DIXON v. BARTKOWSKI et al

Filing 26

OPINION. Signed by Judge Dennis M. Cavanaugh on 9/24/13. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DARNELL DIXON,
Civil Action No.

11-3213

(DMC)

Petitioner,

GREG BARTKOWSKI,

OPINION

:

V.

et al.,

Respondents.

APPEARANCES:
DARNELL DIXON, Petitioner pro se
4* 291129/487146-B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
STEPHEN A. POGANY, ESQ.
ESSEX COUNTY PROSECUTOR’S OFFICE
50 West Market Street
Newark, New Jersey 07102
Counsel for Respondents
CAVANAUGH,

District Judge

Petitioner Darnell Dixon

(“Petitioner” or “Dixon”),

a

convicted state prisoner presently confined at the New Jersey
State Prison in Trenton,

New Jersey,

has submitted a petition

for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254,

challenging his 1998 New Jersey state court judgment of
conviction.
(Docket No.

On January 14,
25),

2013,

Petitioner filed a motion

seeking leave to hold this matter in stay and

abeyance so as to allow Petitioner to return to state court and
For the reasons stated

fully exhaust his state court remedies.
herein,

Petitioner’s motion for a stay or abeyance is denied,
I.

On October 24,
Grand Jury,

1996,

Indictment No.

degree murder,

purpose.

Dixon was indicted by an Essex County
3394-10-96,

felony murder,

degree aggravated assault,
weapon,

BACKGROUND

on charges of first

first-degree robbery,

second-

third-degree unlawful possession of a

and second-degree possession of a weapon for an unlawful
Dixon also was separately indicted that same day on a

charge of second-degree possession of a dangerous weapon by a
convicted felon,

under Indictment No.

3395-10-96.

was held before the Honorable F. Michael Giles,
February 1998.

On February 24,

1998,

verdict on the charges of robbery,
possession of a weapon,
purpose,

A jury trial

J.S.C.

in

the jury returned a guilty

aggravated assault, unlawful

possession of a weapon for an unlawful

and possession of a weapon by a convicted person.

The

jury acquitted Dixon on the charges of first-degree murder and
felony murder,

but did find Dixon guilty of the lesser included

offense of second-degree reckless manslaughter.
On May 20,

1998,

Judge Giles sentenced Petitioner to an

extended term of 20 years with 10 years parole ineligibility on
the reckless manslaughter charge,
2

to be served consecutive to

the sentence on a prior conviction under Indictment No. 2287-695, and a prison ten of 20 years with 10 years parole
ineligibility on the aggravated assault charge to be served
consecutive to the reckless manslaughter conviction and the
sentence on Indictment No. 2287-6-95.

Judge Giles also

sentenced Petitioner to concurrent tens as follows: a prison
ten of 10 years with five years parole ineligibility on the
conviction for unlawful possession of a weapon; a prison ten of
20 years with a 10-year parole disqualifier on possession of a
weapon for an unlawful purpose; and a prison ten of five years
on possession of a dangerous weapon by a convicted felon.
Dixon appealed his conviction and sentence to the Superior
Court of New Jersey, Appellate Division.

On June 1, 2000, the

Appellate Division affined Dixon’s conviction, but remanded the
matter for resentencing.

Dixon filed a petition for

certification with the Supreme Court of New Jersey on June 22,
2000.

The New Jersey Supreme Court denied certification on

November 7, 2002.
On October 31, 2000, Judge Giles re-sentenced Petitioner in
accordance with the remand.

Specifically, on Indictment No.

3394-10-96, Dixon was sentenced to an extended ten of 20 years
in prison with a 10-year parole disqualifier on Count One, the
reckless manslaughter charge, to be served consecutive to the
3

sentence on Indictment No.

2287-6-95;

a prison term of 10 years

with five years parole ineligibility on Count Four,

the

to be served consecutive to the

aggravated assault charge,

reckless manslaughter charge and to the sentence on Indictment
No.

2287-6-95.

Dixon also was sentenced to a prison term of

five years on the unlawful possession of a weapon charge to be
served concurrently with Counts One and Four,
the sentence on Indictment No.

