DERRY v. D'ILIO et al
Filing
18
OPINION filed. Signed by Judge Renee Marie Bumb on 10/29/2015. (drw)n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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: Civil Action No.: 14cv5037 (RMB)
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OPINION
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Michael Derry,
Petitioner,
v.
Stephen D’Ilio et al.,
Respondents.
This matter comes before the Court on Petitioner Michael
Derry’s (“Derry”) Amended Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 (ECF No. 3); Respondent’s Answer (ECF No.
12);
Derry’s
Reply
(ECF
No.
15);
and
Derry’s
Motion
for
an
Evidentiary Hearing. (ECF No. 16.) For the reasons discussed
below, the Court will hold the amended petition in stay and
abeyance until Derry exhausts his unexhausted claims in State
court.
I.
BACKGROUND
On August 30, 2007, following his conviction after trial by
jury for robbery, aggravated assault, and weapons charges, Derry
was sentenced to an aggregate sentence of thirty-six years in
prison,
with
twenty-seven
years
subject
to
NERA,
and
an
additional five-year period of parole ineligibility. State v.
Derry, 2009 WL 2778029, at *1 (N.J. Super. Ct. App. Div. Sept.
3, 2009). Derry raised six issues on direct appeal: (1) a new
trial is warranted because the State failed to disclose that the
Complainant, the primary State witness against Defendant, had a
pending
criminal
charge
that
was
dismissed
shortly
after
he
testified against Defendant in this case; (2) the trial court
erred
in
charging
accomplice
liability
over
Defendant’s
objection; (3) the trial court should have given a specific
unanimity charge; (4) Defendant’s right to a fair jury trial was
not preserved because one juror was sleeping during Defendant’s
cross-examination
prosecutor’s
of
comments
the
State’s
during
primary
trial
denied
witness;
(5)
Defendant
the
a
fair
trial; and (6) Defendant’s sentence is excessive. Id. at 2.
The Appellate Division denied all but the claim regarding a
sleeping juror, which it remanded for further proceedings. Id.
On
January
22,
2010,
the
New
Jersey
Supreme
Court
granted
certification in part. State v. Derry, 201 N.J. 155 (N.J. Jan
22, 2010). Upon remand, the trial court found that the juror had
not been sleeping, and denied the claim. State v. Derry, 2014 WL
44020 (N.J. Super. Ct. App. Div. Jan. 7, 2014). On October 1,
2010,
the
New
Jersey
Supreme
Court
dismissed
the
appeal
as
improvidently granted. State v. Derry, 204 N.J. 33 (N.J. Oct 01,
2010).
2
Derry filed a petition for post-conviction relief on August
4, 2011. State v. Derry, 2014 WL 44020, at *2. He raised the
following claims: (1) Petitioner was denied his Sixth Amendment
right to the effective assistance of trial counsel by counsel’s
failure
to
conduct
any
pre-trial
investigation,
subpoena
witnesses, and for informing Petitioner and his only witness
that he would impeach the witnesses’ credibility if he testified
in
Petitioner’s
favor;
(2)
Petitioner
was
denied
his
Sixth
Amendment right to effective assistance of appellate counsel by
counsel’s failure to raise on direct appeal the trial court’s
abuse of discretion for allowing other crimes evidence, and the
court’s
abuse
of
discretion
for
allowing
prejudicial
and
suggestive out of court identification that was conducted by the
investigating police department; (3) Petitioner was denied his
Fifth Amendment and Fourteenth Amendment rights to due process
by the trial court’s failure to conduct a scheduled probable
cause
hearing;
(4)
Petitioner’s
sentence
is
excessive
in
violation of the Eighth Amendment; (claim in pro se memorandum)
(5)
cumulative
error
ignored
by
trial
and
appellate
counsel
(listing errors); (claims in counsel’s supplemental brief) (6)
ineffective assistance of counsel; (7) Petitioner was denied his
constitutional
right
to
effective
assistance
of
appellate
counsel by the failure of counsel to appeal the denial of a Wade
Hearing; (8) Petitioner was denied the effective assistance of
3
appellate counsel by the failure of appellate counsel to seek a
new sentencing hearing when the court denied the trial counsel’s
request to withdraw as counsel; (9) Petitioner was denied the
effective assistance of remand counsel by the failure of counsel
to call the assistant prosecutor as a witness at the hearing;
(claims in additional pro se filings) (10) trial counsel was
ineffective for failing to call Kamal Sears to testify; (11)
Petitioner was denied the effective assistance of counsel due to
the cumulative errors of counsel; and (12) Petitioner’s jail
credits should be recalculated. Id. at *2-3.
