CARRASCOSA v. HAUCK et al
Filing
28
OPINION. Signed by Judge John Michael Vazquez on 8/8/18. (cm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARIA JOSE CARRASCOSA,
HON. JOHN MICHAEL VAZQUEZ
Petitioner,
Civil Action
No. 15-5956 (JMV)
v.
JOHN J. HOFFMAN, et al.,
OPINION
Respondents.
VAZQUEZ, District Judge:
I.
INTRODUCTION
Petitioner Maria Jose Carrascosa (“Petitioner” or “Carrascosa”), has submitted a pro se
amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Am. Pet., ECF No.
4.) For the reasons stated herein, the amended petition shall be dismissed without prejudice and
no certificate of appealability shall issue.
II.
BACKGROUND
This matter’s procedural history is lengthy and convoluted as a result of Petitioner’s routine
practice of submitting voluminous, procedurally improper, and legally meritless applications and
filings to the District of New Jersey, the Third Circuit, and the New Jersey state courts while
simultaneously disregarding each court’s procedural rules and specific filing directives. See, e.g.,
Carrascosa v. Hauck, No. 2:12-cv-5173 (SDW), 2013 WL 6816177, at *1 n.1 (D.N.J. Dec. 20,
2013) (detailing Petitioner’s “many lawsuits and petitions” in the District of New Jersey); In re
Carrascosa, 616 F. App’x 475 (3d Cir. 2015) (providing a succinct procedural history of many of
Petitioner’s filings in the Third Circuit, the District of New Jersey, and the Appellate Division of
the New Jersey Superior Court (the “Appellate Division)).
The Third Circuit’s opinion in In re Carrascosa, 671 F. App’x 856 (3d Cir. 2016) (per
curiam), succinctly summarizes many of the facts that are germane to this Court’s disposition of
Petitioner’s amended petition:
In November 2009, Carrascosa was found guilty following a jury
trial in the Bergen County, New Jersey Superior Court of eight
counts of interference with custody and one count of fourth degree
contempt of a judicial order. On December 23, 2009, Carrascosa
was sentenced to an aggregate term of imprisonment of 14 years. In
November 2011, the [Appellate Division] dismissed Carrascosa’s
direct appeal because of deficiencies in her brief. The Appellate
Division then gave Carrascosa until January 27, 2012 to file a proper
merits brief or suffer the permanent dismissal of her appeal.
Carrascosa did not file a conforming merits brief by this date.
In August 2013, Carrascosa filed a petition for writ of habeas corpus,
28 U.S.C.§ 2254, in the [District of New Jersey], challenging the
2009 conviction and sentence, see Carrascosa v. Warden, D.N.J.
Civ. No. 12-cv-05173. The District Judge then assigned to the case,
the Honorable Susan D. Wigenton, denied the petition in December
2013. On January 20, 2015, [the Third Circuit] denied Carrascosa’s
request for a certificate of appealability, see C.A. No. 14-1074, but
noted in [that] order that the dismissal of the petition was without
prejudice to the filing of another habeas corpus petition once state
court remedies were exhausted. [The Third Circuit] subsequently
denied Carrascosa’s petition for rehearing en banc.
In February 2015, Carrascosa moved in the [Appellate Division] to
reinstate her appeal and to vacate that court’s November 2011
dismissal. [(ECF No. 10-24.)] By order filed on March 18, 2015,
the Appellate Division denied her motion. [(ECF No. 10-25.)]
Carrascosa then filed a petition for writ of mandamus in [the Third
Circuit], in which she argued that her habeas corpus case could now
proceed because she had no remaining state court remedies.
[The Third Circuit] denied the mandamus petition by way of an
opinion filed on June 11, 2015, see In re[] Carrascosa, 616 [F.
App’x] 475 (3d Cir. 2015), and noted that Carrascosa could either
move [in the District Court] to have her habeas corpus case reopened
or, more properly, file a new petition in the District Court.
