CLAUSELL v. BONDS et al
OPINION FILED. Signed by Judge Noel L. Hillman on 2/10/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIE BONDS, et al.,
Civ. No. 15-4066 (NLH)
James Clausell, # 203604/233324B
South Woods State Prison
215 Burlington Road
Bridgeton, NJ 08302
Petitioner Pro se
HILLMAN, District Judge
Petitioner James Clausell, a prisoner currently confined at
the South Woods State Prison in Bridgeton, New Jersey, has
submitted a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254.
For the reasons set forth below, the petition
will be dismissed for lack of jurisdiction.
The lengthy factual background and procedural history of
this case is fully described in several court orders — including
this Court’s September 29, 2006 Order denying Petitioner’s first
application for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, see Clausell v. Sherrer, No. 04-3857, 2006 WL 2846283, at
*1-6 (D.N.J. Sept. 29, 2006) aff'd, 594 F.3d 191 (3d Cir. 2010),
as amended (Mar. 23, 2010) — and need not be repeated here.
For purposes of this Opinion, this Court notes that
Petitioner was convicted — after his second trial — of firstdegree murder, aggravated assault, and two weapons related
On February 23, 1996, Petitioner was sentenced to
life imprisonment with a thirty-year parole disqualifier for
first-degree murder; as well as concurrent sentences on the
Petitioner appealed and his convictions were
affirmed in an unpublished opinion. See State v. Clausell,
Docket No. A–4947–95 (N.J. Ct. App. Div. April 1, 1999), cert.
denied, 161 N.J. 331 (1999).
Thereafter, Petitioner filed his first petition for PostConviction Relief (“PCR”) in state court and claimed that newlydiscovered evidence proved that his co-defendant, and not
Petitioner, had discharged the weapon.
The PCR judge denied the
petition, and the Appellate Division affirmed in an unpublished
opinion. See State v. Clausell, Docket No. A–5681–01 (App. Div.
Dec. 10, 2003), cert. denied, 180 N.J. 151 (2004).
Petitioner then filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 before this Court. See Clausell v.
Sherrer, No. 04-3857 (NLH) (D.N.J. filed Aug. 9, 2004).
September 29, 2006, this Court denied the habeas petition. See
Clausell v. Sherrer, No 04-3857, 2006 WL 2846283.
appealed and the Court of Appeals for the Third Circuit
affirmed. See Clausell v. Sherrer, 594 F.3d 191 (3d Cir. 2010),
as amended (Mar. 23, 2010).
The United States Supreme Court
denied a writ of certiorari. Clausell v. Sherrer, 562 U.S. 871,
131 S. Ct. 172, 173, 178 L. Ed. 2d 103 (2010).
On July 18, 2011, Petitioner filed a second PCR petition in
The PCR judge denied the petition and determined
that the application was time-barred and, even if it was not, it
Petitioner again appealed and the New Jersey
Appellate Division affirmed the PCR court’s denial. See State v.
Clausell, No. A-4827-11T3, 2014 WL 1577819, at *4 (N.J. Super.
Ct. App. Div. Apr. 22, 2014).
The New Jersey Supreme Court
denied a petition for certification. See State v. Clausell, 220
N.J. 269, 105 A.3d 1102 (2015).
On or about June 15, 2015, Petitioner filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1).
The case was previously administratively
terminated due to Petitioner’s failure to satisfy the filing fee
However, on or about July 28, 2015, Petitioner
submitted an application to proceed in forma pauperis (ECF No.
6) and the case was reopened for review by a judicial officer.
The Court finds Petitioner’s in forma pauperis application
to be complete pursuant to Local Civil Rule 81.2(b).
will now conduct a preliminary review of the Petition as
required by Habeas Rule 4. See Rule 4 of the Rules Governing
Section 2254 Cases, (amended Dec. 1, 2004).
STANDARD OF REVIEW
Petitioner brings this Petition for a Writ of Habeas Corpus
as a pro se litigant.
A pro se pleading is held to less
stringent standards than more formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
2197, 2200, 167 L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance. See
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721–22 (3d Cir. 1989).
Nevertheless, a federal district court must dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief. 28
U.S.C. § 2254 Rule 4; see also McFarland v. Scott, 512 U.S. 849,
856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025, 109
S.Ct. 1758, 104 L.Ed.2d 194 (1989).
As set forth above, this is Petitioner’s second federal
habeas petition challenging his conviction and sentence. See
Clausell v. Sherrer, No. 04-3857 (NLH) (D.N.J. filed Aug. 9,
Therefore, this Court must consider whether the instant
Petition is “second or successive” and, thus, whether this Court
lacks jurisdiction to entertain it in the absence of an order
from the Third Circuit permitting its filing. See 28 U.S.C. §
A petition is not necessarily “second or successive” simply
because it follows a prior petition. See Panetti v. Quarterman,
551 U.S. 930, 944, 127 S. Ct. 2842, 2853, 168 L. Ed. 2d 662
(2007); Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005)
(citing In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per
However, if a “petitioner has expended the ‘one full
opportunity to seek collateral review’ that AEDPA ensures[,]”
then a subsequent attack on “the underlying criminal judgment
must be a second or successive petition because  the judgment
h[as] become final[.]” Blystone v. Horn, 664 F.3d 397, 413 (3d
Cir. 2011) (emphasis in original); see also Jones v. Nelson, No.
