BELL v. NOGAN et al

Filing 25

OPINION. Signed by Judge Noel L. Hillman on 8/31/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
LAWRENCE BELL,
:
:
Petitioner,
:
Civ. No. 15-5497 (NLH)
:
v.
:
OPINION
:
PATRICK NOGAN, et al.,
:
:
Respondents.
:
___________________________________:
APPEARANCES:
Lawrence Bell, # 115854/858703B
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
Petitioner, Pro se
Robin A. Hamett, Esq.
Assistant Prosecutor
Camden County Prosecutor’s Office
25 N. Fifth Street
Camden, NJ 08102
Counsel for Respondents
HILLMAN, District Judge
This matter is presently before the Court upon a motion to
stay by Petitioner Lawrence Bell. (ECF No. 22).
opposes the motion. (ECF No. 23).

Respondent

The Court has read the

submissions of the parties and considers this matter without
oral argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons discussed below, Petitioner’s motion will be
DENIED.

I.

BACKGROUND AND PROCEDURAL HISTORY

On or about July 1, 2015, Petitioner Lawrence Bell, a
prisoner confined at the East Jersey State Prison in Rahway, New
Jersey, filed this writ of habeas corpus under 28 U.S.C. § 2254,
challenging his 1992 New Jersey state court conviction. (ECF No.
1).

On or about November 18, 2015, Petitioner filed a motion

for a stay of the habeas proceeding (“First Motion for Stay”) so
that he could “proceed back to State court to pursue a motion to
correct an illegal sentence[.]” (First Mot. for Stay 1, ECF No.
9).

Respondents did not object to Petitioner’s request for a

stay.

Nevertheless, because Petitioner had failed to

demonstrate good cause for failing to exhaust, and because he
did not identify the unexhausted claims so that this court could
asses their potential merit, the motion was denied without
prejudice.
On March 21, 2016, Respondents filed their Answer to the
Petition. (ECF No. 20).

Petitioner then filed the instant

motion (“Second Motion for Stay”) in which he renews his request
for a stay. (ECF No. 22).

Respondents oppose the motion. (ECF

No. 23).
II.

MOTION FOR STAY

A. Standard
A petitioner seeking federal habeas review must exhaust
state court remedies for all grounds for relief asserted in a
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habeas petition. 28 U.S.C. § 2254(b)(1)(A); Crews v. Horn, 360
F.3d 146, 151 (3d Cir. 2004).

It is therefore proper and

routine for district courts to dismiss habeas petitions
containing both unexhausted and exhausted claims (so-called
“mixed petitions”) so as to allow the State courts the first
opportunity to address the petitioner's constitutional claims.
Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198, 71 L.Ed.2d
379 (1982).
Despite this “total exhaustion” rule, the Third Circuit has
recognized that, in some circumstances, dismissing a “mixed
petition” may time-bar a petitioner from federal court under the
one-year statute of limitations for § 2254 claims imposed by the
Antiterrorism Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 3344(d). See Crews, 360 F.3d at 151 (“AEDPA's
limitations period may act to deprive a petitioner of a federal
forum if dismissal of the habeas petition is required”) (citing
Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001)).
Accordingly, the Third Circuit has held that “[s]taying a habeas
petition pending exhaustion of state remedies is a permissible
and effective way to avoid barring from federal court a
petitioner who timely files a mixed petition.” See Crews, 360
F.3d at 151.
The Supreme Court likewise has acknowledged there could be
circumstances where dismissal of a mixed petition for exhaustion
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would result in the one-year habeas statute of limitations
expiring before the petitioner was able to return to federal
court. See Rhines v. Weber, 544 U.S. 269, 272–73 (2005).

The

Court held that, in limited circumstances, district courts have
discretion to hold a habeas proceeding in stay and abeyance
while the petitioner exhausts his unexhausted claims in state
court. Id. at 277.

A stay and abeyance is available only when

the petitioner had good cause for failing to exhaust his claims;
and only if the claims have potential merit. Id. at 277–78.
Though “[f]ew courts have provided guidance as to what
constitutes ‘good cause’ for failing to exhaust a claim in state
court within the meaning of Rhines,” the Third Circuit
emphasizes “the need to be mindful of Justice Stevens's
concurrence in Rhines, which cautions that ... [the requirement]
is not intended to impose the sort of strict and inflexible
requirement that would ‘trap the unwary pro se prisoner[.]’”
Locust v. Ricci, No. 08–2713, 2010 WL 1463190, at *10 (D.N.J.
Apr. 12, 2010) (quoting Ellison v. Rogers, 484 F.3d 658, 662 (3d
Cir. 2007) (citations omitted)).
B. Analysis
As set forth above, and as explained in this Court’s
previous Opinion (ECF No. 17), a stay and abeyance is only
appropriate when a petitioner demonstrates good cause for

