AVILA v. JOHNSON et al

Filing 89

OPINION. Signed by Judge Noel L. Hillman on 3/29/2023. (alb, n.m.)

Case 1:18-cv-09422-NLH Document 89 Filed 03/29/23 Page 1 of 15 PageID: 1884

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ABDIEL F. AVILA,
Petitioner,

Civil Action
No. 18-9422 (NLH)

v.
OPINION
THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY,
et al.,
Respondents.

APPEARANCES:
Abdiel F. Avila
788891C
New Jersey State Prison
PO Box 861
Trenton, NJ 08625
Petitioner pro se
Grace C. MacAulay, Camden County Prosecutor
Jason Magid, Assistant Prosecutor
Office of the County Prosecutor
200 Federal Street
Camden, NJ 08103
Attorneys for Respondents
HILLMAN, District Judge
I.

INTRODUCTION
Abdiel F. Avila, a state prisoner confined in New Jersey

State Prison, is proceeding on an amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

He has also filed a

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motion for a “notice of claim of unconstitutionality.”
65.

Respondents oppose the motion.

ECF No. 66.

ECF No.

For the

reasons stated below, the Court will deny the motion.
II.

BACKGROUND
This Court, affording the state court’s factual

determinations the appropriate deference, 28 U.S.C. §
2254(e)(1), reproduces the recitation of the facts as set forth
by the New Jersey Superior Court Appellate Division (“Appellate
Division”) in their opinion denying Petitioner’s direct appeal:1
C.H. was born in 1992. Her parents divorced when she
was one year old. In 2003, when C.H. was eleven years
old, her mother married defendant. At that time, C.H.
had been living primarily with her grandmother, but
spent some time in her mother’s home. After her mother’s
marriage to defendant, C.H. spent more and more time
living in her mother’s home, to the point where it was
about eighty-five percent of the time.
The first inappropriate incident that occurred was not
a subject of the indictment. Shortly after her mother
and defendant were married, and while C.H. was still
eleven years old, defendant invited her into his bedroom
to watch television. They were alone in the house at
the time. He began to tickle her, and in doing so was
touching her chest. C.H. considered this inappropriate,
and it made her uncomfortable.
She left the room.
Defendant told her not to tell her mother about it,
saying it would cause her undue stress because she was
pregnant. C.H. did not tell anyone about the incident
until the time of her disclosure of the subsequent events
that became the subject matter of the charges against
defendant.
The Appellate Division adopted this statement of facts in their
opinion affirming the denial of Petitioner’s postconviction
relief (“PCR”) petition. State v. Avila, No. A-2598-14T1, 2016
WL 6804414 (N.J. Super. Ct. App. Div. Nov. 17, 2016) (“Avila
II”).
1

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About two years later, in November 2005, C.H. was in the
seventh grade. She was called down to the school office
and told that her stepfather was there to pick her up
because there was an emergency at home. While they were
driving home, defendant said to C.H. “that we were going
to f–––.” Before getting home, they stopped at a store.
C.H. went into the store alone, leaving her backpack in
the car.
She later discovered in her backpack a
typewritten
letter
addressed
to
her
from
the
“Sisterhood.”
The letter informed her that she was
required to undergo sexual training prior to turning
eighteen years old, and part of that training was to
have sex with someone older than her. The letter stated
that the person in front of her at the time was
responsible for her training.
The letter made
references to people that would appeal to youth, such as
popular musical artists, and said that these people had
undergone such training.
C.H. read the letter, which was three to four pages long,
in defendant’s presence. He told C.H. that she had to
engage in sexual activities with him, and if she did
not, people close to her, such as her mother and her
godfather, M.A., “would probably get hurt.”
Those
threats were also contained in the letter.
When they got home, defendant removed all of C.H.’s
clothes and removed all of his clothes. He told her to
lie on the couch in the living room. She hesitated and
began to cry because she did not want to have sex with
defendant, but he reiterated that people around her
could get hurt if she did not acquiesce. He further told
her that he did not want to have sex with her either,
but it was an obligation of the Sisterhood.
Initially, C.H. laid on her back, but defendant directed
her to roll over onto her stomach. C.H. believed he did
this because he did not want to see her crying.
Defendant then laid on top of C.H. and penetrated her
vagina with his penis, which he continued to do for about
fifteen minutes, after which he removed his penis and
ejaculated on her lower back.
C.H. immediately ran
upstairs and took a long shower.
She cried and felt
disgusted. Defendant then took her back to school and
told her they would continue to have sex until she turned