2287-6-95.

of a weapon for an unlawful purpose,
reckless manslaughter.

but consecutive to

Count Six,

possession

was merged with Count One,

On Indictment No.

3395-10-96,

of a dangerous weapon by a convicted felon,

possession

Dixon was sentenced

to 7 years in prison to be served consecutive to Indictment Nos,
3394-10-96 and 2287-6-95.

In short,

Petitioner was sentenced to

an aggregate term of 37 years in prison with 15 years parole
ineligibility.
Petitioner appealed his resentencing to the Appellate
Division.

On October 15,

the resentencing.

2001,

the Appellate Division affirmed

On November 7,

2002,

the New Jersey Supreme

Court denied certification.
On January 22,

2003,

for post-conviction relief

Dixon filed his first pro se petition
(“PCR”)

.

This petition was

subsequently withdrawn by Dixon due to problems with counsel.
(Respondents’

Exhibit N

-

November 2,
4

2007 PCR Motion Transcript

at 6:6-15.)

Petitioner thereafter filed a second state PCR

petition on September 19,

2006.

PCR counsel was assigned and

filed a supporting brief on March 27,
2007,

2007.

On November 1,

Dixon allegedly filed a motion for withdrawal of his PCR

counsel.
J.S,C.

On November 2,

2007,

the Honorable Michael J.

Nelson,

filed an Order denying the PCR petition.

On February 28,

Petitioner filed an appeal from

2008,

denial of his PCR petition.

Later,

on August 20,

2008,

Petitioner filed a motion for summary reversal of the Order
denying the PCR petition,

arguing that the PCR court had not

filed a written opinion referenced in the Order denying postconviction relief.

On September 19,

2008,

the Appellate

Division filed an order denying the motion for summary reversal,
but temporarily remanding the matter to Judge Nelson for
development of the record concerning the timeliness of the PCR
petition,

and for findings of fact and conclusions of law

regarding both timeliness and merits of the petition.
Appellate Division retained jurisdiction over the case,

The
noting

that there was confusion between a 2002 PCR petition relating to
Indictment No.

2287-6-95 and the 2003 PCR petition relating to

Indictment Nos.
On March 5,

3394-10-96 and 3395-10-96.
2009,

Judge Nelson filed a written opinion with

the Appellate Division denying the PCR petition.
5

The Appellate

Division affirmed denial of the PCR petition on June 29,

2010.

The New Jersey Supreme Court denied certification on January 7,
Dixon filed this habeas petition on or about May 27,

2011.
2011.

On September 14,

2011,

this Court issued an Opinion and

Order directing Petitioner to show cause in writing why his
petition should not be dismissed as time-barred under 28 U.S.C.
§ 2244(d).
2011.

On February 3,

44 7.)

(Dkt.

Petitioner responded on October 26,

#44 4, 5.)

(Dkt.

2012,

motion to stay his habeas proceedings.
his motion on May 30,

2012,

.

(Dkt.

44 8.)

He withdrew

Meyers,

208 F.3d 414

(3d Cir.

Petitioner then filed a supplemental

44 11.)

petition on June 5,

(Dkt.

after this Court had issued a Notice

and Order pursuant to Mason v.
2000)

Petitioner filed a

2012.

(Dkt.

# 13.)

On October 9,

2012,

the

Court issued an Order directing Respondents to answer the
petition.

(Dkt.

# 16.)

Respondents filed an answer to the petition,
relevant record on December 26,
January 14,

2013,

2012.

(Dkt.

with the

4444 23, 24.)

On

Petitioner filed this motion seeking a stay

and abeyance of his federal habeas petition while he returned to

state court to exhaust additional claims of ineffective
assistance of counsel.

(Dkt.

4* 25.)

6

ANALYSIS

II.

A state prisoner applying for a writ of habeas corpus in
the remedies available in

federal court must first “exhaust[ j

the courts of the State,” unless “there is an absence of
available State corrective process[

I or

28 U.S.C.

that render such process ineffective.”
Rose v.

455 U.S.

Lundy,

F,3d 187,

190

(3d Cir.

2009)

§ 2254(b) (1);

Heleva v.

(1982);

515

509,

circumstances exist

...

