DARBY v. WARDEN OF NEW JERSEY STATE PRISON

Filing 3

OPINION. Signed by Judge Noel L. Hillman on 3/9/2015. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN OF NEW JERSEY STATE PRISON, :
:
Respondent.
:
___________________________________:
MICHAEL D. DARBY,

Civ. No. 15-0622 (NLH)
OPINION

APPEARANCES:
Michael Darby,
New Jersey State Prison
P.O. BOX 861
Trenton, NJ 08625
Plaintiff Pro se

HILLMAN, District Judge
Petitioner Michael D. Darby, a prisoner currently confined
at the New Jersey State Prison in Trenton, New Jersey, has
submitted a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging an unspecified conviction.

Also

pending is a “Motion to Stay, Motion to Remand and Motion to
Appoint Counsel.” Motion to Stay, Motion to Remand and Motion to
Appoint Counsel, Darby v. Warden of New Jersey State Prison, No.
15-0622 (D.N.J. Feb. 17, 2015), ECF No. 2.

For the reasons set

forth below, the Petition is dismissed and the Motions are
denied.

I.

BACKGROUND

In the “Procedural History” section of his Motion to Stay,
Petitioner states that he was denied post-conviction relief
(“PCR”) in state court; though he does not specify from what
conviction he sought this relief or when it was denied. 1

In any

event, it appears that Petitioner appealed the PCR Court’s
decision on July 22, 2014.

It also appears that Petitioner

filed a number of motions with the Appellate Court, including: a
motion to proceed as indigent, which was granted; a motion for
free transcripts, which was denied; and a subsequent “MOTION TO
RELY ON ACCOMPANYING ATTEMPT TO ABBREVIATE THE RECORD[,]” which
was also denied. Id. at 18.

On January 21, 2015, the appeal was

dismissed for failure to prosecute. Id. at 23.
In a letter dated January 12, 2015, Petitioner filed with
this Court a two page document which he describes as a
“notification of a second habeas corpus writ petition.” 2 Petition
for Writ of Habeas Corpus, Darby v. Warden of New Jersey State
Prison, No. 15-0622 (D.N.J. Jan. 29, 2015), ECF No. 1.

Little

information regarding the substance of his Petition is provided;

1

Presumably, this PCR proceeding related to his original
conviction entered in the Superior Court of New Jersey,
Cumberland County, on December 9, 1991.
2 A review of Petitioner’s case history reveals that this is, in
fact, his third § 2254 habeas petition filed in this district.
See Darby v. Ricci, Civ. No. 10-1513 (NLH); Darby v. Bartkowski,
Civ. No. 11-4182 (PGS).

therefore it is unclear what precisely Petitioner intends to
challenge by way of this Petition.
In a submission dated February 9, 2015, Petitioner filed
with this Court documents titled “PROTECTIVE MOTION for ORDER OF
STAY; REMAND TO THE STATE COURT APPELLATE DIVISION with
INSTRUCTIONS TO EXTEND FULL, ADEQUATE APPELLATE PROCEDURE; GRANT
CONTINUED IFP LEAVE TO PROCEED and; RECOMMENDATION FOR REFERRAL
FOR APPOINTMENT OF COUNSEL[.]” Motion to Stay, Darby, No. 150622, ECF No. 2.

In this filing, Petitioner argues that the

Appellate Division improperly denied his request for transcripts
and his request to abbreviate the record.

He further asserts

that the denial of his motions and the subsequent dismissal of
his appeal deprived him of “the equal protection and due process
of law in the state appellate court proceeding,” and constituted
an “infringement of his state and federal Constitutional right
to unrestricted access to the courts or so much as access to the
appellate process.” Id. at 13.
Petitioner does not indicate the date of, or the subject
of, the proceedings to which the transcripts relate; nor does he
provide information regarding the underlying conviction from
which he sought relief in the PCR court.

Additionally, beyond

the caption of these submissions, Petitioner does not further
address his request for a stay or his request for appointment of
counsel.

II.

DISCUSSION

A. Challenge to the PCR Court’s Decision
To the extent Petitioner means to challenge the Appellate
Court’s decision to dismiss his appeal of the PCR Court
decision, this Court will dismiss the Petition for lack of
jurisdiction as a successive petition, and deny a certificate of
appealability.
Presumably — and because Petitioner has not indicated
otherwise — the PCR proceeding which Petitioner challenges by
way of this Petition relates to Petitioner’s original
conviction.

As noted above, Petitioner has previously

challenged his original conviction.

In his first § 2254

petition, Darby v. Ricci, Civ. No. 08-4929 (NLH), this Court
dismissed the Petition as untimely and denied a certificate of
appealability in an Order entered April 28, 2009.

Thereafter,

Petitioner submitted a motion to reopen the case and argued that
his claim was not time-barred.

