MORRIS v. BAKER et al
OPINION. Signed by Judge Noel L. Hillman on 3/6/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 14-6785 (NLH)
RENEE BAKER, Warden, Nevada
Department of Corrections and :
THE ATTORNEY GENERAL OF NEW
Brent Morris, No. 29890
Northern Nevada Correctional Center
P.O. Box 700
Carson City, NV 89702
Petitioner Pro se
Office of the Attorney General
P.O. Box 086
Trenton, NJ 08625
Counsel for Respondents
HILLMAN, District Judge
Petitioner Brent Morris (“Petitioner”), a prisoner
presently incarcerated at the Northern Nevada Correctional
Center in Carson City, Nevada, has filed a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”).
ECF No. 1.
Mr. Morris’s sole grievance raised in the Petition
is that his New Jersey state sentence failed to account for time
during which he was incarcerated pre-trial on a New Jersey
detainer while he was in the state of Nevada.
By order of
Court, Respondents filed an Answer to the Petition (the
“Answer”), ECF No. 6, and supplemental exhibits, ECF No. 14.
Petitioner filed a reply to the Answer (the “Reply”).
The Court requested supplemental briefing regarding whether
the Petition is now moot because the Petitioner has fully served
the sentence at issue, ECF No. 15, which the parties provided,
ECF Nos. 16, 17. The Petition is ripe for disposition.
reasons stated below, the Petition will be denied.
Allegations Contained In The Petition
In 2013, Petitioner faced various state felony charges
arising from his conduct at the craps tables of various Atlantic
City, New Jersey, casinos.
ECF No. 1, Pet. at 3.
pled guilty on March 4, 2013, to four counts of violations of
N.J.S.A. 5:12-113, swindling and cheating in the third degree,
contained in three separate state indictments lodged against
Id.; ECF No. 7-3, Indictments; ECF No. 7-5, Plea
Petitioner alleges that his guilty plea agreement
contained the following:
The prosecutor has agreed to recommend for dismissal:
all remaining counts . . . 4 years NJSP concurrent to
any other state’s sentence. Credit for time served in
ACJF or on NJ detainer out of state (Nevada or
Michigan). Counsel to provide info. Forfeiture of
all $ seized.
ECF No. 1, Pet. at 3.
Restitution of $34,620.
See also ECF No. 7-5, Plea Agreement.
At sentencing on April 19, 2013, Petitioner objected to the
proposed calculation of the discretionary jail time credits,
presenting the following argument, as recited in the Petition:
The language of the negotiated plea agreement signed
by all parties on March 4, 2013 clearly states that I
am entitled to receive additional jail credits for any
detainers filed against me during the time I was
arrested in Michigan and Nevada. I was arrested on
September 22, 2010 in Las Vegas, Nevada. While I was
incarcerated at the Clark County Detention Center, Las
Vegas, Nevada, officials in New Jersey lodged a
detainer against me on . . . June 30, 2010 and also on
December 10, 2010 . . . pursuant to a bench warrant
and a detainer signed by you, Judge, on the same date
of December 10, 2010. . . .
I am entitled to the
940 days of jail credits calculated from the date
September 22, 2010, my arrest date in Las Vegas
Nevada, to the present time of sentencing, which is
today, April 19, 2013.
ECF No. 1, Pet. at 6.
Petitioner went on to state that he was
informed at the time he entered into the plea agreement that he
would be entitled to these credits, and he questioned why no one
explained to him at the time of his plea agreement that he would
not be entitled to the disputed jail credits.
Id. at 5.
As Petitioner states in his Petition, “Petitioner’s sole
contention on appeal is that he was denied the benefit of his
plea bargain because Judge Donio [the trial court and sentencing
judge] failed to award him 940 discretionary jail credits for
the time he spent in confinement in the state of Nevada.” 1
Petitioner calculates the time he is allegedly owed
from the date he was arrested in Nevada in September 2010.
As a result of the denial of these jail credits,
Petitioner states that his sentence is unconstitutional in
violation of the Fifth, Eighth, and Fourteenth Amendments to the
Id. at 3.
