STOKES v. LAGANA
Filing
15
OPINION. Signed by Chief Judge Jerome B. Simandle on 9/21/2016. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JACQUAR STOKES,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 13-4337 (JBS)
v.
PAUL K. LAGANA, et al.,
OPINION
Respondents.
APPEARANCES:
Jacquar Stokes, Petitioner pro se
860509C/516883
Northern State Prison
P.O. BOX 2300
Newark, New Jersey 07114
Alexis R. Agre, Esq.
Jennifer L. Bentzel, Esq.
Burlington County Prosecutor’s Office
New Courts Facility
25 Rancocas Road
Mount Holly, New Jersey 08060
Attorneys for Respondent Paul K. Lagana
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Jacquar Stokes has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petition, Docket
Entry 1. Respondent Paul K. Lagana opposes the petition and
asserts that several grounds raised by Petitioner are either
procedurally defaulted or unexhausted. Answer, Docket Entry 8.
Petitioner has requested a stay and abeyance in order to return
to the state courts to exhaust his claims. For the reasons
stated herein, the request for a stay shall be denied, and
Petition is dismissed without prejudice as untimely. Petitioner
may file a written statement within thirty (30) days of the date
of this Opinion and Order on timeliness.
II.
BACKGROUND
The facts of this case were recounted below and this Court,
affording the state court’s factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the
recitation of the facts as set forth by the New Jersey Superior
Court Appellate Division in its opinion denying Petitioner’s
post-conviction relief (“PCR”) appeal:
On January 12, 2003, a police officer asked defendant's
permission to search him for weapons, after observing
defendant react suspiciously upon seeing the officer.
Defendant fled but the officer caught him. Defendant was
searched and found with a semi-automatic handgun and
four bags of crack cocaine.
On February 24, 2003, the Mount Holly police responded
to a report of a stabbing at a residence on Grant Street.
The officers found the victim, Ernest Greene (Greene),
lying on the steps of the residence. Attempts to save
Greene's life were unsuccessful. An eyewitnesses told
the officers that he saw defendant stab Greene in the
neck. Another eyewitness said that he saw defendant
argue with Greene before the stabbing.
About fifteen minutes later, the police found defendant.
They arrested him and returned him to the crime scene,
where the two eyewitnesses identified him as the person
who stabbed Greene. The officers transported defendant
to the Mt. Holly Police Department. The officers
continued their investigation. Four other
identified defendant as the individual who
Greene.
persons
stabbed
At the police station, the police informed defendant of
his Miranda 1 rights. Defendant waived his rights and
agreed to give the detectives a statement. He said that,
several days before the stabbing, Greene robbed him of
$200 and punched him in the face. According to defendant,
on the date of the stabbing, he met Greene and Greene
boasted about the robbery.
Defendant claimed that he found a knife in the street
and picked it up because he had no other means to protect
himself. When he walked towards Greene, Greene demanded
that defendant hand him the bottle of brandy that
defendant was carrying. Defendant said that when Greene
approached him, he “shut [his] eyes and let [the knife]
go.” Defendant was then transported to the county jail
where he was found in possession of thirty-five bags of
crack cocaine.
Defendant was charged under Indictment No. 03–07–1043–I
with murder, N.J.S.A. 2C:11–3(a)(1) and 3(a)(2) (count
one); third-degree possession of a controlled dangerous
substance (CDS) with intent to distribute, N.J.S.A.
2C:35–5(a)(1) and 5(b)(3) (count two); and third-degree
possession of CDS, N.J.S.A. 2C:35–10(a)(1) (count
three). Defendant also was charged under Indictment No.
03–04–561–I, with third-degree aggravated assault upon
a law enforcement officer, N.J.S.A. 2C:12–1(b)(5)(a)
(count one); third-degree resisting arrest, N.J.S.A.
2C:29–2(a)(3) (count two); third-degree possession of
CDS, N.J.S.A. 2C:35–10(a)(1) (count three); fourthdegree hindering his apprehension, N.J.S.A. 2C:29–
3(b)(1) (count four); fourth-degree resisting arrest,
N.J.S.A. 2C:29–2(a)(2) (count five); and fourth-degree
possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39–4(e) (count six).