By Order and accompanying

Opinion entered May 20, 2009, this Court reopened the case,
considered Petitioner’s arguments that the Petition should not
be dismissed as untimely, dismissed the Petition with prejudice
as untimely, and denied a certificate of appealability.
Petitioner then filed a Motion to Stay and a Rule 60(b) Motion,

which this Court denied in an Opinion and Order dated December
13, 2010.
Less than one year later Petitioner filed another habeas
petition. See Darby v. Bartkowski, Civ. No. 11-4182 (PGS).

In

an Opinion dated August 4, 2011, Judge Sheridan noted the
previous habeas filing and, relying on Burton v. Stewart, 549
U.S. 147, 152 (2007), dismissed the Petition for lack of
jurisdiction as a successive petition, and denied a certificate
of appealability.
The Petition presently before this Court is yet another
“second or successive” habeas application for which Petitioner
has not sought or obtained authorization from the Court of
Appeals to file in this Court. 3

Several times now Petitioner has

“brought claims contesting the same custody imposed by the same
judgment of a state court.

As a result, under AEDPA, he was

required to receive authorization from the Court of Appeals
before filing his [subsequent] challenge.

Because he did not do

so, [this] Court [is] without jurisdiction to entertain it.”
Burton, 549 U.S. at 153.
In deciding not to transfer Petitioner’s second habeas
petition to the court of appeals pursuant to 28 U.S.C. § 1631,
Judge Sheridan reasoned:

3

The Petition does not assert that the Court of Appeals has
granted authorization pursuant to 28 U.S.C. § 2244(b).

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.”
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).
The Petition before this Court does not argue that
Petitioner satisfies the gatekeeping requirements of
28 U.S.C. § 2244(b)(2), nor does it mention these
requirements or make a prima facie showing. This Court
accordingly declines to transfer the Petition to the
Third Circuit as an application for authorization to
file a second or successive petition, and will dismiss
the Petition for lack of jurisdiction. Cf. Hatches v,
Schultz, 381 F. App’x 134. 137 (3d Cir. 2010) (“In
deciding that it would not be in the interest of
justice to transfer the petition to the Fourth
Circuit, the District Court properly considered
whether Hatches had alleged facts sufficient to bring
his petition within the gatekeeping requirement of §
2255 permitting ‘second or successive’ petitions based
upon newly discovered evidence or a new rule of
constitutional law.”).

Darby v. Bartkowski, No. 11-4182, 2011 WL 3438863 at *3 (D.N.J.
Aug. 4, 2011).

For the same reasons set forth in Judge

Sheridan’s August 4, 2011 Opinion, this Court declines to
transfer the Petition and it is dismissed for lack of
jurisdiction as second or successive.

This Court denies a

certificate of appealability because jurists of reason would not
find it debatable that dismissal of the Petition for lack of
jurisdiction is correct. See Slack v. McDaniel, 529 U.S. 473.
484 (2000).

B. Challenge to Appellate Court’s Transcript Determination
To the extent Petitioner has filed this Petition as a means
to challenge the Appellate Division’s decision to deny his
request for transcripts, the Court will dismiss the Petition for
lack of jurisdiction.

A habeas corpus petition is properly used

when a prisoner challenges the “fact or duration” of his
confinement. Preiser v. Rodriguez, 411 U.S. 475, 498–99 (1973).
In this case, Petitioner seeks either the requested transcripts
or an abbreviated record so he can proceed with his appeal.
This relief, if granted, would not alter the “fact or duration”
of his confinement; therefore a § 2254 petition is not the
proper mechanism for the relief sought. Id.

Rather, it seems

that Petitioner’s complaints relate to the constitutionality of
the Appellate Court’s rulings.

Thus, it is likely that

Petitioner’s concerns would be more appropriately brought in the
form of a § 1983 action.
Additionally, to the extent Petitioner seeks a writ of
mandamus, pursuant to 28 U.S.C. § 1361, and requests that this
Court compel the Appellate Court to provide him with the
requested transcripts, this Court is without jurisdiction to do
so. See Burns v. New Jersey, No. 09-5646, 2010 WL 2696403
(D.N.J. July 1, 2010) (Section 1361 does not confer on the
district court jurisdiction to issue a writ of mandamus to
compel a state judicial officer to act in matters pending in

that officer's court.) (citing Urich v. Diefenderfer, No. 910047, 1991 WL 17820 (E.D.Pa. Feb. 11, 1991)).
For the reasons discussed above, Petitioner’s § 2254 claim
is dismissed for lack of jurisdiction.

III. CONCLUSION
Based on the foregoing, the Court dismisses the Petition
for a Writ of Habeas Corpus for lack of jurisdiction and denies
a certificate of appealability.
In the event Petitioner meant to challenge the Appellate
Court’s failure to provide him with transcripts as an
infringement of his constitutional rights, he may bring a § 1983
action.

In the event Petitioner meant to challenge a sentence

or conviction other than his original conviction, he is free to
file a new § 2254 Petition; but is advised to clearly specify
the conviction or sentence which he is challenging.
An appropriate Order follows.

March 9, 2015
At Camden, New Jersey

__s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge