MCGEE v. JOHNSON et al
Filing
13
OPINION. Signed by Judge Renee Marie Bumb on 1/26/2018. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DANA McGEE,
Petitioner,
v.
STEVEN JOHNSON, et al.,
Respondents.
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Civ. No. 17-2746 (RMB)
OPINION
BUMB, District Judge
Petitioner Dana McGee (“McGee”), an inmate confined in New
Jersey State Prison in Trenton, New Jersey, filed a Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Pet., ECF No. 1.)
Respondents filed a motion to dismiss the petition as barred by
the statute of limitations and alternatively as a mixed-petition.
(Mot. to Dismiss, ECF No. 11.)
On June 9, 2017, McGee filed a letter request for a stay and
abeyance, stating that his second PCR proceeding was pending appeal
when he filed the present habeas petition. (Letter, ECF No. 5.)
This Court denied his request for a stay without prejudice, finding
that McGee did not provide sufficient information to show good
cause why he did not exhaust his state remedies before bringing
the
instant
habeas
petition,
nor
did
he
present
sufficient
information for the Court to conclude that his unexhausted claim
was not plainly meritless. (Memorandum and Order, ECF No. 9.)
McGee filed a second motion for a stay and abeyance on July
26, 2017. (Motion for Stay, ECF No. 10.) McGee also filed a brief
in opposition to Respondents’ motion to dismiss, noting that
although he had received the state court record from Respondents,
a copy of Respondents’ Certification in Support of the Motion to
Dismiss was not contained in the package McGee received from
Respondents.
(Petr’s
Reply,
ECF
No.
12.)
Nevertheless,
he
responded to the timeliness of the petition. For the reasons
discussed below, the Court denies Respondents’ motion to dismiss
and denies McGee’s motion for a stay and abeyance.
I.
BACKGROUND
On January 18, 2007, after a jury trial in the New Jersey
Superior Court Burlington County, Criminal Division, a jury found
McGee guilty of three counts of first-degree aggravated sexual
assault, six counts of second-degree endangering the welfare of a
child, three counts of second-degree sexual assault, and one count
of a lesser included offense of offensive touching. (App. Div.
Opinion, July 21, 2010, ECF No. 11-9 at 1-2.) McGee was sentenced
to an aggregate prison term of sixty-years, subject to the No Early
Release Act. (Id. at 2.) An Amended Judgment of Conviction was
entered on July 26, 2007. (Amended J&C, ECF No. 11-5.) On September
21, 2007, McGee appealed. (Notice of Appeal, ECF No. 11-6.)
2
On July 10, 2010, the Appellate Division affirmed on direct
appeal. (App. Div. Opinion, July 21, 2010, ECF No. 11-9.) The
Appellate Division made the following findings of fact. Between
August 2001 and October 30, 2002, the eight-year-old victim was
sexually abused by defendant, a live-in boyfriend of her mother.
The victim first reported the abuse to her mother on October 30,
2002. The Department of Youth and Family Services became involved,
and the victim was referred to Dr. Martin A. Finkel, a professor
of pediatrics and medical director of the Child Abuse Research
Education and Service (CARES) Institute.
Dr. Finkel interviewed and examined the victim and concluded
that although there were no acute or chronic signs of trauma, the
victim “had a symptom related to a specific event that reflected
trauma to those tissues,” and that “superficial [irritation] could
easily heal within [twenty-four] hours.” He further concluded that
the victim experienced trauma to the structures of the vaginal
vestibule, consistent with penetration into the vaginal vestibule.
The victim also gave a videotaped statement to Detective Frank
Troso. Her description of what happened was similar to what she
told Dr. Finkel. Troso testified that the victim described “very,
very graphic and detailed accounts of what happened.”
After the trial judge ruled that Dr. Finkel’s testimony was
admissible and jury selection began, McGee requested to represent
3
himself, and his request was granted. The jury found McGee guilty.
The New Jersey Supreme Court denied McGee’s petition for
certification on October 21, 2010.1 (N.J. S. Ct. Order, Oct. 21,
2010, ECF No. 11-13.) McGee filed his first petition for postconviction relief (“PCR”) on January 20, 2011. (Verified Pet., ECF
No. 11-14.) On June 22, 2012, the PCR Court denied relief without
an evidentiary hearing (PCR Court Opinion, June 22, 2012, ECF No.
