WASHINGTON v. BONDS et al

Filing 12

OPINION. Signed by Judge Renee Marie Bumb on 4/26/2019. (rtm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ROBERT WASHINGTON,
Petitioner
v.
WILLIE BONDS, et al.,
Respondents

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Civil Action No. 17-3439(RMB)

OPINION

BUMB, District Judge
This matter comes before the Court upon the Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)
filed by Petitioner Robert Washington (“Petitioner”), an inmate
confined in South Woods State Prison in Bridgeton, New Jersey.
Petitioner alleged four grounds for relief in his habeas petition.
(Id.) Petitioner, however, simultaneously filed a memorandum in
support of his habeas petition, in which he asserted ten grounds
for relief. (ECF No. 1-7.) Respondents filed an answer opposing
habeas relief. (Answer, ECF No. 5.) Respondents addressed the four
grounds for relief stated in Petitioner’s habeas petition. (Id.)
Petitioner has filed a mixed petition containing exhausted
and unexhausted claims. Pursuant to Rose v. Lundy, 455 U.S. 509,

522 (1982), this Court must dismiss a mixed petition. As discussed
below, Petitioner must now choose how he would like to proceed.
I.

PROCEDURAL HISTORY
On December 10, 2009, Petitioner was indicted by an Atlantic

County grand jury for luring or enticing a child (Count 1);
criminal restraint (Count 2); aggravated sexual assault (Counts 3,
4, and 5); possession of a weapon for unlawful purposes (Count 6);
unlawful possession of a weapon (Count 7); aggravated
of a weapon

by

a convicted

assault

(Count

8); and possession

person

(Count

9). (Answer, Ex. 7, ECF No. 5-9.) On April 15, 2010, the

grand jury returned a superseding indictment, adding a charge of
attempted

murder

(Count

9)

to

the

charges

in

the

original

indictment. (Answer, Ex. 8, ECF No. 5-10.)
On October 22, 2010, Petitioner pleaded guilty to amended
Count 3, criminal sexual restraint, and Count 9, attempted murder.
(Answer, Ex. 3, ECF No. 5-5; Ex. 9, ECF No. 5-11.) On January 7,
2011, the Superior Court sentenced Petitioner, on Count 9, to
sixteen years in prison with an 85% parole disqualifier and five
years of parole supervision, and to a concurrent term of eighteen
months in prison on Count 3. (Answer, Ex. 4, ECF No. 5-6 at 1415.) The remaining counts were dismissed. (Id.) The sentences were
concurrent with another sentence that Petitioner was serving.
10, ECF No. 5-12.)

2

Ex.

Petitioner filed a direct appeal, raising two issues: (1) the
trial judge misapplied Aggravating Factor 2; and (2) the trial
judge failed to have a proper restitution hearing. (Pet., ECF No.
1, ¶9.) On March 8, 2012, the Superior Court of New Jersey,
Appellate Division affirmed Petitioner's sentence. (Answer, Ex.
12, ECF No. 5-14.)
On

April

4,

2012,

Petitioner

filed

a

motion

for

post-

conviction relief (“PCR”). (Pet., ECF No. 1, ¶11; Answer, Ex. 13,
ECF No. 5-15.) Petitioner raised the following claims in his first
PCR petition: (1) ineffective assistance of counsel for failing to
argue that the trial court improperly balanced the aggravating and
mitigating

factors

at

sentencing;

(2)

trial

counsel

was

ineffective by permitting an inadequate basis for the charges of
attempted murder and criminal sexual contact; (3) “no basis existed
for

a

Certain

Sexual

Offenders

Surcharge;”

(4)

counsel

was

ineffective because the trial court failed to award the defendant
gap and jail time credits; (5) counsel failed to advise the
defendant that by entering into the plea agreement, he was waiving
his rights to appeal the outcome of his Miranda and Wade motions.
(Pet., ECF No. 1, ¶11(a)(5)).1

1

Respondent’s were unable to locate and produce Petitioner’s brief
in support of his first PCR petition. (Index of Exhibits, ECF No.
5-2 at n. 1.)
3

Following a hearing, the PCR court denied Petitioner's PCR
petition.2 (Answer, Ex. 6, ECF No. 5-8 at 28; Ex. 15, ECF No. 517.) Petitioner appealed and the Appellate Division affirmed the
PCR court. (Answer, Ex. 20, ECF No. 5-22.) On April 14, 2015,
Petitioner filed a petition for certification with the Supreme
Court of New Jersey. (Answer, Ex. 21, ECF No. 5-23.) In an order
entered on July 10, 2015, the Supreme Court denied the petition.
(Answer, Ex. 22, ECF No. 5-24.)
On August 15, 20l5, Petitioner filed a second PCR petition,
presenting the following issues: (1) ineffective assistance of
counsel for failing to raise the issue that the State withheld
exculpatory evidence and made false claims before the grand jury;
(2) the trial judge showed bias at sentencing and at the PCR
hearing on February 8, 2013; (3) ineffective assistance of counsel
for failing to provide Petitioner with the grand jury transcripts,
which were requested on June 30, 2010. (Pet., ¶1l(b)(5), ECF No.
1.) On October 21, 2015, the PCR court issued a letter decision3

