LEACH v. HASTINGS et al

Filing 3

OPINION. Signed by Judge Dickinson R. Debevoise on 2/19/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

REGINALD LEACH,
Petitioner,

Civil Action No. 12-7605 (DRD)

v.

OPINION

BEVERLY HASTINGS et al.,
Respondents.

Debevoise, District Judge:

Petitioner Reginald Leach (“Petitioner”) filed a petition for a writ of habeas corpus,
pursuant to 28 U.S.C.

§ 2254(a), challenging a judgment of conviction entered by the Superior

Court of New Jersey.

$ Docket Entries Nos. I (the petition) and 2 (accompanying brief). The

Court, therefore, is obligated to advise Petitioner of his rights under Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000), and allow him an opportunity to submit his all-inclusive

1
§ 2254 application.

According to the Superior Court of New Jersey, Appellate Division, the underlying events
were as follows:
[Petitioner] was convicted afier a trial by jury of first-degree robbery
[One
set of] crimes occurred on September 20, 2000, at a Fashion Bug located in
Totowa [( Totowa Robbery”)]. He was sentenced on February 20. 2004, to an
extended term as a persistent offender,
to forty years imprisonment with
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the petitioners
challenging the legality of their detention must marshal in one § 2254 application all arguments
they have to collaterally attack that decision and file this one all-inclusive application within one
year the date on which the judgment of
becomes final by the conclusion of direct
review or the expiration of the time for seeking such review. çç 28 U.S.C. § 2244(d). Thus,
Petitioner would be directed to inform the Court as to how he
proceed in this matter and
which claims he wishes to litigate.
of

conviction

wants to

twenty years of parole ineligibility. On direct appeal, we affirmed the conviction
but remanded the matter for resentencing.
[Seemingly, no remand
proceedings were conducted but, apparently, no appeal based on that lack of
resentencing was taken. Petitioner’s] direct appeal of his conviction on [the other
set of crimes, which presented] severed counts of this [original] indictment
[charging his with both first and second sets of crimes], relating to the robbery of
a Fashion Bug located in Parsippany [(‘Parcippany Robery”)]. was calendared for
review simultaneously with the appeal [with regard to the Totowa Robbery.
Petitioner’s] applications for certification were both denied on April 26, 2007..
.

.

.

State v. Leach, 2011 WL 6183466, at *1 (N.J. Super. Ct. Dec. 10. 2011) (citations omitted).
Hence, it appears that Petitioner is serving two different prison terms (that might have
been imposed either consecutively or concurrently) on the bases of two different convictions, one
ensuing from his Totowa Robbery and another being a result of his Parsippany Robbery.
2
Petitioner described the procedural history of his Totowa Robbery convictions as follows:
On February 20, 2004 [Pjetitioner was sentenced to. 40 years.... On
December 28, 2006 the Superior Court of New Jersey, Appellate Division
affirmed [P]etitioner’s convictions.... On April 26, 2007 the Supreme Court of
New Jersey denied a petition for certification.... On February 6, 2008
[P]etitioner filed a petition for post-conviction relief in the Superior Court of New
Jersey, Law Division.... On April 24, 2009 the [Law Division held] oral
argument on the petition. On May 18, 2009 by written opinion [The Law
Division] denied the petition. On December 14, 2001 the Superior Court of New
Jersey, Appellate Division affirmed the denial of the petition.... On June 5,
2012 the Supreme Court of New Jersey denied a petition for certification.
.

.