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eighteen.
Defendant took the Sisterhood letter from
C.H. and destroyed it.
This began a course of conduct that persisted on a
regular basis over the next eight months. C.H.’s mother
regularly left the home at about 7:30 a.m. to go to work,
leaving defendant responsible to take C.H. to school at
about 8:30 a.m. While alone with C.H. before school,
defendant frequently attempted to have sex with her.
She always said no and resisted, but she estimated that
he succeeded about eighty percent of the time. When she
resisted, defendant continually reminded her of the
Sisterhood and that her family could be hurt if she did
not have sex with him. Defendant repeatedly produced
additional letters from the Sisterhood to reinforce
C.H.’s obligation to have sex with him. After C.H. read
them, defendant always destroyed the letters.
At some point, C.H. began to doubt that the Sisterhood
was real, or that anything bad would actually happen to
her family if she stopped having sex with defendant.
Then, defendant went to Maryland to pick up his daughter
from a prior relationship, who was about two years
younger than C.H., to bring her back to New Jersey for
a visit.
C.H. and her stepsister had a close
relationship. The stepsister told C.H. that while she
and her father were driving to New Jersey, “supposedly
someone shot his tire.” C.H. did not believe that her
stepsister would lie to her. As C.H. described it, her
stepsister told her “it was true that the car tire,
sound[ed] like somebody shot the tire.” Defendant told
C.H. that this was the work of the Sisterhood, and
“[b]ecause [he] was denied [sex by her] so much that
they got mad and they shot his tire.” This reinforced
C.H.’s belief in the Sisterhood and the prospect that if
she refused to have sex with defendant her family members
would be harmed.
Therefore, she continued to comply
with defendant’s sexual demands.
In June 2006, C.H., then fourteen years old, completed
the seventh grade. She worked over the summer in a store
owned by her godfather, M.A., who was the cousin of
C.H.’s mother. C.H. had a close relationship with M.A.
On June 30, 2006, C.H.’s stepsister was staying with
C.H.’s family for a visit. On that morning, C.H.’s mother
woke up C.H. and directed her to help defendant with
something, after which C.H.’s mother left to go to work.

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C.H.’s stepsister was sleeping in the bed next to C.H.
C.H. immediately turned off the window air conditioning
unit in the room, but defendant then came in and turned
it back on.
He then directed C.H. to the bedroom he
shared with C.H.’s mother. C.H.’s baby sister was also
asleep elsewhere in the house.
Defendant locked the
door and demanded sex from C.H.
C.H. became hysterical and violent and began screaming.
Apparently no one heard her because of the noise from
the air conditioners which were on “high” in both
bedrooms. Defendant undressed C.H. and told her to lay
on the bed.
Initially, C.H. laid on her back, but
defendant turned her over onto her stomach, pushing her
face into the pillow, apparently to stifle her crying.
In the course of this episode, he tried to force C.H. to
fellate him (which he had also attempted on other
occasions). He also placed his mouth on her genitals.
Defendant then proceeded to penetrate C.H.’s vagina with
his penis.
After a time, he removed his penis and
ejaculated on her back. C.H. ran out of the room and
took a long shower.
She cried in her bedroom before
dressing for the day.
Defendant then drove C.H. to M.A.’s store, where C.H.
heard a radio program about sexual assault victims who
wished they had told someone about their ordeal. C.H.
then wrote a note to M.A., which stated:
I have a secret! That’s killing me! Don’t
tell! I mean no one! I have been touched. By
some1 but all I can say I was Blackmailed and I
am not a virgin anymore! Well he waz lookin at
me kind of funny for a while and this morning
when my mom left and my stepsister was sleeping
he knocked on my door and he waz like come here
so I went and he made me and he said I cant tell
cuz some will get hurt.
And this is not the
first time. I argued while it was happening and
waz kissing me and he was cleaning my tears at
the same time. I feel like shit rite now. Please
don’t tell! Pleaes I am not ready to tell! He
is Abdiel!
C.H. went into the bathroom in the store and was crying.
Another store employee knocked on the door and asked
what was the matter. After some delay, C.H. allowed her

