HOFFMAN v. STATE OF NEW JERSEY et al
Filing
2
OPINION. Signed by Judge Jose L. Linares on 4/12/13. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM HOFFMAN,
Civil Action No.
12-6785
Petitioner,
v.
STATE OF NEW JERSEY,
:
(JLL)
OPINION
et al.
Respondents.
APPEARANCES:
Petitioner
se
William Hoffman
South Woods State Prison
215 Burlington Road South
Bridgeton, Nj
08302
LINARES,
District Judge
Petitioner William Hoffman,
a prisoner currently confined at
South Woods State Prison at Bridgeton,
New Jersey,
has submitted
a petition for a writ of habeas corpus pursuant to
28 U.S.C.
§ 22541 and an application to proceed in forma pauperis
pursuant
Section 2254 provides in relevant 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.
to 28 U.S.C.
§ 1915(a).
The respondents are the State of New
Jersey and the Attorney General of New Jersey.
Based on his affidavit of indigence,
the Court will grant
Petitioner’s application to proceed in forma pauperis.
Because
it appears to be ‘second or successive,” the Court will dismiss
the Petition.
See 28 U.S.C.
I.
§ 2244(b).
BACKGROUND
Petitioner asserts that he was convicted in the Superior
Court of New Jersey,
Law Division,
Union County,
of Felony Murder
and Second-Degree Burglary, and that he was sentenced on March
2
25,
1994,
to a 30—year term of imprisonment.
Petitioner asserts
that he withdrew his direct appeal in order to proceed to a state
petition for post—conviction relief
(‘PCR”)
.
Petitioner asserts
that the PCR court determined that his petition was procedurally
barred and that the denial of relief was upheld on appeal.
State v.
Hoffman,
178 N.J.
On or about July 27,
250
2004,
(2003)
(denial of certification)
Petitioner filed his first
federal petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.
See Hoffman v.
(SDW)
In that petition,
.
State of New Jery,
Civil No.
04—3640
Petitioner asserted the following
2
Petitioner identifies the Indictment as Number 93—0100088—I.
The first federal petition for writ of habeas corpus
references the same Indictment Number 93—01—00088—I.
2
grounds for relief:
voluntary,
(2)
(1)
his guilty plea was not knowing and
his conviction was obtained by the use of a
coerced confession,
(3)
exculpatory evidence,
the prosecutor improperly withheld
and
assistance of counsel.
(4)
he was denied the effective
On January 24,
2008,
the first federal petition as untimely and,
as meritless.
57.)
See Civil No.
On August 14,
2008,
04-3640
this Court denied
in the alternative,
(Docket Entries Nos.
the Court of Appeals for the Third
Circuit denied a certificate of appealability,
first federal petition was untimely.
Jersey,
No.
08-2331
(3d Cir.).
No.
09—5230
agreeing that the
Hoffman v.
On October 5,
Supreme Court denied certiorari.
Jery,
42,
2009,
Hoffman v.
State of New
the U.S.
State of New
(U.S.).
Although the Petition is not entirely clear,
it appears that
Petitioner thereafter filed further state petitions for post—
conviction relief that were denied.
N.J.
198
(2012)
See State v.
(denial of certification)
Hoffman,
212
(also attached as an
Exhibit to the Petition)
Petitioner has returned to this Court with a new Petition
for writ of habeas corpus pursuant to 28 U.S.C.
challenging the same conviction.
following grounds for relief:
Here,
(1)
§ 2254,
Petitioner asserts the
the state court erred in
determining that his first state petition for post-conviction
relief was time-barred,
(2)
the state charged and sentenced
3
Petitioner beyond the presumptive guidelines for burglary,
(3)
the state erred by not holding an evidentiary hearing based
on the claim that the government withheld exculpatory evidence
that two witness statements placed him in another room while the
murder was being committed,
relief,
(4)
on appeal of the denial of PCR
the Superior Court of New Jersey, Appellate Division,
violated Petitioner’s due process and equal protection rights
when it granted the government’s third motion for extension of
time,
leading to the denial of Petitioner’s judgment of default.
For the reasons set forth below,
this Petition will be
dismissed without prejudice as a “second or successive” petition
that Petitioner has not obtained authorization from the Court of
Appeals to file.
4
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28,
Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it
appears from the application that the applicant or
person detained is not entitled thereto.
Because this Petition is “second or successive” there is
no need to give the notice otherwise required by Mason v.
Meyers,
208 F.3d 414 (3d Cir. 2000).
4
Thus,
“Federal courts are authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face.”
McFarland v.
Scott,
512 U.S.
849,
856
(1994).
See also Rule 4 of
the Rules Governing Section 2254 Cases in the United States
District Courts
(“If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court,
the judge must dismiss the petition
...
(emphasis added))
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
U.S.
97,
(1972)
.
106
(1976); Haines v.
Kerner,
Estelle v.
404 U.S.
519,
Gamble,
520-21
A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
Royce v.
429
Hahn,
151 F.3d 116,
v. Attorney General,
Nevertheless,
118
(3d Cir.
878 F.2d 714,
722
1998);
(3d Cir.