Brooks,

581

The courts of a state must be

.

afforded the first opportunity to pass upon federal
constitutional claims,

see also Rose,

2012);

Williams,

9504 F.3d 357,

455 U.S.

366

675 F.3d 204,

DiGuglielmo,

See Roman v.

and federalism.
Cir.

in furtherance of the policies of comity

at 516-18;

(3d Cir.

2007)

.

209

(3d

Ieyva v.

Exhaustion also

has the practical effect of permitting development of a complete
factual record in state court,
their review.
489 U.S.

346,

Further,

See Rose,
349

to aid the federal courts in

455 U.S.

at 519;

Peoples,

Castille v.

(1989)

to satisfy the exhaustion requirement,

a

petitioner must fairly present all of his federal claims to the
state’s highest court before proceeding in federal court.
v.

Coleman,

§ 2254(c)

680 F,3d 311,

317

(3d Cir.

2012);

Rolan

see also 28 U.S.C.

(“An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State,
7

within the

meaning of this section,
the State to raise,

presented”).

if he has the right under the law of

by any available procedure,

The petitioner bears the burden of proving all

facts establishing exhaustion.
984,

987

the question

(3d Cir.

Generally,

See Toulson v.

Beyer,

987 F.2d

1993)

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.

206,

Rose v.

212-14

Lundy,

(3d Cir.

455 U.S.

1997)

.

at 522;

However,

Banks v.

Horn,

126 F.3d

because the one-year

statute of limitations enacted by the Antiterrorism and
Effective Death Penalty Act of 1996

(“AEDPA”)’ is not statutorily

tolled by the premature filing of a federal habeas petition,
Duncan v.

Walker,

533 U.S.

167

(2001),

see

federal courts sometimes

may stay § 2254 habeas proceedings to permit prisoners to
exhaust state claims.

“Staying a habeas petition pending

‘Title 28 U.S.C. § 2244(d) (1) (A) provides for a one-year period
of limitations from the date on which the judgment became final
by the conclusion of direct review or the expiration of the time
for seeking such review, subject to various statutory and
Recently, the Supreme Court
equitable tolling considerations.
held that a claim of actual innocence can overcome this federal
habeas time, but only when petitioner “presents evidence of
innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the
McQuiggin
trial was free of nonharmless constitutional error.”
WL 2300806 at *12
2013
v. Perkins, No. 12—126, 569 US.
(May 28, 2013)
8
————,

exhaustion of state remedies is a permissible and effective way
to avoid barring from federal court a petitioner who timely
files a mixed petition.”
Cir.

2004)

Crews v.

Horn,

360 F.3d 146,

151

(3d

(referencing petitions containing both exhausted and

unexhausted claims).

See also Heleva,

581 F.3d at

(holding that

a petition could be eligible for stay even where only
unexhausted claims are asserted)

Indeed,

.

the Court of Appeals

for the Third Circuit has held that “when an outright dismissal
could jeopardize the timeliness of a collateral attack,
is the only appropriate course of action.”

Crews,

a stay

360 F.3d at

The Third Circuit also has noted that a pro se petitioner

154.

is not likely to foresee the exhaustion issue on his own or to
Urcinoli v.

know how to avoid it.
Cir,

Cathel,

546 F.3d 269,

276

(3d

2008)
Thus,

stays,

district courts “ordinarily have authority to issue

where such a stay would be a proper exercise of

discretion.”

Gonzales,

Ryan v.

696,

708,

184 L.Ed.2d 528

U.S.

269,

276

(2005))

.

---U.S.

----,

----,

(quoting Rhines v.

(2013)

133 S.Ct.
Weber,

544

The Supreme Court held that a district

court has discretion post-AEDPA to stay a mixed habeas petition
(containing some claims that have not been exhausted in the
state courts)

to allow the petitioner to present his previously

unexhausted claims to the state court in the first instance,
9

and

then to return to federal court for review of his exhausted
petition

(without being time-barred).

Rhines,

544 U.S.

While AEDPA “does not deprive district courts of
authority

solution to this problem must
purposes.”

[this)

it does circumscribe their discretion.

...

Id.

at 276.

at 277.

Any

be compatible with AEDPA’s

...

