MURPHY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

Filing 15

OPINION. Signed by Judge Noel L. Hillman on 3/16/2018. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
TYSHEIM MURPHY,
:
:
Petitioner,
:
Civ. No. 17-2960 (NLH)
:
v.
:
OPINION
:
THE ATTORNEY GEENRAL OF THE STATE :
OF NEW JERSEY,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
Tysheim Murphy, # 668462/719455C
East Jersey State Prison
1100 Woodbridge Rod.
Rahway, NJ 07065
Petitioner, Pro se
John J. Santoliquido, Esq.
Office of the Prosecutor
4997 Unami Blvd.
P.O. Box 2002
Mays Landing, NJ 08330
Counsel for Respondent
HILLMAN, District Judge
This matter is presently before the Court upon a Motion to
Stay by Petitioner Tysheim Murphy.
opposes the motion.

ECF No. 13.

ECF No. 8.

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
On or about April 28, 2017, Petitioner, a prisoner confined

at the East Jersey State Prison in Rahway, New Jersey, filed
this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254,
challenging his 2010 New Jersey state court conviction.
1.

ECF No.

Pursuant to the Court’s order, Petitioner submitted a Second

Amended Petition on July 12, 2017.

ECF No. 7.

On or about

November 18, 2015, Petitioner filed a Motion for a Stay of the
habeas proceeding so that he could “exhaust all my issues before
raising them on Habeas Corpus.”

ECF No. 8, at 4.

Specifically,

Petitioner asserts that he has not exhausted his claim that his
PCR counsel was ineffective.

Id. at 7-8.

Respondent filed an opposition to the Motion to Stay.
No. 13.

ECF

Specifically, Respondent argues that Petitioner has

already “challenged his underlying convictions once on direct
appeal and twice on collateral review in state court.”
1.

Id. at

In fact, Respondent argues that Petitioner’s second petition

for post-conviction relief was “Dismissed with prejudice for
failure to demonstrate the requisite good cause for second or
subsequent PCR petitions.”

Id.

Finally, Respondent argues that

any successive PCR petition brought to raise ineffective
assistance of Petitioner’s PCR counsel would also be dismissed

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because it is untimely under New Jersey Court Rule 3:2212(a)(2)(C).

Id.

Petitioner filed a reply in support of his Motion to Stay.
ECF No. 14.

In his reply, Petitioner asserts that his second

PCR petition was dismissed not on the merits but because the way
it was drafted.

Id. at 1.

Specifically, Petitioner asserts

that he failed to properly identify the claims regarding his PCR
counsel.
II.

Id.

DISCUSSION
A. Legal Standard
A petitioner seeking federal habeas review must exhaust

state court remedies for all grounds for relief asserted in a
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 (1982).
Despite this “total exhaustion” rule, the Court of Appeals
for 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
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Effective Death Penalty Act of 1996 (“AEDPA”).

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
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
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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

Petitioner seeks a stay for one issue:

to exhaust his

ineffective assistance of counsel claim against his PCR counsel.
According to his Motion to Stay, Petitioner asked his attorney
“to file numerous issues on” his behalf, which his attorney
“failed to do so.”

ECF No. 8, Mot. at 6.

Those issues that

Petitioner’s PCR attorney allegedly failed to raise include
violations of the Sixth and Fourteenth Amendments.

Id. at 7.

stay of the petition while Petitioner attempts to exhaust the
ineffective assistance of PCR counsel in state court would be
inappropriate under Rhines.
First, Petitioner has failed to present any facts or
argument that would constitute “good cause” for his failure to
exhaust that claim before bringing this federal habeas matter.
See Rhines, 544 U.S. at 277–78.
Second, Petitioner’s ineffective assistance of counsel
claim lacks “merit,” because it would be dismissed as untimely
in state court and is not cognizable under federal habeas
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A

review.

Id.

As the Respondent raises in its opposition to the

Motion to Stay, a PCR petition alleging ineffective assistance
of prior PCR counsel must be filed within a year after the date
of the denial of the PCR petition at issue.
12(a)(2)(C).

N.J. Ct. R. 3:22-

Petitioner’s PCR petition at issue was denied on

June 20, 2014.

See ECF No. 13, at 5.

More than one year has

elapsed since the denial of the PCR petition, and thus any
subsequent PCR petition that seeks to challenge the
effectiveness of PCR counsel would be dismissed as untimely.
See N.J. Ct. R. 3:22-4 (requiring that second or subsequent PCR
petitions will be dismissed unless it is, inter alia, timely).
Further, “[t]he ineffectiveness . . .

of counsel during a . . .

State collateral post-conviction proceeding shall not be a
ground for relief in a proceeding under section 2254.”

28

U.S.C. §2254(i).
Finally, because Petitioner lacks any further available
remedy in state court with which to raise his ineffective
assistance of PCR counsel claim, that claim is considered
exhausted for the purposes of federal habeas review.

See 28

U.S.C. 2254(b)(1)(A).
Because Petitioner has failed to demonstrate the requisite
Rhines factors and because Petitioner has exhausted his
ineffective assistance of PCR counsel claim for the purposes of
this Petition, the Motion to Stay will be denied.
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III. Conclusion
For the foregoing reasons, Petitioner’s Motion to Stay, ECF
No. 8, is DENIED.

The Petition will be ruled upon in due

course.
An appropriate Order will be entered.

Dated: March 16, 2018
At Camden, New Jersey

__ s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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