.S
also Lewis
1989).
a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief.
517 U.S.
314,
320
(1996).
also 28 U.S.C.
III.
Lonchar v.
§ 2243,
Thomas,
2254,
2255.
ANALYSIS
Federal law imposes strict limitations on a United States
District Court’s consideration of “second or successive” habeas
5
petitions.
28 U.S.C. § 2244(b).
relevant part,
That statute states,
in
as follows:
(b) (1)
A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2)
A claim presented in a second or successive
habeas corpus application under section 2254 that was
not presented in a prior application shall be dismissed
unless
(A)
the applicant shows that the claim relies on
a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
court, that was previously unavailable; or
(B) (i)
the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii)
the facts underlying the claim, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that, but for constitutional
error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
28 U.S.C.
§ 2244(b)(l)-(2).
United States code Title 28,
Section 2244 (b) (3) (A),
provides
that “[b]efore a second or successive application permitted by
this section is filed in the district court,
the applicant shall
move in the appropriate court of appeals for an order authorizing
the district court to consider the application.”
The term “second or successive” is not defined in the
statute, but it is well settled that the phrase does not simply
“refe[rj
in time.”
to all § 2254 applications filed second or successively
Panetti v.
Ouarterman,
6
551 U.S.
930,
944
(2007)
.
The
term has been the subject of substantial recent discussion in
Supreme Court decisions.
.jcreating an exception for a second
application raising a claim that would have been unripe had the
petitioner presented it in his first application);
Martinez—Villareal,
523 U.S.
637
(1998)
Stewart v.
(treating a second
application as part of a first application where it was premised
on a newly ripened claim that had been dismissed from the first
application as premature);
Slack v. McDaniel,
(declining to apply the bar of § 2244(b)
529 U.S.
473
(2000)
to a second application
where the first application was dismissed for lack of
exhaustion)
Courts generally are in agreement,
however,
that the
dismissal of a first federal petition as untimely constitutes an
adjudication on the merits,
“second or successive.”
1028,
1030
(9th Cir.
rendering any later-filed petition
See,
2009)
e.g.,
McNabb v. Yates,
576 F.3d
(“We therefore hold that dismissal of
a section 2254 habeas petition for failure to comply with the
statute of limitations renders subsequent petitions second or
successive for purposes of the AEDPA...
in Stokes v.
cert.
No.
denied,
11-0733,
Here,
Gehr,
399 Fed.Appx.
131 S.Ct.
1698
2011 WL 5142859,
697,
.
“)
(cited with approval
699 n.2
(2011)); Terry v.
at *3
(3d Cir.
2010),
Bartkowski,
(D.N.J. Oct.
28,
2011).
as Petitioner’s first federal petition was denied as
untimely,
this Petition is “second or successive.”
7
Civil
If a second or successive petition is filed in the district
court without an order from the appropriate court of appeals,
the
district court may dismiss for want of jurisdiction or “shall,
if
it is in the interest of justice,
transfer such action
other such court in which the action
at the time it was filed.”
v.
Johnson,
313 F.3d 128,
...
28 U.S.C.
139
to any
could have been brought
§ 1631.
(3d Cir.
...
2002)
See also Robinson
(“When a second or
successive habeas petition is erroneously filed in a district
court without the permission of a court of appeals,
the district
court’s only option is to dismiss the petition or transfer it to
the court of appeals pursuant to 28 U.S.C.
Here,
§ 1631.”)
Petitioner does not assert that he has received
permission to file this “second or successive” Petition from the
Court of Appeals for the Third Circuit.
Courts’
A review of the U.S.
Public Access to Court Electronic Records
(“PACER”)
system does not reflect that Petitioner has sought or obtained
leave from the Court of Appeals to file this Petition.
Accordingly,
this Court lacks jurisdiction to consider this
unauthorized “second or successive” Petition.
This Court finds that it is not in the interest of justice
to transfer this action to the Court of Appeals for the Third
Circuit,
pursuant to 28 U.S.C.
§ 1631,
as Petitioner has failed
to allege facts bringing any of the claims within the grounds
detailed in § 2244(b)
for permitted second or successive claims.
8
Accordingly,
the Petition will be dismissed as an unauthorized
second or successive petition,
without prejudice to Petitioner
applying to the Court of Appeals for authorization to file a
second or successive petition.
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C.
§ 2253(c),
unless a circuit justice or
judge issues a certificate of appealability,
an appeal may not be
taken from a final order in a proceeding under 28 U.S.C.
§ 2254.
A certificate of appealability may issue ‘only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C.
§ 2253 Cc) (2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Cockrell,
537 U.S.
322,
327
Miller—El v.
(2003)
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue
when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional
right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.
Slack v.
McDaniel,
529 U.S.
473,
484
9
(2000).
Here,
jurists of reason would not disagree with this Court’s
procedural ruling.
Therefore, no certificate of appealability
will issue.
V.
CONCLUSION
For the reasons set forth above,
the Petition will be
dismissed without prejudice as second or successive.
No
certificate of appealability will issue.
An appropriate order follows.
Dated
/
-
L. Linares
JJited States District Judge
/JO5,
10
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