On August 4, 2015, [the present habeas matter] was opened on
Carrascosa’s behalf by Judge Wigenton . . . . On August 7, 2015,
Carrascosa filed [her current] amended petition, in which she
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argue[s] that trial counsel was ineffective, that the prosecutor
committed misconduct, and that she is actually innocent of the
interference and contempt convictions. [(ECF No. 4.)] The State
submitted an answer to the petition and the state court record,
including the transcripts from the trial. [(See ECF Nos. 10 and 11.)]
. . . . On November 25, 2015, Carrascosa submitted a reply to the
State’s answer. [(ECF No. 12.)]
. . . . [This] case was reassigned . . . from Judge Wigenton to the
[undersigned] on February 29, 2016.
In re Carrascosa, 671 F. App’x at 857-58.
As noted, the Appellate Division “dismissed Carrascosa’s direct appeal [in November
2011] because of deficiencies in her brief.” Id. at 857. The record is clear that the Appellate
Division dismissed Petitioner’s direct appeal only after it first provided several notices to Petitioner
detailing those various deficiencies, afforded Petitioner multiple opportunities to correct her
deficient appeal, and repeatedly warned Petitioner that her direct appeal would be dismissed if she
did not correct those deficiencies. (See, e.g., App. Div.’s Aug. 30, 2011 Order, ECF No. 10-10 at
Page ID: 365, App. Div.’s Dec. 7, 2011 Order, ECF No. 10-13 at PageID: 653.) It is also clear
that the Appellate Division afforded Petitioner ample time to correct her procedurally deficient
appeal. Indeed, “the [Appellate Division] had indicated, as recently as September 23, 2014, that
Carrascosa could still attempt to pursue a direct appeal.” In re Carrascosa, 616 F. App’x at 477
(3d Cir. 2015).
Petitioner never corrected the filing deficiencies noted by the Appellate Division.
Petitioner did, however, submit numerous other filings to that court during the pendency of her
unperfected direct appeal, including motions to proceed pro se, to compel the production of trial
evidence and transcripts, to supplement the record with new evidence and witness testimony, to
vacate her criminal judgment based on this new evidence, to obtain judicial assistance in
prosecuting her ex-husband, and to compel the prison administrator to present her at the Appellate
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Division to file her brief. (See, e.g., ECF Nos. 10-11 and 10-14.) In light of the foregoing, it is
clear that Petitioner’s failure to correct the deficiencies highlighted by the Appellate Division was
not the result of her lack of access to that court; it was instead caused by her willful disregard of
the Appellate Division’s rules, procedures, and explicit directives to correct the noted deficiencies.
The record is also clear that after the Appellate Division dismissed Petitioner’s direct
appeal, Petitioner stopped pursuing additional avenues of relief in the state courts until February
2015. Tellingly, it was only after the Third Circuit ruled in January 2015 that Petitioner could not
pursue her Section 2254 petition until she properly exhausted her state court remedies that
Petitioner moved before the Appellate Division to have that court reinstate her direct appeal and
vacate its prior order of dismissal. (See ECF No. 10-24.) Petitioner’s February 2015 motion to
the Appellate Division represents her only subsequent attempt to exhaust her state court remedies.
Indeed, Petitioner concedes that she never appealed the Appellate Division’s March 18, 2015
denial of her reinstatement motion to the New Jersey Supreme Court. 1 (Am. Pet., ECF No. 4 at
PageID: 143.) The record also makes clear that Petitioner has not availed herself – at any point –
of New Jersey’s separate post-conviction relief (“PCR”) procedures, i.e., the State’s procedural
mechanism to collaterally attack a criminal conviction based on errors of a constitutional
1
It does, however, appear that Petitioner may have attempted to appeal the Appellate Division’s
March 18, 2015 decision to the United States Supreme Court, as evidenced by a June 1, 2015 letter
from the Clerk of the United States Supreme Court advising that Petitioner’s “petition for a writ
of certiorari is denied.” (ECF No. 10-26.) That said, this Court is unable to glean from that letter
what the particular subject of Petitioner’s certiorari petition was. The Court notes that to the extent
Petitioner’s certiorari application concerned the Appellate Division’s denial of her motion to
reinstate her direct appeal, the judicial discretion of the Supreme Court would countenance against
consideration of that application as “no state court of last resort” has yet ruled on the merits of
Petitioner’s underlying motion to reinstate. See Rule 10(b) of the Rules of the Supreme Court of
the United States.