The PCR Court denied relief, and denied Derry’s motion for
reconsideration.
Id.
at
*3.
On
appeal,
Derry
alleged
the
following: (1) the trial court erred in denying the defendant’s
petition for post-conviction relief because he did not receive
adequate
legal
representation
from
appellate
counsel,
as
a
result of appellate counsel’s failure to challenge the trial
court’s
ruling
denying
trial
counsel’s
request
for
a
Wade
Hearing; and (2) Defendant was subjected to the constructive
denial of PCR counsel which deprived him of the Sixth Amendment
right to effective assistance of counsel and prevented a fair
presentation
of
viable
constitutional
claims;
therefore,
the
order denying PCR should be reversed and the matter remanded for
a new PCR hearing on those claims. Id. at *4. The Appellate
Division denied relief. Id. at *6. The New Jersey Supreme Court
4
denied certification on July 10, 2014. State v. Derry, 218 N.J.
276 (N.J. Jul. 10, 2014).
Derry
filed
his
petition
for
federal
habeas
relief
on
August 12, 2014, and filed an amended petition on September 4,
2014. (ECF Nos. 1, 3.) He raised six grounds for relief: (1) a
new trial is warranted because the State failed to disclose that
the Complainant, the primary State witness against Defendant,
had a pending criminal charge that was dismissed shortly after
he testified against Defendant in this case; (2) Defendant’s
right to a fair jury trial was not preserved because one juror
was sleeping during Defendant’s cross-examination of the State’s
primary witness, and the trial court conducted no inquiry into
how much testimony the juror had missed; (3) the trial court
should have given a specific unanimity charge; (4) the trial
court
erred
conviction
in
relief
denying
since
the
he
defendant’s
did
not
petition
receive
for
post-
adequate
legal
representation from appellate counsel as a result of appellate
counsel’s failure to raise as an issue the trial court’s ruling
denying a Wade Hearing; (5) Trial and Appellate Counsel were
ineffective
for
neglecting
to
protect
Defendant’s
rights
regarding a DNA issue Defendant had complained to trial counsel
about and that Defendant had written to appellate counsel about;
and (6) cumulative error ignored by trial and appellate counsel
(listing errors). (ECF No. 3 at 20-43.)
5
Respondents opposed Grounds One through Four on the merits.
(ECF No. 12 at 1-33). Derry failed to exhaust Grounds Five and
Six. (Id. at 33-43.) Respondents asserted Derry is now barred
from raising Grounds Five and Six in State Court, and the claims
should be denied on the merits. (Id.)
Derry
subsequently
filed
a
second
petition
for
post-
conviction relief on March 26, 2015. (ECF No. 12-29). Derry
raised four grounds for relief: (1) the consecutive nine years
with 85% for aggravated assault should have been concurrent, and
the sentence should be vacated; (2) appellate and PCR counsel
were ineffective by failing to exhaust Defendant’s State court
remedies with regard to the lower courts’ findings on limited
remand from direct appeal regarding the sleeping juror issue;
(3) trial counsel was ineffective by failing to advise Defendant
of
the
consequence
consecutive
sentence,
of
exposure
while
to
waiving
a
his
mandatory
right
to
five-year
bifurcated
trial; and (4) Defendant should be entitled to jail credits for
time spent in custody from arrest date until sentencing date.
(Id.) On June 10, 2015, the PCR Court denied the petition as
untimely. (ECF No. 12-30.)
