not exhausted the
available remedies.

See 28 U.S.C. § 2254(c).

Federal courts have consistently adhered to the
exhaustion doctrine “for it would be unseemly in
our dual system of government for a federal
district court to upset a state court conviction
without an opportunity to the state courts to
correct a constitutional violation.”
U.S. at

Picard, 404

275 (citations and internal quotation

marks omitted).
iii. Correspondingly, district courts should dismiss
petitions containing unexhausted claims, even if
it is not likely that a state court will consider
the claims on the merits.

See Rose, 455 U.S. at

522; Banks v. Horn, 126 F.3d 206, 212-14 (3d Cir.
1997); see also Toulson, 987 F.2d at 989 (“Because
no [New Jersey] court has concluded that
petitioner is procedurally barred from raising his
unexhausted claims and state law does not clearly

9

require a finding of default, we hold that the
district court should have dismissed the petition
without prejudice for failure to exhaust state
remedies”).

Analogously, if a petition contains a

mix of duly exhausted and unexhausted claim (such
petitions are referred to as “mixed” petitions),
the petition is also subject to dismissal.
Faced with [a] “mixed” petition, the
District Court ha[s] four options: [(1)]
dismiss the petition without prejudice
under Rose [v. Lundy, 455 U.S. 509,
unless such dismissal would mean that
the petitioner's amended petition would
necessarily be bound for dismissal as
untimely, see Urcinoli, 546 F. 3d 269],
[(2)] “stay and abey” under Rhines [v.
Weber, 544 U.S. 269 (2005)], [(3)] allow
[the petitioner] to delete his
unexhausted claims, see Rhines, 544 U.S.
at 278, or, [(4)] if all of his claims
are meritless, deny the petition under §
2254(b)(2) (allowing denial of a
petition on the merits “notwithstanding
the failure of the applicant to exhaust
. . .”).
Mahoney v. Bostel, 2010 U.S. App. LEXIS 3916, at
*5-6 (3d Cir. N.J. Feb. 24, 2010) (footnote
omitted).
iv.

However, a different analysis applies to those
petitions that consist of (or include within
themselves) unexhausted challenges with regard to
which the petitioner cannot obtain state court
review.

Section 2254(b)(1)(B)(i) excuses
10

exhaustion where there is “an absence of available
State corrective process.”

28 U.S.C. §

2254(b)(1)(B)(i); see also Duckworth v. Serrano,
454 U.S. 1, 3 (1981) (per curiam).

Therefore, a

petition containing claims which are unexhausted
but procedurally barred will not be dismissed as
unexhausted.

“Although the unexhausted claims may

not have been presented to [all levels or the
highest level of] the state court, exhaustion is
[facially] not possible [if] the state court
[found] the claims procedurally defaulted.”
Toulson, 987 F.2d at 987; accord Coleman v.
Thompson, 501 U.S. 722, 730-32 & n.1 (1991);
Harris v. Reed, 489 U.S. 255 (1989).

In

determining whether state court review is
“available” under § 2254(b)(1)(B) and (c), the
courts “turn [their] attention to the actuality
that the state courts would refuse to entertain”
the petitioner's federal claims. Lambert, 134 F.3d
at 516; Christy, 115 F.3d at 207.

In other words,

if “a state court decision exists indicating that
a habeas petitioner is clearly precluded from
state court relief, the federal habeas claim

11

should [not] be dismissed for nonexhaustion.”
Lambert, 134 F.3d at 517.
v.

That being said, while the doctrine of procedural
default excuses exhaustion, it is a double-edged
sword, i.e., it was not created as an incentive
for state litigants to circumvent state court
review and, hence, does not envision a “reward” to
those litigants who procedurally default their
claims.

When a petitioner's failure to comply

with a state procedural rule has prevented the
state courts from reaching the merits of his
federal claims, federal habeas review of those
claims is ordinarily barred.

See Ylst v.