In addition,

where a stay is warranted,

a district court “should place reasonable time limits on a
petitioner’s trip to state court and back,” since “[w)ithout
time limits

[on stays),

petitioners could frustrate AEDPA’ s goal

of finality by dragging out indefinitely their federal habeas
review.”

Id.

at 277-78.

In line with AEDPA’s purposes,

the Supreme Court held that

a stay and abeyance should be available only in limited
circumstances.

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,

or petitioner engaged in intentionally dilatory

litigation tactics.
In this case,
he can exhaust,

Rhines,

544 U.S.

at 277-78.

Petitioner has requested such a stay so that

in state court,

additional claims asserting
10

ineffective assistance of counsel that were not previously
Petitioner relies on the

raised by his state PCR counsel.

recent Supreme Court decision in Martinez v. Ryan,
----,

132 S.Ct.

1309,

182 L.Ed.2d 272

(2012)

.

---

U.S.

In Martinez,

the

Supreme Court held that inadequate assistance of counsel at
initial state PCR proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective
assistance at trial.

132 S..Ct.

The Court further

at 1317-18.

held that AEDPA did not bar petitioner from using
ineffectiveness of his state PCR counsel to establish “cause”
for his procedural default,

and that remand was required to

determine whether petitioner’s attorney in his first state PCR
proceeding was ineffective,

whether underlying ineffective

assistance of trial counsel claim was substantial,
petitioner was prejudiced.
Here,

Id.

and whether

at 1320-21.

Dixon now wishes to bring the following additional

claims regarding the ineffectiveness of his trial counsel,

which

Dixon asserts were not raised by his first state PCR counsel:
(1)

Trial counsel failed to request relaxation of the plea cut

off based on a material change of circumstances;

(2)

Trial

counsel failed to advise Dixon of his extended term status as a
persistent offender;

(3)

Trial counsel failed to inform Dixon as

to his exposure to consecutive sentences;

11

(4)

Trial counsel

failed to object to the trial court allowing a television in the
jury assembly room;

(5)

Trial counsel failed to advise Dixon of

a conditional plea that Petitioner could,
suppression hearing but before trial,
lesser sentence,

after his Miranda

plead guilty,

obtain a

and appeal the ruling in the Miranda

suppression hearing;

(6)

Trial counsel failed to advise

Petitioner of his right to testify at trial; and

(7)

Trial

counsel failed to present Petitioner with all material
information needed to make an informed decision to accept a plea
offer,

that is,

counsel failed to advise Dixon about an

aggregate maximum parole disgualifier of 15 years.
at 3,

(Dkt.

4* 25-1

4.)
In Dixon’s second state PCR proceeding

petition having been withdrawn),
raised:

(1)

(the first PCR

the following grounds were

The jury instruction on accomplice liability for

robbery improperly placed the burden of proof on the defense to
disprove an essential element of the of fense;
2

(2)

Trial counsel

rendered ineffective assistance by failing to have Juror 4* 6
removed from the panel;

(3)

Both trial and appellate counsel

were ineffective in failing to object to the prosecutor’s

This
2 claim was raised by Dixon in his September 19, 2006
Supplemental Verified Amended Petition for Post-Conviction
Relief,
Petitioner also submitted a
(Dkt. 4* 23-16, RE V.)
supplemental brief in support of his PCR petition on September
19, 2006.
(Id.)
12

vouching for the credibility of her witnesses in her summation;
(4)

Trial Counsel was ineffective by failing to object at

sentencing to multiple extended terms to be served
consecutively;

(5)

Trial and appellate counsel were ineffective

by failing to communicate with Petitioner,
investigate potential witnesses,

failing to properly

and failing to adequately

prepare and research the law before and during trial and on
appeal; and

(6)

Trial and appellate counsel were ineffective by

failing to argue that the trial court should not have instructed
the jury that Petitioner was charged as the principal actor on
only Count Three of the indictment, by failing to request an
appropriate jury charge on accomplice liability for robbery,

by

failing to request a charge of passion/provocation as a lesser
by failing to aggressively

included offense to felony murder,

attack the credibility of a state witness,
request a mistrial after the jury asked,
a robbery,

3
are all others guilty?”

