TAYLOR v. NEW JERSEY STATE PAROLE BOARD et al
Filing
20
OPINION. Signed by Judge Renee Marie Bumb on 2/27/2019. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
VAN CHARLES TAYLOR,
:
:
Petitioner,
:
:
v.
:
:
:
NEW JERSEY STATE PAROLE BOARD,:
et al.,
:
:
Respondents.
:
:
Civil Action No. 18-2465 (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 Van Charles Taylor (“Petitioner”), an inmate
confined in South Woods State Prison in Bridgeton, New Jersey. On
July 17, 2018, Petitioner filed a motion for summary judgment.1
(Mot. Summ. J., ECF No. 14.) Petitioner contends he is illegally
confined beyond his maximum expiration date and his sentence is in
violation
of
the
Ex
Post
Facto
Clause
of
the
United
States
1
A summary judgment motion is not necessary to obtain a decision
on the merits of a petition for writ of habeas corpus under 28
U.S.C. § 2254. See Rule 12, Rules Governing Section 2254 Cases in
the United States District Courts. (Federal Rules of Civil
Procedure may be applied in a habeas action if they are not
inconsistent with any statutory provision or the Habeas Rules)
(emphasis added).
Constitution. (Pet., ECF No. 1.) Respondents filed an answer
opposing habeas relief. (Answer, ECF No. 11.) Petitioner filed a
reply. (Letter Reply, ECF No. 16). For the reasons discussed below,
the Court denies the petition.
I.
BACKGROUND AND PROCEDURAL HISTORY
On September 17, 1981, Petitioner was adjudicated delinquent
for criminal homicide, for a crime committed on May 14, 1975.
(Answer, Ex. A, ECF No. 11-2 at 3; Ex. B, ECF No. 12 at 2-3.) He
was
sentenced
to
a
thirty-year
indeterminate
term
of
incarceration, pursuant to N.J.S.A. § 2A:4-61-h. (Answer, Ex. A,
ECF No. 11-2; Ex. B, ECF No. 12.) He was paroled on December 18,
1984. (Answer, Ex. F, ECF No. 11-6 at 2.) His parole was revoked
on August 13, 1986, after he was arrested and charged with armed
robbery as an adult. (Answer, Ex. C, ECF No. 11-3; Ex. D, ECF No.
11-4 at 2; Ex. F, ECF No. 11-6 at 2.)
For armed robbery committed on July 21, 1986, Petitioner was
convicted on January 30, 1987. (Answer, Ex. D, ECF No. 11-3.) He
was sentenced to a forty-year prison term with a twenty-year
mandatory minimum. (Id.) The judgment of conviction does not
indicate whether the prison term for that offense should run
consecutive to or concurrent with the remainder of his juvenile
sentence.
(Answer,
Ex.
C,
ECF
No.
11-3.)
The
Department
of
Corrections and the Parole Board both determined that the 1984
amendment of N.J.S.A. § 2C:44-5 applied to Petitioner’s sentences.
2
(Answer, Ex. D, ECF No. 11-4 at 2; Ex. E, ECF No. 11-5 at 2; Ex.
F [calculation worksheet], ECF No. 11-6 at 4-5.)
Petitioner completed the prison term on his robbery sentence
on July 22, 2006. (Answer, Ex. D, ECF No, 11-4 at 2.) Upon
application of the 1984 amendment of N.J.S.A. § 2C:44-5, his
juvenile parole term began to run again, and would expire in
twenty-four years, four months and six days. (Id.) He was paroled
on September 1, 2015. (Answer, Ex. H., ECF No. 11-8 at 8.)
On
December
determination
to
13,
2017,
revoke
a
Parole
Petitioner’s
Board
parole
panel
and
issued
establish
a
an
eight-month future eligibility term (FET). (Answer, Ex. H, ECF No.
11-8 at 16.) Petitioner appealed. (Id. at 22.) On May 21, 2018,
the full Parole Board affirmed. (Id. at 26-28.) Petitioner’s
adjusted maximum release date is February 11, 2030. (Id. at 21.)
Petitioner challenged the Parole Board’s decision by filing
a motion to correct an illegal sentence in the Atlantic County
Superior Court in Mays Landing, New Jersey. (Pet., ECF No. 1 at
6.) He did not appeal the New Jersey Superior Court’s decision.2
(Id. at 7.) Petitioner initiated this action by filing a habeas
petition pursuant to 28 U.S.C. § 2254 on February 21, 2018. (Pet.,
ECF No. 1.)
2
The parties have not submitted the Superior Court’s decision
on Petitioner’s motion to correct an illegal sentence.