In his supplemental brief addressing whether his Petition
is now moot because he has served his sentence at issue,
Petitioner asserts that “[e]ven though collateral consequences
are not presumed, Petitioner may still avoid a finding of
mootness if he can show a continuing injury, or collateral
consequences, that is sufficient.”
ECF No. 17, Pet’r Suppl. Br.
Petitioner does not identify any injury or collateral
consequence to him personally, but suggests that “there is more
at stake than the completion of his New Jersey prison sentence
of 4 years; at stake is the honor of the government, public
confidence in the fair administration of justice, and the
efficient administration of justice.”
Id. at 5.
On November 12, 2014, the Court issued an Order advising the
Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d
Cir. 2000). ECF No. 2. The Petitioner elected to proceed on
the § 2254 Petition because he had exhausted in state court his
sole claim for relief in the Petition, the calculation of his
jail time credits. ECF No. 4.
Factual Background Contained In The Record
A thorough review of the record reveals the following
timeline of events prior to and after Petitioner’s sentencing in
New Jersey. 2
Petitioner was initially arrested and jailed in
Atlantic County on May 27, 2010, for conduct occurring on that
day as well as on March 14 and 15, 2010.
ECF No. 7-3,
Indictments; ECF No. 7-8, Sent’g Tr. at 8.
He posted bail on
June 10, 2010, for the aforementioned offenses but failed to
appear later that month for an unspecified hearing on the
ECF No. 7-8, Sent’g Tr. at 8.
Thus, on June 30, 2010,
a New Jersey bench warrant was issued for Petitioner.
warrant, however, only covered the Eastern United States.
No. 7-8, Sent’g Tr. at 8.
See also ECF No. 14-2, Atlantic
County Memorandum Regarding Territorial Limits for Bench
Warrants Based on Degree of Offense.
Thereafter, he was separately arrested and detained in the
Clark County Jail in Nevada on September 22, 2010, for an
outstanding Michigan warrant and, at some point, charges in
ECF No. 7-8, Sent’g Hr. at 8.
Although in custody, the
Petitioner was beyond the territorial limits of the June 30
warrant and detainer.
See ECF No. 7-8, Sent’g Tr. at 8; ECF No.
No comprehensive recitation of the facts exists in the state
While incarcerated in Nevada, another New
Jersey bench warrant was signed on December 10, 2010, but which
warrant was still limited territorially to the Eastern United
ECF No. 14-3, Bench Warrant.
On March 18, 2011, Petitioner was found guilty after trial
in Nevada on Nevada state charges and eventually sentenced to
eight to twenty years’ imprisonment.
ECF No. 7-8, Sent’g Tr. at
At some point, the Atlantic County authorities discovered
Petitioner’s presence in the state of Nevada, and on August 14,
2012, requested that the December 10, 2010, warrant be extended
to cover the forty-eight (48) contiguous states.
ECF No. 14-4,
Request to Extend Territorial Limits; ECF No. 7-8, Sent’g Tr. at
Petitioner remained in the custody of Nevada until January
2011, when he was transferred to the Atlantic County Justice
Facility, in Mays Landing, New Jersey.
ECF No. 14-7, Interstate
Agreement on Detainers Regarding Brent Morris.
On March 4, 2013, Petitioner signed his plea agreement,
which recommends concurrent four-year sentences of imprisonment
and jail time credit for time spent in the Atlantic County
Justice Facility or out-of-state on a New Jersey detainer.
No. 7-5, Plea Agreement.
That day, the trial court accepted his
ECF No. 7-6, Plea Tr. at 9:3–5.
hearing was scheduled for April 12, 2013.
At that hearing,
counsel for Petitioner raised the issue of the calculation of
his jail time credits to be applied to Petitioner’s four year
sentence stipulated in his plea agreement. 3
Tr. at 3.
ECF No. 7-7, Hr’g
Instead of issuing the sentence that day, the trial
court directed Petitioner to submit a letter brief on the jail
credit calculation and reset the sentencing for April 19, 2013.
Id. at 4.
