ROBERTS v. NELSON et al

Filing 14

OPINION. Signed by Judge John Michael Vazquez on 11/29/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALBERT ROBERTS,
Petitioner,
v.
KENNETH NELSON et al.,
Respondents.

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Civil Action No. 14-8095 (JMV)

OPINION

APPEARANCES:
Albert Roberts
Bayside State Prison
P.O. Box F-1
Leesburg, NJ 08327
Petitioner, pro se
Stephanie Paige Davis-Elson
Hudson County Prosecutor’s Office
595 Newark Avenue
Jersey City, NJ 07306
VAZQUEZ, District Judge
This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2254 filed by Petitioner Albert Roberts (“Roberts”), an inmate confined in Bayside
State Prison, in Leesburg, New Jersey. (ECF No. 1.) Roberts raises one ground for relief in his
petition, alleging he is being held beyond his maximum term in violation of the Eighth
Amendment. (Id., ¶12.) 1 Respondents filed an answer to the petition on February 20, 2015. (ECF

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According to the NJ DOC Offender Search Engine, Roberts, whose SBI No. is 525227B, was
admitted into custody on June 25, 1999, and he was “out of custody” on January 1, 2017. Available
at https://www20.state.nj.us/DOC_Inmate/inmatesearch.jsp. However, the search engine also
indicates that Roberts’ current facility is “ROBINS-GYCF”), and his current maximum release

No. 8.) Respondents oppose habeas relief, asserting that Roberts has not raised a cognizable
habeas claim, and in any event, he has not been held beyond his maximum term. (Id. at 23-25.)
Roberts indicates that the NERA (New Jersey’s No Early Release Act) sentencing provision
provides that the 85% NERA sentence is the “ceiling” of the entire sentence. (ECF No. 9 at 2.)
Thus, his sentence is “85% of 20 years with 5 yrs parole.” (Id.)
I.

DISCUSSION
A.

The Parties’ Arguments

Roberts seeks immediate release from prison, based on the following facts alleged in
support of his petition:
On December 15, 2006, in light of the Supreme Court decision in
State v. Pierce [188 N.J. 155 (2006)], Hudson County Superior
Court Judge Camille M. Kenny, J.S.C. resentenced Petitioner in the
above matter and issued an amended judgment of conviction. This
is a 1997, pre-NERA amendment case. When applying preamendment NERA to an extended term, the parole ineligibility must
be limited to 85% of the ordinary term. State v. Meekins II, 180 N.J.
321, 322 (2004). In the instant case, the parole board decided to
require defendant [Roberts] to max out on the entire 30 year
extended sentence. Afterwards, Petitioner is also required to serve
an additional five-year parole supervision. According to NJSA
2C:43-7.2(c), the term of parole supervision shall commence upon
the completion of the sentence incarceration imposed by the court
pursuant to subsection A.
The Department of Corrections has elected to ignore and override
the Amended Judgment of Convictions in the present case.
Therefore, purposefully subjecting the Petitioner to suffer, while
being forced to remain incarcerated, and to undergo cruel and
unusual punishment, in violation of the 8th Amendment, of the U.S.
Constitution. According to state statute, and the Amended
Judgment of Conviction, Petitioner should have been release[d] on
parole on September 16, 2014, at the expiration of the NERA
imposed sentence with 5 yr parole supervision.

date is “N/A.”
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(Mem., ECF No. 1-1 at 1-2.)
Roberts submitted the December 15, 2006 Amended JOC, underscoring that “Defendant
must serve 85% of the First Twenty Years of Count 1 with Five (5) Years Parole Supervision Upon
Release.” (ECF No. 1-2 at 1.) The Court construes Roberts’ claim as a challenge to the calculation
of his sentence by the New Jersey Department of Corrections, rather than as a challenge to the
parole board decision.
Respondents do not dispute that the controlling JOC, dated December 15, 2006, instructs
that Roberts was sentenced as follows:
Count 3 is merged into Count 1. NJDC of a Period of 30 years for
Count 1, and Five (5) years for Count 4. All Counts are to run
concurrent with each other. Defendant must serve 85% of the first
twenty years of Count 1 with Five years Parole supervision upon
release. . . . Total Custodial Term 30 YEARS
(ECF No. 8-30 at 1-3.)
B.