3
II.
DISCUSSION
A.
Standard of Review
28 U.S.C. § 2254(d) 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
with respect to any claim that was adjudicated
on the merits in State court proceedings
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.
“Contrary to clearly established Federal law” means the state
court applied a rule that contradicted the governing law set forth
in U.S. Supreme Court precedent or that the state court confronted
a set of facts that were materially indistinguishable from U.S.
Supreme Court precedent and arrived at a different result than the
Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The
phrase “clearly established Federal law” “refers to the holdings,
as opposed to the dicta” of the U.S. Supreme Court’s decisions.
Williams, 529 U.S. at 412. An “unreasonable application” of clearly
established
federal
law
is
an
4
“objectively
unreasonable”
application of law, not merely an erroneous application. Eley, 712
F.3d at 846 (quoting Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)).
Although a petition for writ of habeas corpus may not be
granted if the petitioner has failed to exhaust his remedies in
state court, a petition may be denied on the merits notwithstanding
the petitioner's failure to exhaust his state court remedies. 28
U.S.C. § 2254(b)(2); see also Lambert v. Blackwell, 387 F.3d 210,
260 n.42 (3d Cir. 2004) and Lewis v. Pinchak, 348 F.3d 355, 357
(3d Cir. 2003).
B.
The Parties’ Arguments
1.
The Petition
Petitioner asserts that, sometime in the early to mid-1990s,
a Senior Classification Officer of the Department of Corrections
Classification Department was assigned to calculate “the over-all
length of time to be served” on Petitioner’s adult and juvenile
sentences. (Pet., ECF No. 1 at 12.) Petitioner claims the officer
erred
in
running
his
sentences
consecutively.
(Id.
at
13.)
Petitioner believes that he “maxed-out” on his adult robbery
sentence on July 22, 2006, after serving exactly twenty years on
that sentence. (Id.) However, he was informed that he had to serve
twenty-four more years on his juvenile sentence. (Id.)
In 2007 or 2008, Petitioner received a letter from the New
Jersey State Parole Board, explaining that his sentences were
consecutive rather than concurrent, pursuant to a legislative
5
change in N.J.S.A. § 2C:44-5(c). (Id.) Petitioner contends that
application of this legislative change to his juvenile delinquent
homicide case violates the Ex Post Facto Clause of the United
States Constitution because he was sentenced in 1975, nine years
before the 1984 amendment to the statute. (Id. at 13-14.) According
to Petitioner, under the rules of aggregation in N.J.S.A. § 2C:445, his adult robbery sentence and juvenile sentence expired on
July 22, 2006. (Id. at 14.)
Petitioner further submits that his juvenile sentence expired
when he “maxed out” on his adult sentence because “[j]uveniles are
entitled to the same gap-time credits as adults. Gap-Time credits
also appl[y] to the period of imprisonment served on the first
sentence after a parole revocation.” (Id. at 15, quoting State v.
Franklin, 175 N.J. 456 ([N.J. Super. 2012]). Petitioner argues
that he is entitled to 27 ½ years of gap time credit on the parole
warrant lodged against him in 1987. (Id. at 16.) Petitioner’s
present incarceration is the result of the New Jersey State Parole
Board Juvenile Panel’s December 13, 2017 decision to revoke parole
and establish an eight-month parole eligibility term. (Answer, Ex.
H, ECF No. 11-8 at 26-28.)
2.
The Answer
Respondents
note
that
Petitioner’s
1987
judgment
of
conviction for robbery is silent on whether the sentence is
consecutive
to
or
concurrent
6
with
his
juvenile
term
of
imprisonment. (Answer, ECF No. 11 at 8.) In 1975, in the absence
of stipulation in the judgment of conviction, the common law
required3 correctional authorities to run sentences concurrently
when an offender was sentenced to a term of incarceration for an
offense committed while on parole release. (Id.) The 1984 Amendment
to N.J.S.A. § 2C:44-5 required the opposite, consecutive sentences
in the absence of stipulation in the judgment of conviction.
(Answer, ECF No. 11 at 8-9.) Thus, once Petitioner completed his
prison term for robbery in 2006, Respondents contend they correctly
concluded that he began serving the remaining sentence on his
juvenile adjudication. (Answer, ECF No. 11 at 8-9.)
Respondents argue that application of the 1984 amendment to
§ 2C:44-5 to Petitioner’s juvenile sentence does not violate the
Ex Post Facto Clause. (Answer, ECF No. 11 at 17-19.) Respondents
rely on Loftwich v. Fauver, 665 A.3d 1133, 1136 (N.J. Super. Ct.
