LEWIS v. NELSON
Filing
13
OPINION. Signed by Chief Judge Jerome B. Simandle on 6/29/2015. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROLAND D. LEWIS,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 14-2547 (JBS)
v.
KENNETH NELSON, et al.,
OPINION
Respondents.
APPEARANCES:
RONALD D. LEWIS, Petitioner Pro Se
#205414
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
GRETCHEN ANDERSON PICKERING, Esq.
Cape May County Prosecutor’s Office
4 Moore Road, DN 110
Cape May Court House, NJ 08210
Attorney for Respondents
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Respondent Kenneth Nelson’s
(“Respondent”) motion to transfer the petition for writ of
habeas corpus to the Third Circuit Court of Appeals. For the
reasons set forth below, the motion shall be denied and the
habeas petition shall be dismissed as this Court lacks
jurisdiction over the petition.
I. BACKGROUND 1
Petitioner was convicted by a jury of first-degree armed
robbery, N.J. STAT. ANN. § 2C:15-1, on March 24, 1999. Immediately
following the jury verdict, the judge found Petitioner guilty of
fourth-degree possession of a handgun by a convicted felon, N.J.
STAT. ANN. § 2C:39-7(a). Petitioner was sentenced to an extended
term of life imprisonment without the possibility of parole as a
persistent offender, N.J. STAT. ANN. § 2C:43-7.1(a), 2 as well as a
concurrent eighteen-month term on the possession charge.
Petitioner
appealed
to
the
New
Jersey
Superior
Court
Appellate Division. That court affirmed Petitioner’s convictions,
but remanded for resentencing after concluding the trial court had
not followed the proper procedures for imposing the extended term.
State v. Lewis, No. A-1878-99 (N.J. Super. Ct. App. Div. Apr. 9,
2002) (unpublished), certif. denied, 803 A.2d 637 (N.J. 2002).
Petitioner appeared for resentencing on June 20, 2002. The
trial court sentenced Petitioner to fifty years with a twenty-five
year period of parole ineligibility pursuant to N.J. STAT. ANN. §
2C:43-7.1(b)(2). Petitioner appealed.
1
The Court derives the factual and procedural background of
Petitioner’s case in large part from the opinion in Lewis v.
Hendricks, No. 02-4268 (D.N.J. Aug. 5, 2010); (Docket Entry 109).
2 It is unclear from the record what Petitioner’s previous
conviction entailed.
2
While Petitioner’s appeal was pending before the Appellate
Division, he filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 on August 27, 2002. Lewis v. Hendricks, No.
02-4268 (JHR) (D.N.J.); (Docket Entry 10-1). Petitioner presented
four claims for relief in his initial petition: (1) “the trial
court
erred
in
denying
the
Petitioner’s
motions
to
dismiss,
suppress and discovery, in violation of the 4th and 14th Amendment
of the Federal Constitution and New Jersey Constitution, Art. 1
para. 7”; (2) “Defense counsel was ineffective in withdrawing his
motion to suppress at the conclusion of the suppression hearing”;
(3) “The Petitioner’s rights were violated when he was arrested
without a warrant, in violation of the 4th and 14th Amendment of
the Federal Constitution and New Jersey Constitution, Art. 1 para.
7”; and (4) “The Petitioner’s rights were violated when he was
denied a probable cause hearing in violation of the Due Process
Clause of the 14th Amendment.” Lewis v. Hendricks, No. 02-4268,
Docket Entry 3 at 4-5.
In the state courts, the Appellate Division again remanded to
the trial court for resentencing. State v. Lewis, No. A-6695-01
(N.J. Super. Ct. App. Div. Apr. 24, 2003) (unpublished). Petitioner
was sentenced to fifty years, twenty-five years parole eligibility
on June 25, 2003. Petitioner again appealed, however the Appellate
Division affirmed the sentence this time. State v. Lewis, No. A0186-03 (N.J. Super. Ct. App. Div. June 28, 2005). During this
3
time, the Honorable Joseph H. Rodriguez had concluded Petitioner
had not exhausted his ineffective assistance of counsel claims and
stayed Petitioner’s habeas petition. Lewis v. Hendricks, No. 024268, Docket Entry 14.
Petitioner
filed
a
petition
for
post-conviction
relief
(“PCR”) on February 17, 2006 in the state court, raising the
ineffective assistance of counsel argument as well as an argument
that the trial court violated Apprendi v. New Jersey, 530 U.S. 466
(2000). The
trial
court
denied
the
PCR
application,
and
the
Appellate Division affirmed. State v. Lewis, 2008 WL 2466455 (N.J.