11-17.) McGee filed a notice of appeal.2 (Notice of Appeal, ECF
No. 11-18.) The Appellate Division affirmed the PCR Court on May
5, 2015. (App. Div. Opinion, May 5, 2015, ECF No. 11-23.)
One of the issues McGee raised in his first PCR petition was
that he was denied effective assistance of trial counsel because
his attorney failed to seek discovery of DNA evidence and subpoena
witnesses on his behalf. (Id. at 6.) The Appellate Division noted
that McGee represented himself at trial, with a public defender
serving only as standby counsel. (Id.)
At
oral
argument,
McGee’s
PCR
counsel
claimed
that
DNA
1
The order was signed by the Chief Justice on October 19, 2010,
but it was not filed until October 21, 2010. The later date is
used in computing the statute of limitations.
2
There is no indication on the Notice of Appeal of when it was
filed. (Notice of Appeal, ECF No. 11-18.) The Appellate Division’s
Opinion does not indicate when the Notice of Appeal was filed, nor
is there any discussion in the Opinion regarding the timeliness of
the appeal. Therefore, the Court assumes the appeal was timely.
4
evidence was obtained from cigarette butts taken from defendant,
that defense counsel never received a report of this, and that
appellate counsel failed to pursue it on appeal. (Id. at 8.) The
Appellate Division found there was no evidence showing any DNA
samples were taken from defendant’s cigarette butts and no DNA
evidence was ever recovered from the victim. (Id. at 9.)
The Appellate Division also found that the record supported
the PCR Court’s determination that standby defense counsel was not
ineffective for failing to subpoena Dr. Brown and Dr. Sheenan3 for
trial. (Id. at 9-10.) Before trial, Dr. Brown and standby counsel
agreed that her testimony could be detrimental to defendant’s case,
but because defendant disagreed, the trial court held a hearing.
(Id. at 10.) The trial court then determined that he would not
order Dr. Brown to testify. (Id.) Furthermore, it was unclear from
the
record
who
Dr.
Sheenan
was
or
why
he
should
have
been
subpoenaed. (Id.)
McGee filed a petition for certification with the New Jersey
Supreme Court, which was denied on September 12, 2016. (N.J. S.
Ct. Order, Sept. 12, 2016, ECF No. 11-24.)4 McGee filed a second
3
At various places in the record the witness is identified as
“Dr. Sheenan” or “Dr. Sheehan.”
4
Neither the petition, nor Respondent’s opposition brief
indicate when McGee filed the petition with the New Jersey
Supreme Court, and the petition was not provided with the state
5
PCR petition on November 16, 2016, seeking DNA testing pursuant to
N.J.S.A. 2A:84A-32a, and arguing that “stand-by counsel should
have subpoenaed Dr. Sheehan to see i[f] she took vaginal cultures
or swabs from the victim.” (PCR Court Order Denying Petitioner’s
Second Petition for Post-Conviction Relief and Motion for DNA
Testing, ECF No. 11-27 at 1.) The PCR Court denied his second PCR
petition on March 23, 2017, finding that McGee raised essentially
the same arguments as in his first PCR motion. (Id. at 2.) McGee
then filed the present habeas petition on April 13, 2017. (Pet.,
ECF No. 1.)
II.
DISCUSSION
A.
Respondents assert the petition is time-barred
Respondents contend the petition should be dismissed because
it
was
filed
after
expiration
of
the
one-year
statute
of
limitations under 28 U.S.C. § 2244(d). (Cert. in Supp. of Mot. to
Dismiss, ECF No. 11-1, ¶42.) For the reasons discussed below, this
Court disagrees and finds that McGee’s habeas petition was timely
filed.
1.
Legal Standard
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply
to an application for a writ of habeas corpus
court record. (Pet., ECF No. 1, Ground Two, ¶¶d, e; Answer, ECF
No. 4, ¶¶ 20, 21; Table of Appendix, ECF No. 11-2.)