Nunnemaker, 501 U.S. 797, 801 (1991).
Specifically, reliance by the last state court on
an “adequate and independent finding of procedural
default will bar federal habeas review of [the
petitioner’s defaulted] federal claim, unless the
habeas petitioner can show 'cause' for the default
and 'prejudice' attributable thereto, or
demonstrate that failure to consider the federal
claim will result in a fundamental miscarriage of
justice.”

Harris, 489 U.S. at 262 (citations and

internal quotation marks omitted); accord Coleman,

12

501 U.S. at 750; Cabrera v. Barbo, 175 F.3d 307,
312-14 (3d Cir. 1999); Sistrunk v. Vaughn, 96 F.3d
666, 673 (3d Cir. 1996); see also Haley, 541 U.S.
at 392-93; Murray v. Carrier, 477 U.S. 478,
485(1986); Hubbard, 378 F.3d at 339; McCandless v.
Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).
vi.

The “cause” standard requires a petitioner to show
that some objective factor external to the defense
impeded his efforts to comply with the state
procedural rule.

See Coleman, 501 U.S. at 752

(citing Murray, 477 U.S. at 488).

In the absence

of a Sixth Amendment violation, the petitioner
bears the risk in federal habeas for all attorney
errors made in the course of the representation.
See Coleman, 501 U.S. at 754.

In other words,

neither a pro se prisoner's ignorance of the
procedural rule nor inadvertence satisfies the
cause standard.

See Murray, 477 U.S. at 485-87.

Analogously, the state court’s refusal to “bend
the rules” for a pro se litigant is not a valid
“cause.”

See Caswell v. Ryan, 953 F.2d 853, 862

(3d Cir. 1992).
vii. To establish “prejudice,” a petitioner must prove
“‘not merely that the errors at . . . trial

13

created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of
constitutional dimension.’”

Murray, 477 U.S. at

494 (quoting United States v. Frady, 456 U.S. 152,
170 (1982)).

In the context of an ineffective

assistance claim, the Court of Appeals for the
Third Circuit has held that prejudice occurs only
where “there is a reasonable probability [rather
than a mere possibility] that, but for counsel's
deficient performance, the result of the
proceeding would have been different.”4

Sistrunk,

96 F.3d at 670.
viii. Finally, in order to establish that failure to
review an otherwise procedurally defaulted claim
will result in a “miscarriage of justice,” a
petitioner must show that “a constitutional
violation has probably resulted in the conviction

4

In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme
Court held that a prisoner may establish cause for the procedural
default of an ineffective assistance of counsel claim by
demonstrating that his or her counsel in an “initial-review
collateral proceeding” provided ineffective assistance of
counsel. See Martinez, 132 S. Ct. at 1315. Thus, the Martinez,
Court created a narrow exception to the rule set forth in Coleman
v. Thompson, 501 U.S. at 753-54, that an attorney's errors in a
post-conviction collateral proceeding do not constitute cause to
excuse a procedural default.
14

of one who is actually innocent.”
U.S. at 496.

Murray, 477

“Thus, to establish a miscarriage of

justice, the petitioner must prove that it is more
likely than not that no reasonable juror would
have convicted him.”

Werts, 228 F.3d at 193

(citing Schlup v. Delo, 513 U.S. 298, 326 (1995)).
ix.

Notably, the procedural default applies to both
state appellate and collateral proceedings.5 See
Coleman, 501 U.S. at 732.

9.

Here, it appears that Petitioner’s direct appellate
challenges are facially unexhausted, since: (a) Petitioner
did not seek certification from the Supreme Court of New
Jersey as to those challenges; and, moreover, (b) these
challenges cannot qualify for excuse from exhaustion as
procedurally defaulted until and unless the Supreme Court of
New Jersey denies review.

Therefore, Petitioner may either

withdraw his § 2254 claims based on such unexhausted direct
appellate challenges or attempt to complete their exhaustion
in the state court.

