ARTWELL v. D'ILLO et al
Filing
15
OPINION. Signed by Judge Noel L. Hillman on 4/29/2016. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHERMAN ARTWELL,
Civil No. 14-0386 (NLH)
Petitioner,
v.
OPINION
STEPHEN D’ILIO, et al.,
Respondents.
APPEARANCES:
SHERMAN ARTWELL, #428620B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Pro Se Petitioner
LINDA A. SHASHOUA, Assistant Prosecutor
MARY EVA COLALILLO, CAMDEN COUNTY PROSECUTOR
25 North Fifth Street
Camden, NJ 08102
Attorneys for Respondents
HILLMAN, District Judge:
Sherman Artwell filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction filed
in the Superior Court of New Jersey, Camden County, on August 4,
2006, imposing a sentence of life in prison plus five years.
State filed an Answer and the record.
The
After carefully reviewing
the arguments of the parties and the state court record, this Court
will dismiss the Petition without prejudice and deny a certificate
of appealability.
I.
A.
BACKGROUND
The Crime
Zoranda (“Randy”) Paulson was involved in relationships with
Artwell and the victim, Ronald Jackson.
About a week before
Jackson’s death on August 11 or 12, 2002, Paulson informed Artwell
and Jonathan Martin, Paulson’s cousin, that Jackson had raped and
beaten her; the three decided that Jackson should be “choked out”
and set on fire.
State v. Artwell, 2013 WL 68722 (N.J. Super. Ct.,
App. Div., Jan. 8, 2013).
On August 11, 2002, Artwell, Martin, and
Paulson were at Paulson’s house when Jackson arrived.
After Martin
left, an altercation between Jackson and Artwell occurred.
Jackson
raised his arms as if he were going to stab Artwell with a pen and
Artwell held Jackson in a chokehold until he was knocked out but
alive.
Artwell and Paulson put duct tape around Jackson’s legs and
hands and over his mouth and nose, cleaned his fingernails to
remove evidence that might link him to Artwell, and placed Jackson,
still breathing, into the basement.
Paulson drove Artwell home.
Paulson checked on Jackson when she put her children to bed,
determined that he was still breathing, and put more duct tape on
his face from his nose to his eyebrows.
After that,
[Artwell] called Paulson, and she told him that Jackson
was still breathing. [Artwell] told her that she and
Martin had to get Jackson out of there. Later, she
called [Artwell] and told him Jackson had stopped
breathing. [Artwell] directed her to put Jackson in the
car and burn him because it was warm and his body would
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smell. [Artwell] then called Martin and asked him to
help Paulson. Martin complied. They wrapped Jackson in
a sheet and moved him from the basement to the front
door. Martin also thought Jackson was dead because his
body was cold and stiff. Martin and Paulson left Jackson
inside and near the front door while they went to get
lighter fluid and enough gas to start a fire. They then
put Jackson on the floor of Jackson's car between the
front and back seats and drove to an abandoned lot where
they set the car afire and fled. Upon returning to
Paulson's house, they called [Artwell].
State v. Artwell, 2013 WL 68722 at *2 (N.J. Super. Ct., App. Div.,
Jan. 8, 2013).
B.
The State Court Proceedings
On June 18, 2003, a grand jury sitting in the Superior Court
of New Jersey, Law Division, Camden County, indicted Artwell,
Jonathan Martin, and Paulson for the first-degree murder of Ronald
Jackson on August 11 or 12, 2002, felony murder, aggravated arson,
conspiracy, and hindering apprehension or prosecution.
Paulson and
Martin testified against Artwell at his trial which began on May
31, 2006.1
Other evidence included Artwell’s two taped statements
to police and the testimony of Dr. Ian Hood, a forensic pathologist
who testified that Jackson was alive at the time of the fire and
that the primary cause of death was inhalation of smoke and soot
1
Martin pled guilty to second-degree reckless manslaughter and
third-degree hindering apprehension or prosecution and received an
aggregate seven-year term of imprisonment. Paulson pled guilty to
aggravated manslaughter.
3
and thermal burns.
Trial continued over five days.
The jury
returned a verdict on June 8, 2006, after two and one-half hours of
deliberation, finding Artwell not guilty of first-degree murder or
conspiracy to commit murder, and guilty of the lesser included
offense of aggravated manslaughter and the remaining charges.
On August 4, 2006, the trial judge sentenced Artwell to life
in prison, subject to an 85% period of parole ineligibility, and a
consecutive five-year term, with 2.5 years of parole ineligibility.
