AMODIO v. WARREN
Filing
6
OPINION FILED. Signed by Judge Noel L. Hillman on 2/11/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
DAVID AMODIO,
:
:
Petitioner,
:
Civ. No. 13-4355 (NLH)
:
v.
:
OPINION
:
CHARLES E. WARREN, JR.,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
David Amodio, # 242285-B
New Jersey State Prison
P.O. BOX 861
Trenton, NJ 08625
Petitioner, Pro se
HILLMAN, District Judge
Petitioner David Amodio, 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 New Jersey
state court conviction. (ECF No. 1).
This matter is presently
before the Court for consideration of Petitioner’s Amended
Petition (ECF No. 4), which includes a request for a stay and
abeyance of these proceedings so that Petitioner can exhaust
certain challenges to his conviction in state court.
For the
reasons set forth below, Petitioner’s request for a stay will be
DENIED and Petitioner is directed to respond to the Court within
45 days as to how he wishes to proceed in this matter.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As summarized by the state appellate court:
Defendant was charged with first-degree murder of
Kollin Pimental (Kollin), N.J.S.A. 2C:11–3(a)(1) or
(2) (count one); first-degree murder of Lisa Pimental
(Lisa), N.J.S.A. 2C:11–3(a)(1) or (2) (count two);
first-degree felony murder of Kollin, N.J.S.A. 2C:11–
3(a)(3) (count three); first-degree felony murder of
Lisa, N.J.S.A. 2C:11–3(a)(3) (count four); firstdegree aggravated arson, N.J.S.A. 2C:17–1(a)(1) (count
five); third-degree hindering his own apprehension or
prosecution, N.J.S.A. 2C:29–3(b)(1) (count six); and
fourth-degree contempt of a domestic violence
restraining order, N.J.S.A. 2C:29–9(b) (count seven).
. . .
The jury found defendant not guilty of the murder of
Kollin as charged in count one, but found him guilty
of the lesser-included offense of first-degree
aggravated manslaughter. The jury found defendant not
guilty of the murder of Lisa, as charged in count two,
but found him guilty of second-degree
passion/provocation manslaughter.
The jury additionally found defendant guilty of firstdegree felony murder of Kollin, as charged in count
three; not guilty of felony murder of Lisa, as charged
in count four; not guilty of first-degree arson, as
charged in count five, but guilty of the lesserincluded offense of third-degree arson; guilty of
hindering his own apprehension or prosecution, as
charged in count six; and guilty of contempt, as
charged in count seven.
At sentencing, the trial court merged counts one and
five with count three, and sentenced defendant to life
imprisonment on count three, with a thirty-year period
of parole ineligibility. The court imposed a
consecutive term of ten years on count two, with a
period of parole ineligibility as prescribed by the No
Early Release Act (NERA), N.J.S.A. 2C:43–7.2. The
court also imposed concurrent terms of four years on
count six and nine months on count seven.
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State v. Amodio, No. A-4350-10T1, 2012 WL 5381769, at *1, 2
(N.J. Super. Ct. App. Div. Nov. 5, 2012).
Petitioner appealed his conviction.
The state appellate
court affirmed in part, reversed in part, and remanded for resentencing on count two. State v. Amodio, 390 N.J. Super. 313,
915 A.2d 569 (App. Div. 2007).
The Supreme Court of New Jersey
denied Petitioner’s petition for certification. State v. Amodio,
192 N.J. 477, 932 A.2d 28 (2007).
Petitioner then filed his first petition for PostConviction Relief (“PCR”), which was denied on November 12,
2010.
Petitioner appealed the PCR court’s decision and, on
November 5, 2012, the state appellate court affirmed the PCR
court’s denial of Petitioner’s claims. State v. Amodio, No. A4350-10T1, 2012 WL 5381769, at *6 (N.J. Super. Ct. App. Div.
Nov. 5, 2012).
The New Jersey Supreme Court denied his petition
for certification. State v. Amodio, 213 N.J. 538, 65 A.3d 263
(2013).
Shortly thereafter, on or about July 18, 2013, Petitioner
filed the instant petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. (ECF No. 1).
On September 30, 2013, this case
was administratively terminated due to Petitioner’s failure to
satisfy the filing fee requirement. (ECF No. 3).
In the Court’s
September 30, 2013 Opinion, the Court noted that Petitioner had
not filed a true petition for writ of habeas corpus, but had
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only filed a request for a stay.