On April 19, 2013, the trial court advised Petitioner that
the court had considered the calculation of jail time credits
and concluded that he was only entitled to approximately 260
days of jail time credits from August 14, 2012, the date on
which his New Jersey detainer was extended to cover his presence
in Nevada, through the date of the sentencing hearing.
7-8, Sent’g Tr. at 2.
The trial court also repeatedly advised
Petitioner that if he did not want to accept that calculation,
he could withdraw his guilty plea and go to trial.
Id. at 2,
At no point did Petitioner withdraw his guilty plea; in
fact, he stated his intent to proceed with sentencing and
challenge the calculation of the jail time credits on appeal.
Id. at 7, 17, 26.
The trial court awarded Petitioner jail time
At some point prior to this hearing, counsel for Petitioner
filed a motion to withdraw the guilty plea, see ECF No. 7-7,
Hr’g Tr. at 2, but withdrew it in open court at the April 12
initial sentencing, id. at 3.
credit of 271 days, for his prior incarceration from the day his
New Jersey bench warrant took effect in Nevada on August 14,
2012, through the date of sentencing, April 19, 2013, along with
concurrent four-year sentences of imprisonment for the four
counts to which Petitioner pled guilty.
ECF No. 7-8, Sent’g Tr.
at 30-32; ECF No. 7-4, Judgements of Conviction.
After sentencing, Petitioner appealed only the calculation
of his jail credits to the Appellate Division of the Superior
Court of New Jersey, Docket No. A-4928-12.
ECF No. 6, Answer at
On February 11, 2014, the Appellate Division affirmed the
sentence but remanded the matter to the trial court for entry of
corrected Judgments of Conviction to reflect the proper amount
of jail credits or gap time credits per New Jersey statute.
No. 7-10, Order.
This was due to a prior miscalculation at
sentencing which New Jersey acknowledged during oral argument
before the Appellate Division.
ECF No. 7-9, App. Tr. at 3:4–12.
Petitioner filed a petition for certification with the
Supreme Court of New Jersey, requesting review of the Appellate
Division’s decision, Docket No. 74,163.
ECF No. 14-10.
Supreme Court of New Jersey denied certification by order dated
September 25, 2014.
ECF No. 7-11.
Petitioner filed this Petition on October 28, 2014.
According to his supplemental brief regarding mootness,
Petitioner states that his New Jersey sentence, including any
parole, concluded on October 17, 2015.
ECF No. 17 at 3.
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 provides, in pertinent
(a) The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus in behalf of a person in custody
pursuant to the judgment of a State court only
on the ground that he is in custody in
violation of the Constitution or laws or
treaties of the United States.
. . .
(d) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim-(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding . . . .
28 U.S.C. § 2254.
Section 2254 “sets several limits on the power of a federal
court to grant an application for a writ of habeas corpus on
behalf of a state prisoner.”
Cullen v. Pinholster, 563 U.S.
170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir.
Section 2254(a) permits a court to entertain only claims
alleging that a person is in state custody “in violation of the
Constitution or laws or treaties of the United States.”
Pinholster, 563 U.S. at 181.
A federal court’s authority to grant habeas relief is
further limited when a state court has adjudicated petitioner’s
federal claim on the merits.
See 28 U.S.C. § 2254(d). 2
claim has been adjudicated on the merits in state court
proceedings, this Court “has no authority to issue the writ of
“[A] claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that finally
resolves the claim based on its substance, not on a procedural, or
other, ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009)
(quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
“Section 2254(d) applies even where there has been a summary
denial.” Pinholster, 563 U.S. 170, 187. “In these circumstances,
[petitioner] can satisfy the ‘unreasonable application’ prong of
§ 2254(d)(1) only by showing that ‘there was no reasonable basis’
for the [state court's] decision.”
Id. (quoting Harrington v.
Richter, 562 U.S. 86, 98 (2011)). See also Johnson v. Williams,
568 U.S. 289, 301 (2013) (“When a state court rejects a federal
claim without expressly addressing that claim, a federal habeas
court must presume that the federal claim was adjudicated on the
merits—but that presumption can in some limited circumstances be
habeas corpus unless the [state court’s] decision ‘was contrary
to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of
the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.’”
