MURPHY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
Filing
26
OPINION. Signed by Judge Noel L. Hillman on 12/6/2019. (rss, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
TYSHEIM MURPHY,
:
:
Petitioner,
:
Civ. No. 17-2960 (NLH)
:
v.
:
OPINION
:
:
PATRICK NOGAN, et al.,
:
:
Respondents.
:
___________________________________:
APPEARANCES:
Tysheim Murphy
668462/719455C
East Jersey State Prison
1100 Woodbridge RD.
Rahway, NJ 07065
Petitioner Pro se
Damon G. Tyner, Atlantic County Prosecutor
John J. Santoliquido, Assistant Prosecutor
Atlantic County Prosecutor’s Office
4997 Unami Blvd., Suite 2
PO Box 2002
Mays Landing, NJ 08330
Attorneys for Respondents
HILLMAN, District Judge
This matter comes before the Court on Petitioner Tysheim
Murphy’s motion for an evidentiary hearing on two issues
presented in his Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254.
ECF No. 24.
Respondents Patrick Nogan and the
New Jersey Attorney General oppose the motion.
ECF No. 25.
For
the reasons that follow, the Court will deny the motion for an
evidentiary hearing as premature.
Respondents are ordered to
answer Grounds One through Eight and Eighteen through Twentythree of the second amended habeas petition.
I.
BACKGROUND
Petitioner filed this § 2254 petition on April 28, 2017.
ECF No. 1.
The Court administratively terminated the petition
as it was not on the correct form for habeas petitions and
Petitioner did not pay the filing fee.
ECF No. 3.
Petitioner
paid the filing fee and submitted the second amended petition on
July 12, 2017. 1
ECF No. 7.
He also filed a motion to stay the
habeas proceedings while he exhausted his state court remedies
on his claim that his post-conviction relief (“PCR”) counsel was
ineffective.
ECF No. 8.
The Court reopened the matter and
directed Respondents to file a response to the motion to stay
only.
ECF No. 10.
2018.
The motion to stay was denied on March 16,
ECF No. 16.
On April 4, 2018, Petitioner filed a letter, docketed as a
Motion to Amend, asking for an extension of time to file a “more
comprehensive brief to better articulate all my issues . . . .”
ECF No. 17 at 1.
June 19, 2018.
Amend.
He subsequently filed a brief and exhibits on
ECF No. 20.
The Court denied the Motion to
ECF No. 22.
1
An amended petition had been received by the Clerk’s Office and
was inadvertently docketed under a new civil case number. See
ECF Nos. 5,6.
2
On May 20, 2019, Petitioner filed the instant motion for an
evidentiary hearing on two issues: (1) whether trial counsel was
ineffective for failure to call or secure the presence of a
witness at trial; and (2) whether trial counsel mislead
Petitioner into believing the witness would be testifying at
trial, thereby inducing Petitioner to reject the plea offer.
ECF No. 24 at 5-6.
Respondents oppose the motion, arguing that
Petitioner has presented no new evidence beyond the evidence
presented to and rejected by the state courts.
II.
A.
ECF No. 25.
DISCUSSION
Legal Standard
Petitioner brings this petition for a writ of habeas corpus
as a pro se litigant.
The Court has an obligation to liberally
construe pro se pleadings and to hold them to less stringent
standards than more formal pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Attorney
Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as amended
(Sept. 19, 2011) (citing Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
A pro se habeas petition and any supporting
submissions must be construed liberally and with a measure of
tolerance.
Section 2254(a) of Title 28 provides in relevant part:
(a) [A] district court shall entertain an application
for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only
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on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
“If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition . . . .”
B.
28 U.S.C. § 2254 Rule 4.
Analysis
1.
Motion for Hearing
Petitioner requests an evidentiary hearing on two of his
asserted grounds for relief.
“In deciding whether to grant an
evidentiary hearing, a federal court must consider whether such
a hearing could enable an applicant to prove the petition's
factual allegations, which, if true, would entitle the applicant
to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465,
474 (2007) (internal citation omitted).
With respect to any
claim adjudicated on the merits by a state court, the writ shall
not issue unless the adjudication of the claim
(1) 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; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
“[W]hen the state-court record ‘precludes
habeas relief’ under the limitations of § 2254(d), a district
court is ‘not required to hold an evidentiary hearing.’”