On May 26, 2015, Derry submitted a letter to the Court,
asking
to
stay
his
habeas
proceeding
because
he
had
not
exhausted Grounds Five and Six of the petition. (ECF No. 5.)
Derry further noted that there was still an appeal pending in
6
State court relevant to the petition. (Id.)1 Then, on September
1, 2015, Derry filed a motion for miscellaneous relief in this
Court, requesting an evidentiary hearing. (ECF No. 16.) Derry
argued that an evidentiary hearing was necessary because he had
obtained an affidavit from Kamal Sears, confirming that Derry
was misidentified as a perpetrator of the crimes. (Id.)
In support of his motion, Derry submitted a transcript of
an
August
8,
2015
interview
of
Kamal
Sears
conducted
by
an
investigator, John Taylor of Ms. Mercy Legal Services. (Id. at
5-9.) Sears stated that Derry, his cousin who resembles him, was
not present at the scene of the crime on May 11, 2003, it was
Sears who was present. (Id. at 7-8.)
II.
DISCUSSION
To promote comity between state and federal courts, the
Supreme Court held that a federal habeas courts must dismiss
mixed habeas petitions that contain exhausted and unexhausted
claims,
allowing
the
State
courts
the
first
opportunity
to
address the petitioner’s constitutional claims. Rose v. Lundy,
455 U.S. 509, 514-22 (1982). In Rhines v. Weber, 544 U.S. 269,
272-73 (2005), the Supreme Court acknowledged there could be
circumstances where dismissal of a mixed petition for exhaustion
would
result
in
the
one-year
habeas
1
statute
of
limitations
Presumably, Derry was referring to his appeal of the PCR’s
Court’s denial of his second post-conviction motion.
7
expiring before the petitioner was able to return to federal
court. The Court held that 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.
Here, Derry filed his habeas petition before filing his
second petition for post-conviction relief in State court. His
appeal of the second PCR Court decision remains pending in State
court.
Filing
his
federal
habeas
petition
did
not
stop
the
habeas statute of limitations from running. Duncan v. Walker,
533
U.S.
167,
172
(2001).
Furthermore,
if
the
New
Jersey
Appellate Division and New Jersey Supreme Court uphold the PCR
Court’s denial of Derry’s second petition for post-conviction
relief on the grounds that his claims are procedurally barred,
then filing his second petition for post-conviction relief did
not toll the habeas statute of limitations under 28 U.S.C. §
2244(d)(2).
See
Merrit
v.
Blaine,
326
F.3d
157,
165
(“an
untimely PCRA petition does not toll the statute of limitations
for a federal habeas corpus petition”) (citing Fahy v. Horn, 240
F.3d
239,
dismissed
244
(3d
without
Cir.
a
stay
2001).
and
8
If
the
abeyance,
habeas
petition
Petitioner
may
is
be
precluded
by
the
statute
of
limitations
from
returning
to
federal court for habeas relief.
Derry’s pending second petition for post-conviction relief
contains accuses his counsel of failing to exhaust all of his
federal claims in State court. If true, this would represent
good cause for his failure to exhaust. Derry also had good cause
for not presenting new evidence sooner because the evidence was
not obtained until August 8, 2015, after he filed the habeas
petition. Derry has never presented the new evidence in State
court to support his claim that he was misidentified by the
victim. Because Derry has an appeal pending in State court, and
because
he
obtained
new
evidence
after
filing
the
habeas
petition, the Court reject’s Respondents’ contention that Derry
is barred from exhausting his claims in State Court. See State
v.
Nash,
fundamental
212
N.J.
injustice
518,
544-50
exception
to
(N.J.
2013)
procedural
(describing
bars
of
post-
conviction relief claims). Without further development of the
record
in
State
court,
this
Court
cannot
find
that
the
unexhausted claims have no merit.
III. CONCLUSION
For these reasons, the Court will order a stay and abeyance
of Derry’s amended habeas petition until he exhausts his State
9
Court remedies, including any claims based on the new evidence,
Kamal Sears’s August 8, 2015 statement. (Exhibit, ECF No. 17.)
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 29, 2015
10
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