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co-employee in and told her why she was crying. That
employee called M.A. and asked him to come to the store
immediately. When he did, C.H. gave him the note, and
the two of them cried together.
Other family members were then notified, as were the
police and the Division of Youth and Family Services.
C.H. gave a statement to the police and cooperated in
the investigation. C.H. was taken to the hospital and
examined.
With the permission of C.H.’s mother, the
police searched the home. They seized a comforter that
was on the bed in the bedroom shared by defendant and
C.H.’s mother.
The comforter contained semen, which
proved to be from defendant. No fluids or other forensic
evidence matching C.H. were found on the comforter.
Defendant did not testify at trial.
The defense
presented through his attorney was a denial that any of
these incidents ever occurred.
The defense attacked
C.H.’s credibility, emphasizing that she should not be
believed because, by her account of the events, she did
not disclose their occurrence for many months.
State v. Avila, No. A-5729-08T3, 2011 WL 1466299, at *1-5 (N.J.
Super. Ct. App. Div. Apr. 18, 2011) (“Avila I”) (alterations and
omission in original).

He was convicted of two counts of first-

degree aggravated sexual assault, N.J.S.A. § 2C:14–2(a)(2)(a),
and two counts of second-degree endangering the welfare of a
child, N.J.S.A. §2C:24–4(a).

The trial court sentenced

Petitioner “to an aggregate term of ninety-five years in prison,
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2.”
Avila II, 2016 WL 6804414, at *1.
III. ANALYSIS
Petitioner filed a motion captioned as a “motion of claim
of unconstitutionality.”

ECF No. 65.

6

He asserts “New Jersey

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statutes N.J.S.A. § 2C:14-1 and § 2C:14-2 are both
unconstitutional.”

Id. at 9.

He asserts his judgment of

conviction “was obtained by unconstitutional state statutes” and
invokes Local Civil Rule 24.1(b) and 28 U.S.C. § 2403(b).

Id.

Section 2403 states in relevant part:
In any action, suit, or proceeding in a court of the
United States to which a State or any agency, officer,
or employee thereof is not a party, wherein the
constitutionality of any statute of that State affecting
the public interest is drawn in question, the court shall
certify such fact to the attorney general of the State,
and shall permit the State to intervene for presentation
of evidence, if evidence is otherwise admissible in the
case,
and
for
argument
on
the
question
of
constitutionality.
28 U.S.C. § 2403(b).

Local Civil Rule 24.1(b) implements that

statute, stating:
If, at any time prior to the trial of an action in which
neither the State of New Jersey nor any officer, agency
or employee thereof is a party, a party to the action
questions the constitutionality of any State statute,
such party (to enable the Court to comply with 28 U.S.C.
§ 2403(b)) shall forthwith, upon the filing of any
pleading which raises the question, notify the Judge to
whom the action is assigned, in writing, of the existence
of said question identifying: (1) the title and docket
number of the action; (2) the statute challenged; and
(3)
why
it
is
claimed
that
the
statute
is
unconstitutional.
If
memoranda
have
been
served
discussing the constitutional question, two copies of
each
memorandum
shall
be
forwarded
with
the
notification.
Petitioner seeks to challenge the constitutionality of N.J.S.A.
§ 2C:14-1 and § 2C:14-2 and argues the Court must now notify the

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State of New Jersey and allow it to intervene in the
proceedings.
Section 2403 does not apply to these proceedings.

The

statute only requires the Court to notify the State of
challenges to a state statute’s constitutionality “[i]n any
action, suit, or proceeding in a court of the United States to
which a State or any agency, officer, or employee thereof is not
a party . . . .”

28 U.S.C. § 2403(b) (emphasis added).

The

Attorney General of the State of New Jersey is the Respondent in
this matter and has designated the Camden County Prosecutor’s
Office to represent its interests.

ECF No. 15.

The State is

already part of this matter, so § 2403 does not apply.

The

motion may be denied on that basis alone.
The Court is required to liberally interpret pro se
pleadings, so the Court will also consider the motion as a
motion to amend the habeas petition.

“The Federal Rules of

Civil Procedure apply to motions to amend habeas corpus
motions.”

United States v. Duffus, 174 F.3d 333, 336 (3d Cir.),

cert. denied, 528 U.S. 866 (1999); see also 28 U.S.C. § 2242.
Rule 15(a) provides that a party may amend his pleading once as
a matter of course at any time before a responsive pleading is
filed.

Once a responsive pleading is filed, Petitioner may only

amend his pleadings with Respondents’ written consent or by

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leave of court.