Parker v. Matthews, 567 U.S. 37,
40 (2012) (quoting 28 U.S.C. § 2254(d)).
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
Clearly established law “refers to the holdings, as opposed to
the dicta, of [the Supreme Court’s] decisions as of the time of
the relevant state-court decision.”
U.S. 362, 412 (2000).
Williams v. Taylor, 529
A court must look for “the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.”
Andrade, 538 U.S. 63, 71-72 (2003).
“[C]ircuit precedent does
not constitute ‘clearly established Federal law, as determined
by the Supreme Court,’ [and] therefore cannot form the basis for
habeas relief under AEDPA.”
Parker, 567 U.S. at 48-49 (quoting
28 U.S.C. § 2254(d)(1)).
A decision is “contrary to” a Supreme Court holding within
28 U.S.C. § 2254(d)(1), if the state court applies a rule that
“contradicts the governing law set forth in [the Supreme
Court’s] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a [different result.]”
Williams, 529 U.S. at 405–06.
Under the “‘unreasonable
application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the
Williams, 529 U.S. at 413.
However, under §
2254(d)(1), “an unreasonable application of federal law is
different from an incorrect application of federal law.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Williams, 529 U.S. at 410).
“If this standard is difficult to
meet--and it is--that is because it was meant to be.”
Titlow, 134 S.Ct. 10, 16 (2013) (citations and internal
quotation marks omitted).
The petitioner carries the burden of
proof, and review under § 2254(d) is limited to the record that
was before the state court that adjudicated the claim on the
Pinholster, 563 U.S. 170, 181 (2011).
Petitioner challenges the calculation of jail time credits
to be applied to his New Jersey sentences.
ECF No. 1, Pet. at
Because Petitioner is no longer confined under his New
Jersey sentences and seeks only to challenge the application of
his jail time credits, the Petition must be dismissed as moot.
A federal court has jurisdiction to entertain a habeas
petition under 28 U.S.C. § 2254(a) “only if [a petitioner] is in
custody in violation of the constitution or federal law.”
v. McCullough, 393 F.3d 439, 441 (3d Cir. 2005).
“for a federal court to have jurisdiction, a petitioner must be
in custody under the conviction he is attacking at the time the
habeas petition is filed.”
717 (3d Cir. 2003).
Obado v. New Jersey, 328 F.3d 716,
After a petitioner's release from custody,
a petition for writ of habeas corpus is moot unless the
petitioner “can demonstrate he will suffer some collateral
consequences if his conviction is allowed to stand.”
F.3d at 441–42, 442 n.3 (citing Carafas v. LaVallee, 391 U.S.
234, 237-38, (1968)).
A collateral consequence satisfies the
constitutional requirement of a case or controversy.
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citing U.S. Const. art.
III, § 2).
When the petitioner is not challenging his criminal
conviction, it is the petitioner’s burden to demonstrate
United States v. Kissinger, 309 F.3d
179, 181 (3d Cir. 2002).
A collateral consequence is a
“concrete and continuing injury other than the now-ended
incarceration or parole” to the petitioner.
Spencer v. Kemna,
523 U.S. 1, 7 (1998).
In his supplemental brief regarding mootness, Petitioner
merely reargues the merits of his case, i.e. the application of
jail time credits to his New Jersey sentences, rather than
discussing a collateral consequence that would arise from the
dismissal of his Petition as moot.
See ECF No. 17.
Petitioner asserts that “the honor of the government, public
confidence in the fair administration of justice, and the
efficient administration of justice” are “at stake” with his
Id. at 5.
Although important, those concepts are not
consequences that would arise collaterally, to the detriment of
Petitioner personally, from the dismissal of the Petition.
Because Petitioner is no longer in custody for his New Jersey
sentences and has demonstrated no collateral consequences, the
Petition must thus be dismissed as moot for lack of a case or
Even if the Court were to presume or Petitioner were to
demonstrate collateral consequences, the Court would still have
to deny the Petition.