Docket Entry No. 2, at 5-6 (emphasis supplied).
It appears self-evident that Petitioner’s reference to the December 14, 2001, is a mere
typographic error, and he intended to refer to December 10, 2011. i.e., the date of entry of State
2

Under Habeas Rule 2(e). Petitioner cannot challenge two different conviction in one
habeas petition. see Muniz v. Zickefoose. 2011 U.S. Dist. LEXIS 115766, at *13 (D.N.J. Sept.
30. 2011). affd. 460 F. App’x 165 (3d Cir. 2012). and Petition appears to be well-cognizant of
this limitation. See Docket Entry No. 2, at 7 (“The initial criminal incident
occurred on
September 20, 2000 at the Fashion Bug in Totowa, while the second occurred on September 29,
2000 at a different Fashion Bug [and resulted in] convictions not attacked in this [P]etition”).
...

v. Leach, 2011 WL 6183466. In that matter. Petitioner raised four points:
Point I:

The order denying post—conviction relief should be reversed. because
[Petitioner] made a prima
e showing that his.. due process right to
be protected against the introduction of unreliable identification evidence
was violated.
Since [Petitioner] made a prima
e showing of ineffective assistance of
trial counsel, the [Law Division] court misapplied its discretion in denying
post—conviction relief without conducting a full evidentiary hearing.
The [Law Division’s] ruling denying post—conviction relief violated
[Petitioner’s] right to effective assistance of counsel
[Petitioner] reasserts all other issues raised in [Petitioner’s] p petition
for post-conviction relief and in PCR counsel’s brief.
.

.

Point II:

Point Ill:

.

Point IV:

j at *2 (noting that the same points were raised before the Law Division).
Here, however, Petitioner raised the following four Grounds:
Ground I:

Ground II:

Ground III:
Ground IV:

Counsel’s failure to investigate critical aspects of the State’s case violated
the rights to confrontation, fair trial, effective counsel and due process
guaranteed by the Sixth and Fourteenth Amendments.
Petition for post-conviction relief denial violated the Fourteenth
Amendment since an unreliable identification was used violating due
process.
Denial of an evidentiary hearing violated the Fourteenth Amendment.
Affirming of the denial of the petition violated the Fourteenth
Amendment.

Docket Entry No. 2, at 12-25.
While the Court detects a certain correlation between Petitioner’s Ground II and his Point
I, and between his Ground III and Point II, the correlation between Petitioner’s instant Grounds I
and IV and the points raised before the state courts is not immediately apparent to this Court.
3
For instance, in the state courts, Petitioner challenged: (a) the detective’s failure to
preserve a post-it with the phone number of an anonymous caller and the records of his aborted
attempt to create a composite sketch; (b) his counsel’s election to omit obtaining an outdated
police photograph not presented to any witness who testified at trial: (c) his counsel’s election to
attack the validity of the information provided by an anonymous caller (who never testified at
trial) during a pre-trial hearing, without attempting to obtain that individual’s name,
Leach,
(continued...)
-

3

Thus, in conjunction of advising Petitioner of his Mason rights, the Court finds it warranted to
detail to Petitioner the exhaustion requirement and related concepts.
A 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.

§

2254(b)(1); Rose v. Lundv, 455 U.S. 509, 515 (1982): Toulson v. Beyc, 987 F.2d 984, 987 (3d
Cir. 1993); Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996): see

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”). The courts of a state must be afforded an
“opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”
4

3(,

continued)
2011 WL 6183466. Here, however, Petitioner asserts that the detective destroyed a certain
unidentified exculpatory evidence, that his counsel failed to subpoena some unspecified witness
who would have testified to the detective’s perjury (Petitioner did not provide any information
about the witness and did not include the witness’ affidavit as to what this witness would have
testified to), etc. ç Docket Entry No. 2. To make the matters even more confusing, Petitioner’s
brief detailed very few actual facts but extensively discussed abstract hypotheticals and legal
precedent seemingly having no correlation to his claims. S&c id. The Court, therefore, takes this
opportunity to stress to Petitioner that, being a p c litigant. Petitioner must merely state his
legal claims and supporting factual predicate. He need not discuss law. In the event his claims
warrant an answer. the Court would direct Respondents to answer Petitioner’s challenges, and
Petitioner would be availed to an opportunity to traverse by discussing his legal perceptions.
.

.

