ALFORD v. TAYLOR et al

Filing 27

OPINION. Signed by Judge Renee Marie Bumb on 1/31/2018. (tf, n.m.)

NOT FOR PUBLICATION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

CRAIG ALFORD,
Petitioner,
v.
KAREN TAYLOR, et al.,
Respondents.

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Civil Action No. 17-6103 (RMB)

OPINION

BUMB, United States District Judge
On August 14, 2017, Petitioner Craig Alford filed a Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Pet., ECF No.
1.) He alleged that the New Jersey Parole Board violated his right
to due process after his arrest for parole violations on June 18,
2017. (Id.) Petitioner further claimed that his sentence “maxed
out” on January 10, 2015. (Id.)1 This Court ordered Respondents to
file an answer to the petition (Order, ECF No. 3), and subsequently

1

Petitioner also raised a claim of denial of access to the courts,
based on his submission of a writ of habeas corpus to the Camden
County Superior Court, Appellate Division. (Pet., Ground Two.)
Petitioner alleged the Camden County Court sent his motion “to
unknown sources” in Trenton, New Jersey. (Id.) Assuming a federal
writ of habeas corpus is the proper vehicle for bringing such a
claim, Petitioner has not shown that he was denied access to the
courts because he has presented his claims in this petition and in
the New Jersey Superior Court Appellate Division. See infra Section
II.B.

granted Respondents’ request for an extension to time to file an
answer. (Order, ECF No. 10.)
Subsequent to filing the petition, Petitioner submitted a
series of letters to the Court. On September 1, 2017, Petitioner
requested an emergent hearing, challenging his confinement because
the New Jersey Parole Board: (1) did not provide him with a
preliminary hearing within fourteen days; (2) failed to give him
a revocation notice in 60 days; (3) denied him appointment of
counsel in the revocation proceeding; and (4) because his sentence
“maxed-out” on January 10, 2015. (Letter, ECF No. 2.)
Petitioner submitted a second letter on September 13, 2017,
repeating his due process claims and asserting that he exhausted
his state court remedies. (Letter, ECF No. 3.) In a third letter,
received by the Court on September 18, 2017, Petitioner sought to
certify, pursuant to 28 U.S.C. § 2403(b), his challenge to the
constitutionality

of

N.J.A.C.

10A:71-7.52

2

N.J.A.C. 10A:71-7.5, an administrative
revocation of parole, provides:

and

N.J.S.A.

regulation

30:4-

governing

(a) The preliminary hearing shall be conducted within 14 days of
the parolee's return to custody as a parole violator, unless the
hearing officer, the parole officer or the parolee requests a
postponement of such hearing.
(b) A preliminary hearing may be conducted by videoconferencing.
(c) If the parolee requests a postponement of the preliminary
hearing, such postponement shall be granted by the hearing officer
for good cause. Such request shall be made in writing and the
hearing officer shall record such request and the determination of
2

123.62.3 (ECF No. 5.) It appears, however, that Petitioner is not
challenging the constitutionality of the New Jersey regulation and
statute, but arguing that Respondents violated those laws by not
providing him with a preliminary hearing within fourteen days of
his arrest, not providing him notice of a revocation hearing within
sixty days, and not appointing counsel. (Id.)
On September 25, 2017, and October 11, 2017, the Court
received

letters

from

Petitioner

alleging

that

his

untimely

probable cause hearing violated his due process rights. (Letters,
ECF Nos. 7, 8.) In a letter received by the Court on November 3,
2017, Petitioner purported to add a new ground for relief to his
habeas petition, objecting to the probable cause hearing that was
held by a panel of the New Jersey Parole Board on October 3, 2017,
and continued to October 25, 2017. (Letter, ECF No. 11.)

the hearing officer in the parolee's case record.
(d) If the hearing officer or the parole officer requests a
postponement of the preliminary hearing, such postponement, if
granted, shall not exceed 14 days from the original deadline
determined pursuant to (a) above.
(e) If the request for postponement by the hearing officer, or the
parole officer is due to unanticipated scheduling problems or other
emergent circumstances, such request shall be granted by the
appropriate Board panel.
3

N.J.S.A. 30:4-123.62 governs parole or discharge “conditions for
issuance of warrant for return to custody; apprehension;
detention; preliminary hearing; written notice; order; detention
or release pending action by panel.”
3

Respondents filed an Answer to the petition on November 13,
2017, opposing habeas relief because Petitioner did not exhaust
his state court remedies and on the merits of the claims. (Answer,
ECF No. 12.) On November 27, 2017, Petitioner filed a copy of a
document entitled “Objections/Exceptions to Hearing Summary By
Carla M. Shabazz,” which he had sent to the New Jersey State Parole
Board Panel after receiving its decision on November 16, 2017.
(Letter, ECF No. 14.) Petitioner filed his reply to Respondent’s
Answer on November 29, 2017. (Reply, ECF No. 15.) On December 1,
2017,

Petitioner

sent

the

Court

a

letter

complaining

that

Respondents had not submitted the full state court record with
their Answer. (Letter, ECF No. 17.)4
On December 7, 2017, this Court denied Petitioner’s motion to
consolidate