5

Conversely, if the last state court to be presented with
a particular federal claim reaches the merits, it removes any bar
to federal review. See Ylst v. Nunnemaker, 501 U.S. at 801. For
instance, such scenario occurs when the state court dismisses a
claim on alternative grounds, i.e., as procedurally defaulted
and, in addition, on merits.
15

10.

In addition, it appears that Petitioner’s second PCR
challenges have been procedurally defaulted, being dismissed
by the state courts on purely procedural, state law based
ground of untimeliness.

Therefore, Petitioner may either

withdraw these challenges or attempt to overcome the
procedural default bar by asserting facts warranting excuse
of non-exhaustion and resolution of these claims on merit.
11.

Since this Court has no means to determine whether
Petitioner would prefer to proceed only with his claims that
had been fully exhausted at all three levels of the state
court (and/or with his procedurally defaulted claims raised
during his second PCR, that is, in the event Petitioner has
bona fide basis to overcome the procedural default bar), or
if he prefers to seek certification of his direct appellate
challenges in order to include those claims in his § 2254
habeas petition, this Court – out of abundance of caution –
will extend Petitioner’s stay in Salas-I in order to allow
Petitioner’s an opportunity to reflect on his choices,
inform this Court of his elections and take appropriate
actions, if any, in the state court.
IT IS, therefore, on this __25th____ day of _April___, 2013,
ORDERED that the Clerk shall terminate Salas v. Warren,

Civil Action No. 12-4275 (NLH) (D.N.J.), as duplicative of Salas
v. Warren, Civil Action No. 11-5154 (NLH) (D.N.J.), by making a

16

new and separate entry on the docket reading “CIVIL ACTION
TERMINATED”;6 and it is further
ORDERED that the Clerk shall reopen Salas v. Warren, Civil
Action No. 11-5154 (NLH) (D.N.J.), for the purposes of this
Court’s examination of Petitioner’s letter docketed in that
matter as Docket Entry No. 8, by making a new and separate entry
on the docket reading “CIVIL ACTION REOPENED”; and it is further
ORDERED that stay of Salas v. Warren, Civil Action No. 115154 (NLH) (D.N.J.), is extended for the period of ninety days,
in order to allow Petitioner an opportunity to reflect on his
options and make his elections; and it is further
ORDERED that, within ninety days from the date of entry of
this Memorandum Opinion and Order, Petitioner shall either: (a)
file in Salas v. Warren, Civil Action No. 11-5154 (NLH) (D.N.J.),
a written statement informing this Court that Petitioner would
seek certification with regard to his unexhausted direct
appellate claims and, in addition, Petitioner shall, in fact,
file such application for certification, and inform this Court
within sixty days from having that application for certification
resolved by the Supreme Court of New Jersey; or (b) file in Salas
v. Warren, Civil Action No. 11-5154 (NLH) (D.N.J.), Petitioner’s
all-inclusive amended petition asserting only Petitioner’s duly

6

Petitioner’s filing fee submitted in Salas v. Warren,
Civil Action No. 12-4275 (NLH) (D.N.J.), will be applied to his
action in Salas v. Warren, Civil Action No. 11-5154 (NLH).
17

exhausted federal claims (and the factual predicate supporting
those claims) and/or Petitioner’s procedurally defaulted federal
claims, if any (and the factual predicate supporting those
claims), provided that Petitioner states facts establishing a
basis for excuse of exhaustion; and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Petitioner by regular U.S. mail and include in
said mailing a blank Section 2254 form; and it is further
ORDERED that the Clerk shall administratively terminate
Salas v. Warren, Civil Action No. 11-5154 (NLH) (D.N.J.), by
making a new and separate entry on the docket reading “CIVIL
ACTION TERMINATED”; and it is finally
ORDERED that administrative termination of Salas v. Warren,
Civil Action No. 11-5154 (NLH) (D.N.J.), is not a dismissal on
merits, and no statement made in this Memorandum Opinion and
Order shall be construed as indicative of this Court’s withdrawal
of its jurisdiction over that matter.

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

18