14-7788, 2015 WL 5692878, at *2 (D.N.J. Sept. 25, 2015) (quoting
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003)) (“If,
however, a petition is resolved in a way that satisfies a
petitioner's one ‘full and fair opportunity to raise a [federal]
collateral attack,’ then it does count for purposes of §
Thus, a subsequent petition is successive if it seeks to
challenge the same judgment of conviction and sentence as
before, see, e.g., In re Brown, 594 F. App'x 726, 728 (3d Cir.
2014), and the prior judgment was on the merits, see Gonzalez v.
Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648, 162 L. Ed. 2d
Further, where a petition raises claims that could
have been raised in an earlier habeas corpus petition, that
claim is clearly “second or successive.” Benchoff, 404 F.3d at
817 (citing McCleskey v. Zant, 499 U.S. 467, 493–95, 111 S.Ct.
1454, 113 L.Ed.2d 517 (1991); Wise v. Fulcomer, 958 F.2d 30, 34
(3d Cir. 1992)).
Here, Petitioner sets forth four grounds for relief.
his first ground for relief, Petitioner states that “no time
bar, procedural bar, or limitations apply to issues presented in
petition.” (Pet. 7, ECF No. 1).
Petitioner’s second, third and
fourth grounds for relief all relate to allegedly newlydiscovered evidence which Petitioner contends entitles him to a
new trial (Pet. 9, ECF No. 1); establishes his actual innocence
(Pet. 10, ECF No. 1); and confirms that his conviction was based
on legally insufficient evidence (Pet. 12, ECF No. 1).
Specifically, in Ground Two, Petitioner asserts that the
affidavits of Petitioner, Carolyn Wright, and Dwayne Wright, as
well as transcripts of unspecified proceedings support the
contention that Petitioner did not fire the weapon which caused
the victim’s death. (Pet. 9, ECF No. 1).
In Ground Three,
Petitioner alleges that exculpatory and favorable evidence was
withheld and that, in light of the new evidence, no reasonable
juror would have convicted Petitioner. (Pet. 10, ECF No. 1).
Petitioner does not specify what constitutes this “exculpatory
and favorable evidence.”
Finally, in Ground Four, Petitioner
contends that the evidence at trial failed to prove elements of
the offense beyond a reasonable doubt. (Pet. 12, ECF No. 1).
These are all claims that could have been, and to some
extent were, raised in Petitioner’s previous habeas corpus
petition, which rejected each of Petitioner’s claims on the
merits. See Clausell v. Sherrer, No. 04-3857, 2006 WL 2846283,
at *9-20 (addressing Petitioner’s arguments that evidence
existed showing that Petitioner did not fire the weapon, in the
context of his ineffective assistance of counsel claims;
addressing Petitioner’s allegations of withholding of
exculpatory evidence, in the context of Petitioner’s
prosecutorial misconduct claims; and addressing Petitioner’s
challenge to the sufficiency of the evidence, in Petitioner’s
right to fair trial claim).
Accordingly, the instant Petition is a “second or
successive” petition within the meaning of 28 U.S.C. § 2244, for
which Petitioner has not sought or obtained authorization from
the Court of Appeals to file in this Court. 1
As a result, this
Court is without jurisdiction to consider the Petition. See 28
U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 127 S.
Ct. 793, 166 L. Ed. 2d 628 (2007) (holding that district court
lacked jurisdiction to entertain state prisoner's habeas
petition challenging his sentence since prisoner did not seek or
obtain an order from the Court of Appeals authorizing him to
file second or successive habeas petition, as required by habeas
If a second or successive petition is filed in the district
court without such an order from the appropriate court of
appeals, the district court may dismiss for want of jurisdiction
or “shall, if it is in the interest of justice, transfer such
action ... to any other such court in which the action ... could
have been brought at the time it was filed.” 28 U.S.C. § 1631.
See also Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002),
cert. denied, 540 U.S. 826, 124 S.Ct. 48, 157 L.Ed.2d 49 (2003).
(“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
Petitioner does not allege that he has sought permission from
the Third Circuit to file a “second and successive” petition
pursuant to 28 U.S.C. § 2244(b).
petition or transfer it to the court of appeals pursuant to 28
U.S.C. § 1631.”).
This Court concludes it is not in the interests of justice
to transfer the Petition because it is clearly time-barred. See
State v. Clausell, No. A-4827-11T3, 2014 WL 1577819 (N.J. Super.
Ct. App. Div. Apr. 22, 2014) (affirming dismissal of
Petitioner’s second PCR petition as time-barred and without
merit); see also Jones v. Nelson, No. 14-7788, 2015 WL 5692878,
at *3 (refusing to transfer second or successive petition to
Third Circuit because district court determined the petition was
time-barred based on state court’s denial of petitioner’s third
This Court’s decision not to transfer the Petition in no
way precludes Petitioner from seeking permission from the Third
Circuit himself pursuant to § 2244(b) should he so choose.
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
constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v.
Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a certificate of appealability should
issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Here, jurists of reason would not find it debatable whether
this Court was correct in its procedural ruling.
certificate of appealability will be issued.
For the foregoing reasons, Petitioner’s second habeas
petition challenging his state conviction under § 2254 is
dismissed for lack of jurisdiction.
No certificate of
appealability will issue.
An appropriate Order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
At Camden, New Jersey
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