PETERSON v. WARREN et al

Filing 3

MEMORANDUM OPINION AND ORDER that petitioner's application to proceed in forma pauperis dkt. entries nos. 1-3 to 1-5 is granted. Petitioner's application dkt. entry no. 1-1 seeking to have this matter stayed & held in abeyance while Petitio ner is pursuing post-conviction relief, is granted w/exceptions. Petitioner's applications for production of documents, dkt. entries nos. 1-2 and 2 are denied. The Clerk shall administratively terminate this matter (subject to reopening upon tim ely receipt of Petitioner's amended petition & accompanying motion seeking reopening of this matter upon completion of Petitioner's state proceeding) by making a new & separate entry on the docket reading "CIVIL CASE ADMINISTRATIVELY TERMINATED"; etc. Signed by Judge Jose L. Linares on 7/30/13. (sr, )

_______________________,

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WILLIE PETERSON,
Petitioner,

Civil No.

13-4250

(JLL)

v.
CHARLES WARREN,

MEMORANDUM OPINION AND ORDER

et al.,
Respondents.

This

matter

comes

before

the

submission of his § 2254 Petition,

Court

upon

Petitioner’s

applications to proceed in this

matter in forma pauperis and to have this matter stayed and held in
abeyance
relief

while

Petitioner

proceedings,

as

litigates

well

as

his

ongoing

Petitioner’s

request

production of documents he wishes to obtain.
Nos.

post-conviction
to

direct

Docket Entries

1 and 2.
IT IS on this
ORDERED

matter
granted;

in

that

forma

day of
Petitioner’s

pauperis,

2013,
application

Docket

Entries

Nos.

proceed
1—3

to

in

this

1—5,

is

and it is further

ORDERED that Petitioner’s application,
seeking

to

to

have

this

matter

stayed

and

Docket Entry No.

held

in

abeyance,

1—1,
while

Petitioner

is

pursuing

post-conviction

relief,

is

1
granted,

but

only to the extent that:
a.

Petitioner’s amended § 2254 petition would be deemed timely
if:

i.

Petitioner’s instant § 2254 petition was timely when he
handed it
Court;

ii.

to his prison officials

and,

Petitioner

for mailing to this

in addition,
files

his

motion

to

reopen

this

matter,

together with his amended § 2254 petition, no later than
within

sixty days

currently
(and,

ongoing

from the

date

of

post-conviction

completion
relief

of

his

proceedings

if his post-conviction relief proceedings are not

already underway,

initiates the same within sixty days

from the date of entry of this Memorandum Opinion and

1

Generally, the remedy of stay and abeyance is warranted
only if the litigant shows that his unexhausted claims
present at
least colorable challenges.
see Rhines v. Weber, 544 U.s. 269
(2005)
However, the case law suggests that, when faced with an
ambiguous situation, the district court should, out of abundance
of caution, strive to err on the side of ensuring the litigant’s
opportunity to seek federal habeas review of all claims he wishes
to raise.
Cf. Urcinoli v. Cathel, 546 F.3d 269, 273—76 (3d Cir.
2008) (detailing equitable bases); see also Gully v. Ortiz, No.
06-5397, 2007 U.s. Dist. LEXI5 77825 (D.N.J. Oct. 19, 2007)
(granting petitioner a stay out of abundance of caution, even
though he failed to articulate clear grounds for a stay), certif.
denied, U5CA No. 07-4503 (3d Cir. Feb. 14, 2008)
.

2

Order),

see Rhines v.

Weber,

made

Memorandum Opinion

544 U.s.

269,

277

(2005);2

and
b.

No

statement

construed
timeliness

as
or

in

this

expressing

this

untimeliness

of

Court’s
the

and Order

position

within

is

as

to

the

petition

(or

the

amended § 2254 petition Petitioner is being allowed to file)
in any other respect; and it is further
3