On January 11, 2005, defendant pled guilty to count one
of Indictment No. 03–07–1043–I, which was amended to
charge first-degree aggravated manslaughter, N.J.S.A.
2C:11–4(a)(1); and count two of Indictment No. 03–04–
561–I, charging third-degree resisting arrest. The State
1
Miranda v. Arizona, 384 U.S. 436 (1966).
agreed to dismiss the other charges and recommend an
eighteen-year term of incarceration, with a period of
parole ineligibility as prescribed by the No Early
Release Act (NERA), N.J.S.A. 2C:43–7.2, on the
aggravated manslaughter charge, with a concurrent fouryear, flat sentence on the resisting arrest charge.
State v. Stokes, No. A-4355-10, 2012 WL 2327784, at *1–2 (N.J.
Super. Ct. App. Div. June 20, 2012); Ra 30.2 The trial court
imposed the recommended sentence on March 11, 2005. Id.
Petitioner did not file a direct appeal; however, he did file a
pro se PCR petition on September 12, 2008. Pro Se Petition, Ra
10.
Petitioner alleged in his pro se submission that trial
counsel rendered ineffective assistance for allowing his family
members to “emotionally blackmail” him into taking the guilty
plea. Id. at 3. He further alleged trial counsel was ineffective
for failing to introduce evidence of his psychiatric history and
drug and alcohol abuse at sentencing as mitigating factors. Id.
Petitioner later provided a certification stating that he
arrived in court on the date of the plea hearing expecting to
proceed to trial because the State would not agree to a 15-year
sentence. PCR Certification, Ra 14 ¶¶ 4-7. The trial court
recessed and suggested that Petitioner confer with counsel.
During the 30 minute recess by the court, the courtroom
was cleared with the exception of me, my attorney and my
family members. During those 30 minutes I was faced with
2 Ra refers to the appendix to Respondent’s Answer, Docket Entry
8.
my siblings, father and mother, crying and telling me to
come to my senses. I was told I was not being rationale
[sic]. I was told that my attorney had spoke [sic] with
them and that I was crazy for trying to go to trial. I
was told that my attorney told them that I was guaranteed
to lose and that I would never see the light of day if
I went to trial. My attorney and family just kept playing
on my emotions. They were telling me to cop a plea
because that was the sane thing to do.
. . . I could not overcome the emotional manipulation
that my attorney had orchestrated by using my family to
get to me in that way.
Id. ¶¶ 11-12. He further certified that he had been diagnosed
with depression when he was a juvenile and was on several
medications. Id. ¶ 15. He stated his trial attorney did not
bring that fact, as well as the facts that he had previously
been confined in difference psychiatric facilities and had
abused drugs and alcohol since he was 10 years old, to the trial
court’s attention. Id. He subsequently filed a pro se
supplemental brief arguing “[t]he sentence is illegal since
Defendant is a Corporation as denoted in the criminal code and
cannot be subjected to any term of imprisonment.” Pro Se
Supplemental Brief, Ra 15.3
The State argued the petition was
barred under New Jersey law as Petitioner had not raised these
claims on direct appeal and were in any event meritless. State’s
PCR Brief, Ra 12.
3 Appointed PCR counsel also filed a supplemental brief. Ra 11.
Oral argument on the petition was held on October 29, 2010.
4T. PCR Counsel argued for the first time at the hearing that
trial counsel had been ineffective for failing to request a
Miranda hearing. 4T29:14 to 30:24. The PCR Court denied the
petition without an evidentiary hearing on November 16, 2010.
PCR Opinion, Ra 19. The court found the petition to be barred
under New Jersey Court Rule 3:22-4 as Petitioner had not raised
his ineffective assistance of counsel claims on direct appeal.
Id. at 4. It also considered the merits of the petition under
Strickland v. Washington, 466 U.S. 668 (1984), but found that
Petitioner had not set forth a prima facie case of ineffective
assistance of counsel, id. at 5.