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dimension that occurred during trial and/or on direct appeal and that were not and/or could not
have been raised on direct appeal.
In her current habeas petition, Petitioner avers that in light of the Appellate Division’s
March 18, 2015 order denying her motion to reinstate her direct appeal, she has now “[e]xhaust[ed]
the State venue [thereby] rendering any remedies futile, if any available, which they are not, as it
is proven by the history of the case.” (Am. Pet., ECF No. 4 at PageID: 143.) Petitioner has
previously explained – in a more articulate fashion – that she failed to pursue additional avenues
of relief in the state courts because she believes the courts of New Jersey will not provide her the
relief she seeks. (See Pet’r’s July 29, 2015 Br., ECF No. 71-1 in Civil Action No. 2:12-cv-5173,
at PageID: 6166 (“The State of New Jersey will never provide a lawful remedy to Carrascosa. Ten
and a half years of malicious prosecution and of Legal Actions, and nine of imprisonment prove
her efforts to be futile and the State’s continual denial of Justice to her. . . . Only the Federal
Courts . . . can remediate this situation[.]”).) In other words, Petitioner has indicated that she
believes that she is entitled to subvert additional state court review and instead pursue her habeas
claims in federal court based on her belief that the New Jersey courts will not grant her the relief
she seeks.
Consistent with this assertion, on May 1, 2015 – less than two months after the Appellate
Division denied Petitioner’s motion to reinstate her appeal on March 18, 2015 – Petitioner filed a
mandamus petition before the Third Circuit in which she argued for that court’s “interven[tion] in
her habeas case because she has now exhausted her state remedies” and asked that court to “vacate
her conviction and exonerate her.” In re Carrascosa, 616 F. App’x at 477 (3d Cir. 2015). In
denying that mandamus petition, the Third Circuit emphasized “that whether Carrascosa has now
5
fully exhausted her state remedies in view of the Appellate Division’s [March 18, 2015 order] is a
matter for the District Court to decide in the first instance.” Id. at 478.
With this background in mind, this Court turns to the substantive claims. Petitioner’s
current § 2254 petition asserts eights grounds: (1) “ineffective counsel and defective defense
unconscionable”; (2) “Falsified evidence”; (3) “Prosecutorial misconduct.
Malicious
prosecution”; (4) “The prosecution and its main witness and his police deputy lover/wife tampered
with the defense witness to secure they would not testify in Carrascosa’s favor at trial”; (5) “Actual
Innocence”; (6) “Bias, Prejudism [sic], Abuse of Discretion, Judicial Misconduct[,] and Trial
Court Wrongful Rulings”; (7) “The undue influence, political interference with the administration
of justice in proceedings did not afford Carrascosa [] due process”; and (8) “Petition for habeas
corpus from institutional charges, where Carrascosa was entrapped and falsely accused [without
being afforded due process.]” (ECF No. 4.)
With respect to Petitioner’s ineffective assistance of counsel claim,
Petitioner asserts that “counsel was physically absent in crucial stages of
proceedings” and that when he was present,
his performance was beyond the standard of practice in New Jersey
and U.S. denying Petitioner a Due Defense and Due Process and
Fair Trial. He should have moved to suppress the false evidence
offered by State and its witnesses and he didn’t. He even proceeded
to stipulate false evidence (23 falsified documents purported from
Spain, entered by State) as truthful and undisputed. . . . He did not
move to suppress perjured testimony, nor the illegal evidence, [and]
he engaged in the malicious prosecution of his client.
(ECF No. 4 at Page ID: 145.) As to Petitioner’s admitted failure to exhaust her state remedies on
her ineffective assistance of counsel claim specifically – by perfecting her direct appeal in the
Appellate Division, pursuing that direct appeal in the New Jersey Supreme Court (if necessary),
and/or subsequently pursuing that claim in PCR proceedings in the state court – Petitioner states
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that “[t]here was no need to. On August 3[,] 2010[,] Chief Justice Edwin Stern of the Appellate
Division enter[]ed] an order that read as follows: ‘. . . . [Carrascosa] may move for a remand to
file a motion for new trial in the Law Division.’” (ECF No. 10-27.) It is undisputed that Petitioner
never filed any such motion, and that no such remand ever occurred.
