BRITTON v. LANIGAN et al

Filing 17

OPINION. Signed by Judge Jerome B. Simandle on 2/25/2019. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LONNIE BRITTON,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 17-3701 (JBS)

v.
GARY LANIGAN, et al.,

OPINION
Respondents.

SIMANDLE, District Judge:
I.

INTRODUCTION
1.

Before the Court is Petitioner Lonnie Britton’s

(“Petitioner”) amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (D.E. 8 (“Amended Petition”).) The
Amended Petition presents “mixed claims,” which is a combination
of claims on which he seeks federal habeas relief, most of which
are unexhausted (meaning never fairly presented to the highest
state court) and one of which is exhausted. The principal issue
to be decided is procedural: How should this court exercise its
discretion in addressing this mixed petition consistent with the
total exhaustion requirement of 28 U.S.C. §§ 2254(b)(1), (b)(2),
& (c)? For the reasons stated herein, Petitioner shall be given
thirty days from the date that this Opinion is entered on the
docket to do one of the following:

a.

File a motion to stay this proceeding in order

that he may exhaust his Unexhausted Claims (as defined below in
this Opinion) in state court. In that motion, Petitioner must
demonstrate all of the following: (i) that there is good cause
why the Court should stay, rather than dismiss, the mixed
Amended Petition, (ii) that the Amended Petition sets forth
potentially meritorious claims, and (iii) that he has not
engaged in intentionally dilatory tactics by failing to exhaust
the claims made in the Amended Petition; or
b.

Submit a letter to this Court stating that he

wants to dismiss all of the Unexhausted Claims in the Amended
Petition and to proceed in this matter only on the Exhausted
Claim (as defined below in this Opinion).
Petitioner’s failure to file a motion or submit a letter as
described above may result in dismissal of the Amended Petition
as a mixed petition.
II.

BACKGROUND
2.

Petitioner is a state-sentenced inmate incarcerated at

South Woods State Prison. He originally submitted over five
hundred pages in a civil rights complaint that he wished to file
as a “protective petition.” The Court ordered the Clerk’s Office
to create a separate proceeding to consider his filing under §
2254.

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3.

On June 6, 2017, the Court administratively terminated

the petition for its use of the incorrect form. (D.E. 3.)
4.

Petitioner then submitted the correct form (D.E. 4),

and on June 28, 2017 the Court reopened the matter for review.
5.

As noted in this Court’s September 27, 2017 Opinion

(D.E. 5 at 4), Petitioner’s submissions initially appeared to
raise six grounds for habeas relief. The Court dismissed Grounds
One, Five, and Six with prejudice and allowed Petitioner thirty
days to provide more specific facts supporting Grounds Two,
Three, and Four. (D.E. 5 at 5-7.)
6.

On October 16, 2017, Petitioner filed his Amended

Petition. (D.E. 8.)
7.

On or about January 3, 2019, Petitioner filed a

Complaint for Declaratory Judgment against the Attorney General
of the State of New Jersey, the Warden of South Woods State
Prison, and Gary Lanigan. (D.E. 16.) Neither that filing nor its
largely incomprehensible claims relate to or alter in any way
the total exhaustion doctrine analysis or the results of that
analysis as set forth below in this Opinion.
A.

The Amended Petition

8.

Based on this Court’s review of the Amended Petition,

Ground One appears to allege that:
a.

The trial court violated Petitioner’s due process

rights on August 13, 2014 “when issuing a summary order
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predicated on mental health claims” (Docket Entry 8 at 7
(referred to as “Summary Order Claim”));
b.

The trial court violated Petitioner’s

constitutional rights by “ordering [Petitioner] forcibly and
physically removed from the court ... without a clear and
present danger ... while expressing information ...” (Docket
Entry 8 at 7 (referred to as “Removal Claim”));
c.

Petitioner was deprived of his constitutional

right to counsel when Eric Shenkus, Esquire withdrew as his
attorney (Id. (referred to as “Counsel Withdrawal Claim”)); and
d.

Counsel Omar Aguilar, Esquire violated

Petitioner’s right to counsel by “display[ing] ‘gross
negligence’ [in] ... ignor[ing] [Petitioner’s] requests ... to
speak for myself and not to enter a plea or waive the reading of
the indictment.” (Id. (referred to as “Counsel Performance
Claim”).)
9.