Artwell appealed, and on March 31, 2009, the Appellate Division
affirmed. See State v. Artwell, 2009 WL 816628 (N.J. Super. Ct.,
App. Div., Mar. 31, 2009).
The New Jersey Supreme Court denied
certification on May 21, 2009.
See State v. Artwell, 199 N.J. 518
(2009) (table).
Artwell filed his pro se petition for post-conviction relief
in the trial court on April 27, 2010.
The trial judge denied it on
December 3, 2010, after hearing oral argument and Artwell’s
testimony.
Artwell appealed, and on January 8, 2013, the Appellate
Division affirmed the order denying post-conviction relief.
See
State v. Artwell, 2013 WL 68722 (N.J. Super. Ct., App. Div., Jan.
8, 2013).
The New Jersey Supreme Court denied certification on
June 28, 2013.
See State v. Artwell, 214 N.J. 119 (2013)(table).
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C.
Procedural History of § 2254 Petition
Artwell signed his § 2254 Petition on January 9, 2014.
Clerk received it on January 21, 2014.2
The
The Petition raises the
following grounds for relief:
Ground One:
DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL.
Factual Support: Counsel merely “touched” on grounds
that were contradictory and never fully sought out
explanation to those questionable actions. Counsel never
effectively emphasized the conflicting testimony of
State’s witness and witness’ statements. Counsel failed
to follow through with the importance of discrepancy in
the time line of the taped and non-tape[d] line of
questioning.
Ground Two: CONVICTION OBTAINED BY A VIOLATION OF THE
PRIVILEGE OF SELF-INCRIMINATION.
Factual Support: Detectives use[d] the fact that I had
not been to sleep for days to get me to believe that I
could help co-defendant Paulson if I gave a statement
“more consistent” with what they had gotten from her.
They persuaded her to say that I had come up with the
decision to “get rid of” the victim. Paulson’s last
statement (tape) verifies that fact.
Ground Three:
CONFESSION.
CONVICTION OBTAINED BY USE OF COERCED
2
The Court notified Artwell of his right to amend the Petition to
include all available federal claims in accordance with Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000), and in response to Artwell’s
letter expressing his intent to “seek a hold” on the Petition in
order to seek a second post-conviction relief hearing, the Court
explained the statute of limitations, the exhaustion doctrine, and
the standard for granting a stay under Rhines v. Weber, 544 U.S.
269, 277-78 (2005). (ECF Nos. 4, 5.) Artwell did not thereafter
seek a stay or file an amended § 2254 petition.
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Factual Support: My incriminating statement was a result
of lack of sleep and my desire to help Paulson (without
full knowledge of what actually happened.) The
discrepancy in non-taped and taped interrogations r[]ises
to the level of being indicative of such a conclusion.
(Petition, ECF No. 1 at 4-5.)
The State filed an Answer arguing that Artwell failed to
exhaust his claims, that he procedurally defaulted his claims, and
that he is not entitled to habeas relief on the merits of his
claims.
(ECF No. 13.)
II.
A.
DISCUSSION
Failure to Exhaust
The State argues that dismissal of the three grounds raised in
the Petition is warranted under 28 U.S.C. § 2254(b)(1) because
Artwell failed to exhaust any of his grounds in the New Jersey
courts.
Prior to reviewing the merits of federal claims in a § 2254
petition, a district court is required to consider the issue of
exhaustion.
See Rhines v. Weber, 544 U.S. 269 (2005); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); 28 U.S.C. §
2254(b)(1)(A), (b)(1)(B).
Section 2254(b) provides that a writ
“shall not be granted” unless (1) “the applicant has exhausted the
remedies available in the courts of the State,” or (2) “there is an
absence of available State corrective process,” or (3)
“circumstances exist that render such process ineffective to
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protect the rights of the applicant.”
28 U.S.C. § 2254(b)(1)(A),
(b)(1)(B); see also Henderson v. Frank, 155 F.3d 159, 164 (3d Cir.
1998); Lambert, 134 F.3d at 513; Toulson v. Beyer, 987 F.2d 984,
987-89 (3d Cir. 1993).
Section 2254(c) further provides that “[a]n
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.”
2254(c).
28 U.S.C. §
“Thus, . . . if the petitioner fails to satisfy the
exhaustion requirement prior to filing a federal habeas petition
and none of the exceptions apply, the federal court is precluded
from granting habeas relief to the petitioner.”
