MCMILLAN v. BARTKOWSKI et al
Filing
19
OPINION. Signed by Judge Jose L. Linares on 3/19/12. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERIK MCMILLAN,
Petitioner,
:
:
v.
GREG BARTKOWSKI,
Civil No.
OPINION
11-1586
(JLL)
et al.,
Respondents
-
APPEARANCES:
ERIK McMILLAN,
# 366709B
Petitioner pro se
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
MICHELLE JASMINE GHALI,
Counsel for Respondents
Union County Prosecutor’s Office
32 Rahway Avenue
Elizabeth, New Jersey 07202
LINARES,
District Judge
Petitioner Erik NcMillan,
a prisoner currently confined at
New Jersey State Prison in Trenton,
New Jersey,
submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
2254.
§
The respondents are Michelle Ricci and the Attorney
General of New Jersey.
This matter is presently before the Court
pursuant to Petitioner’s submission of an application/petition to
stay this matter in order to allow him to exhaust certain claims
in state court.
herein,
(Docket Entry No.
8.)
the application must be denied.
For the reasons stated
I. BACKGROUND
On March 18,
2011,
Petitioner Erik McMillan (“Petitioner”)
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C.
§ 2254.
(Pet.,
Docket Entry No.
1.)
Petitioner raises
the following grounds for relief in his petition:
Ground One: Petitioner was deprived of his due process
right to fundamental fairness when the State was not
barred from retrying Petitioner a fourth time when (a)
the indictment was not dismissed after the mistrial of
the first trial;
(b) the prosecutor did not exercise
sufficient diligence to control his witness to prohibit
testimony in conflict with the court’s order sanitizing
the prospective testimony; and (c) there were readily
available alternatives to a mistrial;
Ground Two: Petitioner was deprived of his due process
right to fundamental fairness when the indictment was not
dismissed after the trial court warned that it would be
dismissed if the error reoccurred during the retrial, and
the error did in fact recur when witness used the term
robber during Petitioner’s second trial;
Ground Three: The state court’s ruling that Petitioner
was not deprived of his sixth amendment constitutional
right to confrontation when the Court allowed Akcasoy’s
testimony to be read during Petitioner’s second trial was
contrary to clearly established federal law.
Ground Four: The state court’s ruling that Petitioner was
not deprived of his due process right to a fair trial by
the introduction of Petitioner’s mug shot was contrary to
clearly established federal law.
Ground Five: The state court’s ruling that Petitioner was
not deprived of his due process right to a fair trial by
the trial court’s charge to the jury on identification
which was improper and incomplete was contrary to clearly
established federal law.
Ground Six: The state court’s ruling that Petitioner was
not deprived of his due process right to a fair trial by
the cumulative effect of the improper instructions
2
regarding inconsistent statements and alibi was contrary
to clearly established federal law.
Ground Seven: The state court’s ruling that Petitioner
was not deprived of is due process right to a fair trial
by the trial court’s handling of the jury’s request for
a read-back was contrary to clearly established federal
law.
Ground Eight: The state court’s ruling that Petitioner
was not deprived of his due process rights to a fair
trial by the prosecutor’s improper comments in his
opening arguments before the jury was contrary to clearly
established federal law.
Ground Nine: The state court’s ruling that Petitioner was
not deprived of his due process right to a fair trial by
the failure of the trial court to give a cross-racial
identification charge was contrary to clearly established
federal law.
Ground Ten: The state court’s ruling that Petitioner was
not
deprived
of
his
of
[sic]
Sixth
Amendment
constitutional right by the incorrect jury instructions
was contrary to clearly established
federal law.
Ground Eleven: The state court’s ruling that Petitioner
was not deprived of his right to due process by being
denied an expert on custodial interrogations was contrary
to clearly established federal law.
Ground Twelve: The state court’s ruling that Petitioner
was not placed in double jeopardy was contrary to clearly
established federal law.
Ground Thirteen: The state court’s ruling that Petitioner
was not deprived of his Sixth Amendment right to
effective
assistance
of
counsel
by
the
deficient
representation during plea negotiations was contrary to
clearly established federal law.
Ground Fourteen: The state court’s ruling that Petitioner
was not deprived of his Sixth Amendment constitutional
right to effective assistance of counsel by the failure
to properly investigate and provide an expert to support
Petitioner’s contention that his statements to Office
[sic] Davis were involuntary as he did not properly waive
3
his Miranda rights was contrary to clearly established
federal law.