In response to Ground One, Respondents contend that:

there is nothing in the record even suggesting the events
Petitioner alleges; he provides no factual basis for his claim
and has not demonstrated any injury; and Petitioner’s current
incarceration is on the basis of his guilty plea and not on the
basis of any alleged restraint and removal. (D.E. 13 at 10-12.)
10.

Ground Two alleges that Mr. Aguilar rendered

ineffective assistance of counsel (“IAC”) in various ways, in
4 

violation of Petitioner’s Sixth Amendment rights. (D.E. 8 at 1013 (“referred to as “Aguilar-IAC Claim”).
11.

In response, Respondents contend that the Counsel

Withdrawal Claim (Ground One) and Aguilar Claim (Ground Two) are
without merit because Petitioner provides no evidence to
demonstrate IAC. (D.E. 13 at 12.) Respondents also point out
that: Petitioner never sought post-conviction relief (“PCR”); he
never presented any IAC claim to any state court; and thus there
is no state court decision regarding IAC that was contrary to,
or an unreasonable application of, Strickland v. Washington, 466
U.S. 668 (1984). (D.E. 13 at 12-14.)
12.

Ground Three of the Amended Petition appears to allege

that:
a.

The trial court held a hearing pursuant to

Faretta v. California, 422 U.S. 806 (1975) in such a manner as
to subject Petitioner to duress and to restrict his right to
express his position (D.E. 8 at 15 (referred to as “Faretta
Claim”));
b.

The trial court, in denying Petitioner’s motion

to proceed pro se, “erred by denying [Petitioner] the right to
conduct my own defense” (Id. at 15 (referred to as “SelfRepresentation Claim”));

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c.

The trial court was “offensive [in its] exercise

of jurisdiction” over Petitioner (Id. (referred to as “Exercise
of Jurisdiction Claim”)); and
d.

The arrest warrant against Petitioner “had many

defects,” the various particulars of which he alleges in Ground
Three (Id. (referred to as “Warrant Claim”)).
13.

In response to Ground Three, Respondents contend

that: the record nowhere suggests that Petitioner was afraid or
under duress at the Faretta hearing; the trial judge’s denial of
Petitioner’s motion to proceed pro se was firmly supported by
the record; there is no discernible legal basis for the Exercise
of Jurisdiction Claim; and Petitioner’s decision to plead guilty
and to not challenge the warrant or indictment via interlocutory
appeal or PCR proceedings render his warrant challenge
meritless. (D.E. 13 at 14-16.)
III. DISCUSSION
A.

Governing Law

14.

Prisoners in state custody applying for a federal writ

of habeas corpus are required to first exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings. To do so, prisoners must present the highest state
court available with a fair opportunity to rule on the merits of
each and every claim they seek to raise in federal court. See 28
U.S.C. § 2254(b)(1) and (c); O’Sullivan v. Boerckel, 526 U.S.
6 

838 (1999); Rose v. Lundy, 455 U.S. 509, 515–16 (1982); Lambert
v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied,
532 U.S. 919 (2001); Ross v. Petsock, 868 F.2d 639 (3d Cir.
1989).
15.

Exhaustion permits development of a complete factual

record in state court, to aid the federal courts in their
review. Rose, 455 U.S. at 519.
16.

To these ends, the petitioner must first “fairly

present” each ground for federal habeas relief to the state
courts in a recognizable way, so that the federal court is not
required to “read beyond a petition or brief” to understand the
claim. Baldwin v. Reese, 541 U.S. 27, 32 (2004).
17.

A petitioner generally bears the burden to prove all

facts establishing exhaustion. Lines v. Larkins, 208 F.3d 153,
159 (3d Cir. 2000); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.
1993).
18.

Moreover, the exhaustion doctrine is a “total”

exhaustion rule. That is, “a district court must dismiss habeas
petitions containing both unexhausted and exhausted claims.”
Lundy, 455 U.S. at 522, although the subsequent amendment at 28
U.S.C. § 2254(b)(2) gives the federal court discretion to
address and deny even unexhausted claims having no merit.
19.

Federal district courts may not adjudicate mixed

petitions, i.e., petitions that contain both exhausted and
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unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 273
(2005). When faced with a petition that contains unexhausted
claims, a district court has four options (the “Mixed Petition
Options”)1:
a.

Dismiss the petition as unexhausted -- The general

rule is that a federal district court must dismiss a federal
habeas petition containing any claim as to which state remedies
have not been exhausted. Rose, 455 U.S. at 522;
b.