Fed. R. Civ. Pro. 15(a)(2).

consent to the amendment.

Respondents do not

ECF No. 66.

Petitioner’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA imposes a one-year period of limitation on a petitioner
seeking to challenge his state conviction and sentence through a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See 28 U.S.C. § 2244(d)(1).

“This limitations period applies to

new petitions ‘as well as amendments of existing motions to add
new claims or legal theories after the one-year period has
expired.’”

Saunders v. D’Illio, No. 15-2683, 2016 WL 4689038,

at *2 (D.N.J. Sept. 7, 2016) (quoting Mass v. United States, No.
11-2407, 2014 WL 6611498, at *3 (D.N.J. Nov. 20, 2014)); see
also United States v. Thomas, 221 F.3d 430, 431 (3d Cir. 2000).
Petitioner filed this motion after the expiration of
AEDPA’s one-year statute of limitations.

The New Jersey Supreme

Court denied certification on Petitioner’s direct appeal on
October 13, 2011.

Thus, Petitioner’s judgment of conviction

became final ninety days after that date, or on January 11,
2012.

After taking statutory tolling into consideration for the

time his PCR petition was pending, the statute of limitations to
file this federal habeas petition was tolled until March 7,
2017.

Accordingly, Petitioner had until March 7, 2018 to file

his federal habeas petition.

See ECF No. 44 at 5-7.

9

This

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motion was filed well after that date, and Petitioner’s filing
of his original federal habeas petition does not toll the
applicable one-year statute of limitations.

See Duncan v.

Walker, 533 U.S. 167, 172 (2001).
Moreover, the challenged revision to N.J.S.A. § 2C:14-2 was
enacted on January 21, 2020.

See Sex Offenses—Assault And

Battery, 2019 NJ Sess. Law Serv. Ch. 474 (ASSEMBLY 2767).
Petitioner filed this motion more than one year later.

As the

motion itself is untimely under § 2244, the new grounds for
relief must relate back to the original petition in order not to
be time-barred under AEDPA.
“Amendments made after the statute of limitations has run
relate back to the date of the original pleading if the original
and amended pleadings ‘ar[i]se out of the conduct, transaction,
or occurrence.’”

Mayle v. Felix, 545 U.S. 644, 655 (2005)

(alteration in original) (quoting Fed. R. Civ. Pro. 15(c)).

In

Mayle, the Supreme Court rejected the argument that an amendment
to a habeas petition relates back to the original petition “so
long as the new claim stems from the habeas petitioner’s trial,
conviction, or sentence. Under that comprehensive definition,
virtually any new claim introduced in an amended petition will
relate back, for federal habeas claims, by their very nature,
challenge the constitutionality of a conviction or sentence, and
commonly attack proceedings anterior thereto.”

10

Id. at 656-57.

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The Court held that “relation back depends on the existence of a
common ‘core of operative facts’ uniting the original and newly
asserted claims.”

Id. at 659.

Petitioner seeks to challenge the constitutionality of
N.J.S.A. § 2C:14-1 and § 2C:14-2 based on amendments to the
statute after his conviction: “Eleven years after my conviction
dated June 25, 2009 . . . is ‘when’ the language of the statute
is amended by the N.J. Legislature for the first time to say:
‘[a]ggravated sexual assault is a crime for the first degree
ex[c]ept, as otherwise provided in subsection d. of this
section, a person convicted under paragraph (1) of this
subsection shall be sentenced to a specific term of years which
shall be fixed by the court and shall be between 25 years and
life imprisonment . . . .’”
original).

ECF No. 65 at 19 (emphasis in

“The need to reform is presented . . . to provide

retroactive relief to Petitioner and all ‘similarly situated’
adult inmate convictions ‘prior’ to the effective date of
January 21, 2020.”

Id. (emphasis in original).

He also argues

“the age distinctions of ‘under the age of twelve’ and
‘sixteen,’ the definition of ‘child’, definition of ‘juvenile,’
the definition of ‘consent’ that formerly was a defense to rape
under all under § 2A:138-1 where all excluded in the current
definitions of 2C:14-1, as well as other comprehensive
definitions of ‘adult’ and others.”

11

Id. at 23.

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Petitioner did not make this argument in his amended
petition.

ECF No. 10 at 50-86.