After a thorough analysis the
Court denied Petitioner’s request for a stay, and informed
Petitioner that if he sought to reopen this matter, he would be
required to submit a petition for writ of habeas corpus in order
to invoke the jurisdiction of this Court. (ECF No. 2).
To the
extent he sought a stay, the Court informed Petitioner that he
must explain how a stay was appropriate under Rhines v. Weber,
544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005).
On or about November 25, 2013, Petitioner filed an Amended
Petition and paid the required filing fee. (ECF No. 4).
The
case was reopened for review by a judicial officer. (ECF No. 5).
In addition to submitting an Amended Petition, Petitioner again
requests a stay of these proceedings so that he can return to
state court and exhaust a final claim.
II.
REQUEST FOR STAY
In his federal habeas petition, Petitioner asserts thirteen
grounds for relief.
Petitioner concedes that his final ground
for relief, Ground Thirteen, is unexhausted and he explains that
it “has not been presented to the highest state court because
they have [sic] just been discovered.” (Am. Pet. 28, ECF No. 4).
As Petitioner states that the remaining grounds are exhausted,
this makes his petition a “mixed petition” and, therefore,
subject to dismissal, as discussed in more detail below.
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In his argument in support of his request for a stay (Am.
Pet. 9-14, ECF No. 4), Petitioner cites a substantial amount of
relevant case law.
With regard to his unexhausted claim,
however, Petitioner provides only the following information:
Petitioner has Newly discovered Evidence, evidence
that where [sic] discovered after all the appeal were
in and ruled up. (See also Habeas Corpus Petition, and
Appendix) This unexh[a]usted issues that were not
raised by none of petitioner’s counsel through out all
his proceedings, with the help of a paralegal here at
the prison, and petitioner pouring over the trial
transcripts, and doing research only ten was
petitioner able to discover these unexh[a]usted
issues. And petitioner was denied a[n] evidentiary
hearing in state court in which petitioner’s exhausted
issues w[ere] clearly related to issues that w[ere]
off the record concerning trial and appellant counsel.
Petitioner also submits that assigned PCR counsel
failed to raise most of his issues, and did not
communicate with Petitioner concerning the
unexh[a]usted issues. The trial court and the state
failed to address some of petitioner’s issues that
were presented, therefore denying petitioner a fair
hearing on the merits and denying petitioner an
evidentiary hearing. Petitioner’s unexh[a]usted
issues in part are dealing with Newly Discovered
Evidence, dealing with Arson Investigations and the
new science.
(Am. Pet. 13-14, ECF No. 4).
Petitioner attaches the same two documents to his current
request for a stay (Am. Pet. 17-18, Appendix, ECF No. 4) as were
attached to his previous request (Pet. 11-12, Appendix, ECF No.
1).
Specifically, Petitioner’s Appendix consists of a copy of
an newspaper article describing how defense attorneys around the
country “are using advances in the science of fire investigation
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to challenge arson convictions,” (Am. Pet. 17-18, Appendix, New
science being used to fight convictions, The Trentonian, Feb. 1,
2012, ECF No. 4), and a copy of a letter to Petitioner from his
counsel, dated March 30, 2012, referring to the same newspaper
article, and advising Petitioner that he may wish to pursue the
issue regarding new science in arson determinations through a
motion for new trial, based on newly discovered evidence, after
the conclusion of his direct appeal from the denial of postconviction relief.
III. DISCUSSION
A. Motion for 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
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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
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.
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Though “[f]ew courts have provided guidance as to what
constitutes ‘good cause’ for failing to exhaust a claim in state
court within the meaning of Rhines,” the Third Circuit
emphasizes “the need to be mindful of Justice Stevens's
concurrence in Rhines, which cautions that ... [the requirement]
is not intended to impose the sort of strict and inflexible
requirement that would ‘trap the unwary pro se prisoner[.]’”
Locust v. Ricci, No. 08–2713, 2010 WL 1463190, at *10 (D.N.J.
Apr. 12, 2010) (quoting Ellison v. Rogers, 484 F.3d 658, 662 (3d
Cir. 2007) (citations omitted)).
2. Analysis
In this case, Petitioner has properly invoked this Court’s
jurisdiction, and cured the jurisdictional deficiency noted in
the September 30, 2013 Opinion, by filing his Amended Petition
pursuant to 28 U.S.C. § 2254.