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failing to exhaust, and only if the unexhausted claims are not
plainly meritless. Rhines, 544 U.S. at 277–78.
In his motion, Petitioner explains that he is requesting a
stay and abeyance in order
to be able to include the claims raised in the motion
to correct an illegal sentence in his one and all
inclusive § 2254 petition. The claims raised in the
pending State motion are that petitioner’s sentence of
Life serve [sic] 55 years is unconstitutional because
New Jersey’s sentencing scheme prohibits a sentencing
judge’s use of a petitioner’s youthfulness as a
mitigating factor for a fourteen year old juvenile
waived up as an adult except [sic]; and that
petitioner’s sentence constitutes a de facto sentence
of Life without parole.
(Second Mot. for Stay 1-2, ECF No. 22).
Petitioner asserts that he raised these claims pursuant to
the Supreme Court’s holdings in Miller v. Alabama, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012), and Montgomery v. Louisiana, 136
S. Ct. 718, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27,
2016).

Presumably, then, Petitioner seeks to amend his Petition

to assert these claims in the instant federal habeas petition,
and wishes to hold this case in stay and abeyance while he
exhausts them in state court.
As an initial matter, Petitioner has not sought to amend
his Petition to add claims for relief pursuant to the holdings
in Miller and Montgomery.

Nevertheless, even assuming the Court

would grant such a request, a stay is not warranted because any

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claims pursuant to Miller are plainly without merit given the
facts of this case. See Rhines, 544 U.S. at 277–78.
Specifically, in order for a writ of habeas corpus to
issue, the decision of the state court must have been “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States[.]” 28 U.S.C. § 2254(d)(1).

A state court

decision is “contrary to” Supreme Court precedent “if the state
court applies a rule that contradicts the governing law set
forth in [Supreme Court] cases,” or “if the state court
confronts a set of facts that are materially indistinguishable
from a decision of th[e] Court and nevertheless arrives at a
result different from [the Court’s] precedent.” Williams v.
Taylor, 529 U.S. 362, 405–06, 120 S.C t. 1495, 146 L.Ed.2d 389
(2000) (O’Connor, J., for the Court, Part II).
Here, Petitioner’s claim is that his sentence is in
violation of the Supreme Court’s holding in Miller, which,
pursuant to the decision in Montgomery, 136 S. Ct. at 734,
applies retroactively.

However, in Miller the Supreme Court

held that “a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders” violates
the Eighth Amendment. 132 U.S. at 2469.

In contrast, Petitioner

in this case was not sentenced to life in prison without the
possibility of parole.

Rather, Petitioner in this case was
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sentenced to life with a 55-year period of ineligibility.

Thus,

the facts of the instant case are “not materially
indistinguishable” from the facts of Miller and its progeny.
See, e.g., Demirdjian v. Gipson, No. 09-56453, 2016 WL 4205938,
at *13 (9th Cir. Aug. 10, 2016) (holding that because petitioner
would be eligible for parole when he was 66 years old, his
sentence did not trigger the application of Miller) (citing
Lockyer v. Andrade, 538 U.S. 63, 64, 123 S. Ct. 1166, 1169, 155
L. Ed. 2d 144 (2003) (reasoning that a sentence of two
consecutive terms of 25 years to life was “materially
[]distinguishable” from a sentence of life without parole));
Benjamin v. Walker, No. 06-0692, 2015 WL 164817, at *11 (C.D.
Cal. Jan. 11, 2015) (finding Miller and related cases
inapplicable because Petitioner was not sentenced to life
without the possibility of parole).
Because Petitioner in this case did not receive a sentence
of life without parole, Miller is inapplicable.

Although

Petitioner argues that the length of his sentence “constitutes a
de facto sentence of life without parole” (Second Mot. to Stay
1-2, ECF No. 22), “the Supreme Court has not yet explicitly held
that the Eighth Amendment extends to juvenile sentences that are
the functional equivalent of life, and given the fact that lower
courts are divided about the scope of Miller, [the New Jersey
state court] decisions were not contrary to, or an unreasonable
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application of, clearly established federal law as defined by
the Supreme Court.” Starks v. Easterling, No. 14-6230, 2016 WL
4437588, at *3 (6th Cir. Aug. 23, 2016) (citations omitted).
Accordingly, Petitioner’s claims under Miller are plainly
without merit, and a stay in abeyance is inappropriate. Rhines,
544 U.S. at 277–78.

Petitioner’s Second Motion to Stay (ECF No.

22) will be DENIED.
III. CONCLUSION
For the foregoing reasons, Petitioner’s Second Motion to
Stay (ECF No. 22) is DENIED.

The Petition will be ruled upon in

due course.
An appropriate Order will be entered.

__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: August 31, 2016
At Camden, New Jersey

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