Respondents indicate that Petitioner’s habeas petition should be dismissed in its entirety
because she has failed exhaust available state remedies on any of her habeas claims prior to filing
her current habeas petition. (ECF No. 11 at PageID: 1453-55.) Respondents’ argument is
supported by the undisputed facts of record, which demonstrate that Petitioner failed to perfect her
direct appeal in the Appellate Division and never presented any of her habeas claims to the New
Jersey Supreme Court. Respondents additionally assert that because Petitioner’s ineffective
assistance of counsel claim is premised, in part, on factual allegations that cannot be resolved based
solely on the trial record, this specific claim could only be exhausted during PCR proceedings.
(Id. at PageID: 1455-59.) Respondents further aver that it is uncertain that the New Jersey courts
would find that Petitioner is currently foreclosed from pursuing PCR relief in the state courts. (Id.)
Respondents argue that Petitioner’s failure to pursue this claim via PCR proceedings in the state
courts presents an additional reason for this Court to find that Petitioner has failed to exhaust all
available state court remedies prior to filing her current habeas petition. (Id.) The Court agrees.
III.
LEGAL STANDARD AND ANALYSIS
A. Exhaustion of State Court Remedies
A federal court may consider a habeas petition filed by a state prisoner who “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A
federal court may not, however, grant a writ of habeas corpus under § 2254 unless that prisoner
has exhausted her state court remedies as to each of the issues presented in her habeas petition. 28
7
U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982). This exhaustion requirement
“is designed to give the state courts a full and fair opportunity to resolve federal constitutional
claims before these claims are presented to the federal courts.” 2 O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); accord Baldwin v. Reese, 541 U.S. 27, 29 (2004) (indicating that a state prisoner
must exhaust his available state remedies before seeking federal habeas relief); Newton v. Phelps,
943 F. Supp. 2d 494, 499 (D. Del. 2013) (“[o]ne prerequisite to federal habeas review is that a
petitioner must exhaust all remedies available in the state courts.”) (citing 28 U.S.C. § 2254(b)(1)).
“A petitioner satisfies [this] exhaustion requirement by ‘fairly presenting’ the substance of
the federal habeas claim to the state’s highest court, either on direct appeal or in a post-conviction
proceeding, and in a procedural manner permitting the state courts to consider it on the merits.”
Garvey v. Phelps, 840 F. Supp. 2d 782, 785 (D. Del. 2012); see also Duncan v. Henry, 513 U.S.
364, 365 (1995); Castille v. Peoples, 489 U.S. 346, 351 (1989); Lambert v. Blackwell, 134 F.3d
506, 513 (3d Cir. 1997). In other words, a petitioner must pursue his federal habeas claims in a
procedurally appropriate manner in “the highest state court before bringing them in federal court.”
Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295
F.3d 361, 369 (3d Cir. 2002) (quoting Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002))).
Consistent with the foregoing:
A petitioner exhausts state remedies by presenting federal
constitutional claims to each level of the state courts empowered to
hear those claims, either on direct appeal or in collateral post2
“This [exhaustion] requirement ensures that state courts have an initial opportunity to pass upon
and correct alleged violations of prisoners’ federal rights.” Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting
Duckworth v. Serrano, 454 U.S. 1, 3 (1981))); see also Werts v. Vaughn, 228 F.3d 178, 192 (3d
Cir. 2000); McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). “Exhaustion also has the
practical effect of permitting development of a complete factual record in state court, to aid the
federal courts in their review.” King v. Ortiz, No. 3:06-cv-6228 (MLC), 2008 WL 352863, at *2
(D.N.J. Feb. 7, 2008) (citing Lundy, 455 U.S. at 519).