Petitioner concedes that Ground
Thirteen remains unexhausted and, thus, the Court is presented
with a mixed petition.
Petitioner seeks a stay so that he can return to state
court and exhaust his additional claim, Ground Thirteen, which
Petitioner describes as “Newly Discovered Evidence.” (Am. Pet.
13, 28, ECF No. 4).
However, Petitioner does not indicate with
any specificity what this newly discovered evidence consists of,
and instead states that it “deal[s] with Arson Investigations
and the new science.” (Am. Pet. 14, ECF No. 4).
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Presumably,
Petitioner believes that the newspaper article in the referenced
Appendix of his submission also supports his request for a stay.
Because Petitioner fails to provide any details — aside
from the newspaper article — as to the substance or content of
this alleged new evidence, and because Petitioner fails to offer
any specific information as to how this new evidence would have
affected his case, Petitioner has failed to demonstrate that
this claim has potential merit. Rhines, 544 U.S. at 277–78.
Further, the Court notes that in his argument in support of
his request for a stay, Petitioner appears to assert a claim for
ineffective assistance of PCR counsel. (Am. Pet. 14, ECF No. 4)
(“Petitioner also submits that assigned PCR counsel failed to
raise most of his issues, and did not communicate with
Petitioner concerning the unexh[a]usted issues.”).
To the
extent Petitioner seeks a stay so that he can also exhaust this
particular claim in state court, this Court finds that this
claim is without merit.
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 postconviction 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
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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).
For the foregoing reasons, Petitioner’s Request for a Stay
will be DENIED.
B. Mixed Petition
When faced with a petition, such as the Petition presently
before the Court, which contains both exhausted and unexhausted
claims, a district court has four options: (1) stay the petition
pending the outcome of state proceedings; (2) allow the
petitioner to delete the unexhausted claims and proceed on the
exhausted claims; (3) dismiss the petition without prejudice as
unexhausted; or (4) deny the unexhausted claims on the merits
under 28 U.S.C. 2254(b)(2). See Rhines, 544 U.S. at 277–78;
McLaughlin v. Shannon, 454 F. App'x 83, 86 (3d Cir. 2011);
Mahoney v. Bostel, 366 F. App'x 368 371 (3d Cir. 2010); Urcinoli
v. Cathel, 546 F.3d 269, 276 (3d Cir. 2008).
As discussed above, the first option — stay and abeyance —
is not appropriate in this case because Petitioner has failed to
provide any details regarding his new claim and, thus, has
failed to demonstrate how or why his unexhausted claim has
potential merit.
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The fourth option — denying the unexhausted claims on the
merits — is likewise not appropriate in this case.
Denial of an
unexhausted claim is proper only if the claim is plainly without
merit. See Rhines, 544 U.S. at 277; Carracosa v. McGuire, 520
F.3d 249, 255 n. 10 (3d Cir. 2008) (citing Lambert v. Blackwell,
387 F.3d 210, 260 n. 42 (3d Cir. 2004) (holding that denial of
an unexhausted claim on the merits is consistent with the
statute).
Without knowing the contours of Petitioner’s new
claim, this Court is not prepared to hold that it is plainly
without merit at this early stage. See, e.g., Ragland v. Barnes,
No. 14-7294, 2015 WL 1035428, at *3 (D.N.J. Mar. 10, 2015)
(declining to deny unexhausted claim as an option for dealing
with mixed petition); Smith v. Conway, No. 10-1097, 2014 WL
1050551, at *9 (D.N.J. Mar. 17, 2014) (same).
The third option — dismissing the petition without
prejudice as unexhausted — is undesirable.
It is unclear from
Petitioner’s submission whether he has presented this new claim
to the state court and whether it has been deemed properly
filed.1
This is significant because pursuant to New Jersey Court
Rule 3:22–12(a)(1), except in certain limited circumstances, a
PCR petition must be filed no later than five years after entry
1
The Amended Petition indicates only that Ground Thirteen has
“not been presented to the highest state court[.]” (Am. Pet. 28,
ECF No. 4).
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of the judgment of conviction.
In this case, the judgment of
conviction was entered in 2004.
Thus, as of the date of the
filing of the Amended Petition, Petitioner was beyond the fiveyear statute of limitations for the filing of a state PCR
petition.
Unless the circumstances of this case fit under one
of the limited exceptions to this time constraint, any futurefiled PCR petition will be time-barred.