On March 5,

2009,

“If one person commits

(Dkt.

44 23-16, RE V.)

Judge Nelson issued a written decision

with regard to Dixon’s state PCR petition.
X.)

and by failing to

(Dkt.

44 23-18, RE

The PCR court noted that Dixon had initially filed a pro se

PCR petition on January 22,

2003,

which Dixon withdrew because

Claims
3 (2) through (6) were raised by assigned PCR counsel in a
(Dkt. 44 23-16, RE V at 7brief submitted on March 27, 2007,
17.)
This Court notes that Dixon was acquitted on the robbery
charge.
13

he had filed a grievance against his first PCR attorney,
R. Metzer,

Esq.

September 19,

Harvey

Dixon then filed an amended PCR petition on

2006.

(Id.,

RE X at 4.)

Consequently,

the PCR

court found that the PCR petition was time-barred pursuant to
N.J.Ct.R.

3:22-12,

because it was filed on September 19,

8 years after Dixon was sentenced on May 20,

1998,

2006,

or 3 years

after the five-year limitations under Rule 3:22-l2 had expired.
(Id.,

RE X at 7,)

The court further remarked that Dixon failed

to offer any explanation for this untimeliness.

Dixon failed to

assert excusable neglect or allege fundamental injustice as an
exceptional circumstance.

(Id.,

RE X at 11.)

The PCR court

also found that Petitioner’s substantive claims of ineffective
(Id.)

assistance of counsel lacked merit.

The Appellate

Division affirmed the denial of Dixon’s PCR petition in an
unpublished opinion on June 29,
2869575

(N.J.

Super. A.D.

In this case,

Jun.

2010.
29,

State v.

Dixon,

2010 WL

2010)

Dixon has not provided this Court with good

cause for failure to exhaust the newly added claims in state
court before filing this habeas petition.

He simply states that

he learned of these potential claims through inmate paralegals.

This
4 Court notes that Dixon was resentenced on remand on October
Using the later re-sentencing date for purposes of
31, 2000.
determining the timeliness of Dixon’s PCR petition, the petition
was filed ll months after the limitations period expired.
Thus, the petition was still time-barred under Rule 3:22-12.
14

Dixon also offers no evidence suggesting that the allegedly
unexhausted claims are potentially meritorious.

All of the new

claims deal with ineffective assistance of counsel,
discussed above,

and as

the state court plainly rejected other numerous

claims of ineffective assistance of counsel previously asserted
by Dixon in his second state PCR proceedings.

More significantly,

however,

Dixon cannot show that he was

diligent in pursuing these claims.
case has a convoluted history.

As demonstrated above,

Nevertheless,

this

Petitioner has

exhibited clear and considerable dilatoriness in pursuing his
PCR claims.
2003,

Dixon filed his first state PCR petition in January

which was timely,

but he withdrew it to pursue a grievance

against his first PCR counsel.
three years later,

on September 19,

amended PCR petition
originally filed).

November 2,

2007,

Dixon then waited more than
2006,

to file his second or

(raising substantially the same claims as
One day before the PCR court’s ruling on

Petitioner sought to remove counsel.

While Dixon filed this habeas petition on May 27,

2011,

four and a half months after the New Jersey Supreme Court denied
certification on January 7,

2011,

Dixon waited more than eight

months to file a first application to stay this matter on
February 3,

2012,

which he thereafter withdrew on May 30,

Dixon then filed a supplemental petition on June 5,

15

2012.

2012.
After

the State filed its answer to the petition on December 26,
and l9 months after he filed his habeas petition,

2012,

Dixon filed

this second request to stay this matter so that he could exhaust
the above-mentioned claims in state court.
Under these circumstances, most particularly the
significant length of Dixon’s delay in seeking a stay to pursue

yet additional, unexhausted claims, this Court cannot find good
cause to stay this proceeding in order to permit Petitioner to
return to state court to pursue his allegedly unexhausted claim.
The motion for a stay and abeyance is denied accordingly.

III.

CONCLUSION

For the foregoing reasons,

the Court denies Petitioner’s

motion for issuance of a stay and abeyance.

An appropriate

Order follows.

DENNIS
United State

16

Judge