VEGA v. HUGHES et al
Filing
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OPINION. Signed by Judge Faith S. Hochberg on 12/18/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANTHONY VEGA,
Petitioner,
v.
C. RAY HUGHES, et al.,
Respondents.
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Civil Action No. 12-4007 (FSH)
OPINION
APPEARANCES:
Petitioner pro se
Anthony Vega
Southern State Corr. Facility
Delmont, NJ 08314
Counsel for Respondents
Annmarie Cozzi
Senior Assistant Prosecutor
Bergen County Pros. Ofc.
Hackensack, NJ 07601
HOCHBERG, District Judge
Petitioner Anthony Vega, a prisoner currently confined at
Southern State Correctional Facility in Delmont, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The respondents are Administrator C. Ray Hughes
and the Attorney General of the State of New Jersey.
This matter is presently before the Court pursuant to
Petitioner’s submission of a Letter [9] in which he states that
he was recently informed by the Superior Courts of New Jersey
that he had not given them a copy of his petition for postconviction relief and that he had not raised with them certain
issues that are raised in this § 2254 Petition; he asks the court
for “leave” of this petition, until such time as he can properly
represent his case.
This Court construes the Letter as a request
to stay this matter so that he can exhaust in state court the
sole claim asserted here, that there was not a factual basis for
his plea.
For the reasons stated herein, the Petition will be
dismissed without prejudice.
I.
BACKGROUND
The following facts are undisputed.
On March 26, 2009, Petitioner was convicted in the Superior
Court of New Jersey, Bergen County, pursuant to a guilty plea, of
robbery, attempted kidnapping, and related offenses.
Petitioner
was sentenced to a 15-year term of imprisonment, with an 85%
parole disqualifier, under New Jersey’s No Early Release Act.
Petitioner timely appealed the sentence, only, on the ground
that it was excessive.
On August 2, 2011, the Superior Court of
New Jersey, Appellate Division, affirmed the sentence.
(Answer,
Ex. 6.) On March 22, 2012, the Supreme Court of New Jersey denied
certification.
(Answer, Ex. 10.)
Petitioner did not seek a writ
of certiorari from the United States Supreme Court, nor did he
file in state court a petition for post-conviction relief.
In
any event, as reflected in Petitioner’s Letter, referenced above,
the state court did not receive any petition for post-conviction
relief.
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On May 12, 2012, Petitioner executed his Petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254, which this Court
received on June 27, 2012.
ground for relief:
Petitioner here has asserted only one
that there was not a factual basis for his
guilty plea.
In response to this Court’s Notice and Order [2] advising
Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d
Cir. 2000), Petitioner advised the Court that he wished to
proceed with this matter as filed.
Thereafter, in response to
this Court’s Order [4], Respondents filed a timely Answer [8], in
which they asserted that Petitioner’s sole claim for relief is
procedurally defaulted under state law and is meritless.
After Respondents filed their Answer, Petitioner submitted
the Letter [9] request referenced above to stay this matter.
Thus, it is undisputed that Petitioner has not exhausted the sole
claim presented in this Petition.
Respondents have not responded
to Petitioner’s request for a stay.
II.
ANALYSIS
Generally speaking, exhaustion of state remedies is a
necessary prerequisite to a federal habeas petition.
More
specifically, 28 U.S.C. § 2254 provides, in pertinent part:
(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–
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(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.
28 U.S.C. § 2254.
See also Rose v. Lundy, 455 U.S. 509, 515
(1982); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997),
cert. denied, 532 U.S. 919 (2001) (finding that “Supreme Court
precedent and the AEDPA mandate that prior to determining the
merits of [a] petition, [a court] must consider whether
[petitioner] is required to present [his or her] unexhausted
claims to the [state’s] courts”).
As noted above, Petitioner has
not exhausted the claim asserted here.
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.
Rose v. Lundy, 455 U.S. at 522; Banks v. Horn, 126 F.3d 206, 21214 (3d Cir. 1997); see also Toulson, 987 F.2d at 989 (“Because no
[New Jersey] court has concluded that petitioner is procedurally
barred from raising his unexhausted claims and state law does not
clearly require a finding of default, we hold that the district
court should have dismissed the petition without prejudice for
failure to exhaust state remedies”).
But see Christy v. Horn,
115 F.3d 201, 206-07 (3d Cir. 1997) (“in rare cases exceptional
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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 in 19961 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 so that he can exhaust, in
state court, the claim that there was no factual basis for his
plea.
At the time Lundy was decided, there was no statute of
limitations on the filing of federal habeas petitions.
Because
of the new one-year limitations period, however, dismissal of a
timely-filed 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 v. Horn, 360 F.3d 146, 151 (3d Cir. 2004)
(referencing petitions containing both exhausted and unexhausted
claims).
See also Heleva v. Brooks, 581 F.3d 187 (3d Cir. 2009)
(holding that a petition could be eligible for stay even where
1
Title 28 U.S.C. § 2244(d)(1)(A), applicable here, 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 equitable tolling considerations.
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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,
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
circumstances. 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 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).
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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.
Id. at
See also Crews, 360 F.3d at 154 (“If a habeas petition is
stayed, the petitioner should be given a reasonable interval,
normally 30 days, to file his application for state postconviction relief, and another reasonable interval after the
denial of that relief to return to federal court.
If a
petitioner fails to meet either time-limit, the stay should be
vacated nunc pro tunc.”) (citations omitted).
Here, however, dismissal without prejudice for failure to
exhaust, rather than stay, would not put Petitioner at risk of
forever being barred from presenting his claims in federal court.
Petitioner’s conviction became final on June 20, 2012, ninety
days after the Supreme Court of New Jersey denied certification,
when the time for filing a petition for writ of certiorari with
the U.S. Supreme Court expired.
The federal one-year limitations
period does not expire until June 20, 2013, subject to statutory
and equitable tolling.
Accordingly, dismissal at this time would
not subject Petitioner to any federal statute-of-limitations
problems, provided he acts timely to exhaust his claims in state
court.
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IV.
CONCLUSION
For the reasons set forth above, Petitioner’s request for a
stay of this proceeding will be denied.
Instead, the Petition
will be dismissed without prejudice for failure to exhaust state
remedies.
An appropriate order follows.
s/ Faith S. Hochberg
Faith S. Hochberg
United States District Judge
Dated: December 18, 2012
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