KELLY v. STATE OF NEW JERSEY et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 3/9/16. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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STATE OF NEW JERSEY, et al.,
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Respondents.
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EUGENE I. KELLY,
Civ. No. 15-3932 (NLH)
OPINION
APPEARANCES:
Eugene I. Kelly, # 420545B / 615504
Bayside State Prison – Ancora Unit
P.O. Box 597
Hammonton, NJ 08037
Petitioner, pro se
HILLMAN, District Judge
On or about June 11, 2015, Petitioner Eugene I. Kelly filed
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. (ECF No. 1).
On June 15, 2015, the case was
administratively terminated for failure to satisfy the filing
fee requirement. (ECF No. 3).
Petitioner then submitted a
renewed application to proceed in forma pauperis (ECF No. 6),
and the case was reopened for review by a judicial officer.
The Court finds that Petitioner’s in forma pauperis
application is complete and his request to proceed in forma
pauperis is granted.
At this time the Court will screen the
Petition for summary dismissal pursuant to Rule 4 of the Rules
Governing Section 2254 Cases (“Habeas Rules”).
For the reasons
set forth below, Petitioner’s claim based on the Fourth
Amendment will be dismissed.
Respondents will be required to
file an Answer as to the remaining claims of the Petition.
I.
BACKGROUND
Petitioner was charged in Atlantic County under indictment
number 07-04-9530-D with a third degree unlawful possession of a
weapon, in violation of N.J.S.A. 2C:39-5(b); a fourth degree
unlawful possession of hollow point bullets, in violation of
N.J.S.A. 2C:39:-3(f); and a second degree possession of a weapon
by a convicted person, in violation of N.J.S.A. 2C:39-7.
Petitioner filed a motion to suppress evidence (the gun), which
was denied.
He then pled guilty to one count of third-degree
unlawful possession of a handgun in satisfaction of all charges.
As part of that plea agreement, the State agreed to recommend a
sentence not to exceed five years and to dismiss counts two and
three of the indictment.
Petitioner also agreed to waive his
right to appeal.
Prior to sentencing, however, Petitioner moved to withdraw
his guilty plea.
The court enforced the agreement and reminded
Petitioner that he had waived his right to appeal as part of the
plea agreement.
The court further informed Petitioner that, if
he chose to appeal, the State could withdraw the guilty plea,
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reinstate the dismissed charges against him, and proceed to
trial.
That is precisely what transpired.
At trial, Petitioner was convicted of second-degree
possession of a weapon by a convicted person.
The court granted
the State’s motion to impose an extended term and Petitioner was
sentenced to a sixteen-year term with an eight-year minimum.
Petitioner appealed and the appellate division affirmed. State
v. Kelly, No. A-1096-09T4, 2012 WL 264205 (N.J. Super. Ct. App.
Div. Jan. 31, 2012).
The New Jersey Supreme Court denied
certification. State v. Kelly, 210 N.J. 480, 45 A.3d 985 (2012).
Petitioner then filed a pro se motion for post-conviction
relief (“PCR”).
On April 3, 2013, the PCR court denied post-
conviction relief.
Petitioner attaches a copy of the court’s
decision to his Petition. (Exhibit 23-38, Letter Opinion, ECF No
1-1).
Petitioner appealed the PCR court’s decision and the
appellate court affirmed. State v. Kelly, No. A-0708-13T1, 2015
WL 1649249 (N.J. Super. Ct. App. Div. Apr. 15, 2015).
A copy of
this appellate decision is also attached to the Petition.
(Exhibit 1-7, Appellate Decision, ECF No. 1-1).
Petitioner then
filed the instant habeas petition.
Although Petitioner lists only two grounds for relief in
the Petition, the Court construes the Petition as asserting
three alleged constitutional violations: (1) an ineffective
assistance of counsel claim; (2) a Fourth Amendment claim; and
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(3) a due process violation.
The Court will address each claim
in turn.
II.
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. §§
2243, 2255.
III. DISCUSSION
A. INEFFECTIVE ASSISTANCE CLAIM
As his first ground for relief, Petitioner asserts a claim
for ineffective assistance of counsel. (Pet. 6, ECF No. 1).
