SEVERS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 9/30/2015. (tf,n.m. )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
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v.
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:
THE ATTORNEY GENERAL OF THE
:
STATE OF NEW JERSEY, et al., :
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Respondents.
:
___________________________________:
WILLIAM SEVERS,
Civ. No. 15-6421 (NLH)
OPINION
APPEARANCES:
William Severs, # 539137/188285B
New Jersey State Prison
P.O. BOX 861
Trenton, NJ 08625
Petitioner, Pro se
HILLMAN, District Judge
Petitioner William Severs, a prisoner confined at the New
Jersey State Prison in Trenton, New Jersey, files this writ of
habeas corpus under 28 U.S.C. § 2254, challenging his 2005 New
Jersey state court conviction.
He paid the $5 filing fee.
The
Court 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).
I.
BACKGROUND
The following information is taken from the allegations of
the Petition.
After a jury trial, Petitioner was sentenced in
the Superior Court of New Jersey, Cumberland County, on October
20, 2005, to 60 years’ imprisonment for: Non-capital Murder
(Count 3); Possession of a Weapon for Unlawful Purpose (Court
4); Possession of a Weapon for Unlawful Purpose (Court 5); and
Criminal Obstruction by Flight (Count 6). (Pet. 2, ECF No. 1).
His appeal of the conviction was denied on May 19, 2009 and the
Supreme Court of New Jersey denied his petition for
certification on September 11, 2009.
Petitioner filed a Petition for Post-Conviction Relief
(“PCR”) on November 5, 2009.
The PCR Court denied his petition
on October 4, 2011 and the appellate court affirmed the PCR
court’s decision on March 14, 2014.
The Supreme Court of New
Jersey again denied a petition for certification on September
22, 2014.
Petitioner then filed in instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 21, 2015.
Petitioner asserts six grounds for relief in the Petition. 1
Specifically, Petitioner raises the following claims: (1)
“Petitioner was denied his Sixth Amendment right to an impartial
1
The Petition enumerates only five grounds for relief. However,
as discussed in further detail below, the Court notes that
Petitioner’s Ground Two appears to assert two distinct claims.
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jury” because “Juror No. 11 failed to reveal her own domestic
violence history at voir dire” (Pet. 15, ECF No. 1); (2) “the
trial court erred in denying [Petitioner’s] motion to exclude
the out-of-court and in-court identifications” (Pet. 17, ECF No.
1); (3) the trial court’s “Allen charge” to the jury was clearly
erroneous (Pet. 18, ECF No. 1); (4) “the trial court abused its
discretion and committed harmful error by failing to recognize
the prejudicial impact that the in-court conduct by the victim’s
family had on the jury” (Pet. 19, ECF No. 1); and (5) the “trial
court erred in denying [Petitioner’s] motion for mistrial when
the state’s witness revealed that a restraining order existed
between [Petitioner] and the victim” (Pet. 23, ECF No. 1).
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).
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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. Ground Two
As noted above, Petitioner enumerates five grounds for
relief in his Petition.
However, in construing the Petition
liberally, as this Court must, see Hunterson, 308 F.3d at 243,
the Court perceives two distinct claims raised in Petitioner’s
Ground Two.
Specifically, on page 17 of the Petition,
Petitioner explains that his second ground for relief is his
claim that “the trial court erred in denying the [Petitioner’s]
motion to exclude the out-of-court and in-court identifications
by Ms. D’Ippolito.” (Pet. 17, ECF No. 1).
Petitioner offers a
sentence in support of this ground and then refers to a
“continuation of Ground Two” on the following page, which he
labels page “17A.” (Id.).
The allegations provided on page 18 of the Petition — the
page which Petitioner labels “17A” — are clearly identified by
Petitioner as the “Continuation of Ground Two.” (Pet. 18, ECF
No. 1).
Here, Petitioner states that his second ground for
relief is based on his claim that “[t]he trial court’s charge to
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the jury was clearly erroneous, constituting plain error, court
should have declared a mistrial the Allen 2 charge was wrongfully
inadequite [sic].” (Id.).
In support of this allegation,
Petitioner states, “The jury asked questions that prove the
above ground; the jury was not informed [they] were on a death
penalty case; judges [sic] instruction failed to inform the jury
about the triggering effect of the [sic] own conduct.” (Id.).
Given that the first part of Petitioner’s Ground Two
references the trial court’s evidentiary ruling (Pet. 17, ECF
No. 1), and the “Continuation of Ground Two” references an Allen
charge and/or other instructions or information provided to the
jury (Pet. 18, ECF No. 1), this Court construes Petitioner’s
Ground Two as asserting two separate claims.