Lambert, 134 F.3d
at 513-14.
To satisfy the exhaustion requirement, “state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s
established appellate review process,” including a petition for
discretionary review before the State’s highest court.
O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999); see also Baldwin v. Reese,
541 U.S. 27, 29 (2004).
To exhaust a ground, a petitioner in the
custody of the State of New Jersey must fairly present it as a
federal ground to the Superior Court of New Jersey, Law and
Appellate Divisions, and to the New Jersey Supreme Court.
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See
Toulson, 987 F.2d at 987-89.
“Fair presentation means that a
petitioner must present a federal claim’s factual and legal
substance to the state courts in a manner that puts them on notice
that a federal claim is being asserted.” Rainey v. Varner, 603 F.
3d 189, 198 (3d Cir. 2010) (citations and internal quotation marks
omitted).
In his Petition, Artwell asserts that the admission of his
statement violated his Fifth Amendment right not to incriminate
himself (Ground Two), the statement was coerced (Ground Three) and
trial counsel was constitutionally deficient in failing to fully
seek out contradictory grounds and questionable actions, failing to
emphasize the conflicting testimony of the government’s witnesses
and their statements, and failing to follow through on
discrepancies in the time line of the taped and non-taped lines of
questioning (Ground One).
Artwell did not raise any of these
claims on direct appeal.3
Although Artwell argued on appeal from
the order denying post-conviction relief that counsel was
constitutionally ineffective, the only deficiency that he raised
was counsel’s failure to investigate adequately and to call as a
3
On direct appeal, Artwell argued: (1) the failure to instruct the
jury on passion/provocation manslaughter was reversible error; (2)
the jury charge was incomplete in violation of due process; and (3)
the sentence was excessive. See State v. Artwell, 2009 WL 816628
at *4.
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witness Dr. Adams, an expert who had provided a report indicating
that Jackson was dead before the fire started.4
Thus, the record establishes that Artwell did not exhaust any
of the grounds raised in his § 2254 Petition before all three
levels of the New Jersey courts.
Unless exhaustion is excused,
this Court is statutorily precluded from granting Artwell a writ,
no matter how meritorious his federal grounds may be.
See 28
U.S.C. § 2254(b)(1)(A), (b)(1)(B); Lambert, 134 F.3d at 513.
Section 2254(b)(1)(B)(i) excuses 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).
“[U]nless a state court decision exists
indicating that a habeas petitioner is clearly precluded from state
court relief, the federal habeas claim should be dismissed for
4
Counsel argued on appeal from the denial of post-conviction relief
that, although appointed counsel had obtained a report from Dr.
Adams and had turned that report over to retained trial counsel,
trial counsel was ineffective in “fail[ing] to follow-up and/or to
produce Adams as a witness,” (ECF No. 13-17 at 25), because in
conjunction with Dr. Adams’s conclusion that Jackson died before
the fire “there certainly was ample evidence that a
passion/provocation charge was required.” Id. at 23-24. In a pro
se reply brief, Artwell also argued that counsel’s “failure to
investigate and/or to secure the testimony of expert witness Dr.
Adams, deprived Defendant of a fair trial, effective assistance of
counsel and materially contributed to Defendant’s conviction
warranting vacation of his conviction and sentence.” (ECF No. 1319 at 5.)
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nonexhaustion, even if it appears unlikely that the state will
address the merits of the petitioner’s claim.” Lambert, 134 F.3d at
517; see also Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012).
Section 2254(b)(1)(B)(i) does not excuse Artwell’s failure to
exhaust because no state court has determined that Artwell is
precluded from raising the grounds in his § 2254 Petition in the
New Jersey courts.
Nor does § 2254(b)(1)(B)(ii) excuse the failure to exhaust in
this case.
Section 2254(b)(1)(B)(ii) excuses failure to exhaust
where “circumstances exist that render [State corrective] process
ineffective to protect the rights of the applicant.”
2254(b)(1)(B)(ii).
28 U.S.C. §
State corrective process is ineffective where
“‘state remedies are inadequate or fail to afford a full and fair
adjudication of the federal contentions raised, or where exhaustion
in state court would be futile.’” Lambert, 134 F.3d at 516 (quoting
Christy v. Horn, 115 F.3d 201, 207 (3d Cir. 1997)); see also Gibson
v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986).
Here,
Artwell’s failure to exhaust is not excused under this provision
because nothing presented to this Court suggests that New Jersey’s
appellate review procedures are inadequate to adjudicate the
federal grounds he raises in his § 2254 Petition.
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B.
Stay and Abeyance
When faced with a petition, such as Artwell’s, which contains
an unexhausted claim, a District Court has four options:
(1) stay
the petition pending the outcome of state proceedings5; (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; Mallory v.
Bickell, 563 F. App’x 212, 215 (3d Cir. 2014); Urcinoli v. Cathel,
546 F.3d 269, 276 (3d Cir. 2008).
Option 1 - stay and abeyance - is not appropriate in this case
because the initial § 2254 Petition was filed after the 365-day
statute of limitations expired and nothing presently before the
Court indicates that equitable tolling is warranted.6
The statute
5
The stay and abeyance procedure is available to § 2254 petitions
that contain only unexhausted claims. See Heleva v. Brooks, 581
F.3d 187 (3d Cir. 2009).
6
The one year statute of limitations is subject to equitable
tolling. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013);
Holland v. Florida, 560 U.S. 631, 645 (2010); Ross v. Varano, 712
F.3d 784, 798-800 (3d Cir. 2013). A court extends the remedy of
equitable tolling “sparingly,” when “principles of equity would
make the rigid application of a limitation period unfair.” Jenkins
v. Superintendent of Laurel Highlands, 705 F.3d 80, 89 (3d Cir.
2013) (citations and internal quotation marks omitted). A habeas
“‘petitioner is entitled to equitable tolling only if he shows (1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.’” McQuiggin, 133 S.Ct. at 1931 (quoting Holland, 560 U.S.
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of limitations for Artwell’s § 2254 grounds began on “the date on
which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A).
Because the New Jersey Supreme Court denied
certification on Artwell’s direct appeal on May 21, 2009, see State
v. Artwell, 199 N.J. 518 (2009), the federal statute of limitations
began 91 days later on August 25, 2009.
The limitations period ran
for 245 days and was statutorily tolled on April 27, 2010, the date
on which Artwell filed his petition for post-conviction relief in
the trial court. See 28 U.S.C. § 2244(d)(2) (“The 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
under this subsection.”)
The 365-day limitations period picked up
again at day 246 on June 29, 2013, the day after the New Jersey
Supreme Court denied certification on Artwell’s post-conviction
relief petition, and ran for the next 120 days until it expired on
Monday, October 28, 2013.
Artwell’s § 2254 Petition is time
at 649) (internal quotation marks omitted). A court must “exercise
judgment in light of prior precedent, but with awareness of the
fact that specific circumstances, often hard to predict in advance,
could warrant special treatment in an appropriate case.” Holland,
560 U.S. at 650.
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barred, absent equitable tolling, because he did not sign his §
2254 Petition, and presumably hand it to prison officials for
mailing to the Clerk, until January 9, 2014, after the statute of
limitations had expired.
Option 2 – allowing Artwell to delete the unexhausted claims
and proceed on the exhausted claims – is not available because the
Petition contains no exhausted claims.
That leaves the Court with
the choice of either dismissing the § 2254 Petition without
prejudice as unexhausted, or denying the unexhausted claims with
prejudice on the merits.
Given that it is conceivable that Artwell
might be able to argue equitable tolling of the statute of
limitations, provided he is able to assert facts showing “(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.’” McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013)(quoting
Holland v. Florida, 560 U.S. 631, 649) (2010)(internal quotation
marks omitted), this Court will dismiss the § 2254 Petition without
prejudice for failure to exhaust the claims raised in the Petition.
See Rose v. Lundy, 455 U.S. 509 (1982); Aruanno v. Sherrer, 277 F.
App’x 155 (3d Cir. 2008).
The Court emphasizes that Artwell may file a second § 2254
petition raising the same three claims after he exhausts them
before all three levels of the New Jersey courts, but he will have
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to show that he is entitled to equitable tolling of the statute
limitations before this Court will entertain the merits of his
claims.
IV. CERTIFICATE OF APPEALABILITY
The 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).
This Court denies
a certificate of appealability because jurists of reason would not
find it debatable that dismissal of the Petition without prejudice
for failure to exhaust is correct.
See Slack v. McDaniel, 529 U.S.
473, 484 (2000).
V.
CONCLUSION
This Court will dismiss the Petition without prejudice and
deny a certificate of appealability.
An appropriate Order
accompanies this Opinion.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: April 29, 2016
At Camden, New Jersey
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