Petitioner appealed to the Appellate Division arguing the
PCR court erred in concluding his petition was barred and that
there was no ineffective assistance of counsel. PCR Appellate
Brief, Ra 21. He further alleged the PCR court improperly failed
to conduct an evidentiary hearing and address his corporation
argument. Id. After the State answered, Ra 24, Petitioner filed
a supplemental brief raising a new argument: “The Defendant's
sentence is illegal insofar as it violates the separation of
powers doctrines [in] both the [United States] and [New Jersey]
constitutions, and is wholly repugnant to the supremacy clause.”
State v. Stokes, No. A-4355-10, 2012 WL 2327784, at *3 (N.J.
Super. Ct. App. Div. June 20, 2012) (alteration in original). He
thereafter filed a supplemental reply brief with four new
arguments:
I.
Summary dismissal must be granted in favor of
Appellant with respect to Point IA of his appellate
brief since the State failed to refute that
Defendant’s claims were ripe for appeal.
II.
Had trial counsel moved for suppression of
confession the outcome would have been different,
as there was a likelihood that the negotiated plea
would have been less than it was and/or undermined
the State’s confidence in a trial victory.
III. Even if trial counsel’s performance was effective
for plea purposes, he still missed critical errors
which should have been exploited. The Defendant’s
sentence is illegal since he was never arrested and
afforded due process.
A. The State failed to include the probable
cause statement of Detective William Fields in
discovery.
IV.
Counsel did not function as the counsel guaranteed
by the 6th amendment, & the State can’t prove
otherwise.
Pro Se Reply Brief, Ra 26 at 2.
The Appellate Division held that the PCR court erred
by applying the procedural bar to the ineffective
assistance of counsel claims regarding the plea and
sentencing. “Because defendant's claim of ineffective
assistance of counsel implicates his constitutional right
to counsel and was based on allegations and evidence that
lie outside the record of the plea and sentencing, his
failure to raise these claims in a direct appeal from his
judgment of conviction does not bar the assertion of the
claims in a PCR petition.” Stokes, No. A-4355-10, 2012 WL
2327784, at *4. It affirmed the denial of those claims on
the merits for the reasons given by the PCR court. Id. at
*4-6. It concluded the arguments that “the PCR court erred
by failing to conduct an evidentiary hearing; [Petitioner]
was denied the effective assistance of PCR counsel; and the
PCR court erred by failing to address a claim asserted by
defendant in a pro se submission” were without sufficient
merit to warrant discussion. Id. at *6. It declined to
consider the arguments raised in the pro se reply brief as
they were raised for the first time on appeal. Id.
Petitioner requested review by the New Jersey Supreme
Court, Petition for Certification, Ra 31, and the court
denied certification on May 9, 2013. State v. Stokes, 65
A.2d 262 (N.J. 2013).
Petitioner filed this § 2254 petition on June 26, 2013.
Petition, Docket Entry 1. By Order dated October 23, 2013, the
Court informed Petitioner of his rights under Mason v. Meyers,
208 F.3d 414 (3d Cir. 2000), and ordered him to advise the Court
as to how he wished to proceed. Mason Order, Docket Entry 2.
Petitioner did not respond to the order; therefore, the Court
ordered Respondent to answer the petition on January 16, 2014.
Order to Answer, Docket Entry 4. The Court granted Respondents’
motion for an extension of time to file their answer due to a
delay in the referral of the matter from the Attorney General’s
Office. Respondents filed their answer to the petition on
September 12, 2014 arguing the petition should be dismissed as
unexhausted, procedurally defaulted, and meritless. Docket Entry
8. Petitioner conceded several of his claims were unexhausted in
the state courts and requested a stay and abeyance so that he
could return to the state courts to exhaust his claims. January
20, 2015 Letter, Docket Entry 11.
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas custody on behalf of a person in
state custody, pursuant to the judgment of a state court, “only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is “contrary to”
Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
“[A] state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case.”
White v. Woodall, 134 S. Ct. 1697, 1706, reh'g denied, 134 S.
