DENOFA v. D'ILIO et al

Filing 17

OPINION. Signed by Judge Robert B. Kugler on 12/21/2015. (TH, )

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

INTRODUCTION

Petitioner is a state prisoner 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 and abey
these proceedings. For the following reasons, the motion to stay and abey will be denied.
II.

BACKGROUND

Petitioner was convicted of murder and is currently serving a life sentence with a thirtyyear period of parole ineligibility. After his direct appeal was ultimately unsuccessful, petitioner
filed an initial post-conviction relief (“PCR”) petition in 2007. That petition was denied by the
New Jersey Superior Court in a written opinion on November 13, 2008. Petitioner then appealed
to the Appellate Division. His appeal ultimately included a pro se brief and appendix in support
of his appeal. (See Dkt. No. 9-42) Among the issues that petitioner raised in that brief was that
trial counsel’s cumulative errors amounted to ineffective assistance of counsel. Petitioner recited
four issues that he claimed, when considered in their totality, warranted a reversal of his
conviction: (1) lack of objections to prosecutorial misconduct; (2) flawed instruction; (3) denial
of presence and public trial; and (4) trial counsel’s deception. The purported flawed instruction

charge that petitioner complained of in his pro se appellate brief related to territorial jurisdiction.
The Appellate Division affirmed the denial of petitioner’s initial PCR petition on September 19,
2012.
Petitioner then filed a petition for certification with the New Jersey Supreme Court. The
New Jersey Supreme Court denied certification on petitioner’s first PCR petition on September
10, 2013.
As petitioner’s initial PCR petition was working its way through the state courts on
appeal, he filed a motion with the Superior Court on January 26, 2011 to file a successive PCR
petition. (See Dkt. No. 9-62) In that successive PCR petition, petitioner sought to add arguments
to his cumulative error argument that had not been raised in his initial PCR petition. On June 6,
2011, the Superior Court denied the successive PCR petition without prejudice as petitioner had
his initial PCR petition pending on appeal.
Thereafter, on October 3, 2013 (or after the New Jersey Supreme Court denied
certification on his initial PCR petition), petitioner sought to reactivate his successive PCR
petition in the Superior Court. (See Dkt. No. 9-67) The New Jersey Superior Court denied the
successive PCR petition on February 11, 2014. (See Dkt. No. 9-72) Petitioner has appealed that
denial to the Appellate Division. (See Dkt. No. 57)
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 (“Claim I”).
2. Petitioner’s trial counsel was cumulatively ineffective resulting in prejudice (“Claim II”).

2

3. Petitioner’s appellate attorney was prejudicially ineffective during direct review (“Claim
III”).
4. Petitioner’s post-conviction relief (“PCR”) attorney was prejudicially ineffective to
research, investigate, advance and support numerous claims petitioner had insisted be
advanced (“Claim IV”).
Most relevant to this Opinion, petitioner states with respect to Claims II, III and IV that he
“relies on the pro-se brief filed on appeal of the initial PCR application, and on the forthcoming
memorandum of law.” (Dkt. No. 1 (emphasis added)) Petitioner did not submit a memorandum
of law.
Respondents answered the petition. Subsequently, petitioner filed his first motion to stay
and abey. That motion to stay was denied on January 14, 2015. Thereafter, petitioner sought an
extension of time to file a reply brief which was granted. However, rather than file a reply brief
within the newly extended time allotted, petitioner filed another motion to stay in March, 2015.
That motion is currently pending before this Court. Petitioner seeks a motion to stay as his
successive PCR petition is still pending in the state courts.
III.

DISCUSSION

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,

3

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 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
1

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.
4

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
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).
Petitioner argues as follows in his motion to stay:
The ultimate question is whether or not petitioner has a likelihood
of success on the merits of the issues he is asking to exhaust. The
merits of this case cannot be separated into only the merit of each
issue that has not been exhausted, as petitioner is claiming
cumulative error. Every small issue becomes a part of the greater
claim, so each issue presented has the potential impact of a series
of individually harmless errors becoming cumulatively prejudicial.
For that reason, it is enough for the court to know that several
issues listed as examples in the successive PCR filings are
contributors to the complete picture being painted in these
proceedings.

28 U.S.C. § 2244(d).
5

Additionally, a significant issue was presented to the Law Division
on petitioner’s second PCR several times when he provided
examples of issues that he wanted to raise before a ruling was
made, but the issue was ignored. That issue deals with trial and
appellate counsel being ineffective regarding the jury not being
given a charge for preventing apprehension, or some other lesserincluded offense that would allow for a not-guilty verdict on
murder, but a conviction for another offense regarding the victim’s
corpse being dropped off in New Jersey. Petitioner insisted that
PCR counsel advance this issue and claim that trial counsel should
have objected to the charge not being given, and appellate counsel
should have raised the issue under plain error on direct review.
Petitioner has presented letters proving that he asked PCR counsel
to advance these claims, so he cannot be procedurally barred, and
there is a high likelihood of success on the those issues/grounds.
(Dkt. No. 16 at p. 8-9)
After petitioner filed his federal habeas petition, this Court provided him with the
required Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000) notice. That notice afforded petitioner
two options: (1) petitioner could proceed with his habeas petition “as-is”; or (2) he could
withdraw his habeas petition and file one complete petition that raised all of his claims in an
amended petition. By not responding to the Mason notice, petitioner chose to proceed with his
habeas petition “as-is.”
Petitioner based his claims in his federal habeas petition on his claims that he made in his
initial PCR petition. However, in his motion to stay, petitioner now seeks to stay and abey this
action so that he can fully exhaust claims raised in his successive state PCR petition.
Accordingly, petitioner is effectively seeking to stay and abey these proceedings on claims he
failed to include in his federal habeas petition. Thus, even if this Court would stay and abey these
proceedings, it would not preserve petitioner’s ability to preserve the claims he is seeking to
exhaust in his successive PCR petition in state court because they were not raised in the
operative habeas petition presently pending before this Court and answered by respondents.

6

Additionally, the only “good cause” basis that petitioner gives for staying this action
relates to a purported claim that counsel should have requested a preventing apprehension jury
charge or lesser-included offenses. Indeed, petitioner claims that he insisted that PCR counsel
should have advanced these issues. Ineffective assistance of PCR counsel may constitute “good
cause” to warrant staying the proceedings under Rhines. See Swan v. Coupe, 967 F. Supp. 2d
1008, 1012 (D. Del. 2013). However, upon examining petitioner’s successive PCR briefs (see
Dkt. Nos. 62 & 63) filed in the Superior Court, this Court cannot find any indication that
petitioner in fact raised this issues as claims in his successive PCR petition that has formed the
basis of this motion to stay. (See id.)
As to the other specific issue presented in his motion to stay, cumulative error, petitioner
gives no indication in his motion to stay what “good cause” prevented him from raising a larger
cumulative error claim in his initial PCR petition that would have included not just the errors
raised in the initial PCR petition, but also the errors raised in his successive PCR petition. It is
worth noting that while petitioner raised a cumulative error claim in his first PCR petition and in
his federal habeas petition, by seeking to add purported errors to that claim through arguments
raised in his successive PCR petition, it constitutes a new claim because the Court would have to
consider additional arguments and claims when making a cumulative error analysis.
Accordingly, this Court finds that a stay is not warranted at this time. As the stay motion
will be denied, the Court will analyze petitioner’s pending federal habeas petition in due course.

7

IV.

CONCLUSION

For the foregoing reasons, petitioner’s motion to stay will be denied. An appropriate
order will be entered.
DATED: December 21, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

8