2

In light of Petitioner’s commencement of a Section 2254
action, this Court takes this opportunity to provide Petitioner
with notice, pursuant to the holding of Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000), of the following consequences of filing
such
an application under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) and to give Petitioner an opportunity to
file one all-inclusive § 2254 application.
Under the AEDPA,
petitioners challenging the legality of their detention pursuant
to a State decision must marshal in one § 2254 application all
the arguments they have to collaterally attack that decision
and,
except in extremely limited circumstances, file this one all—
inclusive application within one year of the date on which the
judgment of conviction becomes final by the conclusion of direct
review or the expiration of the time for seeking such
review.
See 28 U.S.C. § 2244(d).
Therefore, Petitioner shall state all
his habeas claims in his amended petition.
On April 24, 1996, Congress enacted the AEDPA, which
provides that “[a) 1-year period of limitation shall apply
to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”
28 U.S.C. §
2244 (d) (1)
The limitations period starts to run from “the date
on which the judgment became final.”
28 U.S.C. § 2244(d) (1).
A
state—court criminal judgment becomes “final” within the meaning
of § 2244(d) (1) by the conclusion of direct review or
by the
expiration of time for seeking such review, including
the 90-day
period for filing a petition for writ of certiorari in
the United
States Supreme Court.
See Swartz v. Meyers, 204 F.3d 417, 419
(3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n.1
(3d Cir.
1999); U.S. Sup. Ct. R. 13.
Section 2244(d) (2) requires
statutory tolling for “[t]he time during which a properly
filed
application for State post-conviction or other collateral
review
with respect to the pertinent judgment or claim is
pending,” 28
.

3

ORDERED
documents,

that

Petitioner’s

Docket Entries Nos.

applications
1-2 and 2,

for

production

of

are denied; and it is

further

U.S.C. § 2(d) (2), provided that the application to the state
44 2
court seeking collateral review was filed during the federal
habeas period of limitations
Thus, the evaluation of timeliness
requires r , a determination of when an application for
state post_conviction relief was both “Properly filed” and
“pending.”
See Evansv Cavis, 546 U.S. 189 (2006); Artuzv
531 U.S. 4, 8-9 (2000).
Correspondingly, a state
application is not “Properly filed” or “pending,” and statutory
tolling does not apply: (1) starting from the Point when, under
the state law, an inmate’s time to appeal denial of post—
conviction relief (or to seek certification as to affirmance of
such denial) expires and until the point when the inmate’s
application to file such appeal out of time (or to seek such
certification out of time) is granted; and (2) starting from the
Point when a not_perfected post_conviction relief application (or
appeal) was received and until the point when the inmate’s
submission is duly perfected under the state law requjreme
5
Laurel High1an
705 F.3d 80, 88
1

If Petitioner Wishes this Court to consider, in the
stant matter, documents other than those presented to the
in
state
courts during Petitioner’s state court Proceedings,
Petitioner’s
application is barred by VPiflholst
U.S. —-, 131 S.
Ct. 1388, 1398-1401
(2011) (the court sitting in habeas review
is limited to consideration of the record that was
before the
state court which adjudica the claim on the merits and, thus,
cannot expand the record, unless a very narrow exception
applies)
If Petitioner seeks production of documents for the
purposes of litigating his post-conviction relief challenges
before the state courts, this Court is without authority to so
intervene in the state Proceedings.
Petitioner shall make his
application to the state court Presiding over his
post_conviction
relief Proceedings.
This Court is mindful of Petitioner’s
displeasure with the state court’s clerk’s office
See Docket
Entry No. 2.
However, Petitionerls displeasure does not vest
this Court with a mandate to interfere with
Petitioner’s state
action.
—-

.

4

ORDERED that the Clerk shall administratively terminate this
matter

(subject to reopening upon timely receipt of
Petitioners

amended petition and accompanying motion seeking reopening of this
matter Upon completion of Petitionerls state Proceeding) by
making
a

new

and

separate

entry

on

the

docket

reading

“CIVIL

CASE

ADMINISTTIVELy TERMINATEDIF;5 and it is finally
ORDERED that the Clerk shall serve this Memorandum
Opinion and
Order

Upon

reques

the

Petitioner

certified

by

mail,

return

receipt

and shall include in said mailing a blank § 2254
habeas

petition form.

,7

(

—.

United States District Judge

Petitioner must exhaust state remedies by Presenting his
federai claims to each level of the state courts empowered to
hear those claims.
See ssLpetsock
868 F.2d 639 (3d Cir.
1989); see also
kl
526 U.s. 838 (1999);
d 28 U.S.C. § 2(c) (“An applicant shall not be
54 2
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
ocedure
the
pr
guestio Presented”).
Notably, the claims presented to the state
courts must be the “substantial equival!f of the
claims
asserted in the federal habeas review
See rdvConno
404
U.S. 270, 278 (1971).
Reliance on a certain constitutional
provision or on a certain factual predicate is not
sufficient.
See id. at 277; see also
No. 10-5426, 2011
U.S. Dist. LEXiS 140603, at *3 (D.N.j Dec. 7,
2011) (both the
legal theory and factual predicate must be the same with
regard
to each particular claim)

5