Ct. 2835 (2014). The Court must presume that the state court’s
factual findings are correct unless Petitioner has rebutted the
presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
IV. ANALYSIS
Petitioner raises seven grounds for relief before this
Court:
I.
II.
The Defendant's sentence is illegal insofar as it
violates the separation of powers doctrines of both
the U.S. and N.J. Constitutions, and is wholly
repugnant to the Supremacy Clause.
The State illegally suppressed the probable cause
statement of Detective William Fields in order to
prevent Defendant from discovering the miscues and
breakdowns in the investigatory procedures which
involved the unauthenticated arrest report of James
Harper. (Issue not exhausted)
III. The PCR Court’s failure to rule upon Defendant’s
supplemental (corporation) argument constitutes an
admission under federal law.
IV.
The sentencing court should have ordered a
psychiatric evaluation before sentencing the
Defendant.
V.
Trial Counsel provided ineffective assistance of
counsel failed to introduce evidence in mitigation
that Defendant [acted] under a strong provocation.
VI.
The sentence is illegal since the No Early Release
Act is in direct conflict with the Double Jeopardy
protections afforded by the Fifth Amendment to the
U.S. Constitution. (Issue not exhausted)
VII. The sentence is illegal under Blakely v. Washington
(I.E. Due Process Clause) since the second element
of the aggravated manslaughter statute is not
defined in the code. Nor was it ever clearly defined
by the Legislature, which also renders it
unconstitutionally vague on it’s [sic] face. (Issue
not exhausted)
VII. The trial court lack subject matter jurisdiction
since the arresting officer (James Harper):
A. Failed to file an arrest report; and
B. Take
fingerprints/mugshot
of
Defendant
regarding the homicide. (Issue not exhausted)
Petition ¶ 12.
Petitioner’s § 2254 petition is governed by the AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Under AEDPA, federal habeas petitioners must exhaust state court
remedies before a federal district court may consider the merits
of a claim. “This exhaustion rule promotes ‘comity in that 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.’” Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004)
(quoting Duncan v. Walker, 533 U.S. 167, 179 (2001)).
Petitioner candidly admits several of his raised grounds
have not been exhausted in the state courts, and Respondent
argues they should be dismissed on this basis pursuant to Rose
v. Lundy, 455 U.S. 509 (1982), or as procedurally defaulted as
he cannot return to the state courts. Answer at 22-24.
Petitioner responds an illegal sentence may be challenged at any
time under New Jersey law and requests this Court stay his
petition. January 20, 2015 Letter.4
A. Stay and Abeyance
When confronted with a “mixed petition” containing
unexhausted and exhausted claims as the Court is here, a
district court may stay the matter pending state court
exhaustion “where there is a danger that dismissal will
deny a petitioner federal review” due to AEDPA’s statute of
limitations. Id. In determining whether to grant a stay,
The Court directed Respondent to respond to the stay request,
Docket Entry 13, however it failed to submit a response to the
Court’s Order. Failure to respond to future orders may result in
sanctions.
4
the Court must consider the standard as set forth in Rhines
v. Weber, 544 U.S. 269 (2005).
“[S]tay and abeyance should be available only in
limited circumstances. Because granting a stay effectively
excuses a petitioner's failure to 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.” Rhines, 544 U.S. at 2775. “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.”
Id.
Petitioner has not presented any explanation as to why
he failed to properly exhaust all of his claims. Thus,
there is nothing to support a finding of good cause for
failure to exhaust. A stay is therefore not appropriate
under Rhines. Moreover, a stay would not be warranted
because it appears the entire petition is barred by AEDPA’s
statute of limitations.5
Respondents did not raise the statute of limitations as an
affirmative defense, however “the AEDPA statute of limitations
is an important issue, the raising of which may not necessarily
be left completely to the state.” Long v. Wilson, 393 F.3d 390,
402 (3d Cir. 2004); see also Day v. McDonough, 547 U.S. 198, 209
5
B. Timeliness
AEDPA imposes a one-year period of limitation on a
petitioner seeking to challenge his state conviction and
sentence through a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). Under §
2244(d)(1), the limitation period runs from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The judgments of convictions were
entered on March 11, 2005. Judgments of Convictions, Ra 9.
