AGRON v. D'ILIO et al
OPINION filed. Signed by Judge Noel L. Hillman on 9/25/2015. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STEPHEN D'ILIO, et al.,
JOSE A. AGRON,
Civ. No. 15-2835 (NLH)
Jose A. Agron, #979913-B/558818
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner, pro se
HILLMAN, District Judge
Petitioner Jose A. Agron challenges his 2006 conviction in
this petition for a writ of habeas corpus pursuant to 28 U.S.C.
At this time, the Court will review the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
See also 28 U.S.C. § 2243.
For the reasons discussed below,
Petitioner’s Grounds Three, Ten and Eleven will be dismissed;
and an Answer will be ordered as to the remaining grounds for
Petitioner filed his initial § 2254 habeas petition on or
about April 22, 2015. (ECF No. 1).
This case was
administratively terminated because the initial Petition was not
submitted using the habeas form supplied by the Clerk. (ECF No.
On or about July 7, 2015, Petitioner filed an Amended
Petition (ECF No. 3), and the case was reopened for review by a
According to the allegations contained in the Amended
Petition, Petitioner was convicted on June 22, 2006 in the
Superior Court of New Jersey, Law Division, Camden County
following a jury trial. (Am. Pet. 2, ECF No. 3).
Petitioner was convicted of: two counts of first-degree
purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2);
attempted murder, N.J.S.A. 2C:5-1, 2C:11-3a(1) and (2);
conspiracy to commit murder, N.J.S.A. 2C:5-2; possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful
possession of a handgun, N.J.S.A. 2C:39-5b; and hindering
apprehension or prosecution, N.J.S.A. 2C:29-3b(1).
sentenced to consecutive terms of life imprisonment for the
murder convictions under the No Early Release Act (NERA), with
85% of each sentence to be served before being eligible for
Petitioner filed a direct appeal before the Superior Court
of New Jersey, Appellate Division. See State v. Agron, No. A0252-06T4, 2008 WL 4949831, at *1 (N.J. Super. Ct. App. Div.
Nov. 21, 2008).
The appellate division affirmed the conviction,
but merged the conviction for conspiracy to commit murder into
the murder convictions, and remanded for resentencing.
Supreme Court denied certification, see State v. Agron, 198 N.J.
313 (2009), on February 4, 2009.
Petitioner states that he was resentenced on March 20,
2009. (Am. Pet. 3, ECF No. 3).
He appealed that decision and,
on November 17, 2010, the appellate court affirmed the sentence.
Petitioner states that he filed his petition for post-
conviction (“PCR”) relief on July 1, 2011. (Am. Pet. 5, ECF No.
In an opinion dated April 9, 2012, the PCR court rejected
Petitioner’s arguments and denied him PCR relief.
appealed the PCR court’s decision and the appellate court
affirmed. See State v. Agron, No. A-5718-11T1, 2014 WL 3749208
(N.J. Super. Ct. App. Div. July 23, 2014).
The Supreme Court of
New Jersey denied certification on January 23, 2015. See State
v. Agron, 220 N.J. 269, 105 A.3d 1102 (2015).
Petitioner then sought habeas relief.
In his Amended
Petition, he asserts thirteen separate grounds for relief and
the Court has reviewed each.
STANDARD OF REVIEW
United States Code Title 28, Section 2243, provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
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 must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief. See Denny v. Schult,
708 F.3d 140, 148 n. 3 (3d Cir. 2013); See also 28 U.S.C. §§
A. GROUND 3: Failure to Merge Counts
As his third ground for relief, Petitioner asserts that
“[t]he Trial court erred by failing to merge Count IV charging
conspiracy to commit purposeful/knowing murder into counts I and
II charging purposeful/knowing murder[.]” (Am. Pet. 7, ECF No.
However, Petitioner concedes in his Amended Petition that
he raised this issue on appeal and that the appellate court
remanded his case for resentencing. (Am. Pet. 3, ECF No. 3).