Super. Ct. App. Div. June 20, 2008). The New Jersey Supreme Court
denied certification on February 4, 2009. State v. Lewis, 966 A.2d
1077 (N.J. 2009).
Having now exhausted his ineffective assistance of counsel
claim, Petitioner sought to reopen the § 2254 petition pending in
this Court on March 24, 2009. Lewis v. Hendricks, No. 02-4268,
Docket Entry 19. In support of his motion, Petitioner included an
amended
petition
asserting:
(1)
“Petitioner
was
arrested
in
violation of the Fourth Amendment to the Federal Constitution”;
(2)
“The
Petitioner
was
denied
the
effective
assistance
of
counsel”; and (3) “The Petitioner was denied the assistance of
counsel for counsel not objecting to the trial court’s unreasonable
application and contrary to clause to [sic] clearly established
federal law at the time Petitioner’s direct appeal was pending.”
4
Lewis v. Hendricks, No. 02-4268, Docket Entry 19-2. In spite of
his
captioning
the
third
point
as
concerning
ineffective
assistance of counsel, Petitioner argued that the trial court
violated Apprendi by sentencing him to an extended term without a
jury determination of the facts supporting the enhancement. Lewis
v. Hendricks, No. 02-4268, Docket Entry 19-2 at 16-23.
After reopening the case and permitting the amended petition
to proceed, Judge Rodriguez denied the petition on the merits and
denied a certificate of appealability on August 5, 2010. Lewis v.
Hendricks, No. 02-4268, Docket Entry 22. Petitioner appealed to
the
Court
certificate
of
of
Appeals
for
the
appealability
Third
on
Circuit,
November
18,
which
denied
2010.
Lewis
a
v.
Hendricks, No. 10-3504 (3d Cir. Nov. 18, 2010); (Docket Entry 1010). The Supreme Court denied Petitioner’s petition for a writ of
certiorari on April 18, 2011. Lewis v. Ricci, 131 S. Ct. 2108
(2011), reh’g denied, 131 S. Ct. 3085 (2011). Petitioner thereafter
filed a motion for reconsideration in this Court, which was denied
by Judge Rodriguez on December 12, 2011. Lewis v. Hendricks, No.
02-4268, Docket Entry 26.
Petitioner returned to the state courts, filing a motion to
correct an illegal sentence on March 12, 2012. (Docket Entry 1-1
at 1). Petitioner again argued that the trial court violated
Apprendi when it sentenced him as a persistent offender. (See
Docket Entry 1-1 at 11-15). The trial court deemed the motion to
5
be a second PCR application, and held the petition was procedurally
barred as the Apprendi issue had already been adjudicated. (Docket
Entry 1-1 at 2); see also N.J. Ct. R. 3:22-5 (“A prior adjudication
upon the merits of any ground for relief is conclusive whether
made in the proceedings resulting in the conviction or in any postconviction proceeding brought pursuant to this rule or prior to
the
adoption
thereof,
or
in
any
appeal
taken
from
such
proceedings.”). The trial court also denied the motion on the
merits.
Petitioner
appealed
to
the
Appellate
Division,
which
affirmed the judgment of the trial court on May 8, 2013. State v.
Lewis, No. A-918-12 (N.J. Sup. Ct. App. Div. May 8, 2013); (Docket
Entry 1-1 at 4). The Supreme Court denied certification on January
30, 2014. (Docket Entry 1-1 at 5).
Petitioner filed the instant Petition for a Writ of Habeas
Corpus on April 17, 2014. 3 (Docket Entry 1). After being advised
of his rights under United State v. Mason, 208 F.3d 414 (3d Cir.
2000); (Docket Entry 4), Petitioner elected to have this Court
rule on his petition as filed, (Docket Entry 5). An answer was
ordered, and the Respondent’s motion to transfer the case to the
Third Circuit was filed simultaneously with that answer. (Docket
3
Petitioner styled his petition as a motion for relief from
judgment pursuant to Fed. R. Civ. Pro. 60(b). As noted in this
Court’s order of May 7, 2014, this designation by Petitioner is
incorrect. (Docket Entry 2).