Civil

Actions

17-5611(RMB)

and

17-6103(RMB),

and

dismissed Civil Action 17-5611(RMB) because it was duplicative of
the present action. (Order, ECF No. 16.) The next day, Petitioner
filed two motions, Motion for a Writ of Mandamus (ECF No. 20), and
Motion for an Emergent Hearing. (ECF No. 21.) Several days later,

4

The Court notes that Respondents are required only to serve
“parts of the transcript that the respondent considers relevant.”
Rules Governing Section 2254 Cases in the in the United States
District Courts, Rule 5(c). Additionally, because Petitioner is
challenging his parole revocation proceedings, Rule 5(d) is
inapplicable because Petitioner is not challenging his underlying
conviction or sentence or an adverse judgment or order in a postconviction proceeding.
4

Petitioner filed a Motion for Constitutional Challenge. (ECF No.
19.)
On January 2, 2018, the Court received two letters from
Petitioner, the first letter requesting discovery of state court
records to prove that his sentence maxed-out on January 10, 2015.
(Letter, ECF No. 23.) In the second letter, Petitioner alleged
that he had been improperly moved to Mercer County Jail.

(Letter,

ECF No. 24.) Petitioner also cited cases in support of his argument
that he was not required to exhaust state court remedies. (Id.)
Respondents filed a brief in opposition to Petitioner’s pending
motions on January 2, 2018. (“Respt’s Opp. Brief”). The Petition,
the Answer, the Reply, and the pending motions and brief in
opposition to those motions are now before the Court.
I.

BACKGROUND
On June 18, 2017, Petitioner was arrested while on parole in

New Jersey. (Answer, Ex. F, ECF No. 12-7.) Respondents submitted
a Notice of Probable Cause Hearing, dated June 26, 2017, which
Respondents alleged was served on Petitioner that same day. (Id.,
Ex. G, ECF No. 12-8.) The probable cause hearing occurred on
October 3, 2017 and October 25, 2017. (Id., Ex. Q, Notice of
Decision, Probable Cause Hearing, ECF No. 12-19.)
Respondents also denied that they prevented Petitioner from
seeking

appointment

of

counsel.

(Answer,

¶12D.)

Nancianne

M.

Adyelotte, Esq. was appointed to represent Petitioner, and she
5

participated in the probable cause hearing. (Id., Ex. Q, Notice of
Decision, Probable Cause Hearing, ECF No. 12-19.)
Respondents argued that Petitioner did not challenge his
detention and parole revocation process in the Supreme Court of
New Jersey before bringing his federal habeas petition. (Answer,
ECF No. 12, ¶13.) Thus, Respondents submitted that Petitioner
failed to exhaust his state court remedies, as required by 28
U.S.C. § 2254(b)(1)(A).
In

reply,

Petitioner

claimed

that

Respondents

failed

to

provide all of the state court records, which Petitioner contended
would prove that his sentence “maxed-out” on January 1, 2015.
(Reply, ECF No. 15 at 7-8.) Next, Petitioner alleged Respondents
failed to explain why it took 105 days to start his probable cause
hearing, and 125 days to complete it. (Id. at 9.) Petitioner also
contested that he was served notice on June 26, 2017, and asserted
that he was not served with notice until July 20, 2017, which was
beyond the 14-day period provided by law. (Id.) He seeks habeas
relief because his probable cause hearing was untimely. (Id. at 910.)
As to Petitioner’s allegation that he was denied counsel for
his parole revocation proceedings, he argued that he was not
provided counsel until August 15, 2017, after Respondents violated
his due process rights. (Reply, ECF No. 15 at 11.) In response to
Respondents’ allegation that Petitioner did not seek relief in the
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New Jersey Supreme Court, Petitioner argued that he was not
required to do so because “the Supreme Court would bring him no
relief.” (Id. at 11-12; see also Letter, ECF No. 24.)
II.

DISCUSSON
A.

Exhaustion

An application for habeas corpus “shall not be granted unless
it appears that the applicant has exhausted the remedies available
in the courts of the State...” 28 U.S.C. § 2254(b)(1)(A). To
satisfy the exhaustion requirement, a petitioner must show that
the claim was presented to the state courts, including the highest
court of the state, or that no such state remedy is available at
the time of the filing of the petition. O’Sullivan v. Boerckel,
526

U.S.

838,

845

(1999).

The

petitioner

has

the

burden

to

demonstrate exhaustion. Landano v. Rafferty, 897 F.2d 661, 668 (3d
Cir. 1990), cert. denied, 498 U.S. 811 (1990).
New Jersey law provides an absolute right to appeal any action
or decision of a State administrative agency to the Superior Court,
Appellate Division. New Jersey Court Rule 2:2-3(a)(2); Trantino v.
N.J. State Parole Bd., 166 N.J. 113, 172 (2001), modified on other
grounds, 167 N.J. 619 (2001). The right to appeal extends to
inaction by a State administrative agency, including the New Jersey
State Parole Board. Trantino v. N.J. State Parole Bd., 296 N.J.
Super. 437, 459-460, (App. Div. 1997), modified on other grounds,
154 N.J. 190 (1998).
7

B.