App. Div. 1995), which held that “the application of the 1984
amendment to an offender who was sentenced before the effective
date of that enactment, but who violated parole after that date,
does not create a significant risk of enhanced confinement,” and
thus does not violate the Ex Post Facto Clause. (Id. at 18.)
3
In 1978, N.J.S.A. § 2C:44-5(c) first codified the common law rule
that absent specific direction by the sentencing court, upon the
imposition of separate sentences at separate times, sentences will
run concurrently. See New Jersey Session Laws, Laws of 1978, ch.
95, § 2C:44-5(c); State v. Corbitt, 370 A.2d 916, 918 (N.J. Super.
1977) (citing In re Sabongy, 87 A.2d 59 (Cty.Ct. 1952)).
7
Petitioner was sentenced to a 30-year indeterminate term for
the juvenile adjudication. (Answer, ECF No. 11 at 18.) Thus,
Respondents note that he could serve up to 30 years in custody as
punishment for committing that offense. (Id. at 19.) He was later
convicted of robbery and spent nearly two decades in state prison
serving the sentence for that offense. (Id.) Respondents contend
that the time Petitioner spent incarcerated for robbery does not
constitute an increase in the amount of time Petitioner spent in
custody for the juvenile adjudication, and he was not subjected to
“enhanced confinement.” (Id.)
Respondents also argue that Petitioner’s claim for gap time
credits against his juvenile sentence is meritless. (Id. at 1920.) The gap-time statute, N.J.S.A. § 2C:44-5(b)(2), applies to
juvenile sentences. (Answer, ECF No. 11 at 20, citing State v.
Franklin, 175 N.J. 456, 459 (2003)). The New Jersey Supreme Court
explained
that
imprisonment
“[a]
for
two
defendant
who
separate
is
offenses
sentenced
to
terms
of
imposed
on
different
sentencing dates is entitled to gap-time credit for the period he
serves from the date of the first sentence to the date of the
second sentence where both offenses occurred before the first
sentence.” Id. (emphasis added). Respondents contend, based on the
plain meaning of the statute, that gap-time credits apply only
where both offenses occurred before the first sentence was imposed.
8
(Answer, ECF No. 11 at 20, citing State v. Carreker, 796 A.2d 847
(2002)) (setting forth elements for gap-time credits).
Petitioner committed his first offense in 1975 and his second
offense in 1986; therefore, Respondents assert that he is not
entitled to gap time credits. (Id.) Respondents maintain that
N.J.S.A. § 2C:44-5(c) applies to Petitioner because he committed
a new offense while on parole and was then sentenced to serve a
custodial sentence for that offense. (Id.) This provision does not
provide for gap time credits. (Id.) Additionally, Respondents
oppose
Petitioner’s
aggregation
claim
because,
pursuant
to
N.J.S.A. § 30:4-123.51(h), juvenile and adult sentences cannot be
aggregated.
3.
The Reply
Petitioner reasserts that retrospective application of the
1984 amendment to N.J.S.A. § 2C:44-5 to his 1975 offense and
subsequent 1981 juvenile adjudication to an indeterminate 30-year
period of incarceration violates the Ex Post Facto Clause of the
Constitution. (Letter Reply, ECF No. 16 at 4.) Although Petitioner
does not challenge that he was sentenced to an indeterminate (30year max) sentence for juvenile homicide, he states “PLEASE NOTE:
this juvenile sentence was a signed plea agreement sentence that
had
a
(10)
year
max
in
place
but
somehow
got
lost
in
translation???” (Id. at 1.) The Court does not interpret this as
9
a challenge to Petitioner’s juvenile sentence, but any such claim
is unexhausted in the state courts.
C.
Analysis
1.
Exhaustion of State Remedies
Petitioner did not appeal the New Jersey Superior Court’s
denial of his motion to correct an illegal sentence. (Pet., ECF
No. 1 at 6.) Therefore, he failed to exhaust his State Remedies.
See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round
of
the
State's
established
appellate
review
process.”)
Nonetheless, a habeas court may deny an unexhausted habeas claim
on the merits. 28 U.S.C. § 2254(b)(2).
2.
Due Process Liberty Interest in Release Upon
Expiration of Sentence
An inmate has a due process liberty interest, protected by
state and federal law, in release upon expiration of his sentence.
Sample v. Diecks, 885 F.2d 1099, 1114 (3d Cir. 1989). Petitioner
asserts that if he received the appropriate gap-time credits, his
adult and juvenile sentences would have expired on July 22, 2006.