Petitioner provides sufficient factual allegations to support
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this claim.
Therefore, the Court determines that it does not
“plainly appear[ ] from the petition and any attached exhibits
that the petitioner is not entitled to relief . . . .” See
Habeas Rule 4.
Respondents will be required to provide an
Answer with respect to this claim.
B. FOURTH AMENDMENT CLAIM
In the first half of Petitioner’s second ground for relief,
Petitioner argues that the charges against him were the result
of an unlawful search and seizure. (Pet. 8, ECF No. 1).
Thus,
Petitioner’s claim is based on his rights under the Fourth
Amendment of the Constitution.
However, a federal court cannot
provide habeas review of a Fourth Amendment claim if the
petitioner had a full and fair opportunity to litigate the claim
in the state courts. See Stone v. Powell, 428 U.S. 465, 494, 96
S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Wright v. West, 505
U.S. 277, 293, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992); Marshall
v. Hendricks, 307 F.3d 36 (3d Cir. 2002); Deputy v. Taylor, 19
F.3d 1485 (3d Cir. 1994).
“A petitioner has had a full and fair
opportunity to litigate such claims if the state has an
available mechanism for suppressing evidence seized in or
tainted by an illegal search or seizure, irrespective of whether
the petitioner actually availed himself of that mechanism.”
Wright v. Pierce, No. CV 12-175-SLR, 2015 WL 1137987, at *7 (D.
Del. Mar. 12, 2015) (citations omitted).
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Here, it is evident that Petitioner had a full and fair
opportunity to litigate these Fourth Amendment claims.
In his
Petition, Petitioner concedes that he raised this issue on
direct appeal. (Pet. 3, ECF No. 1).
Indeed, the appellate court
discussed Petitioner’s Fourth Amendment claim in its review of
the trial court’s denial of Petitioner’s motion to suppress
evidence. See Kelly, No. A-1096-09T4, 2012 WL 264205, at *3-4.
Moreover, the fact that this issue was litigated on direct
appeal is discussed in the PCR court’s Letter Opinion, a copy of
which Petitioner attaches to his Petition. (Exhibit 25-26,
Letter Opinion, ECF No. 1-1) (“On appeal, the Petitioner argued
that his motion to suppress was improperly denied, that he was
unlawfully stopped by the police on the night in question, that
his right to appeal was improperly waived, that his sentence was
excessive, and that his counsel was ineffective. All of
Petitioner's arguments were rejected by the Appellate Division
and his sentence was reaffirmed.”).
Petitioner also attaches to his Petition a copy of the
appellate court’s denial of his appeal of the PCR court
decision.
In its opinion, the appellate court noted that
Petitioner’s unlawful search and seizure claim was previously
raised and adjudicated on the merits on direct appeal. (Exhibit
5-7, Appeal of PCR Decision, ECF No. 1-1); Kelly, No. A-070813T1, 2015 WL 1649249, at *2-3.
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Because Petitioner received a full and fair opportunity to
litigate this claim in the state courts, he is barred from
habeas review of this issue. See Stone, 428 U.S. 465; see also
Marshall, 307 F.3d 36; Deputy, 19 F.3d 1485.
Accordingly, this
claim will be dismissed.
C. DUE PROCESS CLAIM
In the second half of his second ground for relief,
Petitioner also appears to assert a due process violation based
on allegations of perjured testimony. (Pet. 8, ECF No. 1).
Petitioner provides sufficient factual allegations to support
this claim.
Therefore, the Court determines that it does not
“plainly appear[ ] from the petition and any attached exhibits
that the petitioner is not entitled to relief . . . .” See
Habeas Rule 4.
Respondents will be required to provide an
Answer with respect to this claim.
IV.
CONCLUSION
For the reasons set forth above, Petitioner’s Fourth
Amendment claim will be dismissed; however, Respondents will be
required to file an Answer with respect to the remaining grounds
for relief, as discussed above. 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
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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: March 9, 2016
At Camden, New Jersey
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