JACKSON v. CHETIRKIN et al
Filing
9
OPINION. Signed by Judge Kevin McNulty on 4/16/2018. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 15-5673 (KM)
JAMES JACKSON,
Petitioner,
OPINION
‘I.
ROBERT CHETRJKIN, et al.,
Respondents.
MCNULTY, DISTRICT JUDGE
Before the Court is the Petition for a writ of habeas corpus of James Jackson
(“Petitioner”), brought pursuant to 28 U.S.C.
§
2254. (ECF No. 1.) For the reasons set forth
below, the habeas Petition is dismissed without prejudice for failure to exhaust state court
remedies, and a certificate of appealability is denied.
I.
BACKGROUND
Petitioner pled guilty, on May 21, 2012, to Theft by Unlawful Taking or Disposition of
movable property, under N.J. Stat. Ann.
§
2C:20-3a. (ECF No. 7-I at 2.) He was sentenced on
July 6, 2012, to probation for a term of three years with time served, and ordered to comply with
the rules and regulations of the Essex County Probation Department. (Id.) The time Petitioner
spent in custody was calculated as 181 days, from November 24, 2011 to May 22, 2012. (Id. at
4.)
On May 11,2015, toward the end of his sentence, Petitioner’s “probation was terminated
without improvement” and he was re-sentenced on the same offense, to be committed to the
custody of the commissioner of the Department of Corrections for a term of four years. (ECF
No. 7-2 at 2.) Petitioner does not appear to have flied a direct appeal or a petition for postconviction relief (“PCR”).
Petitioner filed a habeas petition in this court on July 12, 2015,
raising a single ground for relieE “Habeas corpus petition seeking immediate rel[ea]se from
custody after serving his full term beyond its maximum expiration dale pursuant to 28 U.S.C.
§
2254.” (ECF No. 1 at 17). In support of his claim, Petitioner states that he pled guilty to three
years of probation and “at the time of sentencing the Court granted 181 days credit against [his]
probation sentence for time served in custody.” (ECF No. 1 at 24.) Thus, he appears to argue
that had the “credit” been properly applied, his probation would have terminated after about two
and a half years, and he would not have been serving his sentence of probation as of the date he
was re-sentenced. (Id.) Respondents argue that that this claim cannot be heard because it is
unexhausted. In the alternative, lhey argue that Petitioner misunderstands his original sentence,
and that the Petition fails to state a claim upon which relief may be granted. (ECF No. 7.)
II.
STANDARD OF REVIEW
A state prisoner seeking a writ of habeas corpus under 28 U.S.C.
§
2254 in federal court,
must first “exhaust the remedies available in the courts of the Stale,” unless
“0)
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(b)(1); see also Rose
Lundy, 455 U.S. 509, 518 (1982) (“The exhaustion doctrine is principally designed to protect the
state courts’ roLe in the enforcement of federal law and prevent disruption of state judicial
proceedings.”). To satisfy the exhaustion requirement, a petitioner must fairly present every
claim raised in the federal petition to each level of the state courts either on direct appeal, or in
collateral post-conviction relief proceedings. See, e.g., O’Sullivan v. Boerckel. 526 U.S. 838,
848 (1999) (“we ask not only whether a prisoner has exhausted his state remedies, but also
7
whether he has properly exhausted those remedies, i.e., whether he has fairly presented his
claims to the state courts”); see also 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.”). “To ‘fairly present’ a [federalj claim, a petitioner must present a federal
claim’s factual and legal substance to the state courts in a manner that puts them on notice that a
federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)
(citations omitted). “Even if a state court refuses the claim on procedural grounds, it is still
exhausted as long as the state court had the opportunity to address it.” Nara v. Frank. 488 F.3d
187, 198 (3d Cir. 2007).
Further, “[b]efore exhaustion will be excused, state law must clearly
foreclose state court review of unexhausted claims.” Thu/son
i
Beyer, 987 F.2d 984, 987 (3d
Cir. 1993).
III.
DISCUSSION
Petitioner was initially sentenced on July 6, 2012, and on May 11, 2015, he was
discharged from probation without improvement and re-sentenced to a term of imprisonment.
New Jersey Court Rule 2:3-2 provides that, “In any criminal action, any defendant
...
person aggrieved by the final judgment of conviction entered by the Superior Court
or other
...
may
appeal or, where appropriate, seek leave to appeal, to the appropriate appellate court. See N.J.
Ct. R. 2:3-2 (emphasis added). Petitioner has not exhausted his state court remedies; he has not
filed a direct appeal or filed for PCR. As Respondents note, while Petitioner may be out of time
to file a direct appeal, see N.J. Ct. R. 2:4-1(a) (“[a]ppeals from final judgments
.
.
.
shall be taken
within 45 days of their entry”), he can likely file a petition for PCR, see N.J. Ct. R. 3:22-12 (no
PCR “petition shall be filed
.
.
.
more than 5 years after the date of entry
3
.
.
.
of the judgment of
conviction”), or he can file a motion to correct his illegal sentence. See N.J. Ct. R. 3:21-lO(b)(5)
(“[a] motion may be filed and an order may be entered at any lime
...
correcting a sentence not
authorized by law including the Code of Criminal Justice”) (emphasis added). Thus, there is
nothing to indicate his claim would be procedurally barred in state court, so this Court has no
basis to “excuse” his failure to exhaust. See Toulson, supra, 987 F.2d at 98.
Accordingly, for these reasons, the habeas Petition will be dismissed without prejudice
as unexhausted.’ See Lines v. Larkins, 208 F.3d 153, 159—60 (3d Cir. 2000) (“Federal courts will
dismiss without prejudice claims that have not been properly presented to the state courts,
allowing petitioners to exhaust their claims”); see also Banks v. Horn, 126 F.3d 206, 211 (3d Cir.
1997) (“[I]n the absence of a state court decision indicating that a habeas corpus petitioner is
clearly precluded from state court relief, the district court should dismiss the claim for failure to
exhaust even if it is not likely that the state court will consider petitioner’s claim on the merits.”)
Because Petitioner’s claim is unexhausted, the Court need not consider Respondents’ alternative
argument that the instant Petition must be denied on the merits.
The Court also finds that a stay of this habeas Petition pursuant to Rhines v. Weber, 544
U.S. 269 (2005), is not warranted. In Rhines, the United States Supreme Court explained:
[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 medtless.
544 U.S. at 277. Here, Petitioner had an opportunity to reply to Respondents assertion that his
claim is unexhausted, but he failed to do so. Because Petitioner has not shown good cause for his
failure to exhaust his claims in state court, a stay is not warranted.
4
CERTIFICATE OF APPEALABILITY
IV.
Under 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 (“COA”) may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C.
§ 2253(c)(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.” jill//er-El v. C’ockrell, 537
U.S. 322, 327 (2003) (citation omitted).
“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 (2000).
Here, jurists of reason would not find it debatable whether this Court is correct in its
procedural ruling. Therefore, no certificate of appealability shall issue.
CONCLUSION
V.
For the reasons stated above, Petitioner’s habeas Petition is dismissed without prejudice
as unexhausted, and Petitioner is denied a certificate of appealability.
An appropriate order
follows.
Dated: April 16, 2018
evin McNu]ty
United States District Judge
D
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