Analysis
1.

Jurisdiction

In Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001), the Third Circuit Court of Appeals
held that 28 U.S.C. § 2254 confers broad jurisdiction to hear the petition of any state prisoner ‘in
custody in violation of federal law.” Therefore, the court in Coady held that it was unnecessary to
proceed under the more general Section 2241 habeas petition in order to consider a state prisoner's
challenge to the execution of his sentence. Id. at 486. “[W]henever the challenge ultimately
attacks the ‘core of habeas'—the validity of the continued conviction or the fact or length of the
sentence—a challenge, however denominated and regardless of the relief sought, must be brought
by way of a habeas corpus petition.” Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). Thus,
this Court has jurisdiction under Section 2254 to determine whether the New Jersey Department

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of Corrections has held Roberts beyond the maximum term of his sentence. See also Chavarriaga
v. Lanigan, Civ. Action No. 12-7700(MAS), 2013 WL 276185 (D.N.J. Jan 24, 2013) (finding
jurisdiction under Section 2254 to state prisoner’s challenge to calculation of sentence).
2.

Sentence Calculation

When Roberts was originally sentenced on June 25, 1999, N.J.S.A. 2C:43-7.2(a) 2 provided
that:
a. A court imposing a sentence of incarceration for a crime of the
first or second degree shall fix a minimum term of 85% of the
sentence during which the defendant shall not be eligible for parole
if the crime is a violent crime as defined in subsection d. of this
section.
On December 15, 2006, Roberts was resentenced to a 30-year extended-term of
imprisonment. (ECF No. 8-30 at 2.) Pursuant to State v. Pierce, 188 N.J. 155, 169 (2006), NERA
was applied only to the first twenty years of Roberts’ sentence. (Id. at 1.) Therefore, Roberts was
required to serve seventeen years before he became eligible for parole. See Gully v. Hoffman,
Civil Action No. 12-1074 (SDW), 2015 WL 6502093, at *9 (D.N.J. Oct. 27, 2015) (finding
petitioner, who was subject to an 85% parole disqualifier, “effectively requires that he serve
seventeen years of his twenty year sentence before he is eligible for parole”); see N.J.S.A. 2C:437.2 (effective June 9, 1997) (“[t]he term of parole supervision shall commence upon the
completion of the sentence of incarceration imposed by the court pursuant to subsection a. of this
section . . .”)
Roberts submits that he was sentenced on June 25, 1999, with 648 days of jail credit,
making him eligible for parole on September 16, 2014. However, he conflates his parole eligibility
date with his maximum release date, arguing that the 85% NERA sentence is the “ceiling” of the

2

N.J.S.A. 2C:43-7-2; L. 1997, c. 117, § 2, eff. June 9, 1997.
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entire sentence. (ECF No. 9 at 2.) A parole eligibility date is not equivalent to the maximum term
of imprisonment. A parole eligibility date, which can be set by a judge at sentencing, is a minimum
term of imprisonment that a defendant must serve before he can be considered for parole. Lorenzo
v. Edmiston, 705 F.Supp. 209, 211 (D.N.J. Jan. 25, 1989); see New Jersey State Parole Bd. v.
Gray, 200 N.J. Super 742, 744 (App. Div. 1985) (noting the petitioner was not automatically
entitled to release on the date he became eligible for parole.) However, a prisoner has no right of
automatic release when he becomes eligible parole. Here, the maximum term of imprisonment is
thirty years, and Roberts has not been held beyond that term.
II.

CONCLUSION
For the reasons discussed above, the habeas petition is denied.

III.

CERTIFICATE OF APPEALABILITY
The district court must determine whether a petitioner is entitled to a certificate of

appealability in a § 2254 habeas proceeding. See Third Circuit Local Appellate Rule 22.1 (the
Third Circuit “will not act on a request for a certificate of appealability (COA) unless the district
court has denied a COA.”) A district court should issue a certificate of appealability if the
petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Based on the discussion in this Opinion, Roberts has not made a substantial showing
of denial of a constitutional right, and this Court will not issue a certificate of appealability.
An appropriate Order follows.

Dated: November 29, 2017
At Newark, New Jersey

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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