6
by a person in custody pursuant to the
judgment of a State court. The limitation
period shall run from the latest of—
(A) the date on which the judgment became
final by the conclusion of direct review
or the expiration of the time for seeking
such review;
(B) the date on which the impediment to
filing an application created by State
action in violation of the Constitution
or laws of the United States is removed,
if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional
right asserted was initially recognized
by the Supreme Court, if the right has
been newly recognized by the Supreme
Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual
predicate
of
the
claim
or
claims
presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
After a petitioner seeks review from the State’s highest
court,
the
judgment
of
conviction
becomes
final,
and
the
limitations period begins to run after expiration of the 90-day
period for filing a petition for writ of certiorari in the United
States Supreme Court. Swartz v. Meyers, 204 F.3d 408, 417 (3d Cir.
7
2000).
Pursuant to § 2244(d)(2), only a properly filed application
for State post-conviction review or other collateral review tolls
the habeas statute of limitations. Pace v. DiGuglielmo, 544 U.S.
408, 413 (2005). An application for PCR is properly-filed when its
‘delivery and acceptance are in compliance with the applicable
laws and rules governing filings’ including ‘time limits upon its
delivery.’” Id. (quoting Artuz v. Bennett, 531 U.S. 4, 8, 11
(2000)). The tolling provision does not reset the date from which
the one-year limitation period begins to run. Johnson v. Hendricks,
314 F.3d 159, 161-62 (3d Cir. 2002) cert. denied, 538 U.S. 1022
(2003).
2.
Analysis
a.
Direct Review became
January 20, 2011
final
on
McGee’s conviction and sentence were imposed on July 26, 2007.
(Amended J&C, ECF No. 11-5.) McGee appealed and the New Jersey
Appellate Division affirmed the judgment on July 21, 2010.
(App.
Div. Opinion, July 21, 2010, ECF No. 11-9.) The New Jersey Supreme
Court denied certification on October 21, 2010. (N.J. S. Ct. Order,
Oct. 21, 2010, ECF No. 11-13.) McGee did not file a writ of
certiorari with the United States Supreme Court within ninety days
after the New Jersey Supreme Court denied his petition. McGee’s
8
direct review of his conviction became final on January 20, 2011,
90 days after the New Jersey Supreme Court denied his petition for
certification on October 21, 2010.5
b.
McGee’s first PCR proceeding tolled the
statute of limitations from January 20, 2011
through September 12, 2016
Respondents contend the statute of limitations ran from June
22, 2012, the date McGee’s first PCR was denied by the PCR Court,
until November 16, 2016, the date McGee filed his second PCR
petition, a period of 1608 days. (Certification, ECF No. 11-1,
¶39.)
McGee filed his first PCR petition on January 20, 2011,
tolling the statute of limitations on the same day that his direct
review became final. (Verified Pet. for Post-Conviction Relief,
ECF No. 11-14.) The PCR Court denied relief on June 22, 2012. (PCR
Court Opinion, June 22, 2012, ECF No., 11-17.)
In New Jersey, a petitioner has 45 days to appeal a PCR
Court’s Order.
N.J. Court Rule 2:4-1; Thompson v. Administrator
5
Federal Rule of Civil Procedure 6 describes how to compute any
time period in any statute that does not specify a method of
computing time. Fed. R. Civ. P. 6(a). In computing time, one should
exclude the day of the event that triggers the period; count every
day including intermediate Saturdays, Sundays and legal holidays;
and include the last day of the period unless it is a Saturday,
Sunday or legal holiday, in which case it runs until the next day.
Fed. R. Civ. P. 6(a)(1)(A-C).
9
New Jersey State Prison, 701 F. App’x 118, 123 (3d Cir. 2017).
McGee’s appeal was due on August 9, 2012.6 His notice of appeal is
undated. (Notice of Appeal, ECF No. 11-18.) Respondents contend it
was filed on October 12, 2012, but nothing in the record supports
this date.7
The Appellate Division denied McGee’s appeal on the merits
without any discussion of when the notice of appeal was filed or
whether it was untimely. (App. Div. Opinion, May 5, 2015, ECF No.
11-23.) The parties’ briefs to the Appellate Division do not shed
any light on the filing date of the appeal, nor do they discuss
the timeliness of the appeal. (Petr’s Briefs, ECF No. 11-19, 20,
21; State’s Brief, ECF No. 11-22.)