Accordingly, if the instant Amended Petition is dismissed
for lack of exhaustion and then Petitioner’s state PCR petition
is dismissed as improperly filed, the AEDPA statute of
limitations will not be tolled during the pendency of a state
PCR petition, and a new federal habeas petition may be timebarred. See Morris v. Horn, 187 F.3d 333 (3d Cir. 1999) (holding
that a State collateral relief petition will only operate to
toll one-year statute of limitations on federal habeas corpus
petition under AEDPA if it is “properly filed,” and submitted
according to the state's procedural requirements).
In other
words, if the instant Amended Petition is dismissed without a
stay and abeyance, Petitioner may be precluded by the statute of
limitations from returning to federal court for habeas relief.
Therefore, under the circumstances of this case, the second
option — allowing Petitioner to delete the unexhausted claims
and proceed on the exhausted claims — is a viable course of
action. See Reeves v. Holmes, No. 11-5700, 2014 WL 2196491, at
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*4 (D.N.J. May 27, 2014) (“[I]f a petitioner presents a district
court with a mixed petition and the court determines that stay
and abeyance is inappropriate, the court should allow the
petitioner to delete the unexhausted claims and to proceed with
the exhausted claims if dismissal of the entire petition would
unreasonably impair the petitioner's right to obtain federal
relief.”) (citing Rhines, 544 U.S. at 277-78).
Accordingly, Petitioner shall notify the Court within 45
days as to whether he wishes to delete the unexhausted claim —
Ground Thirteen — and proceed before this Court in the instant
Amended Petition on the exhausted claims.
In the alternative,
Petitioner may inform the Court that he wishes to have the
Petition dismissed without prejudice as unexhausted.
Petitioner
can then file a new federal habeas petition at the conclusion of
his state PCR proceedings after he has exhausted all claims.
Petitioner is on notice, however, that it is possible that
the one-year AEDPA statute of limitations period will have
expired by the time all appeals of his PCR petition are
completed.2
As a result, Petitioner could be forever foreclosed
from seeking federal habeas relief.
2
Pursuant to § 2244(d), evaluation of the timeliness of a §
2254 petition requires a determination of, first, when the
pertinent judgment became “final,” and, second, the period of
time during which an application for state post-conviction
relief was “properly filed” and “pending.” A properly filed PCR
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If no response is received from Petitioner within 45 days,
the Petition will be ruled upon as filed.
IV.
CONCLUSION
For the foregoing reasons, Petitioner’s Request for a Stay
is DENIED.
Petitioner is directed to notify the Court, in
application will statutorily toll the AEDPA limitations period.
See 28 U.S.C. § 2244(d)(2).
As set forth above, Petitioner in this case appealed his
conviction and, after the appellate court affirmed, he filed a
petition for certification to the New Jersey Supreme Court,
which was denied. Petitioner then filed a timely petition for
PCR. Accordingly, the AEDPA limitations period was tolled
during the pendency of his PCR proceedings. See 28 U.S.C. §
2244(d)(2). The trial court denied his PCR petition and the
appellate court affirmed this decision. The New Jersey Supreme
Court denied certification on May 15, 2013. State v. Amodio, 213
N.J. 538, 65 A.3d 263 (2013). Using this date, the one-year
statute of limitations period began to run on May 15, 2013 and,
absent any reason for tolling, would have expired on May 16,
2014. See Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 150
L. Ed. 2d 251 (2001) (Application for federal habeas corpus
review is not “application for State post-conviction or other
collateral review,” within meaning of tolling provision of the
Antiterrorism and Effective Death Penalty Act (AEDPA); thus,
time for filing federal habeas petition was not tolled during
pendency of petitioner's first federal habeas petition).
Therefore, if Petitioner did not file a new state PCR
petition prior to May 16, 2014, then the one-year AEDPA statute
of limitations has already expired. The Court notes that if
Petitioner did file his state PCR petition prior to May 16,
2014, and if that PCR petition is deemed properly filed, it will
again toll the statute of limitations, see 28 U.S.C. §
2244(d)(2). However, if it is not deemed properly filed, it
will not toll the statute of limitations, and any future filed
federal habeas petition will be untimely as beyond the one-year
AEDPA limitations period. At this juncture, however, the Court
declines to make any findings with respect to the timeliness of
the petition.
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writing, within 45 days as to how he wishes to proceed in this
matter.
An appropriate Order will be entered.
__s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: February 11, 2016
At Camden, New Jersey
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