ELLERMAN v. THE NEW JERSEY STATE PAROLE BOARD et al
Filing
2
MEMORANDUM OPINION. Signed by Judge Renee Marie Bumb on 9/30/2014. (bdk, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________________
:
RONALD ELLERMAN,
:
: Civil Action No. 14-5614 (RMB)
Petitioner,
:
:
v.
:
:
THE NEW JERSEY STATE
:
PAROLE BOARD, et al.,
:
:
MEMORANDUM OPINION
Respondents.
:
_______________________________________
:
BUMB, District Judge:
This matter comes before the Court upon Petitioner’s filing
of a § 2254 application (“Petition”), see Docket Entry No. 1,
which arrived accompanied by his request to proceed in this
matter in forma pauperis.
See Docket Entry No. 1-1.
Petitioner is a state prisoner currently confined at the
Southern State Correctional Facility at Delmont, New Jersey.
id. at 3.
See
Since the Petition is silent as to his currently
served term and the circumstances of his conviction, this Court
takes judicial notice of Petitioner’s records at the website of
the New Jersey Department of Corrections (“NJDOC”).
See Fed. R.
Evid. 201(b); see also In re NAHC, Inc. Sec. Litig., 306 F.3d
1314, 1331 (3d Cir. 2002) (judicial notice can be taken of the
documents relied upon in pleadings, filed with a law enforcement
agency, and of informational opinion-free data compiled by a
widely quoted and reliable service).
The NJDOC indicated that, on October 14, 2011, Petitioner
was convicted of three offenses, i.e., possession of controlled
dangerous substances (“CDS”) within 500 feet of public housing
and operation of a CDC facility on January 6, 2010, and operation
of a CDS facility on October 20, 2010.
See https://www6.state.
nj.us/DOC_Inmate/details?x=1467227&n=0.
The Superior Court of
New Jersey sentenced him to three different terms; two to seven
years in prison and one to ten years in prison.
See id.
Petitioner’s next parole eligibility date is May 7, 2015, and all
his sentences are expected to expire on May 29, 2018, that is, if
credits allowed under the state law are factored in.
See id.
Petitioner had a parole hearing sometime during the spring
or early summer of 2013.
See Docket Entry No. 1, at 4.
On July
26, 2013, “the New Jersey State Parole Board [(“NJSPB”)] twomember panel” declined to release him on parole and imposed a
future eligibility term (“FET”), under which he became eligible
for another parole review in twenty months, i.e., on May 7, 2015.
Displeased with that development, Petitioner filed an appeal
with the Full Board of the NJSPB.
See Docket Entry No. 1, at 4.
That appeal was denied on February 26, 2014.
Petition at bar followed half a year later.
2
See id.
The
Here, Petitioner named the NJSPB and its Chairman, as well
as the Attorney General and Petitioner’s warden as Respondents,
and sought this Court’s order “declaring that Petitioner’s [FET]
and continued confinement [were] not authorized [under the state
law] and violate[d] the Fifth Amendment.”
See id. at 12.
He
conceded that “[n]o further appeals to any other agencies or
courts were taken,” but nonetheless maintained that he duly
exhausted his claims.
See id. at 4.
Elaborating on his claims,
he stated that: (a) he “completed numerous programs throughout
[his] confinement”; (b) he was either “a model prisoner” or “an
average to above-average prisoner” or a prisoner who “gained and
maintained minimum status”; (c) he had “a pre-approved favorable
parole address” and “family members [who were] in support [of
his] release,” as well as “strong ties in the community”; (d) he
promised to “abide by the general and special conditions” the
NJSPB could impose and “not [to] pose a danger to public safety”;
and (e) he was of the opinion that “several [unspecified in the
Petition] reasons [upon the NJSPB relied] for its denial” of
parole were insufficient since Petitioner believed that there
were “[n]o special circumstances . . . to justify[ his] continued
confinement” and “no significant credible evidence that [he
would] re-offend . . . in the foreseeable future.”
Id. at 1-9.