The calculation of jail time credits for
a state law conviction is a matter of state law.
Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) (“A state
court’s alleged misinterpretation of state . . . crediting
statutes is a matter of state concern only.”); Travis v. A.L.
Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991); Lewis v.
Caldwell, 609 F.2d 926, 928 (9th Cir. 1980); Beto v. Sykes, 403
F.2d 664, 665 (5th Cir. 1968); Hoover v. Snyder, 904 F. Supp.
232, 234 (D. Del. 1995); Cool v. Miller, No. 13-cv-1139, 2014 WL
11321655, at *3 (N.D. Ohio June 30, 2014); Harvey v. Aviles, No.
04-cv-5418, 2006 WL 624891, at *5 (D.N.J. March 10, 2006)
(“Respondents correctly point out that interpretation of state
law regarding jail credits for time served is a matter of state
law not cognizable on federal habeas review”).
“Because ‘[a]pplication of presentence jail time to a
subsequent sentence is legislative grace and not a
constitutional guarantee,’ the interpretation of state crediting
statutes is a matter of state concern and not a proper function
of a federal court under its habeas corpus jurisdiction.”
Travis v. A.L. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991)
(quoting Patino v. South Dakota, 851 F.2d 1118, 1120 (8th Cir.
1988)) (internal citation omitted).
Because such a claim is not
cognizable under federal habeas review, the Petition would be
The Petition does not include an explicit claim under the
Double Jeopardy Clause of the Fifth Amendment, but this District
has previously considered whether a challenge to the calculation
of jail time credit would implicate the Double Jeopardy Clause.
Harvey v. Aviles, 2006 WL 624891 (D.N.J. March 20, 2006).
Double Jeopardy Clause provides that no person shall “be subject
for the same offense to be twice put in jeopardy of life or
U.S. Const. amend. V.
for the same crime.
It prohibits multiple punishments
Stiver v. Meko, 130 F.3d 574, 578 (3d Cir.
1997) (citing United States v. Halper, 490 U.S. 435, 440
In Harvey, the Court considered whether a failure to give a
defendant credit for jail time already served effectively
amounted to an increase in the sentence imposed.
624891, at *5-6.
See 2006 WL
After considering the matter and noting that
the calculation of jail time credit is a matter of state law
only, the Court found “no error of constitutional dimension in
the awarding of jail credits.”
Id. at *6.
“[p]etitioner has not been subjected to multiple punishments for
the same offense, he has not been subjected to a violation of
the Double Jeopardy Clause.”
Id. (citing Stiver v. Meko, 130
F.3d 574, 578–79 (3d Cir. 1997)).
Here, Petitioner has also not
been subject to multiple punishments for the same offense.
this reason, the Petition would also be denied if Petitioner had
raised a claim under the Double Jeopardy Clause of the Fifth
III. CERTIFICATE OF APPEALABILITY
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.
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
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
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing
The Court notes that Petitioner references once the Eighth
Amendment in the Petition. See ECF No. 1, Pet. at 3. Besides
this passing reference, Petitioner makes no argument regarding
the Eighth Amendment, the sort of claim he seeks to bring
thereunder, or any clearly established Eighth Amendment Supreme
Court case law. As the Supreme Court of the United States has
stated, the “clearly established” Supreme Court case law
regarding the Eighth Amendment applicable here is that “[a]
gross disproportionality principle is applicable to sentences
for terms of years.” Lockyer v. Andrade, 538 U.S. 63, 72
(2003). Petitioner has not raised nor has he intended to raise
such a claim in the Petition, as he explicitly states that his
sole ground for relief is that “he was denied the benefit of his
plea bargain because [the state trial court] failed to award him
940 discretionary jail credits.” ECF No. 1, Pet. at 5-6.
of the denial of a constitutional right.
Thus, no certificate
of appealability shall issue.
For the above reasons, the § 2254 habeas petition is
dismissed as moot, and a certificate of appealability will not
An appropriate Order follows.
Dated: March 6, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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