Exhaustion is not a jurisdictional requirement; rather, it is designed to allow state courts
the first opportunity to pass upon federal constitutional claims, in furtherance of the policies of
comity and federalism.
Granberryv. Greer, 481 U.S. 129 (1987): Rose, 455 U.S. at 516-18:
Evans, 959 F.2d at 1230; O’Halloran v. Ryan, 835 F.2d 506. 509 (3d Cir. 1987). Exhaustion also
has the practical effect of permitting development of a complete factual record in state court, to
(continued...)
4

Wilwording v. Swenson, 404 U.S. 249, 250 (1971): Picard v. Connor, 404 U.S. 270, 275 (1971):
Evans v. Court of Common Pleas. Del. Cty.. Pa., 959 F.2d 1227. 1230 (3d Cir. 1992), cert
dismissed, 506 U.S. 1089 (1993).
A petitioner must exhaust 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 postconviction proceedings. See Ross v. Petsock, 868 F.2d 639 (3d Cir. 1989); see
5

O’Sullivan

v. Boerckel. 526 U.S. 838 (1999) (“requiring state prisoners [in order to fully exhaust their
claimsj to file petitions for discretionary review when that review is part of the ordinary appellate
review procedure in the State”); 28 U.S.C.

§ 2254(c) “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, the question
presented”). This means that the claims heard by the state courts must present a “substantial
equivalent” of the claims asserted in the federal habeas petition. .çç Picard, 404 U.S. at 275.
Reliance on the same constitutional provision is not sufficient: the legal theory and factual
predicate must also be the same with regard to each particular claim. $ç id. at 277.
6
4(

.continued)
aid the federal courts in their review. $ç Rose, 455 U.S. at 519; Castille v. Peoples, 489 U.S.
346, 349 (1989).
.

Only if a petitioner’s federal claims have been fairly presented to each level of the state
court. including the state’s highest court, the exhaustion requirement is satisfied. ç Picard. 404
U.S. at 275; Castille, 489 U.S. at 350. The petitioner generally bears the burden to prove all facts
establishing exhaustion. ç Toulson, 987 F.2d at 987.
For instance. ii— during his/her state litigations a petitioner asserts two different
factual predicates (. two different sets of factual events) and two different federal claims, with
each claim being correlated to its particular factual predicate, the petitioner cannot later “cris
(continued...)

The rationale of the “substantial equivalent” requirement is self-evident in light of the
standard of review applicable to federal habeas actions: habeas relief focuses on whether the state
court’s adjudication of the petitioner claim “resulted.
of.

.

.

Supreme Court precedent.” 28 U.S.C.

.

.

or involved an unreasonable application

§ 2254(d). If the legal theory and/or the factual

predicate of each claim presented to the state courts differed from the legal theory and factual
predicate of the claim presented for federal habeas review, the federal court has no basis to
conclude that the state courts unreasonably applied the governing Supreme Court precedent,
because each Supreme Court precedent (and any legal precedent) is composed of a particular
factual predicate and a particular rule of law, and so this precedent can only be applied to
substantially same set of circumstances and legal challenges.
Where any available procedure remains, even if only theoretically, the petitioner has not
exhausted the available remedies.

$. 28 U.S.C. § 2254(c). Federal courts have consistently

adhered to the exhaustion doctrine “for it would be unseemly in our dual system of government
for a federal district court to upset a state court conviction without an opportunity to the state
courts to correct a constitutional violation.” Picard, 404 U.S. at 275 (citations and internal
quotation marks omitted). Correspondingly, district courts should dismiss petitions containing
unexhausted claims, even if it is not likely that a state court will consider the claims on the
(continued)
cross” these factual predicates and claims for the purposes of his federal habeas proceedings. To
illustrate. if— during
state proceedings a petitioner asserts that: (a) his/her counsel
provided ineffective assistance by failing to object to certain remarks made by the prosecutor,
and (b) that his her trial court violated the petitioner’s rights by denying him/her an opportunity
to cross-examine a certain witness, the petitioner cannot later “repackage” or “cross-match” these
challenges during his federal habeas proceedings into claims asserting that: (a) his counsel was
ineffective by failing to seek an opportunity to cross-examine that witness; and (b) the trial court
violated the petitioner’s rights by failing to instruct the jurors to ignore the prosecutor’s remarks.
—