Simply put, Petitioner claimed that his Fifth Amendment
rights were violated because he believed that “the finding [of]
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fact by [the NJSPB] that [he] would pose a great threat to the
community [were] irrelevant” since, on his own, Petitioner was
convinced that there was no “sufficient[ly] solid evidence” or
“grounds in support” of that finding.
Id. at 10.
The Petition is deficient procedurally and substantively.
First, the sole proper Respondent in this § 2254 matter is
Petitioner’s warden, and all other Respondents, i.e., the NJSPB,
its Chairman and the Attorney General shall be terminated as
Respondents.
See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)
(“[T]he proper respondent is the warden of the facility where the
prisoner is being held, not the Attorney General or some other
remote supervisory official”).
Second, Petitioner’s claims are unexhausted since he
conceded not taking any state court action until after his appeal
to the Full Board was denied.
A state prisoner applying for a
writ of habeas corpus in a federal court must first “exhaust the
remedies available in the courts of the State” unless “there is
an absence of available State corrective process[] or . . .
circumstances exist that render such process ineffective.”
28
U.S.C. § 2254(b)(1) (emphasis supplied); see also Rose v. Lundy,
455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134 F.3d 506, 513
(3d Cir. 1997), cert. denied, 532 U.S. 919 (2001).
While exhaustion is not a jurisdictional requirement, it is
designed to allow state courts the first opportunity to pass upon
4
federal constitutional claims, in furtherance of the policies of
comity and federalism, see Granberry v. Greer, 481 U.S. 129, 131
(1987), and to enable a proper federal habeas review, governed by
Section 2254, which provides that “[a]n application for a writ of
habeas corpus . . . shall not be granted with respect to any
claim . . . adjudicated on the merits in State court proceedings
unless the adjudication of [that] claim . . . resulted in a
decision that was contrary to . . . clearly established Federal
law . . . or resulted in a decision that was based on an
unreasonable determination of the facts . . . in the State court
proceeding.”
28 U.S.C. § 2254(d) (emphasis supplied).
A petitioner exhausts state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims, and the petitioner generally
bears the burden to establish proper exhaustion or excuse from
the exhaustion requirement.
987 (3d Cir. 1993).
See Toulson v. Beyer, 987 F.2d 984,
Notably, New Jersey law provides an absolute
right to appeal any action or decision of a state administrative
agency to the Superior Court, Appellate Division, under: (a) the
State Constitution, N.J. Const. Art. VI, Sec. 5, ¶ 4, see
Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172, modified on
other grounds, 167 N.J. 619 (2001); and also under (b) the New
Jersey Court Rules.
See N.J. Ct. Rule 2:2-3(a)(2).
This
procedure allows for appeals from “inaction as well as action of
5
a State administrative agency.”
Trantino v. N.J. State Parole
Bd., 296 N.J. Super. 437, 459-460 (N.J. Super. Ct. App. Div.
1997), modified on other grounds and affirmed, 154 N.J. 1 (1998);
see also Johnson v. State Parole Board, 131 N.J. Super. 513,
517-18 (N.J. Super. Ct. App. Div. 1974), certif. denied, 67 N.J.
94 (1975); accord Petrucelli v. Dep’t of Civ. Service, 28 N.J.
Super. 572, 575, 101 A.2d 363 (N.J. Super. Ct. App. Div. 1953)
(“The import of the rule embraces official administrative conduct
of a negative character as well, such as, for example, the
refusal to consider a meritorious petition, or to conduct a
hearing, or to render any decision in a controversial cause”).
Moreover, the state rules enable all litigants to seek
certification from the Supreme Court.
See N.J. Ct. R. 2:12-3.
Hence, an appeal to the Full Board of the NJSPB cannot qualify as
a proper exhaustion of state remedies: a litigant displeased with
the outcome of such appeal is obligated to seek review from the
Appellate Division and, if dissatisfied with the outcome, seek
certification from the New Jersey Supreme Court.