4
Cullen
v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Schriro, 550
U.S. at 474).
Petitioner’s motion for an evidentiary hearing is
premature.
Respondent has not yet answered the petition;
therefore, the Court’s record of the proceedings below is
incomplete.
The Court cannot determine whether an evidentiary
hearing is necessary in the absence of the complete state court
record.
The Court denies Petitioner’s motion without prejudice.
Once the record is complete, the Court will reassess whether a
hearing is required on any of Petitioner’s claims.
2.
Habeas Rule 4 Screening
“Federal courts are authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
The United States
Court of Appeals for the Third Circuit has found summary
dismissal without the filing of an answer warranted where none
of the grounds alleged in the petition would entitle the
petitioner to habeas relief, see United States v. Thomas, 221
F.3d 430, 437 (3d Cir. 2000), or the petition contains vague and
conclusory allegations, see United States v. Dawson, 857 F.2d
923, 928 (3d Cir. 1988).
Petitioner raises twenty-four claims for this Court’s
review.
ECF No. 7 at 20-52.
Having reviewed the second amended
petition, the Court concludes that some proposed grounds for
5
relief will be summarily dismissed without an answer from
Respondents.
Several of Petitioner’s grounds challenge the actions of
the PCR court or otherwise relate to his PCR proceedings.
“[T]he federal role in reviewing an application for habeas
corpus is limited to evaluating what occurred in the state or
federal proceedings that actually led to the petitioner's
conviction; what occurred in the petitioner's collateral
proceeding does not enter into the habeas calculation.”
Hassine
v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (emphasis in
original).
See, e.g., Ground Nine (“The PCR Judge erred when it
determined that no evidentiary hearing was required because no
evidence outside of the record would have been useful in
resolving the case contrary to the Constitution of the United
States and the laws of New Jersey.”); Ground Ten (“The PCR Judge
erred when it determined that Appellant failed to present
evidence to establish a prima facie claim thus negating
Appellant’s request for an evidentiary hearing contrary to the
Constitution of the United States and the laws of New Jersey.”);
Ground Eleven (“The PCR Judge erred in his ruling that Appellant
would not have taken the plea even had he known that Amy Curran
was not going to testify at his trial.”); and Ground Sixteen
(“Petitioner’s petition for post-conviction relief is timely
filed under R. 3:22-12(2).”).
6
Grounds Twelve through Fifteen make the same arguments,
i.e., that the courts erred by failing to hold evidentiary
hearings on the issue of ineffective assistance of counsel.
The Court will summarily dismiss Grounds Nine through
Sixteen because they raise claims that are not cognizable in
federal habeas. 2
Petitioner’s substantive ineffective assistance
of counsel claims will proceed.
In Ground Seventeen, Petitioner alleges his PCR counsel was
ineffective.
ECF No. 7 at 42.
“The ineffectiveness or
incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”
28 U.S.C. § 2254(i).
Ground Seventeen will be summarily dismissed.
Ground Twenty-four reads: “Petitioner has demonstrated his
right to a New Trial by a preponderance of the evidence; at a
minimum he has made a case for an Evidentiary Hearing to resolve
the issue of ineffective assistance of counsel as required by
the Fourteenth Amendment to the United States Constitution.”
ECF No. 7 at 51.
This ground will be dismissed as it does not
state a claim for relief and merely reiterates Petitioner’s
prior arguments.
2
In dismissing Ground Sixteen, the Court expresses no opinion on
whether any of the petitions are timely filed or procedurally
defaulted.
7
Respondents shall be ordered to answer Grounds One through
Eight and Eighteen through Twenty-three as it does not “plainly
appear[] from the petition and any attached exhibits that the
petitioner is not entitled to relief . . . .”
28 U.S.C. § 2254
Rule 4.
III. CONCLUSION
For the foregoing reasons, the motion for an evidentiary
hearing will be denied without prejudice.
Respondents will be
ordered to answer Grounds One through Eight and Eighteen through
Twenty-three of the second amended petition.
Grounds Nine
through Seventeen and Ground Twenty-Four will be summarily
dismissed.
An appropriate order will be entered.
Dated: December 6, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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