2

The PCR court addressed the following claims: (1) the PCR Court
erred in not holding an evidentiary hearing; (2) the trial judge
misapplied aggravating factor #2 at sentencing; (3) defendant is
entitled to have mitigating factor #6 applied at sentencing; (4)
Petitioner should have received a lighter sentence; (5) bias by
the sentencing court; (6) bias by the PCR court; (7) State failed
to disclose exculpatory evidence to the grand jury.
3

The PCR court stated that Petitioner raised only two issues in
his second PCR petition: (1) the trial judge displayed bias; and
(2) the State failed to disclose exculpatory evidence to the grand
jury. (Answer, Ex. ECF 5-25.)
4

and entered an order denying the application on procedural grounds.
(Answer, Ex. 23, ECF No. 5-25; Ex. 24, ECF No. 5-26.) Petitioner
appealed the denial of his second PCR petition, but the PCR court
was affirmed by the Appellate Division on September 15, 2016, and
certification was denied by the New Jersey Supreme Court on April
4, 2017. (Answer, Ex. 27, ECF No. 5-29; Ex. 28, ECF No. 5-30.)
In the meantime, on February 5, 2016, Petitioner filed a third
petition for post-conviction relief, raising the following issues:
(1) PCR counsel was ineffective; (2) prosecutorial misconduct for
failing

to

produce

exculpatory

evidence

and

making

false

statements to the grand jury; (3) judicial misconduct at sentencing
and the PCR hearing; and (4) “the trial counsel mislead [sic] the
defenda[nt] by not informing him that the state offered a 10 year
plea bargain in which discouraged the defendant to accepting the
offer.” (Pet., ECF No. 1, ¶11(b)(5)). On April 1, 2016, the PCR
court issued a letter decision and entered an order denying the
third petition on procedural grounds. (Answer, Ex. 25, ECF No. 527; Ex. 26, ECF No. 5-28.)
In response to a question on the habeas petition of whether
Petitioner had appealed his third PCR petition to the highest state
court having jurisdiction, Petitioner responded:
With
other
being
gr. 4

the exception of ground
three remaining arguments
appealed, and previously
I felt to appeal may be a

5

4 raised the
were currently
argued. As for
waste of time,

because my lack of faith in the Appellate
Courts.
(Pet., ECF No. 1, ¶11(e)). Respondent has no knowledge of the facts
alleged in paragraph 11(e) of the Petition. (Answer, ECF No. 5,
¶11.) Respondents did not produce any records related to an appeal
of Petitioner’s third PCR petition. (Index of Exhibits, ECF No. 52.) Petitioner filed his federal habeas petition on May 15, 2017.
II.

DISCUSSION
Exhaustion of State Court Remedies
28 U.S.C. § 2254(b)(1) provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that—
(A) the applicant has exhausted the
remedies available in the courts of the
State; or
(B)(i) there is an absence of available
State corrective process; or
(ii) circumstances exist that render such
process ineffective to protect the rights
of the applicant.
In 1982, the Supreme Court held that § 2254 requires total

exhaustion of available state court remedies before a habeas court
may address a state prisoner’s federal claims. Lundy, 455 U.S. at
522. In Rhines v. Weber, after legislative changes were made to
federal habeas corpus proceedings in 1996, the Supreme Court
revisited the total exhaustion rule. 544 U.S. 269 (2005). The new

6

one-year habeas statute of limitations presented a problem with
total exhaustion of state remedies. Id. at 275. For example, if a
petitioner filed a timely mixed petition in federal court but the
district court dismissed the mixed petition for failure to exhaust
after the one-year limitations period expired, this would “likely
mean the termination of any federal review.” Id.
Petitioner

is

presented

with

this

same

problem.

If

he

withdraws his entire habeas petition until he exhausts all of his
federal claims, the statute of limitations will bar him from
returning to federal court. The Supreme Court in Rhines recognized
that districts court have the authority to stay a petition and
hold it an abeyance while a state prisoner exhausts his state
remedies. Id. at 275-76.
There are, however, conditions upon which a district court
may grant a stay and abeyance. First, the court must determine
whether there was good cause for the petitioner’s failure to first
exhaust his claims in state court. Id. at 277. Second, the district
court must determine whether the unexhausted claims are plainly
meritless, in which case it should not grant a stay. Rhines, 544
U.S. at 277. If a stay is appropriate, it must be limited to the
time needed to exhaust claims in the state court. Id. at 277-78.
In the alternative to seeking a stay and abeyance, Petitioner
may withdraw his unexhausted claims and proceed only on his
exhausted claims. If Petitioner chooses this option, he should be
7

advised that both the statute of limitations and the limitation on
second or successive habeas petitions in 28 U.S.C. § 2244(b)(3)
may preclude Petitioner from bringing any additional habeas claims
at a later date.
III. CONCLUSION
Petitioner has presented a mixed habeas petition, which this
Court is required to dismiss. Petitioner will first be given the
opportunity to file a motion seeking a stay and abeyance while he
returns to state court to exhaust his unexhausted federal claim(s).
If Petitioner chooses this option, he should describe in his motion
for a stay and abeyance his good cause for failing to exhaust his
federal claims before bringing his habeas petition and explain why
his unexhausted claims are not plainly meritless. Alternatively,
Petitioner may withdraw his unexhausted claims and proceed only on
his exhausted claims.

An appropriate order follows.

Date: April 26, 2019

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

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