6
Entries 10 and 11). Petitioner filed neither an objection to the
motion nor a traverse. 4
II. STANDARD OF REVIEW
Petitioner brings this Petition for a Writ of Habeas Corpus
as a pro se litigant. A pro se pleading is held to less
stringent standards than more formal pleadings drafted by
lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and
any supporting submissions must be construed liberally and with
a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721–22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
III. ANALYSIS
This is Petitioner's second federal habeas petition
challenging his conviction and sentence. See Lewis v. Hendricks,
No. 02-4268 (D.N.J. Aug. 5, 2010). This fact requires this Court
to consider whether this Petition is “second or successive” and,
thus, whether this Court lacks jurisdiction to entertain it in
4
The Court did receive a letter from Petitioner asking the Court
to disregard a previously filed traverse, (Docket Entry 12),
however no response to Respondent’s answer had ever been
received by the Court. The Court has received no communication
from Petitioner since December 22, 2014.
7
the absence of an order from the Third Circuit permitting its
filing. See 28 U.S.C. § 2244(b).
A petition is not necessarily “second or successive” merely
because it follows an earlier federal petition. See Benchoff v.
Colleran, 404 F.3d 812, 817 (3d Cir. 2005) (citing In re Cain,
137 F.3d 234, 235 (5th Cir.1998) (per curiam)) If, however, a
petition is resolved in a way that satisfies a petitioner's one
‘full and fair opportunity to raise a [federal] collateral
attack,’ then it does count for purposes of § 2244(b).” Altman
v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). Similarly, where a
petition raises a claim that was or could have been raised in an
earlier habeas petition decided on the merits, that claim
clearly is “second or successive.” Benchoff, 404 F.3d at 817
(citing McCleskey v. Zant, 499 U.S. 467, 493–95 (1991); Wise v.
Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992)).
Petitioner's previous federal habeas petition challenging
his extended term sentence conviction was denied on the merits.
See Lewis v. Hendricks, No. 02-4268 (D.N.J. Aug. 5, 2010);
(Docket Entry 10-9). The Court specifically addressed
Petitioner’s Apprendi argument in that Opinion, see No. 02-4268
slip op. at 20-23; (Docket Entry 10-9 at 20-23), and found that
“Petitioner was not sentenced to a term ‘beyond the statutory
maximum,’ but instead was sentenced to a term within the
parameters of the extended term that his criminal history
8
qualified him for.” No. 02-4268 slip op. at 23; (Docket Entry
10-9 at 23). 5 As this Petition attempts to raise the same
argument that was previously rejected on the merits by this
Court, the Petition is “second or successive” within the meaning
of § 2244. Thus, this Court lacks jurisdiction to entertain it,
absent authorization from the Court of Appeals.
If a second or successive petition is filed in the district
court without such an order from the appropriate court of
appeals, the district court may dismiss for want of jurisdiction
or “shall, if it is in the interest of justice, transfer such
action ... to any other such court in which the action ... could
have been brought at the time it was filed.” 28 U.S.C. § 1631.
See also Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002),
cert. denied, 540 U.S. 826 (2003). (“When a second or successive
habeas petition is erroneously filed in a district court without
the permission of a court of appeals, the district court's only
option is to dismiss the petition or transfer it to the court of
appeals pursuant to 28 U.S.C. § 1631.”). Respondent has moved to
transfer the Petition to the Court of Appeals, (Docket Entry
5
In addition, Judge Rodriguez denied Petitioner’s motion for
reconsideration in which Petitioner again raised his Apprendi
argument. See generally Lewis v. Hendricks, No. 02-4268, Docket
Entries 25 and 26. In his order denying the motion for
reconsideration, Judge Rodriguez noted “this Court expressly
found that Petitioner’s sentence was not in violation of
Apprendi.” Lewis v. Hendricks, No. 02-4268, Docket Entry 26 at
3.
9
10), and Petitioner has not filed any objection to the motion.
This Court must consider, however, whether a transfer would be
in the interest of justice. 28 U.S.C. § 1631.
The Third Circuit has already denied a certificate of
appealability as to the Apprendi argument raised in Petitioner’s
first § 2254 petition. Lewis v. Hendricks, No. 10-3504 (3d Cir.
Nov. 18, 2010); (Docket Entry 10-10). This Court therefore finds
that it would not be in the interest of justice to transfer the
Petition, and will dismiss the Petition for lack of
jurisdiction.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003).
The present case fails to meet this standard, therefore no
certificate of appealability will be issued.
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III.
CONCLUSION
Petitioner Lewis seeks to challenge his state conviction and
sentence for a second time, which can only occur if he receives
permission of the Third Circuit for filing a successive § 2254
petition. As it is not in the interest of justice to transfer the
Petition to the Third Circuit, this Court will deny Respondent’s
motion
and
dismiss
the
Petition
for
lack
of
jurisdiction.
A
certificate of appealability shall not issue. An accompanying
Order will be entered.
June 29, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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