AVILA v. JOHNSON et al

Filing 98

OPINION. Signed by Judge Noel L. Hillman on 6/21/2023. (alb, n.m.)

Case 1:18-cv-09422-NLH Document 98 Filed 06/21/23 Page 1 of 5 PageID: 1976

UNITED STATES DISTRICT COURT
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

Case 1:18-cv-09422-NLH Document 98 Filed 06/21/23 Page 2 of 5 PageID: 1977

motion for summary judgment.

ECF No. 83.

Respondents did not

file opposition to the summary judgment motion.
For the reasons stated herein, the Court will deny the
summary judgment motion.
II.

BACKGROUND
The facts of this case were recounted in detail in an

opinion affirming the denial of Petitioner’s postconviction
relief (“PCR”) petition as well as on direct appeal.

They need

not be repeated here as this Opinion does not adjudicate
Petitioner’s § 2254 petition on the merits.

Petitioner’s crimes

focused on his prolonged sexual abuse of his stepdaughter which
began at the age eleven and escalated to sexual intercourse in
her early teens after Petitioner used a form of blackmail to
convince her that she and other family members would be in
danger from a cult if she refused his sexual demands.

See State

v. Avila, No. A-5729-08T3, 2011 WL 1466299, at *1-5 (N.J. Super.
Ct. App. Div. Apr. 18, 2011) (“Avila I”).
Petitioner 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.”

2

State v.

Case 1:18-cv-09422-NLH Document 98 Filed 06/21/23 Page 3 of 5 PageID: 1978

Avila, No. A-2598-14T1, 2016 WL 6804414, at *1 (N.J. Super. Ct.
App. Div. Nov. 17, 2016) (“Avila II”).
Petitioner filed a motion for summary judgment arguing that
“this case is UNOPPOSED as a whole” because “[t]he New Jersey,
Office of Attorney General never filed an initial Entry of
Appearance/Appearance of Counsel, nor any ‘motion of
substitution of parties’ . . . .”
citation omitted).

ECF No. 83-1 at 4 (internal

“The [appearances] of County agents are not

employed in the Executive Branch of State Government . . . .”
Id.

He asserts that the Court should consider his amended

petition to be unopposed because “the ‘appropriate Respondent in
accordance with Habeas Rule 2(a) has failed to appear, failed to
plead and there is no opposition nor controversy to the ‘whole
case . . . for all the relief asked,’ because Respondent did not
‘show cause why the writ should not be granted.’”

Id. at 4-5

(omission and emphasis in original) (quoting Fed. R. Civ. P.
56(c)).
III. STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

A disputed

fact is material when it could affect the outcome of the suit

3

Case 1:18-cv-09422-NLH Document 98 Filed 06/21/23 Page 4 of 5 PageID: 1979

under the governing substantive law.
Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby,

A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict
for the non-moving party.

Id. at 250.

The Court should view

the facts in the light most favorable to the non-moving party
and make all reasonable inferences in that party’s favor.

Hugh

v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact.
v. Carrett, 477 U.S. 317, 323 (1986).

See Celotex Corp.

Once the moving party has

satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”

Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
IV. ANALYSIS
Petitioner argues he is entitled to habeas relief as a
matter of law because the Attorney General of the State of New
Jersey failed to file an answer or other pleading in this
matter. “[P]etitioner moves for summary judgment to be granted,
the court records, show no genuine dispute of any of the
‘actual’ party-Respondent being an employee-attorney from NJDOC

4

Case 1:18-cv-09422-NLH Document 98 Filed 06/21/23 Page 5 of 5 PageID: 1980

in [sic] behalf of Bruce Davis, Administrator-NJSP; and an
employee-attorney from the Office of Attorney General, who both
have failed to appear and failed to file any Respondent
pleadings . . . .”

ECF No. 83-1 at 9 (emphasis in original)

(internal citations omitted).

Thus, according to Petitioner,

his habeas petition is undisputed.
The New Jersey Attorney General designated the Camden
County Prosecutor’s Office to represent its interests, ECF No.
15, and the Prosecutor’s Office filed an answer opposing the
habeas petition, ECF No. 56.

Petitioner is not entitled to

summary judgment based on the “non-appearance” of Respondent.1
Therefore, the Court will deny the motion.
V.

CONCLUSION
For the reasons stated above, the Court will deny

Petitioner’s summary judgment motion.

An accompanying Order

will be entered.

June 21, 2023
Date

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

The Court’s summary judgment opinion is limited to the argument
that Petitioner is entitled to judgment as a matter of law
because the New Jersey Attorney General “failed to appear.” The
Court does not currently conclude that there are disputed issues
of fact as to the merits of the amended habeas petition. The
merits of the amended habeas petition will be addressed by the
Court in due course.
1

5