Since, here, Petitioner concedes that he did not present his
claims to the Appellate Division and did not seek certification
from the Supreme Court of New Jersey, his Petition is subject to
dismissal as unexhausted.
6
Moreover, even if this Court were to presume that Petitioner
could establish a viable excuse from the exhaustion requirement,
his Petition does not indicate that he is entitled to relief.1
Here, Petitioner did not specify what facts the NJSPB considered,
and his Petition does not include any findings served upon him by
the NJSPB.
However, Petitioner concedes that the NJSPB’s
decision was based on some evidence (although he believes that
this evidence was insufficiently “solid” or convincing and argues
that his denial of parole and 20-month FET were improper since he
achieved rehabilitative skills and made substantial progress
while incarcerated).
The “Due Process Clause contains a substantive component
that bars certain arbitrary, wrongful governmental actions
regardless of the fairness of the procedures used to implement
them.”
Foucha v. Louisiana, 504 U.S. 71, 80 (1992).
But, as the
Supreme Court explained,
Our cases dealing with abusive executive action have
repeatedly emphasized that only the most egregious
official conduct can be said to be arbitrary in the
constitutional sense . . . . To this end, for half a
1
To the extent that Petitioner’s claims are unexhausted
and/or procedurally defaulted, this Court can deny them on the
merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504
F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of
[petitioner’s] claims on the merits, we need not address
exhaustion”); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir.
2005) (“Under 28 U.S.C. § 2254(b)(2), we may reject claims on the
merits even though they were not properly exhausted, and we take
that approach here”).
7
century now we have spoken of the cognizable level of
executive abuse of power as that which shocks the
conscience.
County of Sacramento v. Lewis, 523 U.S. 833, 847-48 (1998)
(citations and internal quotation marks omitted).
Applying this standard, the Court of Appeals rejected
substantive due process challenges to state parole board
decisions in Coady v. Vaughn, 251 F.3d at 487, and Hunterson v.
DiSabato, 308 F.3d 236, 246-47 (3d Cir. 2002).
In Coady, the
prisoner insisted that the parole board’s decision violated his
due process rights because the board used an impermissible
criteria to deny him parole, applied erroneous descriptions of
the conduct underlying his offense, and considered false
information.
The Court of Appeals rejected his claims pointing
out that “federal courts [were] not authorized by the due process
clause to second-guess parole boards and the requirements of
substantive due process are met if there is some basis for the
challenged decision.”
Coady, 251 F.3d at 487.
Moreover, in Hunterson, the Court of Appeals reversed an
order granting the writ to a New Jersey inmate who claimed that a
parole board’s decision imposing a five-year FET was arbitrary,
capricious, and an unreasonable abuse of discretion.
The Court
of Appeals explained that
this type of constitutional challenge to a state
[parole] proceeding is not easily mounted. We have
made clear that the federal courts, on habeas review,
8
are not to second-guess parole boards, and the
requirements of substantive due process are met if
there is some basis for the challenged decision . . . .
The relevant level of arbitrariness required in order
to find a substantive due process violation involves
not merely action that is unreasonable, but, rather,
something more egregious, which we have termed at times
conscience shocking or deliberately indifferent.
Hunterson, 308 F.3d at 246-47 (citations and internal quotation
marks omitted, emphasis supplied).
Here, Petitioner asserts that the evidence relied upon by
the NJSPB was insufficient and should have been ignored.
Petitioner, however, does not dispute that the NJSPB: (a) made
its decisions on the basis of this actually existing evidence;
and (b) factored into its decisions Petitioner’s advancements and
balanced the favorable considerations against the negative ones.