Analysis

Petitioner’s due process claims of untimely notice, untimely
appointment of counsel, and untimely probable cause hearing can be
appealed to the New Jersey Superior Court, Appellate Division as
a challenge to inaction by the New Jersey State Parole Board. See
e.g. Dougherty v. New Jersey State Parole Bd., 325 N.J. Super.
549, 555 (App. Div. 1999) (holding failure to conduct timely
hearing does not entitle a prisoner to automatic release); Alford
v. Ellis, Civ. No. 15-3783 (PGS), 2015 WL 4561281 (D.N.J. July 28,
2015) (finding petitioner failed to exhaust New Jersey remedies to
challenge decision of Parole Board). Petitioner must also exhaust
his state remedies for his due process claim that his sentence
“maxed-out” on January 1, 2015. See e.g. George v. Kerestes, Civ.
Action No. 3:11-CV-848, 2012 WL 1942073 (M.D. Pa. May 29, 2012)
(finding habeas claim that Parole Board miscalculated maximum
expiration date was procedurally defaulted in state court).
In August 2017, Petitioner attempted to file an appeal in the
Appellate Division, naming the Parole Board as a respondent.
(Answer, Ex. O, ECF No. 12-16, 12-17.) Petitioner, however, failed
to comply with the court’s substantive and procedural requirements
for filing an appeal. (Id., Ex. P., ECF No. 12-18.) The Appellate
Division instructed Petitioner that he could file a motion to file
the appeal as within time, and it forwarded a form motion to him.

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(Id.) Therefore, he cannot show that no state remedy is available
to him.
Petitioner acknowledged that he has not exhausted his state
remedies, but he asserted he is not required to do so because the
New Jersey Supreme Court will not grant relief. Petitioner cited
Barnes v. Wenerowicz, 280 F.R.D. 206, 207–17 (E.D. Pa. 2012) and
DeFoy v. McCullough, 393 F.3d 439, 440–49 (3d Cir. 2005).
Barnes and Defoy are distinguishable because, unlike New
Jersey, there is no appellate review for discretionary Parole Board
decisions in Pennsylvania. See Barnes, 280 F.R.D. at 216 (quoting
DeFoy, 393 F.3d at 443-45)(“noting ‘a hesitance on the part of the
Pennsylvania Supreme Court to permit a writ of mandamus to review
the denial of parole’”); Coady v. Vaughn, 770 A.2d 287, 290 (Pa.
2001) (“‘mandamus will not lie where the substance of the board's
discretionary action is the subject of the challenge’”); Rogers v.
Pa. Bd. of Prob. & Parole, 724 A.2d 319, 322 (Pa. 1999) (“state
courts ‘do not have statutory jurisdiction to conduct appellate
review’ of a Board decision”); Weaver v. Pa. Bd. of Prob. & Parole,
688 A.2d 766, 774–77 (Pa.Commw.Ct. 1997) (en banc) (“state courts
cannot

entertain

appeals,

requests

for

mandamus,

or

habeas

petitions challenging parole denials by the Board.”) In New Jersey,
where Petitioner’s claims arose, there is no such hurdle to
appellate review in the Appellate Division or the New Jersey
Supreme Court. See e.g. Jamogchian v. New Jersey State Parole Bd.,
9

196 N.J. 222 (2008) (holding that a community-supervised-for-life
offender must be afforded due process of law before the Parole
Board can impose a curfew confining the offender to his home);
Acoli v. New Jersey State Parole Board, 224 N.J. 213 (2016)
(reversing the Appellate Division’s construction of a statute
requiring a full Board hearing); J.B. v. New Jersey State Parole
Board, 229 N.J. 21 (2017) (holding that Parole Board’s regulations
must be supplemented to buttress parolee’s Fifth Amendment right
against self-incrimination under polygraph testing.) Therefore,
Petitioner

failed

to

exhaust

available

state

remedies

before

filing the instant habeas petition.
III. PENDING MOTIONS
Petitioner prematurely sought federal habeas review before
exhausting his state remedies, and his petition is dismissed
without

prejudice

in

the

accompanying

Order.

Therefore,

his

pending motions are moot. See e.g. Bartholowmew v. Ricci, Civ.
Action No. 10-3666(FLW), 2011 WL 5869595 (D.N.J. Nov. 21, 2011)
(dismissing habeas petition as time-barred and dismissing pending
motions as moot).
IV.

CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to

a certificate of appealability in this matter. See Third Circuit
Local Appellate Rule 22. The Court must issue a certificate of
appealability if the petitioner “has made a substantial showing of
10

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner makes such a showing if “reasonable jurists could debate
whether … the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473
(2000) (quoting Estelle v. Barefoot, 463 U.S. 880, 893, n.4
(1983)). Reasonable jurists would not debate the propriety of
dismissing

the

habeas

petition

without

prejudice

based

on

Petitioner’s failure to exhaust state court remedies.
V.

CONCLUSION
For the reasons discussed above, the Court dismisses the §

2254 habeas petition because the claims in the petition are
unexhausted.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 31, 2018

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