Ground Fifteen: The state court’s ruling that Petitioner
was not deprived of his Sixth Amendment constitutional
right to effective assistance of counsel by the failure
to
request
that
the
court
give
a
cross
racial
identification charge to the jury was contrary to clearly
established federal law.
Ground Sixteen: The state court’s ruling that Petitioner
was not deprived of his Sixth Amendment constitutional
right to effective assistance of counsel by the failure
to adequately investigate and properly object to victim’s
being declared unavailable and having his prior testimony
read to the jury was contrary to clearly established
federal law.
Ground
Seventeen:
The
state
court’s
ruling
that
Petitioner was not deprived of his Sixth Amendment
constitutional right to effective assistance of counsel
by the failure of not moving for a new trial at some
point during or even after the conclusion of the third
trial on the basis of prosecutorial misconduct or the
court’s finding the key witness unavailable was contrary
to clearly established federal law.
Ground Eighteen: The state court’s ruling that Petitioner
was not deprived of his Sixth Amendment constitutional
right to effective assistance of appellate counsel by the
failure to adequately examine the record [or) raise
meritorious claims was contrary to clearly established
federal law.
Ground Nineteen: The state court’s ruling that Petitioner
was not deprived of his Sixth Amendment constitutional
right to effective assistance of counsel by the failure
to properly advise Petitioner of the risks of going
before a jury vice accepting a plea bargain involving a
bench trial was contrary to clearly established federal
law.
Ground Twenty: The state court’s ruling that Petitioner
was not deprived of his constitutional right to due
process by the failure of the court to unseal the plea
bargain records of the co-defendant in support of
Defendant’s claim of disparate sentences and that the
state failed to disclose the said plea offer of the co
4
defendant was
law.
On June 22,
contrary
2011,
to
clearly established
federal
this Court entered an order advising
Petitioner of his rights pursuant to Mason v. Meyers,
414
(3d Cir.
2000)
and giving him forty-five days to advise the
Court as to how he would like to proceed.
Entry No.
2.)
Petitioner responded,
3.)
On September 6,
2011,
(Mason Notice,
(Mason Response,
4.)
On October 7,
Docket
the Court ordered
Respondents to file an answer to the petition.
Docket Entry No.
Docket
stating that he would like
his petition to be ruled upon as filed.
Entry No.
208 F.3d
2011,
(Order to Answer,
Petitioner filed a
“Notice of Motion for a Stay and Abeyance” to allow Petitioner to
return to state court to “exhaust a motion for a new trial based
on newly discovered evidence,
claims
[sic]
i.e.
of prosecutorial misconduct.”
Docket Entry No.
7.)
On October 18,
their Answer to the Petition.
9-11.)
an affidavit which supports a
On December 2,
2011,
2011,
(Pet’r’s Mot.
Stay,
Respondents filed
(Res’t’s Answer,
Docket Entry No.
Petitioner filed a request for an
extension of time to file his traverse until after the Court
ruled upon his request for a stay.
December 6,
2011,
(Docket Entry No.
13.)
On
Respondents filed opposition to this request
and Petitioner’s request for a stay because Petitioner failed to
provide any supporting affidavits indicating his basis for a
stay.
15,
(Res’t’s Opp’n to Stay,
2011,
Docket Entry No.
Petitioner responded to this argument,
5
14.)
On December
stating that he
is requesting a stay “to pursue a motion for a new trial in state
court based on newly discovered evidence concerning the plea
bargain received by the co-defendant.
Docket Entry No.
II.
(Pet’r’s Reply to Stay,
15.)
DISCUSSION
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996
(AEDPA),
28 U.S.C.
§ 2254 now provides,
in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application
for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(b) (1) 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.
(2) An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the
courts of the State.
(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel,
expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State,
6
within the meaning of this section, if he has the right
under the law of the State to raise, by any available
procedure, the question presented.
28 U.S.C.
§ 2254.
As noted above,
state prisoner applying for a writ of habeas
corpus in federal court must first “exhaust[]
the remedies
available in the courts of the State,” unless “there is an
absence of available State corrective process[]
or
circumstances exist that render such process ineffective
28 U.S.C.
(1982)
;
§ 2254(b) (1).
See also Rose v.