Stay a mixed petition to allow the petitioner to

exhaust in state court -- Where the timeliness of a habeas
corpus petition is at issue, a district court has the discretion
to stay a mixed habeas petition to allow complete exhaustion in
state court. Rhines, 544 U.S. at 277. “The Rhines Court
stressed, however, that stays should be permitted only when the
unexhausted claims are not ‘plainly meritless’ and there exists
‘good cause for the petitioner’s failure to exhaust his claims
first in state court.’” Williams v. Walsh, 411 F. App’x 459,
461 (3d Cir. 2011) (quoting Rhines, 544 U.S. 269). Normally, a
district court is directed to dismiss a mixed petition without
prejudice, Rhines, 544 U.S. at 274, but a stay and abeyance may
be appropriate when a dismissal without prejudice would cause a

1

See McLaughlin v. Shannon, 454 F. App’x 83, 86 (3d Cir. 2011);
Mahoney v. Bostel, 366 F. App’x 368, 371 (3d Cir. 2010);
Urcinoli v. Cathel, 546 F.3d 269, 276 (3d Cir. 2008).
8 

petitioner to run afoul of the habeas statute of limitations and
lose his opportunity to seek federal habeas review;
c.

Allow petitioner to amend a mixed petition in order to

delete the unexhausted claim(s). See, e.g., Gould v. Ricci, No.
10-1399, 2011 WL 6756920, at *3 (D.N.J. Dec. 19, 2011); or
d.

Deny unexhausted claims on the merits under 28 U.S.C.

§ 2254(b)(2). See Rhines, 544 U.S. at 277–78; Carrascosa v.
McGuire, 520 F.3d 249, 255 (3d Cir. 2008).
20.

Because of the one-year limitations period for § 2254

habeas petitions2, dismissal of a timely-filed mixed petition may
forever bar a petitioner from returning to federal court.
“Staying 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.” Crews v.
Horn, 360 F.3d 146, 151 (3d Cir. 2004). Indeed, the Court of
Appeals for the Third Circuit has held that “when an outright
dismissal could jeopardize the timeliness of a collateral
attack, a stay is the only appropriate course of action.” Crews,
360 F.3d at 154.
21.

The Supreme Court has somewhat limited the stay-and-

abeyance rule announced in Crews:
[S]tay and abeyance should be available only
in limited circumstances.... [S]tay and
abeyance is only appropriate when the district
2

See 28 U.S.C. § 2254(d).
9 

court determines there was good cause for the
petitioner’s failure to exhaust his claims
first in state court. Moreover, even if a
petitioner had good cause for that failure,
the district court would abuse its discretion
if it were to grant him a stay when his
unexhausted claims are plainly meritless.
...
On the other hand, it likely would be an abuse
of discretion for a district court to deny a
stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to
exhaust,
his
unexhausted
claims
are
potentially meritorious, and there is no
indication that the petitioner engaged in
intentionally dilatory litigation tactics. In
such circumstances, the district court should
stay,
rather
than
dismiss,
the
mixed
petition.... For the same reason, if a
petitioner presents a district court with a
mixed petition and the court determines that
stay and abeyance is inappropriate, the court
should allow the petitioner to delete the
unexhausted claims and to proceed with the
exhausted claims if dismissal of the entire
petition
would
unreasonably
impair
the
petitioner’s right to obtain federal relief.
Rhines, 544 U.S. at 277–78 (citations omitted).
22.

Even where a stay is appropriate, the district court’s

discretion in structuring the stay is limited by the timeliness
concerns reflected in § 2254 claims’ one-year statute of
limitations. “Thus, district courts should place reasonable time
limits on a petitioner’s trip to state court and back.” Id. at
278. See also Crews, 360 F.3d at 154 (“If a habeas petition is
stayed, the petitioner should be given a reasonable interval,
normally 30 days, to file his application for state post10 

conviction relief, and another reasonable interval after the
denial of that relief to return to federal court. If a
petitioner fails to meet either time-limit, the stay should be
vacated nunc pro tunc.”) (citations omitted).
23.

It is appropriate for a federal habeas court to raise

sua sponte any concern that a petitioner has not exhausted his
state court remedies.3 See, e.g., Granberry, 481 U.S. at 133-34,
cited in Day v. McDonough, 547 U.S. 198, 214 (2006).
B.

The Amended Petition Is A Mixed Petition, Containing
Both Exhausted And Unexhausted Claims

24.