Based on the record, Respondents have not met their burden to
show that the notice of appeal was untimely, thus triggering the
running of the statute of limitations. Because the notice of appeal
was timely filed, the first PCR petition remained pending until
6
Under Federal Rule of Civil Procedure 6(a), the triggering date
of June 22, 2012 is not counted in the 45-day period, and 45 days
from June 23, 2012 lands on a Saturday, so the due date is extended
until Monday August 9, 2012.
7
Pursuant to Local Civil Rule 7.1(i), Respondent may file a motion
for reconsideration within 14 days of this Order, if the Court has
overlooked something in the record indicating when the Notice of
Appeal was filed. If this is the case, Respondent shall also
address the effect of the Appellate Division apparently accepting
the appeal as timely.
10
conclusion of review when the New Jersey Supreme Court denied
certification on September 12, 2016. See Swartz, 204 F.3d at 420
“[t]olling the period of limitation between the time a state court
denies post-conviction relief and the timely appeal . . . is
consistent with the plain meaning of the statutory language.”
c.
McGee’s second PCR proceeding tolled the
statute of limitations from November 16, 2016
through May 8, 2017
Sixty-four days of the one-year statute of limitations period
ran between the conclusion of McGee’s first PCR proceeding on
September 12, 2016, and the date he filed his second PCR petition
on November 16, 2016. In his second PCR proceeding, McGee sought
DNA testing pursuant to N.J.S.A. 2A:84A-32a, and he argued that
“stand-by counsel should have subpoenaed Dr. Sheehan to see i[f]
she took vaginal cultures or swabs from the victim.” (PCR Court
Order Denying Petitioner’s Second Petition for Post-Conviction
Relief and Motion for DNA Testing, ECF No. 11-27 at 1.)
The PCR Court denied McGee’s second PCR petition on March 23,
2017, finding that he raised essentially the same arguments as in
his first PCR motion. (Id. at 2.) The PCR Court concluded that
McGee failed to satisfy the requirements of N.J. Court Rules 3:224(b)(2) and 3:22-5. (Id. at 3.) Under New Jersey law, McGee had 45
days to appeal the denial of his second PCR petition, with the
appeal period expiring on May 8, 2017.
11
New Jersey Court Rule 3:22-4(b)(2) permits a second postconviction relief petition where the petition is timely and (1)
the petition relies on a retroactive new rule of constitutional
law that was unavailable during the prior proceedings; (2) the
factual predicate for the claim could not have been discovered
earlier,
and
the
underlying
facts
would
raise
a
reasonable
probability that relief would be granted or (3) the petition
alleges a prima facie case of ineffective assistance of PCR
counsel. New Jersey Court Rule 3:22-5, in pertinent part, bars a
ground for PCR relief where there has been a prior adjudication of
the ground for relief on the merits “in any post-conviction
proceeding brought pursuant to this rule.”
The New Jersey Supreme Court describes Rules 3:22-4 and 3:225 as “procedural bars.” See e.g. State v. Preciose, 129 N.J. 451,
477 (“[when appropriate, the procedural bars imposed by Rules 3:224, 3:22-5, and 3:22-12 may be asserted to preclude post-conviction
relief. . . . However, when meritorious issues are raised . . .
our traditions of comprehensive justice will best be served by
decisions that reflect thoughtful and thorough consideration and
disposition of substantive contentions.”) A procedural bar is not
a filing requirement that renders a PCR application improperlyfiled for purposes of tolling under § 2244(d)(2). See Artuz, 531
U.S. at 9 (“the question whether an application has been ‘properly
12
filed’ is quite separate from the question whether the claims
contained in the application are meritorious and free of procedural
bar.”) Therefore, McGee’s timely-filed second PCR petition tolled
the statute of limitations on November 16, 2016.
d.
64 days of the one-year statute of limitations
period ran before McGee filed his habeas
petition on April 13, 2017.
McGee’s first and second PCR petitions were properly filed
and pending, tolling the statute of limitations from January 20,
2011 through September 12, 2016, and again from November 16, 2016
through May 8, 2017. Only 64 days of the one-year limitations
period ran before McGee filed his habeas petition on April 13,
2017.
Therefore, the Court denies Respondents’ motion to dismiss.
B.