Indeed, the appellate court specifically held that the
conspiracy conviction should have been merged with the murder
conviction. State v. Agron, No. A-0252-06T4, 2008 WL 4949831
(N.J. Super. Ct. App. Div. Nov. 21, 2008).
Furthermore, in its
opinion denying Petitioner’s appeal of the PCR court decision,
the appellate court discussed the procedural history of this
case and noted that it previously “affirmed the conviction, but
merged the conviction for conspiracy to commit murder into the
murder convictions, and remanded for resentencing.” State v.
Agron, No. A-5718-11T1, 2014 WL 3749208, at *1 (N.J. Super. Ct.
App. Div. July 23, 2014).
Because Petitioner’s conviction for conspiracy has already
been merged into the murder convictions, he cannot establish a
constitutional violation due to the trial court’s initial
failure to merge the counts; and Petitioner is not entitled to
habeas relief on this ground.
B. GROUND 10: Ineffective Assistance of PCR Counsel
As his tenth ground for relief, Petitioner asserts that he
“was denied effective assistance of counsel entitling him to
Post Conviction Relief.” (Am. Pet. 10, ECF No. 3).
does not list any facts to support this claim.
references New Jersey State Court Rule 3:22-2(a).
As an initial matter, Petitioner has failed to provide
facts supporting this ground for relief.
Thus, he has not
complied with Rule 2 of the Rules Governing Section 2254 Cases.
Moreover, Petitioner cites only to a state court rule in support
of this ground for relief; therefore, he has not alleged any
federal or constitutional violation. See Estelle v. McGuire, 502
U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (federal
courts cannot grant habeas relief based on violations of state
Finally, to the extent Petitioner means to assert that he
was denied effective assistance of counsel during his PostConviction Relief proceedings, this Court notes that he is not
entitled to habeas relief on this ground. See 28 U.S.C. §
2254(i) (“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under section
2254.”); see also Coleman v. Thompson, 501 U.S. 722, 752, 111 S.
Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991) holding modified by
Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)
(“There is no constitutional right to an attorney in state postconviction proceedings.”).
For the foregoing reasons, Petitioner is not entitled to
habeas relief based on Ground 10 of the Amended Petition.
C. Ground 11: PCR Court Erred by Permitting Only Certain
Petitioner states as his eleventh ground for relief that
“[t]he Trial Judge erred at the PCR hearing when he
discriminately allowed the testimony of only some and not all of
the witnesses which were able to provide exculpatory evidence of
Defendant.” (Am. Pet. 11, ECF No. 3).
However, the supporting
facts associated with this ground for relief reference only New
Jersey law and the obligation of defense counsel to conduct
adequate pretrial preparation. (Id.).
Therefore, there is a
clear disconnect between the asserted basis for relief and the
subject discussed in the supporting fact section.
Moreover, Petitioner does not provide any factual
allegations in the supporting facts section, and instead recites
standards of performance by counsel as established by New Jersey
Accordingly, Petitioner has failed to provide facts
supporting this ground for relief. See Habeas Rule 2(c)(2).
Additionally, because Petitioner cites only to New Jersey state
law, he has not alleged any federal or constitutional violation.
See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67–68.
Petitioner is not entitled to habeas relief on this ground.
For the reasons set forth above, the claims set forth in
Grounds Three, Ten and Eleven will be dismissed; however,
Respondents will be required to file an Answer with respect to
the remaining grounds for relief. See Denny, 708 F.3d at 148 n.
3; 28 U.S.C. § 2243 (federal district courts have a duty to
screen and summarily dismiss habeas petitions that plainly show
the petitioner is not entitled to relief); Rule 4 of the Rules
Governing Section 2254 Cases; see also Habeas Rule 4 advisory
committee’s note (“Rule 4 authorizes the judge to ‘take such
other action as the judge deems appropriate.’” . . . “[T]he
judge may want to dismiss some allegations in the petition,
requiring the respondent to answer only those claims which
appear to have some arguable merit.”).
An appropriate Order will be entered.
_____ s/ Noel L. Hillman___
NOEL L. HILLMAN
United States District Judge
Dated: September 25, 2015
At Camden, New Jersey
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