Lambert v. Blackwell,
Lundy,
134 F.3d 506,
513
455 U.S.
...
.“
509,
5
515
(3d Cir.
1997) (finding that “Supreme Court precedent and the AEDPA mandate
that prior to determining the merits of
must consider whether
her]
[petitioner]
unexhausted claims to the
[a] petition,
[a court]
is required to present
[state’s]
[his or
courts”)
A petitioner exhausts state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims,
either on direct appeal or in
collateral post-conviction proceedings.
Boerckel,
526 U.S.
838,
847
(1999)
See,
e.g.,,
O’Sullivan v.
(“requiring state prisoners
[in order to fully exhaust their claims]
to file petitions for
discretionary review when that review is part of the ordinary
appellate review procedure in the State”); Lambert,
513
134 F.3d at
(collateral attack in state court is not required if the
7
petitioner’s claim has been considered on direct appeal);
U.S.C.
§ 2254(c)
28
(“An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State,
within the meaning of this section,
if he has the right under the
law of the State to raise, by any available procedure,
question presented.”)
Once a petitioner’s federal claims have
been fairly presented to the state’s highest court,
exhaustion requirement is satisfied.
U.S.
346,
350
(1989) ;
the
Castille v.
Picard v. Connor,
404 U.S.
the
Peoples,
270,
275
489
(1971)
The petitioner generally bears the burden of proving all
facts establishing exhaustion.
987
(3d Cir.
1993).
Toulson v. Bever,
987 F.2d 984,
This means that the claims heard by the
state courts must be the same claims asserted in the federal
habeas petition.
Picard,
404 U.S.
at 276.
Reliance on the same
constitutional provision is not sufficient;
factual basis must also be the same.
the legal theory and
at 277.
Generally,
district courts should dismiss petitions containing unexhausted
claims in the absence of a state court decision clearly
precluding further relief,
even if it is not likely that a state
court will consider the claims on the merits.
U.S.
at 522;
Banks v.
see also Toulson,
Horn,
126 F.3d 206,
987 F.2d at 989
Rose v. Lundy,
212—14
(“Because no
(3d Cir.
455
1997);
[New Jersey]
court
has concluded that petitioner is procedurally barred from raising
his unexhausted claims and state law does not clearly require a
8
finding of default, we hold that the district court should have
dismissed the petition without prejudice for failure to exhaust
state remedies”)
(3d Cir.
1997)
But see Christy v. Horn,
.
115 F.3d 201,
206-07
(“in rare cases exceptional circumstances of
peculiar urgency may exist which permit a federal court to
entertain an unexhausted claim”)
.
More recently,
because the
one-year statute of limitations enacted by AEDPA is not
statutorily tolled by the premature filing of a federal habeas
petition,
see Duncan v. Walker,
533 U.S.
167
(2001),
federal
courts sometimes may stay § 2254 habeas proceedings to permit
prisoners to exhaust state claims.
Petitioner has requested such
a stay.
B. Analysis
Petitioner has asked this Court for a stay of these
proceedings so that he can exhaust,
in state court,
an
undescribed claim of prosecutorjal misconduct.
As noted above,
exhaustion” rule;
the exhaustion requirement is a “total
that is,
all claims presented in the federal
habeas petition must have been exhausted in state court.
Lundy,
455 U.S.
509
(1982).
Rose v.
At the time Lundy was decided,
there
was no statute of limitations on the filing of federal habeas
petitions.
The enactment in 1996 of a one-year limitations
period for § 2254 habeas petitions,’ however,
‘
28 u.s.c.
§ 2244(d).
9
“‘has altered the
context in which the choice of mechanisms for handling mixed
petitions is to be made.’”
Cir.
2004)
Crews v. Horn,
(quoting Zarvela v. Artuz,
360 F.3d 146,
254 F.3d 374,
379
2001)). Because of the one year limitations period,
151
(3d
(2d Cir.
dismissal of
a timely—filed mixed petition may forever bar a petitioner from
returning to federal court.
“Staying a habeas petition pending
exhaustion of state remedies is a permissible and effective way
to avoid barring from federal court a petitioner who timely files
a mixed petition.”
Crews,
360 F.3d at 151.
Indeed,
the Court of
Appeals for the Third Circuit has held that “when an outright
dismissal could jeopardize the timeliness of a collateral attack,
a stay is the only appropriate course of action.”
