BELL v. NOGAN et al

Filing 31

OPINION. Signed by Judge Noel L. Hillman on 9/29/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
LAWRENCE BELL,
:
:
Petitioner,
:
Civ. No. 15-5497 (NLH)
:
v.
:
OPINION
:
PATRICK NOGAN, et al.,
:
:
Respondents.
:
___________________________________:

IT APPEARING THAT:
1.

This matter is presently before the Court upon

Petitioner Lawrence Bell’s third Motion for a Stay of his
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.
(ECF No. 28.)
2.

In his previously dismissed second motion, Petitioner

requested a stay 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 a Stay 1-2, ECF No. 22.)
3.

Petitioner asserted that he was raising these claims

pursuant to the Supreme Court’s holdings in Miller v. Alabama,

132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S. Ct.
718 (2016), as revised (Jan. 27, 2016).
4.

In its September 6, 2016 Opinion and Order, this Court

found that a stay is not warranted because any claims pursuant
to Miller are plainly without merit given the facts of
Petitioner’s case.

(ECF Nos. 25, 26.)

Specifically, 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

was sentenced to life with a 55-year period of ineligibility.
5.

Thus, this Court determined that the facts of the

instant case are “not materially indistinguishable” from the
facts of Miller and its progeny and, therefore, any habeas claim
based on Miller would be meritless.

(Sept. 6th Opinion 6-8.)

Consequently, the Court denied the Second Motion for a Stay.
(ECF Nos. 25, 26.)
6.

Petitioner thereafter filed the instant third Motion

for a Stay.

(Third Mot. for a Stay, ECF No. 28.)

Petitioner

states that he is seeking a stay 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
petitioner has previously advised the Court of
the claims raised in the pending State motion
2

during a previous motion for a stay and
abeyance, and that petitioner's sentence of
Life plus 50 years, serve 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; and
that petitioner's sentence constitutes a de
facto sentence of Life without parole.
The
New Jersey Supreme Court just decided in
January 2017, the cases of State v. Zuber and
State v. Comer, which were both combined
addressing the Miller v. Alabama, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012) and the holding
in Montgomery v. Alabama, making the Miller
decision retroactive. The New Jersey Supreme
Court also made the cases retroactive and
offered additional protections under the State
Constitution, and also referred the matter to
the State Legislature to create sentencing
guidelines for juveniles waived up as adults,
and to be resentenced. In order to pursue
petitioner's claim that his sentence was
imposed in a manner where the sentencing judge
did not consider petitioner's youthfulness as
a mitigating factor and to fully exhaust his
claim to include in his one and all inclusive
petition this claim now pending in the
Superior Court of New Jersey - Law Division,
Camden County, petitioner would need a stay
and abeyance.
(Id.)
7.

It

appears

that

Petitioner

is

seeking

a

stay,

and

requesting permission to amend his Petition 1, to raise the exact
claims for which this Court previously denied him a stay, but he

1

As with his Second Motion for a Stay, Petitioner has not sought
permission to amend his Petition. However, for purposes of this
Motion only, the Court will assume that he has sought, and would
receive, such permission.
3

believes that recent New Jersey Supreme Court cases change the
circumstances.

Despite his reliance on the recent New Jersey

Supreme Court cases, Petitioner is still ultimately seeking a stay
to

exhaust

Montgomery.

claims

pursuant

to

the

holdings

in

Miller

and

That request has already been denied in this Court’s

September 6, 2016 Opinion and Order and will not be revisited here.
(ECF Nos. 25, 26.)
8.

Moreover, to the extent Petitioner is requesting a stay

so he can exhaust claims alleging that his sentence is in
violation of the New Jersey Supreme Court’s holdings in State v.
Zuber and State v. Comer, 152 A.3d 197 (N.J. 2017), or based on
a change to New Jersey criminal statutes, 2 that request would
also be denied because any such claims are not cognizable on
federal habeas review.

See Estelle v. McGuire, 502 U.S. 62, 67–

68 (1991) (“We have stated many times that federal habeas corpus
relief does not lie for errors of state law”); Ross v. District
Attorney of the Cty. of Allegheny, 672 F.3d 198, 207 n. 5 (3d
Cir. 2012) (citing Estelle).

See also 28 U.S.C. § 2254(d)(1)

(“[a]n application for a writ of habeas corpus on behalf of a

2

Petitioner appears to make this argument in his subsequently
filed “Motion to Amend his Motion to Stay.”
(ECF No. 30.)
Specifically, he appears to be seeking to a stay to exhaust a claim
that his sentence is in violation of revised N.J.S.A. § 2A:4A26.1, which raised the minimum age for waiver from 14 years old to
15 years old and was made retroactive by the Appellate Division in
State in Interest of J.F., 140 A.3d 564 (N.J. Super. Ct. App. Div.
2016).
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person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim…resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States…”)(emphasis added).

However, as noted by the

Respondent, Petitioner is certainly free to seek relief on these
grounds in the state courts.
9.

For the reasons stated above, Petitioner’s third Motion

for a Stay will be denied.

An appropriate order follows.

Dated: September 29, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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