Therefore, he claims that he is being illegally confined beyond
his release date.
N.J.S.A. § 2C:44-5(b)(2) provides:
Sentences of imprisonment imposed at different
times. When a defendant who has previously
10
been sentenced to imprisonment is subsequently
sentenced to another term for an offense
committed prior to the former sentence, other
than an offense committed while in custody: …
(2) Whether the court determines that the
terms shall run concurrently or consecutively,
the defendant shall be credited with time
served in imprisonment on the prior sentence
in determining the permissible aggregate
length of the term or terms remaining to be
served . . . .
N.J.S.A. § 2C:44-5(b)(2) (emphasis added).
Respondents are correct that this provision does not apply to
Petitioner because Petitioner’s conviction for robbery, committed
in 1986, is not “an offense that was committed prior to” his 1975
juvenile homicide offense. See State v. Carreker, 796 A.2d 847,
849 (N.J. 2002) (noting that § 2C:44-5(b)(2) applies when “both
offenses occurred prior to the imposition of the first sentence.”)
Therefore, Petitioner is not entitled to the gap-time credit
described in the statute.
Petitioner’s aggregation claim also fails. At the time of
Petitioner’s robbery conviction on January 30, 1987, N.J.S.A. §
30:4-123.51(h) provided:
h. When an inmate is sentenced to more than
one term of imprisonment, the primary parole
eligibility terms calculated pursuant to this
section shall be aggregated by the board for
the purpose of determining the primary parole
eligibility date, except that no juvenile
commitment shall be aggregated with any adult
sentence. The board shall promulgate rules and
regulations to govern aggregation under this
subsection.
11
N.J.S.A. § 30:4-123.51(h) (effective to Dec. 16, 2007) (emphasis
added).
“Unlike
inmates,
see
multiple
N.J.S.A.
sentences
of
30:4–123.51h,
imprisonment
multiple
for
adult
sentences
for
juveniles are not aggregated in determining the juvenile's primary
parole-eligibility date.” State in Interest of J.L.A., 643 A.2d
538, 545 (N.J. 1994). Petitioner’s juvenile commitment and adult
sentence could not be aggregated.
Petitioner remained subject to what remained of his 30-year
indeterminate juvenile term after service of his 1987 sentence for
armed robbery. Petitioner was paroled on September 1, 2015 and
continued
under
parole
supervision
for
the
remainder
of
his
indeterminate 30-year juvenile term. (Answer, Ex. H., ECF No. 118 at 8.) Therefore, Petitioner was subject to parole revocation
and service of the remaining term of his juvenile adjudication
when his parole was revoked on December 13, 2017. Petitioner’s
projected release date is February 11, 2030. (Answer, Ex. H, ECF
No. 11-8 at 21.) Petitioner is not confined beyond his maximum
expiration date.
3.
Ex Post Facto Clause
“Article I, § 10, of the Constitution prohibits the States
from passing any ‘ex post facto Law.’” California Dep't of Corr.
v. Morales, 514 U.S. 499, 504 (1995)). “[T]he Clause is aimed at
laws that retroactively alter the definition of crimes or increase
12
the punishment for criminal acts.” Morales, 514 U.S. at 504.
(internal quotations omitted).
The Third Circuit Court of Appeals described the relevant
Supreme Court precedent:
[I]n Collins v. Youngblood, 497 U.S. 37 …
(1990), the Supreme Court adopted the analysis
found in Beazell v. Ohio, 269 U.S. 167 …
(1925), which established three tests for
determining violations of the Ex Post Facto
Clause.
Under
Beazell,
a
law
is
unconstitutional if it: (1) punishes as a
crime an act that was innocent when done, or
(2) makes more burdensome the punishment for
a crime after its commission, or (3) deprives
one charged with a crime of any defense
available according to law at the time the act
was committed. … If any one of the three
Beazell prongs applies, the law or judicial
decision in question is unconstitutional.
Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991). “It is a
fundamental principle of ex post facto jurisprudence that a court
entertaining an ex post facto claim must focus upon the law in
effect at the time of the offense for which a person is being
punished.” U.S. ex rel. Forman v. McCall, 709 F.2d 852, 856 (3d
Cir. 1983).
Only the second ex post facto test announced in Beazell is
applicable here; whether the 1984 amendment to N.J.S.A. § 2C:44-5
made the punishment for Petitioner’s 1975 juvenile adjudication
more burdensome. “The touchstone of [the] inquiry is whether a
given change in law presents a ‘sufficient risk of increasing the
measure of punishment attached to the covered crimes.’” Peugh v.