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conviction proceedings. See, e.g., [O’Sullivan, 526 U.S. at 838]
(“requiring state prisoners [in order to fully exhaust their claims] to
file petitions for discretionary review when that review is part of the
ordinary appellate review procedure in the State”); [Lambert, 134
F.3d at 513] (collateral attack in state court is not required if
petitioner’s claim has been considered on direct appeal); 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.”). Once a
petitioner’s federal claims have been fairly presented to the state’s
highest court, the exhaustion requirement is satisfied. Picard v.
Connor, 404 U.S. 270, 275 (1971); [Castille, 489 U.S. at 350].
The petitioner generally bears the burden to prove all facts
establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d
Cir. 1993). . . .
Where any available procedure remains for the applicant to raise the
question presented in the state courts, the applicant has not
exhausted the available remedies. 28 U.S.C. § 2254(c).
Moreover, the exhaustion doctrine is a “total” exhaustion rule. That
is, “a district court must dismiss habeas petitions containing both
unexhausted and exhausted claims[, i.e., mixed petitions]” Lundy,
455 U.S. at 522.
King v. Ortiz, 2008 WL 352863, at *2 (D.N.J. Feb. 7, 2008).
B. All of Petitioner’s Habeas Claims Remain Unexhausted
Here, the record makes clear that the Appellate Division dismissed Petitioner’s direct
appeal in 2012 after she failed to address the numerous filing deficiencies highlighted by that
Court, and subsequently denied Petitioner’s February 2015 request to reinstate her appeal. It is
undisputed that Petitioner failed to appeal either of these rulings to the New Jersey Supreme Court.
As such, Petitioner has not yet presented any of the claims now being advanced to each level of
the state courts empowered to hear those claims. Petitioner’s failure to do so precludes this Court
from considering the merits of any of her habeas claims at this time. See Juarez v. Woodford, No.
C 01-4172 PJH (PR), 2002 WL 1677719, at *1 (N.D. Cal. July 22, 2002) (dismissing § 2254
9
petition as unexhausted where “at the time [petitioner’s § 2254] petition was filed he had not
presented his present claims to the highest state court available, the Supreme Court of
California.”); accord McLaughlin v. Shannon, 454 F. App’x 83, 86 (3d Cir. 2011) (Lundy
“prevent[s] review of unexhausted habeas claims . . .”) (citing Urcinoli v. Cathel, 546 F.3d 269,
276 (3d Cir. 2008)); Aruanno v. Sherrer, 277 F. App’x 155, 156 (3d Cir. 2008) (habeas petitioner’s
state court conviction “became final for federal habeas filing purposes . . . after the state supreme
court denied review of his direct appeal.”) (emphasis added) (citing 28 U.S.C. § 224(d)(1)(A));
Newton, 943 F. Supp. 2d at 502 (“[P]etitioner’s failure to appeal the Superior Court’s [relevant
rulings] to the Delaware Supreme Court means that he did not exhaust state remedies for the
claim.”); Pombrio v. Hense, 631 F. Supp. 2d 1247, 1253 (C.D. Cal. 2009) (“because the claims
alleged in the Petition were presented in a procedurally defective manner in which their merits
were not considered [by the California Supreme Court], Petitioner’s claims are unexhausted for
federal habeas purposes.”); McClain v. Duckworth, 569 F. Supp. 840, 842 (N.D. Ind. 1983) (“this
court declines to hold that petitioner’s ‘shotgun’ approach to filing numerous [and variously
captioned] pleadings among different state and federal courts constitutes compliance with the
statutory mandate of exhaustion.”).
With respect to Petitioner’s ineffective assistance of counsel claim, in addition to her
failure to exhaust that claim before the New Jersey courts, Petitioner also failed to pursue this
claim through New Jersey’s separate PCR mechanism. Many of the allegations in support of that
claim could only be appropriately resolved during PCR proceedings. As the Third Circuit has
observed:
“Ineffective-assistance-of-counsel claims are particularly suited for
post-conviction review because they often cannot reasonably be
raised in a prior proceeding.” [State v. Preciose, 609 A.2d 1280,
1285 (N.J. 1992)]. . . . [The Preciose] Court emphasized its “general
10
policy against entertaining ineffective-assistance-of-counsel claims
on direct appeal because such claims involve allegations and
evidence that lie outside the trial record.” Id. . . .