B. Exhaustion
A state prisoner applying for a § 2254 writ of habeas
corpus in federal court must first “exhaust[ ] the remedies
available in the courts of the State” unless “there is an
absence of available State corrective process[ ] or ...
circumstances exist that render such process ineffective.” 28
U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct.
2
See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41
L.Ed. 528 (1896); see also United States v. Eastern Med.
Billing, Inc., 230 F.3d 600, n. 1 (3d Cir. 2000) (explaining
that in Allen, the Supreme Court upheld a charge in which “the
court direct[s] the minority jurors to reconsider their views in
light of their disagreement with the majority.”).
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1198, 71 L.Ed.2d 379 (1982); Toulson v. Beyer, 987 F.2d 984, 987
(3d Cir. 1993); see also Lambert v. Blackwell, 134 F.3d 506, 513
(3d Cir. 1997), cert. denied, 532 U.S. 919, 121 S.Ct. 1353, 149
L.Ed.2d 284 (2001) (finding that “Supreme Court precedent and the
AEDPA mandate that prior to determining the merits of [a]
petition, [a court] must consider whether [petitioner] is
required to present [his or her] unexhausted claims to the
[state's] courts”).
A petitioner must exhaust state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims, either on direct appeal or in
post-conviction proceedings. See Ross v. Petsock, 868 F.2d 639
(3d Cir. 1989); see also O'Sullivan v. Boerckel, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (“requiring state prisoners
[in order to fully exhaust their claims] to file petitions for
discretionary review when that review is part of the ordinary
appellate review procedure in the State”); 28 U.S.C. § 2254(c).
“An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to
raise, by any available procedure, the question presented”).
Only if a petitioner's federal claims have been fairly presented
to each level of the state court, including the state's highest
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court, the exhaustion requirement is satisfied. See Picard, 404
U.S. at 275; Castille, 489 U.S. at 350.
As a result, district courts should dismiss petitions
containing unexhausted claims in the absence of a state court
decision clearly precluding further relief, even if it is not
likely that a state court will consider the claims on the
merits. See Rose, 455 U.S. at 522; Banks v. Horn, 126 F.3d 206,
212–14 (3d Cir. 1997); see also Toulson, 987 F.2d at 989.
The petitioner generally bears the burden to prove all
facts establishing exhaustion. Toulson, 987 F.2d at 987.
This
means that the claims heard by the state courts must be the
“substantial equivalent” of the claims asserted in the federal
habeas petition. Picard, 404 U.S. at 275.
Reliance on the same
constitutional provision is not sufficient; the legal theory and
factual predicate must also be the same. Id. at 277.
In this case, Petitioner certifies that each claim asserted
in the Petition was raised either on direct appeal or in his PCR
proceedings.
However, the court-provided form, which Petitioner
properly used to submit his § 2254 petition, requires a
petitioner to state the grounds raised in each and every direct
appeal, petition, application or motion concerning the judgment
being challenged. See AO 241 (modified): DNJ-Habeas-008 (Rev.012014).
In response to the inquiry regarding “grounds raised”,
Petitioner instructs the Court to “See Attached Sheets” and he
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attaches to his Petition the “Tables of Contents” from his
previously filed appeals, petitions for certification to the New
Jersey Supreme Court, and petitions for Post-Conviction Relief.
(Pet. 4-7, 9-11, 13-14, ECF No. 1).
Presumably, then, these
Tables of Contents contain the grounds raised in each
proceeding.
In comparing the claims asserted in the instant Petition to
the claims listed in these Tables of Contents, however, it
appears that two of the claims set forth in the Petition were
not previously raised.
Specifically, Petitioner’s Allen charge
claim (the Continuation of Ground Two) and Petitioner’s claim
regarding the trial court’s denial of his motion for a mistrial
(Ground Five) are not mentioned in the Tables of Contents
provided.
However, the fact that these claims are absent from the
Tables of Contents attached to the Petition is not determinative
of this issue.
Petitioner may have properly raised these claims
in the body of the briefs and petitions submitted in support of
his appeal and PCR petition.
Accordingly, limited response from
Respondents as to the issue of exhaustion is necessary.
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IV.
CONCLUSION
For the reasons set forth above, Respondents will be
required to provide a limited response to the Court to address
the issue of exhaustion.
An appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: September 30, 2015
At Camden, New Jersey
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