SHEPPARD v. POWELL et al

Filing 5

MEMORANDUM OPINION. Signed by Judge Esther Salas on 3/8/18. (sr, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
MARK C. SHEPPARD,
:
:
Civil Action No. 16-1091 (ES)
Petitioner,
:
:
v.
:
:
MEMORANDUM OPINION
JOHN POWELL,
:
:
Respondent.
:
____________________________________:
SALAS, DISTRICT JUDGE
It appearing that:
1. On February 5, 2016, Petitioner Mark C. Sheppard (“Petitioner”) filed a Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his 2011 conviction for weaponpossession charges. (D.E. No. 1, Petition (“Pet.”)). His Petition raises only one ground for relief:
Whether a citizen’s constitutional protections against unreasonable search
of his home are violated when law enforcement relies on the emergency aid
exception to the warrant requirement while its actions demonstrate neither
an emergency nor exigency.
(Id. ¶ 12).
2. When he filed his Petition, it appeared that Petitioner was not “in custody” pursuant to
the 2011 conviction he is challenging. (See D.E. No. 1-1). As a result, the Court entered an
Order requiring Petitioner to show cause why the Petition should not be dismissed for failing to
meet the “in custody” requirement of Section 2254. (See D.E. No. 2).
3. In his Response to the Court’s Order, Petitioner argues that he is “still effectively in
custody pursuant to the judgement of a state court as he is being held on home custody with
electronic monitoring while out on bail awaiting trial on the previously reversed convictions

toward which habeas corpus relief is sought.” (D.E. No. 4, Petitioner’s Response (“Response”) ¶
1). Petitioner further states that the Petition is “not directed solely at the formerly completed
sentence but rather at the potential of future penalties being imposed from matters involving an
actual ongoing case over which there remains considerable controversy.” (Id. ¶ 2).
4. Based on Petitioner’s response, the exact procedural posture of his criminal convictions
is unclear. However, the Appellate Division provides some clarity in its opinion addressing
Petitioner’s direct appeal:
On December 4, 2009, a Bergen County grand jury returned an eight-count
indictment against defendant, charging him with first-degree attempted
murder, N.J.S.A. 2C:11–3 and N.J.S.A. 2C:5–1 (count one); second-degree
aggravated assault, N.J.S.A. 2C:12–1(b)(1) (count two); third-degree
aggravated assault, N.J.S.A. 2C:12–1(b)(2) (count three); third-degree
possession of a weapon (a knife) for unlawful purposes, N.J.S.A. 2C:39–
4(d) (count four); fourth-degree tampering with physical evidence, N.J.S.A.
2C:28–6(2) (count five); third-degree hindering apprehension, N.J.S.A.
2C:29–3(b)(1) (count six); second-degree possession of a weapon (a
handgun) by a previously convicted felon, N.J.S.A. 2C:39–7(b) (count
seven); and fourth-degree possession of weapons (switchblade knives) by a
previously convicted felon, N.J.S.A. 2C:39–7(a) (count eight). The trial
court granted defendant's motion to sever counts seven and eight for a
separate trial. Twenty-two months after the stabbing incident and less than
two months before trial, defendant filed a notice of claim of self-defense.
…
On July 18, 2011, the jury returned its verdict, finding defendant not guilty
of attempted murder, under count one, but guilty of second- and thirddegree aggravated assault, unlawful possession of a weapon, evidence
tampering, and hindering apprehension, under the remaining counts. After
merger, the judge sentenced defendant on the second-degree aggravatedassault conviction to the maximum term of ten years of imprisonment,
subject to an eighty-five percent parole disqualifier under the No Early
Release Act (NERA), N.J.S.A. 2C:43–7.2. On the tampering-withevidence conviction, the judge sentenced defendant to an eighteen-month
term of imprisonment, and on the conviction of hindering apprehension,
defendant received a five-year term of imprisonment, both terms
consecutive to the sentence for aggravated assault.
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On April 17, 2012, defendant pled guilty to the severed weapon-possession
charges, pursuant to a plea agreement, and received a sentence of five years
of imprisonment, to run concurrently with the prison terms imposed on
October 7, 2011. As part of his plea agreement, defendant reserved the
right to appeal the denial of his suppression motion as well as the court's
denial of certain jail credits.
State v. Sheppard, 97 A.3d 699, 703 (N.J. Super. Ct. App. Div. 2014).
5. On direct appeal, the Appellate Division affirmed the denial of the suppression motion,
and Petitioner’s judgment of conviction on the weapon-possession charges.

Id. at 709.

However, with regard to the conviction for aggravated assault and all related charges, the Appellate
Division reversed and remanded for a new trial. Id. at 719.
6. Though it is not clear, it appears that Petitioner is challenging the conviction for
weapons possession and resulting five-year sentence, as that was the only valid conviction at the
time he filed his Petition. (Pet. ¶ 3.) Even if the Court were to assume that Petitioner was “in
custody” on that conviction at the time he filed the instant Petition, Petitioner is nevertheless not
entitled to habeas relief.
7. The only ground for relief raised in the Petition is a violation of his Fourth Amendment
rights when the police entered his residence without a warrant. However, such a claim is not
viable in a federal habeas petition. In Stone v. Powell, the U.S. Supreme Court held that “where
the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a
state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. 465, 494 (1976).
Here, the state trial court held a hearing on Petitioner’s Fourth Amendment claim, and denied the
motion to suppress. State v. Sheppard, 97 A.3d 699, 708 (N.J. Super. Ct. App. Div. 2014). The

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Appellate Division affirmed the trial court’s ruling, see id., and the New Jersey Supreme Court
denied certification, State v. Sheppard, 110 A.3d 932 (N.J. 2015). Thus, Petitioner had the
opportunity to fully and fairly litigate his Fourth Amendment claim and federal habeas review is
unavailable.
8. Pursuant to 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 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.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Thus, no certificate of appealability shall issue.
9. For the above reasons, the § 2254 habeas petition is denied, and a certificate of
appealability will not issue. An appropriate Order follows.

s/Esther Salas
Esther Salas, U.S.D.J

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