In this case, it appears to the Court that Petitioner

has exhausted Ground Three’s Self-Representation Claim (“the
Exhausted Claim”). In November 2014, Petitioner asserted his
claim before the trial court in a motion to proceed pro se.
(D.E. 13-3.) On February 13, 2015, the Law Division of the
Superior Court of New Jersey denied that motion. (D.E. 13-6.) At
Petitioner’s August 2015 trial and April 22, 2016 sentencing,
Mr. Aguilar represented him. (See D.E. 13-9 at 1.) Petitioner
directly appealed the denial of his motion to proceed pro se,
and he also sought remand for reconsideration of aggravating and
mitigating factors. (D.E. 13-12 at 2-3.) On November 15, 2016,

3

The Court notes that Respondents have raised the defense of
non-exhaustion with respect to the Counsel Withdrawal Claim in
Ground One, the Aguilar Claim in Ground Two, and the Warrant
Claim in Ground Three. (D.E. 13 at 14 and 16.)
11 

the Appellate Division of the Superior Court of New Jersey
denied Petitioner’s appeal. (D.E. 13-13.) In his letter in lieu
of petition for certification to the New Jersey Supreme Court,
Petitioner “reli[ed] on the arguments advanced at the oral
presentation before the Appellate Division" (D.E. 13-14) -i.e., Petitioner’s challenges to his sentence and to denial of
his motion to proceed pro se.
25.

Conversely, it appears that Petitioner has never

presented the following claims to any state court: (a) Ground
One’s Summary Order Claim, Removal Claim, Counsel Withdrawal
Claim, and Counsel Performance Claim4; (b) Ground Two’s AguilarIAC Claim; and (c) Ground Three’s Faretta Claim, Exercise of
Jurisdiction Claim, and Warrant Claim ((a), (b), and (c) are
collectively referred to as “the Unexhausted Claims”).
26.

The Amended Petition is therefore a mixed petition.

27.

The Court thus has before it the Mixed Petition

Options described supra.
28.

In determining whether to stay, rather than dismiss,

an unexhausted habeas petition, a court must consider whether a
petitioner has demonstrated: (a) good cause (“Good Cause

4

The Court notes that Petitioner’s complaint to the Ethics
Committee of the New Jersey Supreme Court (D.E. 1-3 at 1-4) does
not constitute fair presentation of a claim (whether IAC or
otherwise) to the highest state court for purposes of the
exhaustion doctrine. See 28 U.S.C. § 2254(b)(1) and (c); Rose,
455 U.S. at 515–16; Lambert, 134 F.3d at 513.
12 

Factor”), (b) potentially meritorious claims (“Potential Merit
Factor”), and (c) absence of intentionally dilatory tactics
(“Absence of Delay Factor”). Tarselli v. Superintendent Greene
SCI, 726 F. App’x 869, 874-75 (3d Cir. 2018); Gamble v. Johnson,
No. 15-8358, 2019 WL 366558, at *1 (D.N.J. Jan. 30, 2019)
(citing Gerber v. Varano, No. 12-3214, 2013 WL 341470, at *3 (3d
Cir. Jan. 30, 2013) (citing Rhines, 544 U.S. at 277–78)).
29.

The current record in this proceeding does not provide

enough information for the Court to evaluate these factors and
determine whether stay or dismissal is appropriate. The overall
lack of clarity in the Amended Petition further compounds this
matter’s complexity.
30.

In light of the Amended Petition’s incomprehensible

and disjointed presentation of Petitioner’s claims, his
demonstrated interest in pursuing his claims, and the Court
being mindful of the one-year statute of limitation risks that
Petitioner could face if this mixed petition were dismissed now,
this Court will give him thirty days from the date that this
Opinion is entered on the docket to either:
a.

File a motion to stay this proceeding in order to

promptly pursue his Unexhausted Claims in state court (in which
he must demonstrate each of: the Good Cause Factor (that is, the
reasons why these Unexhausted Claims were not previously pursued
in state court), the Potential Merit Factor (that is, the
13 

factual and legal basis demonstrating that each Unexhausted
Claim has potential merit), and the Absence of Delay Factor
(that is, not intentionally delayed presenting the Unexhausted
Claims)); or
b.

Submit a letter to this Court stating that he

wants to dismiss all of his Unexhausted Claims and to proceed
before this Court only on the Exhausted Claim.
IV. CONCLUSION
31.

For the reasons set forth above, Petitioner will be

ordered to file either a motion or letter in accordance with the
provisions of this Opinion.
32.

An appropriate order follows.

February 25, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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