There is no explicit statement in Preciose or the New Jersey Rules
of Court that requires a defendant to pursue his ineffective assistance
claims in the post-conviction setting. N.J.R. § 3:22-1 (“Any person
convicted of a crime may, pursuant to this rule, file ... a petition for
post-conviction relief....”). However, the expected procedure is
clear: Where evidence outside the record is required to prove
ineffective assistance claims, such claims are to be pursued post
conviction. See State v. Castagna, 187 N.J. 293, 901 A.2d 363, 376
(2006) (“[W]e cannot determine whether D’Amico had agreed in
advance with defense counsel’s trial strategy. . . . If D’Amico had
agreed in advance with defense counsel’s trial strategy, then defense
counsel’s conduct was not plainly ineffective. The answers to these
questions lie outside the record and must await a post-conviction
relief petition.”) . . . .
A number of New Jersey courts have followed the presumption in
Preciose that where the factual record as to ineffective assistance is
insufficient on direct appeal, the defendant has the right to raise that
claim again in post-conviction proceedings where the necessary
facts can be explored[.]
Ellison v. Rogers, 484 F.3d 658, 660-61 (3d Cir. 2007)
Consistent with Ellison and Preciose, the Court finds that Petitioner’s trial did not produce
an “adequately developed record to support [Petitioner’s ineffective assistance of counsel] claims.”
Id. at 661. Petitioner’s claims are similar to those made in Ellison: “[Petitioner claims via her
current habeas petition] that [her attorney] . . .conspired with the prosecutor[,] . . . that perjured
testimony was used against [her], [that she] was selectively prosecuted, and that exculpatory
evidence was not disclosed.” Ellison, 484 F.3d at 660-61. Thus, “[p]roof of these claims lies
outside of the trial record and would require an evidentiary hearing [which] would have properly
been conducted following a petition for post-conviction relief.” Id. The Court therefore finds
additional support for its dismissal of Petitioner’s habeas petition as unexhausted because
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“[Petitioner] did not exhaust [these additional PCR] remedies under state law [with respect to her
ineffective assistance of counsel claim.]” Id. Indeed, as the King court noted:
[Petitioner] could have raised [her] ineffective assistance of counsel
claim in state court by way of a state PCR petition. [Petitioner] did
not do so, and [she] does not suggest that [she] filed in this Court
out of confusion or is pursuing [her] unexhausted claim in state court
contemporaneously with this action to avoid delay. . . . [nor has she
requested] that this Court stay [her] petition [while she pursues that
claim in state court.]
King, 2008 WL 352863, at *5. “Accordingly, the Court is constrained to dismiss the entire petition
for failure to exhaust as required under 28 U.S.C. § 2254.” Id. at *5 (citing Lundy, 455 U.S. at
510).
C. This Court Is Presently Unable to Conclude That Petitioner’s Claims Are
Procedurally Barred
The Court recognizes that “[w]hen a claim is not exhausted because it has not been ‘fairly
presented’ to the state courts, but state procedural rules bar the applicant from seeking further relief
in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available
State corrective process.’” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (citing 28
U.S.C. § 2254(b)). “In such cases . . . applicants are considered to have procedurally defaulted
their claims and federal courts may not consider the merits of such claims unless the applicant
establishes ‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her
default.” 3 McCandless, 172 F.3d at 260 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
That said, “if a possibility remains that the [state’s highest court] will consider [a habeas] claim,
3
To demonstrate cause for a procedural default, a petitioner must show that “some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must
show that the errors during her trial created more than a possibility of prejudice; she must show
that the errors “worked to [her] actual and substantial disadvantage, infecting [her] entire trial with
error of constitutional dimensions.” Id. at 494.
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then [that claim] is unexhausted and [should instead] be dismissed [without prejudice].” Pombrio,
631 F. Supp. 2d at 1251; accord Marchand v. Tyson, 560 F. Supp. 882, 885 (N.D. Ind. 1983) (“It
is not for this Court to weigh the relative likelihood of success petitioner's post-conviction filing
might meet in state court; so long as petitioner is afforded a post-conviction vehicle by which to
present the issues now before this Court to the state courts first, the petition must be dismissed for
failure to exhaust.”).