13
United States, 569 U.S. 530, 539 (2013) (quoting Garner v. Jones,
529 U.S. 244, 250 (2000) (quoting Morales, 514 U.S. at 509)).
Petitioner was adjudicated for juvenile homicide, committed
in 1975, and sentenced to an indeterminate 30-year prison term in
Atlantic County Juvenile and Domestic Relations Court on September
17, 1981. (Pet., ECF No. 1 at 12.) The 1984 amendment to N.J.S.A.
§ 2C:44-5 did nothing to alter the fact that Petitioner would serve
up to 30 years on his juvenile adjudication. The amendment did not
affect
the
minimum
sentence,
as
the
juvenile
sentence
was
indeterminate. Cf. Lindsay v. Washington, 301 U.S. 397, 401 (1937)
(“[r]emoval of the possibility of a sentence of less than fifteen
years, at the end of which petitioners would be freed from further
confinement and the tutelage of a parole revocable at will,
operates to their detriment in the sense that the standard of
punishment adopted by the new statute is more onerous than that of
the old.”)
The 1984 amendment did not change the fact that the sentencing
court had the discretion to sentence Petitioner consecutively or
concurrently with his juvenile adjudication upon his commission of
a crime while on parole from the juvenile sentence. See N.J.S.A.
§
2C:44-5(c).
The
amendment
merely
changed
the
default
rule
applicable if the sentencing judge failed to indicate whether the
sentences were consecutive or concurrent. See Souch v. Schiavo,
289 F.3d 616, 620-22 (9th Cir. 2002) (finding no ex post facto
14
violation where trial court retained absolute discretion to impose
either concurrent or consecutive sentences under both versions of
the state statute); see Hooks v. Sheets, 603 F.3d 316, 321 (6th
Cir.
2010)
(“[s]ince
[the
petitioner]
was
always
subject
to
consecutive rather than concurrent sentences in the discretion of
the trial court, his re-sentencing [] did not raise ex post facto
or due process concerns”) (emphasis in original); Cf. U.S. v.
Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (after amendment to
federal sentencing guidelines, ex post facto violation found where
the maximum sentence that could have been imposed increased after
factoring in discretion to impose consecutive sentences.)
When Petitioner committed the juvenile offense in 1975, the
parties do not dispute that a sentencing court had discretion to
impose a concurrent or consecutive sentence upon Petitioner’s
commission of a subsequent crime while on parole. In other words,
when Petitioner committed the juvenile offense in 1975, he could
have contemplated receiving a consecutive sentence on a subsequent
crime committed while on parole. See Loftwich, 665 A.2d at 1136
(N.J. Super. Ct. App. Div. 1995) (“[b]oth before and after the
[1984] amendment [to N.J.S.A. § 2C:44-5] it was, and is, the
responsibility of the court to determine whether sentences should
run concurrently or consecutively.”) In that sense, there was no
increase to Petitioner’s punishment from his 30-year indeterminate
juvenile term.
15
The
amendment
to
the
statute
increased
the
punishment
Petitioner would be subjected to only if: (1) Petitioner committed
a crime while on parole from the juvenile term; and (2) the
sentencing judge failed to stipulate whether the sentence for the
subsequent crime was consecutive or concurrent to the juvenile
term. This risk of greater punishment is too speculative to cause
an Ex Post Facto Clause violation. See Garner v. Jones, 529 U.S.
244, 255 (2000) (“[R]espondent must show that as applied to his
own sentence the law created a significant risk of increasing his
punishment”);
Peugh,
569
U.S.
at
539
(“mere
speculation
or
conjecture that a change in law will retrospectively increase the
punishment for a crime will not suffice to establish a violation
of the Ex Post Facto Clause.”) Therefore, application of the 1984
amendment to N.J.S.A. § 2C:44-5(c) by the Parole Board did not
violate the Ex Post Facto Clause.
III. CERTIFICATE OF APPEALABILITY
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a
proceeding
under
28
U.S.C.
§
2254.
28
U.S.C.
§
2253(c).
A
certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
16
or that jurists could conclude the issues presented are adequate
to
deserve
encouragement
to
proceed
further.”
Miller-El
v.
Cockrell, 537 U.S. 322, 327 (2003).
Petitioner has not made a substantial showing of the denial
of a constitutional right in the calculation of his juvenile and
adult sentences by the Parole Board. Therefore, the Court will
deny a certificate of appealability.
IV.
CONCLUSION
For the reasons discussed above, the petition for habeas
relief under 28 U.S.C. § 2254 is denied.
An appropriate order follows.
Dated: February 27, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
17
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