MCCLARY v. DAVIS et al

Filing 8

MEMORANDUM AND ORDER directing the Clerk to reopen this matter; ORDERED that, within 30 days of the date of this Order, Petitioner may file an amended petition that contains all of his exhausted and unexhausted claims, etc.; ORDERED that the Clerk shall serve a copy of this Order and a blank form Petition for Relief From a Conviction or Sentence By a Person in State Custody Under 28 U.S.C. 2254. Signed by Judge Renee Marie Bumb on 4/26/2021. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KORY McCLARY,
v.

Petitioner

BRUCE DAVIS AND THE ATTORNEY
GENERAL OF THE STATE OF NEW
JERSEY,
Respondents

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CIV. NO. 20-14647 (RMB)
MEMORANDUM AND ORDER

Petitioner, Kory McClary, a prisoner incarcerated in New
Jersey State Prison, in Trenton, New Jersey, filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1).
Petitioner would like to amend his petition to add unexhausted
claims that he wishes to present to the state courts in a second
post-collateral review petition (“PCR”), and seeks advise on his
procedural options. (Letter, Dkt. No. 7.) First, Petitioner should
present all of his habeas claims in an amended petition to avoid
the potential that newly added claims are barred by the one-year
habeas statute of limitations in 28 U.S.C. § 2254(d). 1 Second,
pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982), this Court
must dismiss a mixed petition, a petition that contains exhausted
and unexhausted claims. Petitioner, therefore, must choose how he
would like to proceed.

The Court makes no ruling at this time on the timeliness of the
habeas petition filed in this Court.

1

28 U.S.C. § 2254(b)(1) 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
unless it appears that—
(A) the applicant has exhausted the
remedies available in the courts of the
State; or
(B)(i) there is an absence of available
State corrective process; or
(ii) circumstances exist that render such
process ineffective to protect the rights
of the applicant.
In 1982, the Supreme Court held that § 2254 requires total
exhaustion of available state court remedies before a habeas court
may address a state prisoner’s federal claims. Lundy, 455 U.S. at
522. In Rhines v. Weber, after legislative changes were made to
federal habeas corpus proceedings, the Supreme Court revisited the
total exhaustion rule. 544 U.S. 269 (2005). The new one-year habeas
statute of limitations presented a problem with total exhaustion
of state remedies. Id. at 275. For example, if a petitioner filed
a timely mixed petition in federal court but the district court
dismissed the mixed petition for failure to exhaust after the oneyear limitations period expired, this would “likely mean the
termination of any federal review.” Id.
Petitioner

is

presented

with

this

same

problem.

If

he

withdraws his entire habeas petition until he exhausts all of his
federal claims, the statute of limitations will bar him from
returning to federal court. The Supreme Court in Rhines recognized
2

that districts court have the authority to stay a petition and
hold it an abeyance while a state prisoner exhausts his state
remedies. Id. at 275-76.
There are, however, conditions upon which a district court
may grant a stay and abeyance. First, the court must determine
whether there was good cause for the petitioner’s failure to first
exhaust his claims in state court. Id. at 277. Second, the district
court must determine whether the unexhausted claims are plainly
meritless, in which case it should not grant a stay. Rhines, 544
U.S. at 277. If a stay is appropriate, it must be limited to the
time needed to exhaust claims in the state court. Id. at 277-78.
In the alternative to seeking a stay and abeyance, Petitioner
may

withdraw

his

unexhausted

claims

and

proceed

only

on

his

exhausted claims. If Petitioner chooses this option, he should be
advised that both the statute of limitations and the limitation on
second or successive habeas petitions in 28 U.S.C. § 2244(b)(3),
(d) may preclude Petitioner from bringing any additional habeas
claims at a later date.
IT IS on this 26th day of April 2021,
ORDERED that the Clerk shall reopen this matter; and it is
further
ORDERED that, within 30 days of the date of this Order,
Petitioner may file an amended petition that contains all of his
exhausted and unexhausted claims; Petitioner shall also submit a
writing

to

the

Court

in

which
3

he

either

(1)

withdraws

his

unexhausted habeas claims and states he would like to proceed with
his habeas petition at this time; or (2) submits a motion for a
stay and abeyance of his habeas petition to Mitchell H. Cohen
Building & U.S. Courthouse, 4th & Cooper Streets, Camden, NJ 08101;
and it is further
ORDERED that the Clerk shall serve a copy of this Order and
a blank form “Petition for Relief From a Conviction or Sentence
By a Person in State Custody Under 28 U.S.C. 2254” on Petitioner
by regular U.S. mail.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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