While this Court believes it is unlikely that the New Jersey Supreme Court will consider
the merits of the claims advanced in Petitioner’s direct appeal at this juncture, in the absence of
any express ruling from that court, this Court is unable to definitively conclude that Petitioner’s
habeas claims are procedurally barred at this time. Mathis v. Attorney Gen. of New Jersey, --- F.
App’x ---, 2018 WL 1904818, at *3 (3d Cir. Apr. 23, 2018) (“‘[W]e will not presume how the
state courts would rule on’ procedural default and, rather than dismissing with prejudice on that
ground, will merely ‘dismiss[ ] . . . without prejudice for failure to exhaust state remedies.’”) (citing
Toulson, 987 F.2d at 989); see also Lines v. Larkins, 208 F.3d at 153, 159-60 (3d Cir. 2000).
Similarly, with respect to Petitioner’s failure to pursue her ineffective assistance of counsel claim
in separate PCR proceedings, the Court notes that “New Jersey’s limitation period for filing PCR
petitions in non-capital cases is ‘5 years after rendition of the judgment or sentence sought to be
attacked unless it alleges facts showing that the delay beyond said time was due to defendant’s
excusable neglect.’” Aruanno, 277 F. App’x at 156 (citing N.J. Court R. 3:22-12(a)). Again, the
Court will not interject its own findings on the timeliness of such a petition where Petitioner has
never attempted to pursue post-conviction relief in the New Jersey courts prior to filing her habeas
petition in this Court. Mathis, 2018 WL 1904818, at *3 n.5 (noting that because New Jersey’s
five-year limitation to initiate PCR proceedings “is sometimes relaxed by the state courts, . . . it is
13
best for the state courts to make those determinations in the first instance.”) (citing Toulson, 987
F.2d at 989).
In sum, Petitioner’s habeas petition is unexhausted because Petitioner has not fairly
presented any of her habeas claims to the New Jersey Supreme Court. Pombrio, 631 F. Supp. 2d
at 1253. As such, her habeas petition is dismissed without prejudice. Mathis, 2018 WL 1904818,
at *3 (finding that non-prejudicial dismissal of habeas petition appropriate where neither party
claimed that petitioner had no further remedies in the state courts and where the state never
previously relied on a procedural rule in earlier proceedings to prevent review of a habeas claim).
If Petitioner does properly exhaust her claims in the future, she may at that time file a new habeas
petition in this Court. 4
D. Certificate of Appealability
A petitioner may not appeal from a final order in a habeas proceeding where that
petitioner’s detention arises out of her state court conviction unless she has “made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). “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 that the issues presented here are adequate
4
This Court expresses no opinion on whether this action is timely or not, or whether any
subsequent federal petition filed by Petitioner will be timely or time-barred. This Court does note,
however, that any subsequent federal habeas petition which Petitioner may file will be a new and
separate habeas petition, which will not relate back to the filing date of the current petition.
Pombrio, 631 F. Supp. 2d at 1253 n.2. The Court emphasizes that Petitioner’s habeas petition
remains fully unexhausted and that Petitioner has not sought to avail herself of the stay-andabeyance procedure detailed in Rhines v. Weber, 544 U.S. 269 (2005). Instead, Petitioner claims
that this Court should rule on the substance of her habeas claims because additional pursuit of her
still-unexhausted state court remedies would be futile. (See Am. Pet., ECF No. 4 at PageID: 143.)
This Court is likewise unable to independently find that Petitioner has otherwise “satisfied the
three requirements for a stay as laid out in Rhines: good cause, potentially meritorious claims, and
a lack of intentionally dilatory litigation tactics.” Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir.
2009) (citing Rhines, 544 U.S. at 278).
14
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
As jurists of reason could not disagree with this Court’s resolution, the Court shall deny Petitioner
a certificate of appealability.
IV.
CONCLUSION
For the reasons stated above, Petitioner’s amended habeas petition will be dismissed
without prejudice. A certificate of appealability shall not issue. An accompanying Order will be
entered.
August 8, 2018
Date
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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