Consequently, it was within the NJSPB’s discretion to conclude
that the outcome of this balancing process warranted denial of
Petitioner’s release on parole regardless of the advancements he
achieved during the last three years.2
2
In Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003),
the Court of Appeals reviewed how the Pennsylvania Parole Board
implemented a parole rule change and found an ex post facto
violation. There, the state legislature added language to the
parole statute that public safety must be considered “foremost,”
id. at 377, and that change affected the balancing test based on
several factors. The Mickens-Thomas Court held that making
“concern for public safety” the overriding consideration for
parole violated the Ex Post Facto Clause since it obligated the
parole board to default on its duty to consider “all factors
counseling in favor of release.” 321 F.3d at 387. Here, however,
there was no parole rule change that could have triggered ex post
facto considerations, and no indication that the NJSPB defaulted
9
Since Petitioner’s allegations indicated that there was
“some basis” for the NJSPB’s decisions to deny parole and impose
a 20-month FET, the Petition failed to show that these decisions
shocked the conscience or the NJSPB was deliberately indifferent
to the facts favorable to Petitioner, and this Court is not in
the position to second-guess the NJSPB’s decisions.
Petitioner’s substantive due process claims are
Thus,
meritless, see
Hunterson, 308 F.3d at 247-48, and his Petition is subject to
dismissal on the merits, as well as for failure to exhaust.3
This Court must now determine whether a certificate of
appealability should issue.
Rule 22.2.
See Third Circuit Local Appellate
The Court may issue a certificate of appealability
only if the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When
a court denies a habeas petition on procedural grounds, the
prisoner must demonstrate that jurists of reason would find it
debatable: (1) whether the petition states a valid claim of the
on its duty to consider “all factors counseling in favor of
[Petitioner’s] release.” While Petitioner made it abundantly
clear that he was displeased with the NJSPB’s refusal to find
that “all factors counseling in favor of [Petitioner’s] release”
outweighed evidence counseling against his release, Petitioner’s
displeasure cannot translate into a constitutional violation.
3
While Petitioner repeatedly used the phrase “procedural
due process,” Petitioner’s procedural due process claims appear
devoid of any factual predicate, since he indicated that he was
provided with a parole hearing, had an opportunity to present
favorable evidence and was served with the findings of NJSPB.
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denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling.
U.S. 473, 484 (2000).
See Slack v. McDaniel, 529
“Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.”
Id.
Here, the
Court determined that Petitioner’s claims should be dismissed as
unexhausted, and the Court is persuaded that reasonable jurists
would not debate the correctness of this conclusion.
The Court
also presumed that the lack of exhaustion might be excused and
addressed all of Petitioner’s claims on the merits.
Thus, a
different certificate-of-appealability analysis might apply here.
Just as with claims dismissed on procedural grounds, 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).
However, “[a] petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims.”
(2003).
Miller-El v. Cockrell, 537 U.S. 322, 327
Here, Petitioner failed to make a substantial showing of
the denial of a constitutional right, and the Court is persuaded
that jurists of reason would not disagree with this conclusion.
Therefore, no certificate of appealability will issue.
11
However, mindful of the patchy, conclusory style of
Petitioner’s allegations, this Court finds it appropriate to
retain temporary jurisdiction over this matter so to enable
Petitioner to clarify his facts, if any, demonstrating that,
contrary to what the Petition suggests: (a) he did exhaust his
denial of parole claims in the state courts; and (b) the NJSPB’s
decisions to deny Petitioner’s release on parole and to impose
20-month FET, when evaluated objectively and on the merits,
resulted in an outcome that cannot be reasonably justified since
these determinations lacked even some evidence in support.
See
McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Habeas corpus
petitions must meet heightened pleading requirements”).
For the foregoing reasons, Petitioner’s application to
proceed in this matter in forma pauperis will be granted, his
Petition will be dismissed as unexhausted or, alternatively, on
the merits, and no certificate of appealability will issue.
The
Clerk will be directed to administratively terminate this matter.
see Papotto v. Hartford Life & Accident Ins. Co., 731 F.3d 265
(3d Cir. 2013) (“administrative closings are a practical tool
used by courts to prune overgrown dockets and are particularly
useful in circumstances in which a case, though not dead, is
likely to remain moribund”).
This Court will retain its
jurisdiction over this action so to allow Petitioner an
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opportunity to file an amended pleading containing clarifications
in accordance with the guidance provided in this Opinion.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: September 30, 2014
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