DENOFA v. D'ILIO et al

Filing 12

OPINION. Signed by Judge Robert B. Kugler on 1/13/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JOHN DENOFA,
:
:
Petitioner,
:
Civ. No. 13-7830 (RBK)
:
v.
:
OPINION
:
STEPHEN D’ILIO, et al.,
:
:
Respondents.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Presently pending before the Court is petitioner’s motion to stay
these proceedings so that he can exhaust his claims that post-conviction relief (“PCR”) counsel
was ineffective and his motion for the state to complete the record. For the following reasons,
both motions will be denied.
II.

BACKGROUND

Petitioner was convicted of murder and is currently serving a life sentence with a thirtyyear period of parole ineligibility. Petitioner filed the instant federal habeas petition in
December, 2013. The habeas petition raises four claims; specifically:
1. Petitioner was deprived of his right to a fair trial when the law division neglected to
provide adequate jury instructions.
2. Petitioner’s trial counsel was cumulatively ineffective resulting in prejudice.
3. Petitioner’s appellate attorney was prejudicially ineffective during direct review.

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4. Petitioner’s PCR attorney was prejudicially ineffective for neglecting to research,
investigate, advance and support numerous claims petitioner had insisted be advanced.
Respondent has filed an answer in response to the habeas petition. Among the issues
raised in the answer was that petitioner failed to exhaust some of his federal habeas claims.
Subsequently, petitioner filed a motion to stay the proceedings so that he could exhaust his
claim(s) that PCR counsel was ineffective. Additionally, petitioner filed a motion to have the
respondent supplement the record. He claims that two letters between him and the PCR judge
from October, 2013 as well as a letter from the PCR judge to the Camden County Prosecutor
demonstrate his attempts to have his claims exhausted in the state courts and give a fuller
understanding of the claims presented.
III.

DISCUSSION

A. Motion to Stay and Abey
A state prisoner applying for a writ of habeas corpus under § 2254 in federal court must
first “exhaust[ ] the remedies available in the courts of the State,” unless “(i) there is an absence
of available State corrective process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1); see also Rose v.
Lundy, 455 U.S. 509, 515 (1982). 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 relief proceedings. See, e.g., O’Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999) (announcing the rule “requiring state prisoners to file
petitions for discretionary review when that review is part of the ordinary appellate review
procedure in the State”); see also 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

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section, if he has the right under the law of the State to raise, by any available procedure, the
question presented.”).
Recognizing the complexities that face prisoners who must exhaust state remedies while
complying with the one-year statute of limitations period for § 2254 habeas petitions as set out in
§ 2244(d)(1) 1, the United States Court of Appeals for the Third Circuit has held that “[s]taying a
habeas petition pending exhaustion of state remedies is a permissible way to avoid barring from
federal court a petition who timely files a mixed petition [containing both exhausted and
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Section 2244(d) states as follows:
(1) 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. The limitation period shall run from the
latest of –
(A) the date on which the judgment became final by
the conclusion of direct review of the expiration
of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by the State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing 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.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.

28 U.S.C. § 2244(d).
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unexhausted claims].” Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). Indeed, the Third
Circuit has stated that “when an outright dismissal could jeopardize the timeliness of a collateral
attack, a stay is the only appropriate course of action.” Id. at 154. Since Crews, the United
States Supreme Court has explained when a stay should be issued; specifically:
stay 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 that 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. . . .
[I]t likely would be an abuse of discretion for a district court to
deny a stay and to dismiss a mixed petition if the petitioner had
good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
As stated above, petitioner seeks a stay and abeyance of these federal habeas proceedings
so that he can exhaust his claims that PCR counsel was ineffective. However, petitioner’s
request for a stay so that he can exhaust his claim(s) that PCR counsel was ineffective will be
denied as the claim is meritless on its face as it is not a cognizable claim under § 2254. See 28
U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.”); see also Poole v. New Jersey, No. 09-1923, 2010 WL 2952118, at *11
(D.N.J. July 21, 2010) (“Petitioner’s claim regarding ineffective assistance of counsel by PCR
counsel is not cognizable in a habeas claim.”) (citation omitted).

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B. Motion to Complete the Record
Petitioner has also filed a motion for respondent to complete the record. Respondent
argues in part in answering the habeas petition that some of petitioner’s claims are unexhausted.
In his motion, petitioner requests that the respondent complete the record with two letters
between him and the PCR judge from October, 2013, as well as a November, 2013 letter
between the PCR judge and the Camden County Prosecutor. He states that these documents
indicate his attempts to exhaust.
The Court does not see the need at this stage of the proceedings to have the respondent
supplement the record. Petitioner can presumably attach any documents to any reply/traverse he
may elect to file in responding to respondent’s lack of exhaustion assertions. Furthermore,
petitioner does not indicate how these purported documents show that he has exhausted his
claims. Indeed, exhaustion requires petitioner to raise his claims before all three levels of the
New Jersey state courts, not just before the New Jersey Superior Court. See Jimenez v. Riordan,
No. 14-4349, 2014 WL 4244226, at *2 (D.N.J. Aug. 26, 2014) (“The proper procedure for
Petitioner is to exhaust his constitutional claims before all three levels of the New Jersey courts
and, if he is unsuccessful, to thereafter present them to this Court in a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.”) (citing Moore v. DeYoung, 515 F.2d 437, 449 (3d
Cir. 1975)). Therefore, at this stage of the proceedings, the Court will deny petitioner’s motion
to complete the record without prejudice.
Petitioner has also requested an extension of time to file a traverse/reply to his habeas
petition. Given the fact that the motion to stay and motion to complete the record are being
denied through this Opinion and accompanying Order, the Court will give petitioner thirty days

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from the date of this Opinion and accompanying Order in which to file a traverse/reply to his
habeas petition.
IV.

CONCLUSION

For the foregoing reasons, petitioner’s motion to stay will be denied and his motion for
respondent to complete the record will be denied without prejudice. Petitioner shall be given
thirty days in which to file his traverse/reply to his federal habeas petition.

DATED: January 13, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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