Petitioner does challenge the

validity of his sentence, but his argument is that “the
sentencing court ignored to follow the requirements of N.J.S.A.
2C:14-6.”

Id. at 59.

That statute concerns the sentencing of a

“person who is convicted of a second or subsequent offense under
sections 2C:14-2 or 2C:14-3a,” and states that “the sentence
imposed under those sections for the second or subsequent
offense shall, unless the person is sentenced pursuant to the
provisions of 2C:43-7, include a fixed minimum sentence of not
less than 5 years during which the defendant shall not be
eligible for parole.”

N.J.S.A. § 2C:14-6.

“[T]he sentencing

court on 6/25/2009 illegally imposed a sentence on counts 1 and
3 sentences which stem from constitutional error in violation to
Petitioner’s 5th, 6th, and 14th Amendment rights of the U.S.
Constitution, which stem from a nexus that the Indictment has
never been signed by either the prosecutor nor endorsed as a
‘true bill’ by any foreperson.”

ECF No. 10 at 59.

This is not

the same argument that Petitioner makes in his motion.
In his response papers, Petitioner asserts he raised this
on direct appeal, specifically that his Thirteenth and
Fourteenth amendment rights were violated “when the state
legislature encroached and failed to define the ‘man’ in any of
the statutes adjudicated the constitutionality of the statutes

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are challengued [sic], are vague and have a broad definition to
a ‘person’ which failed to include the ‘man’ that is currently
imprisoned constituting international human rights violation.”
ECF No. 67 at 7.

He argues that this claim was incorporated

into his amended petition via Ground IV, which reads
“ineffective assistance of trial counsel, defendant incorporates
by reference all arguments advanced on plenary, supplemental,
and reply briefs on direct appeal docket no. a-5729-08t4 . . .
.”

ECF No. 10 at 64.

This fails for two reasons.

First, the claim as raised in the amended habeas petition
is an ineffective assistance of counsel claim.

Petitioner

states that he wants to adopt his prior arguments “to ‘show that
there is a reasonable probability that, but for counsel’s
unprofessional [sic] errors, the result of the proceeding would
have been different.’”

Id. (quoting Strickland v. Washington,

466 U.S. 668, 696 (1984)).

“[A]ll arguments advanced on

plenary, supplemental, and reply briefs on direct appeal docket
No. A-5729-08T4 hereby consolidated . . . to show the multiple
cummulative [sic] errors in nature attributed to trial counsel
Andre Duclair's ineffective assistance of counsel . . . .”

Id.

When asked if this claim had been exhausted on direct appeal,
Petitioner responded “no” and explained this was because
“[i]neffective assistance of counsel claims are best raised
during collateral proceedings.”

Id. at 65-66.

13

It is clear from

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the “facts in support” that this is a cumulative error
ineffective assistance of counsel claim, not a substantive
challenge to the constitutionality of state statutes.

Proposed

amendments that “seek to add a new claim or to insert a new
theory into the case” do not relate back.

United States v.

Thomas, 221 F.3d 430, 431 (3d Cir. 2000).
Second, the Court previously rejected Petitioner’s attempt
to rely on vague incorporations of prior arguments into his
habeas proceedings, specifically informing Petitioner that “it
is not incumbent on the Court to search through Petitioner’s
various filings in order to determine what arguments he wishes
the Court to review.

The Habeas rules require Petitioner to

clearly state his arguments to the Court in the manner set forth
on the Clerk’s form.”
Rule 2).

ECF No. 7 at 2 (citing 28 U.S.C. § 2254

The Court warned Petitioner that he could not rely on

other filings and instructed Petitioner to “fill out the form
with all of the claims he wishes the Court to consider.

Each

claim is to be listed out individually along with its supporting
facts. . . . If a claim is not on the new form, the Court will
not review it.”

Id.

Despite this instruction, Petitioner did

not include the “constitutionality of the statutes” claim in his
amended petition; therefore, it is not before the Court as part
of Ground IV.

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Petitioner’s “constitutionality of the statutes” claim was
raised after the AEDPA statute of limitations expired, and it
does not relate back under Federal Rule of Civil Procedure
17(c).
IV.

Therefore, the Court will deny the motion.

CONCLUSION
For the reasons stated above, the Court will deny

Petitioner’s motion.

An accompanying Order will be entered.

March 29, 2023
Date

s/ Noel L. Hillman
NOEL L. HILLMAN
U.S. District Judge

15