Petitioner did not file a direct appeal; therefore his
convictions became final after the expiration of the period in
which he could have filed a timely appeal: April 25, 2005. See
N.J. Ct. Rule 2:4-1(a). AEDPA’s one-year statute of limitations
(2006) (“[D]istrict courts are permitted . . . to consider, sua
sponte, the timeliness of a state prisoner's habeas petition.”).
therefore expired on April 25, 2006, well before this petition
was filed in July 2013.
AEDPA also provides that “[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 shall not be counted toward any period of
limitation . . . .” 28 U.S.C. § 2244(d)(2). Petitioner, however,
cannot avail himself of statutory tolling because AEDPA’s
statute of limitations expired prior to the filing of his PCR
petition on September 12, 2008.
The statute of limitations is, however, subject to
equitable tolling. See Holland v. Florida, 560 U.S. 631, 645
(2010). “There are no bright lines in determining whether
equitable tolling is warranted in a given case. Rather, the
particular circumstances of each petitioner must be taken into
account.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011).
“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently; and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). In analyzing whether the circumstances faced by
Petitioner were extraordinary, “‘the proper inquiry is not how
unusual the circumstance alleged to warrant tolling is among the
universe of prisoners, . . . but rather how severe an obstacle
it is for the prisoner endeavoring to comply with AEDPA's
limitations period.’” Ross v. Varano, 712 F.3d 784, 802-03 (3d
Cir. 2013) (quoting Pabon, 654 F.3d at 400) (emphasis in
original). There must also be a “causal connection, or nexus,
between the extraordinary circumstances he faced and the
petitioner's failure to file a timely federal petition.” Id.
Here, nothing in the record suggests Petitioner has been
pursuing his rights diligently and that some extraordinary
circumstance stood in his way. Under these circumstances,
equitable tolling of the statute of limitations does not appear
to be warranted. “And because nothing indicates that the
interests of justice would be better served by addressing the
merits of the Petition, this Court will dismiss the Petition as
time barred.” Daley v. State of New Jersey, No. 16-23, 2016 WL
2990631, at *4 (D.N.J. May 24, 2016).
However, because the Court is raising this issue sua sponte
and after the parties’ briefs have been submitted, the Court
will administratively terminate the petition and retain
jurisdiction for 30 days as it cannot rule out the possibility
that Petitioner might have valid grounds for statutory and/or
equitable tolling, or that he may be able to argue that the
limitations period is governed by another subsection of §
2244(d). Within that timeframe, Petitioner may submit a written
statement setting forth detailed tolling arguments, or other
arguments as to why the Petition is not untimely. See Day v.
McDonough, 547 U.S. 198, 210 (2006) (before acting on timeliness
of petition, court must accord Petitioner fair notice and an
opportunity to present his position). Upon submission of
Petitioner’s arguments within the 30-day timeframe, the Court
will reopen the petition for consideration. See Daley, 2016 WL
2990631, at *4 (citing cases).
If Petitioner does not contest
that his petition was untimely, then his response should so
indicate and a final order of dismissal will be entered.
C. Certificate of Appealability
AEDPA provides that an appeal may not be taken to the court
of appeals from a final order in a § 2254 proceeding unless a
judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The United States
Supreme Court held in Slack v. McDaniel that “[w]hen 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.” 529 U.S.
473, 484 (2000).
This Court denies a certificate of appealability because
jurists of reason would not find it debatable that dismissal of
the petition as untimely is correct.
V.
CONCLUSION
For the reasons stated above, the habeas petition is
dismissed as untimely, but the Court shall retain jurisdiction
for a period of 30 days in order to afford Petitioner an
opportunity to submit a detailed, written argument as to why the
petition should not be dismissed as time-barred as of April 25,
2006. A certificate of appealability shall not issue.
An accompanying Order will be entered.
September 21, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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