McGee’s Motion for Stay and Abeyance
McGee acknowledges that his habeas petition contains both
exhausted and unexhausted claims, and seeks to stay this proceeding
and hold it in abeyance while he exhausts his state court remedies
on his motion for DNA testing. (Mot. for Stay, ECF No. 10, “I wish
to stay the proceeding to exhaust post conviction DNA testing
action that is pending in state court.”) This Court denied McGee’s
first request for a stay and abeyance because McGee failed to
establish good cause for failing to exhaust state court remedies
prior to bringing his federal habeas petition and failed to
establish that his unexhausted claim is not plainly meritless.
13
(Memorandum and Order, ECF No. 9.)
A district court cannot consider a mixed habeas petition, one
that contains exhausted and unexhausted claims. See Rose v. Lundy,
455 U.S. 509, 510 (1982) (holding a district court must dismiss a
§ 2254 habeas 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. Rhines v. Weber,
544 U.S. 269, 277-78 (2005). However, before granting a stay and
abeyance, a district court must determine that the petitioner had
good cause for failing to exhaust his claims in state court prior
to bringing his habeas petition, and that his unexhausted claims
are not plainly meritless. Id. at 277.
McGee has not offered any reason for his failure to exhaust
his state court remedies before bringing this federal habeas
action.
Moreover, he has not made a showing that his unexhausted
claim is not plainly meritless.
On March 23, 2017, the PCR Court denied McGee’s second PCR
petition and his motion for DNA testing. (ECF No. 11-27.)8 The
court noted that McGee made a motion for forensic DNA testing
pursuant to N.J.S.A. 2A:84A-32a. (Id. at 2.) N.J.S.A. 2A:84A32a(d) states that a court “shall not grant the motion for DNA
8
McGee seeks to exhaust only his motion for DNA testing. (Mot.
for Stay, ECF No. 10.)
14
testing unless, after conducting a hearing . . .” certain prima
facie showings are made. (Id.) Those showings include that “the
evidence to be tested is available and in a condition that would
permit the DNA testing that is requested in the motion;” “the
identity of the defendant was a significant issue in the case;”
and “the evidence sought to be tested is material to the issue of
the eligible person’s identity as the offender.” (Id. citing
N.J.S.A. 2A:84A-32a(d)(1), (3), (4)).
The PCR Court found McGee had not made the necessary prima
facie showing because the Appellate Division, on direct appeal,
“cites to the victim’s testimony where the victim identified
Petitioner
and
described
what
he
did
to
her.”
(Id.
at
3.)
Additionally, the Appellate Division, on review of McGee’s first
PCR proceeding, stated “the record indicates that no DNA evidence
was ever recovered from the victim.” (Id.) Thus, the PCR Court
concluded McGee had not made a prima facie showing that the
evidence sought to be tested was material to the issue of the
identity of the offender; there was no showing that the identity
of the defendant was a significant issue in the case; and the
evidence
McGee
sought
to
have
tested
did
not
exist
and
was
therefore not available. (Id.)
McGee appealed on May 10, 2017. (ECF No. 11-1, ¶48.) The
Appellate Division issued a scheduling order for the appeal on
15
July 26, 2017. (App. Div. Scheduling Order, ECF No. 11-28.)
Even assuming McGee could show good cause for not exhausting
his state remedies before bringing the present habeas petition,
the Court finds that his pending claim for post-conviction DNA
testing is plainly meritless because the evidence sought to be
tested was not material to the identity of the offender. The
material issue was the credibility of the victim’s testimony that
defendant, who lived with her, sexually abused her during the
period of August 2001 and October 30, 2002. Whether the victim had
identified
the
correct
person
was
not
a
material
issue.
Additionally, as the PCR Court noted, no DNA evidence was ever
recovered from the victim or from McGee.
Therefore, the Court denies McGee’s motion for a stay and
abeyance because his unexhausted claim is plainly meritless. The
Court will proceed on the merits of McGee’s exhausted claims upon
receipt of Respondents’ Answer and McGee’s reply.
IV.
CONCLUSION
In the accompanying Order filed herewith, the Court denies
Respondents’ motion to dismiss and denies McGee’s motion for a
stay and abeyance. Respondents must file a full answer to the
exhausted claims in the petition, and McGee may file a reply.
16
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 26, 2018
17
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