Crews,
360
F.3d at 154.
The Supreme Court has somewhat limited the stay—and-abeyance
rule announced in Crews
[S]tay and abeyance should be available only in limited
circuntstances.
Because granting a stay effectively
excuses a petitioner’s failure to present his claims
first to the state courts, stay and abeyance is only
appropriate when the district court determines there was
good cause for the petitioner’s failure to exhaust his
claims
first in state court.
Moreover,
even if a
petitioner had good cause for that failure, the district
court would abuse its discretion if it were to grant him
a stay when his unexhausted claims are plainly meritless.
On the other hand,
it likely would be an abuse of
discretion for a district court to deny a stay and to
dismiss a mixed petition if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that
10
the
petitioner
engaged
in
intentionally
dilatory
litigation tactics. In such circumstances, the district
court should stay,
rather than dismiss,
the mixed
petition.
For the same reason,
if a petitioner
presents a district court with a mixed petition and the
court determines that stay and abeyance is inappropriate,
the court should allow the petitioner to delete the
unexhausted claims and to proceed with the exhausted
claims
if
dismissal
of
the entire petition would
unreasonably impair the petitioner’s right to obtain
federal relief.
...
Rhines v. Weber,
544 U.S.
269,
277-78
(2005)
(citations omitted)
Even where stay and abeyance is appropriate,
the district
court’s discretion in structuring the stay is limited by the
timeliness concerns reflected in the one-year statute of
limitations.
“Thus,
district courts should place reasonable time
limits on a petitioner’s trip to state court and back.”
278.
See also Crews,
stayed,
360 F.3d at 154
.
1
çj at
(“If a habeas petition is
the petitioner should be given a reasonable interval,
normally 30 days,
to file his application for state
post-conviction relief,
and another reasonable interval after the
denial of that relief to return to federal court.
petitioner fails to meet either time-limit,
vacated nunc pro tunc.”)
Here,
If a
the stay should be
(citations omitted).
it appears that the claim Petitioner wishes to pursue
is not one that is contained in the current petition.
appears that the claim is new.
However,
Rather,
it
the only information
Petitioner provided about this potential new claim in his
original request for a stay is that he wishes to return to state
11
court to “exhaust a Motion for a New Trial Based on Newly
Discovered Evidence,
[sic]
i.e.
an affidavit which supports a claims
of prosecutorial misconduct.”
Entry No.
7.)
(Pet’r’s Mot.
Stay,
Docket
Even after Respondent pointed out Petitioner’s
failure to provide any information on the claim,
Petitioner
provided only slightly more information in his reply,
stating
that the request for the stay is so he can “pursue a motion for a
new trial in State court based on newly discovered evidence
concerning the plea bargain received by the co-defendant.”
(Pet’r’s Reply to Stay,
Docket Entry No.
15.)
As such,
Petitioner has failed to demonstrate good cause for his failure
to exhaust the claim with respect to which he seeks a stay.
Though he states that it is “newly discovered” evidence,
Petitioner provides no information as to when it was discovered.
Nor has Petitioner provided this Court with any evidence
suggesting that the unexhausted claims are “potentially
meritorious.”
To the contrary,
he has failed to describe them at
all other than the fact that it relates to his co-defendant’s
plea bargain.
Respondents,
Even after being advised of his failure by
Petitioner still did not provide sufficient
information to allow the Court to conclude that his claim is
potentially meritorious.
Under these circumstances,
this Court
cannot find that it would be appropriate to stay this proceeding
12
in order to permit Petitioner to return to state court to pursue
his unexhausted new claim.
Since the petition as filed by Petitioner and answered by
Respondents does not contain this new,
unexhausted claim,
it is
unnecessary for the Court to grant Petitioner leave to advise the
Court whether he wishes to withdraw any unexhausted claims and
proceed with only the exhausted claims rather than face dismissal
without prejudice as a mixed petition.
Therefore,
the Court will
grant Petitioner sixty days from the date of this opinion to
submit any reply to Respondent’s Answer to the Petition.
Petitioner’s motion for an extension of time to file a reply
(Docket Entry No.
13)
is hereby dismissed as moot.
III. CONCLUSION
For the reasons set forth above,
Petitioner’s request for a
stay of this proceeding is denied. An appropriate order
follows.
Dated:
LINARES
States District Judge
13
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