LEE v. JOHNSON et al

Filing 33

MEMORANDUM AND ORDER Granting Petitioner's request to stay the amended habeas petition and hold it in abeyance, etc.; ORDERED that within 45 days from the date of entry of this Order, Petitioner shall provide proof to the Court that he is proceeding with his unexhausted claims in state court; ORDERED that the Clerk shall administratively terminate this action. Signed by Judge Renee Marie Bumb on 9/28/2018. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DEAN LEE,
Petitioner,
v.
STEVEN JOHNSON, et al.,
Respondents.

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Civ. Action No. 16-477 (RMB)

MEMORANDUM AND ORDER

BUMB, DISTRICT JUDGE
This matter comes before the Court upon Petitioner’s Amended
Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF
No. 3), and his Motion for a Stay and Abeyance (“Motion”) (ECF No.
4), which the Court construes together.

In his Motion, Petitioner

raises five ineffective assistance of trial counsel claims, which
he alleges post-conviction relief (“PCR”) counsel failed to raise
on PCR.

(Mot., ECF No. 4.)

Petitioner seeks a stay and abeyance

while he exhausts his ineffective assistance of counsel claims in
the state courts.

(Id.)

The Court previously terminated the Motion, reserving ruling
on the matter pending Respondents’ filing of a full answer to the
Amended Petition.

(Mem. & Order, ECF No. 20.)

Respondents filed

an answer arguing that the Amended Petition is untimely and,

therefore, the Motion should be denied.1
31.)

(Resp., ECF No. 27 at

The Court notes, however, that Respondents have been unable

to provide the Court with a copy of Petitioner’s amended judgment
of conviction (see ECF No. 27 at 38–40), indicating that the
Amended Petition and Motion may be timely.

See e.g., Gore v.

Attorney Gen. of New Jersey, No. 17-223, 2017 WL 6619228, at *2
(D.N.J. Dec. 28, 2017) (“the § 2254 limitations period runs from
[the] date when time to seek review expires after entry of an
amended judgment of conviction rather than from the date of the
original judgment, where an amended judgment is entered”) (citing
Candelario v. Hendricks, No. 04-2969, 2005 WL 3440473, at *3
(D.N.J. Dec. 14, 2005)).
With respect to Petitioner’s Motion, the Court notes that a
district court cannot consider a mixed habeas petition.

See Rose

v. Lundy, 455 U.S. 509, 510 (1982) (holding a district court must
dismiss

a

§

2254

unexhausted claims).

habeas

petition

containing

exhausted

and

Rather than dismissing a mixed petition, a

district court has discretion to stay and hold the petition in
abeyance while the petitioner returns to state court to exhaust
his unexhausted claims.
(2005).

Rhines v. Weber, 544 U.S. 269, 277-78

Before granting a stay and abeyance, a district court

must determine that the petitioner had good cause for failing to

1

In their answer, Respondents also argue that Petitioner’s
exhausted claims are meritless.
2

exhaust his claims in state court prior to bringing his habeas
petition,
meritless.

and

that

his

unexhausted

claims

are

not

plainly

Id. at 277.

Petitioner, who alleges that his PCR counsel failed to raise
various ineffective assistance of trial counsel claims, has shown
good cause for failing to exhaust his habeas claims prior to
bringing his federal habeas petition.

The Court has reviewed

Petitioner’s unexhausted ineffective assistance of counsel claims
and finds that they are not plainly without merit.
IT IS therefore on this 28th day of September 2018,
ORDERED that Petitioner’s request to stay the amended habeas
petition and hold it in abeyance is GRANTED; the amended habeas
petition construed together with the motion to stay (ECF Nos. 3 &
4) is stayed and held in abeyance until Petitioner’s unexhausted
claims have been exhausted in the state courts; and it is further
ORDERED that the Court’s grant of a stay is conditioned upon
Petitioner filing a state court application for post-conviction
relief within 45 days from the date of entry of this Order, see
Rhines, 544 U.S. at 278 (“[D]istrict courts should place reasonable
time limits on a petitioner’s trip to state court and back.”); and
it is further
ORDERED that within 45 days from the date of entry of this
Order, Petitioner shall provide proof to the Court that he is
proceeding with his unexhausted claims in state court, failure to
3

do so will result in this Court striking Petitioner’s unexhausted
claims and the Court will rule on Petitioner’s exhausted claims;
and it is further
ORDERED that within 30 days of the final state court decision
exhausting Petitioner’s habeas claims, Petitioner shall notify the
Court that Petitioner has exhausted his state court remedies, and
requesting

the

Court

to

reopen

this

2254

habeas

proceeding;

Petitioner is hereby given notice that failure to notify the Court
within the time period allotted will result in the dismissal of
the Petition; and it is further
ORDERED

that

the

Clerk

of

Court

shall

administratively

terminate this action, subject to reopening upon this Court’s
Order.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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