6

merits. See Rose, 455 U.S. at 522; Banks v. Horn, 126 F.3d 206, 212-14 (3d Cir. 1997); see
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”). Analogously, if a petition contains a mix of
duly exhausted and unexhausted claim (such petitions are referred to as “mixed” petitions), the
petition is also subject to dismissal.
Faced with [a] “mixed” petition, the District Court ha[s] four options: [(1)]
dismiss the petition without prejudice under Rose [v. Lundy, 455 U.S. 509, unless
such dismissal would mean that the petitione?s amended petition would
necessarily be bound for dismissal as untimely, see Urcinoli, 546 F. 3d 269], [(2)]
“stay and abey” under Rhines [v. Weber, 544 U.S. 269 (2005)], [(3)] allow [the
petitioner] to delete his unexhausted claims, see Rhines, 544 U.S. at 278, or, [(4)]
if all of his claims are meritless, deny the petition under § 2254(b)(2) (allowing
denial of a petition on the merits “notwithstanding the failure of the applicant to
exhaust
.

.

Mahoney v. Bostel, 2010 U.S. App. LEXIS 3916, at *5..6 (3d Cir. N.J. Feb. 24, 2010) (footnote
omitted). Here, the Petition appears to be a “mixed” application.
7
In light of the foregoing, Petitioner will be directed respond to this Court’s Mason order
by submitting (a) a written statement clarifying whether he wishes to seek a stay (and the bases
for his stay application, if such is advanced); or, in the event no stay is sought, (b) an amended
pleading detailing the exact legal claims he wishes to litigate in this matter and the particular
factual predicates supporting these claims (and expressly correlating these sets of legal clams and

Petitioner may, if he so desires, withdraw his unexhausted claims or, if he so wishes,
seek “stay and abeyance” of his Petition by showing that his unexhausted claims present at least
colorable challenges, which Petitioner would duly attempt to exhaust before all three levels of
the state courts while his instant Petition is stayed. See Rhines v. Weber, 544 U.S. 269 (2005).
7

factual predicates to substantially equivalent sets of legal claims and factual predicates he raised
before all levels of the state courts),S
An appropriate Order accompanies this Opinion.

United States District Judge

Dated:

J/

.2013

8

While the Court is mindful of Petitioner’s emotions, the Court urges Petitioner to state
his claims and factual predicates as presented to the state courts and not infuse unwarranted
qualifiers into Petitioner’s assertions. For instance, in the event Petitioner refers to a certain
piece of evidence as “exculpatory,” Petitioner’s state assertions had to be substantially equivalent
and, thus, had to detail why/how this evidence was exculpatory. Analogously, in the event
Petitioner refers to a certain potential witness testimony as “exculpatory,” Petitioner’s state
assertions had to be substantially equivalent and had to detail why this witness was available to
be called. how the existence of that witness was known or knowable to counsel and, in addition.
include an affidavit from that witness averring as to what that witness would have testified to. In
other words, Petitioner’s injection of unwarranted qualifiers renders his Petition weaker rather
than more warranting relief, and Petitioner will never be penalized by federal courts for stating
his challenges in simple English. All pleadings executed by p litigants are construed with a
measure of tolerance, see Erickson v. Pardus, 551 U.S. 89(2007), Haines v. Kemer, 404 U.s.
519, 520 (1972). and inartful “dry facts stated in a clear and concise pleading speak volumes for
the purposes of any legal proceeding, while eloquent ‘nothings’ are invariably dismissed as pure
rhetoric.” Clauso v. Glover, 2012 U.S. Dist. LEXIS 139205, at *21 (D.N.J. Sept. 26, 2012).
8