TRAINER v. NOGAN et al

Filing 17

OPINION. Signed by Chief Judge Jose L. Linares on 10/19/17. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STEVEN TRANER,

:

Civil Action No.: 16-1576 (JLL)

Petitioner,
OPINION

v.

PATRICK NOGAN, et al.,
Respondents.

LINARES, Chief District Judge:

Presently before the Court is the petition for a writ of habeas
(“Petitioner”) brought pursuant to 28 U.S.C.

corpus

of Steven Trainer

§ 2254 challenging Petitioner’s state court conviction

(ECF No. 1). Following the denial of their motion to dismiss the petition as time barred (see ECF

Nos. 4-8), Respondents filed a response to the petition (ECF No. 9), to which Petitioner has replied.
(ECF No. 16). For the following reasons, this Court will dismiss the petition without prejudice as
unexhausted and will deny Petitioner a certificate of appealability.

I. BACKGROUND

On May 24, 2012, Petitioner, Steven Trainer, pled guilty pursuant to a plea agreement to
two counts of second degree robbery in violation of N.J. Stat. Ann.
third degree theft by unlawful taking in violation of N.J. Stat. Ann.
of New Jersey

—

Law Division, Bergen County.

§ 2C:15-1 and one count of

§ 2C:20-3 in the Superior Court

(Document 3 attached to ECF No. 9 at 1).

Following his guilty plea, but before he was sentenced, Petitioner filed a pro se motion in which
he sought to withdraw his guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009) (motions to

withdraw a guilty plea can be granted only where warranted by a balancing of four factors

—

whether a colorable claim of innocence has been made, the nature and strength of the reason for
withdrawal, the existence of a plea bargain, and whether withdrawal would cause undue prejudice
to the state). (See Document 9 attached to ECf No. 9). The chief basis of Petitioner’s motion to
withdraw his plea was his assertion that his plea counsel had been constitutionally ineffective by
failing to investigate Petitioner’s criminal case, failing to file a motion to suppress Petitioner’s
statement to police, failing to file a motion to suppress evidence seized from Petitioner and his
vehicle, and by failing to file a motion to dismiss certain counts of Plaintiff indictment.
(Document 5 attached to ECF No. 9 at 3 4-49).
On January 11, 2013, Petitioner’s trial judge held a hearing on Petitioner’s motion to
withdraw his guilty plea.’ (Document 9 attached to ECf No. 9). At that hearing, both Petitioner
and his plea counsel testified. (Id.). At the hearing, Petitioner’s counsel generally testified that he
had had extensive meetings and discussions with Petitioner, that he had discussed the motions and
investigated Petitioner’s assertions and concluded that, while Petitioner’s motions were not
without merit, those motions were ultimately unlikely to succeed. (Id. at 77-86). Counsel further
testified that he explained this to Petitioner, and recommended that they negotiate a plea deal.
(Id.). Counsel also stated that while Petitioner at times was not interested in pursuing a plea prior

to a decision on his motions, he ultimately agreed to the plea deal after counsel explained to him
that the negotiated plea offer of a nine year sentence would be withdrawn if Petitioner insisted on
having his motions ruled upon prior to the entry of a guilty plea. (Id.). Counsel ultimately
therefore testified that Petitioner understood that his motions were unlikely to succeed and would

Although Petitioner filed his motion pro se, he was appointed advisory counsel for the hearing
on his motion, and both he and advisory cocinsel acted on his behalf in a hybrid fashion at the
hearing. (See Document 9 attached to ECF No. 9).
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result in the loss of a favorable plea deal, and thus chose to accept the plea rather than risk a
considerably longer sentence after trial. (Id.).
Based on the testimony at the hearing, the trial judge issued a final decision denying
Petitioner’s motion to withdraw his guilty plea on the record on January 29, 2013. (Document 10
attached to ECf No. 9). In that decision, the trial court concluded that, based on plea counsel’s
highly credible testimony, there was no evidence of ineffective assistance of counsel as counsel
had met with Petitioner extensively, advised him that it was in his best interests to plead guilty
rather than pursue his motions, and that Petitioner had agreed with that course of action. (Id. at 627). Because the trial court found no ineffective assistance of counsel, the court in turn concluded
that Petitioner had failed to show that any of the Slater factors weighed in favor of permitting him
to withdraw his guilty plea, and thus denied Petitioner’s motion. (Id.). The Court thereafter
sentenced Petitioner to a concurrent nine year prison term on the charges to which he pled guilty
on that same day, January 29, 2013. (Id.; see also Document 3 attached to ECF No. 9 at 1).
Petitioner then requested that the public defender file an appeal on his behalf. (Document
5 attached to ECF No. 9 at 80). The public defender then filed a timely notice of appeal on
Petitioner’s behalf on April 5, 2013. (Id. at 81). In its appellate documents, however, the public
defender indicated that Petitioner sought only to appeal his sentence, and Petitioner’s appeal was
docketed on the Superior Court of New Jersey Appellate Division’s Excessive Sentence calendar.
-

(Id. at 82). In May 2013, Petitioner sought to file an out-of-time notice of appeal raising additional
claims

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specifically a challenge to the trial court’s finding that Petitioner had failed to show

ineffective assistance of counsel. (Id. at 84-85). The Appellate Division clerk’s office, however,
rejected that second notice of appeal and returned it to Petitioner unfiled as Petitioner already had

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a docketed appeal, and that any filings should be made in that matter, not through a second out of
time notice to appeal. (Id. at 86).
following discussions with his appellate counsel, Petitioner sent a letter to appellate
counsel in September 2013, requesting that his appeal be moved from the Excessive Sentence
calendar, which provided only an opportunity to argue the impropriety of Petitioner’s sentence
without frill briefing, to a plenary appeal calendar so Petitioner’s ineffective assistance claims
could be heard by the Appellate Division following full briefing. (Id. at 27-92). Petitioner also
attempted to file apro se motion with the Appellate Division requesting his appeal be moved to a
plenary calendar so that briefing could be conducted and so that Petitioner could amend his appeal
to raise his ineffective assistance claims. (Id. at 93-95).
On September 25, 2013, Petitioner’s appellate counsel appeared before the Appellate
Division for the Excessive Sentence argument on Petitioner’s appeal. (Id. at 96). At that argument,
the following colloquy took place between Judge Fuentes of the Appellate Division and
Petitioner’s appellate counsel:
JUDGE FUENTES: State v. Trainer, it must be the day for
ineffective assistance of counsel in the [Excessive Sentence]
calendar.
[Counsel]: Yes, it is, Your Honor.

.

Where do I begin with [Petitioner]? [Petitioner] filed a pro
se motion to withdraw his plea before sentencing. On September
4th I had over an hour video conference with [Petitioner] and I
thought we had agreed that since that’s what he filed and that’s what
the judge heard and decided that we should argue the appeal on that
basis. The problem is that this is some sort of a hybrid proceeding.
And the way I view it is that [Petitioner] in his motion to
withdraw the plea used as the second factor for Slater [a claim of]
ineffective assistance of counsel, which I have explained to him and
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he agrees whether he agrees or not is not the point but that this
ineffective
Court is not here to decide whethei- there’s been
assistance of counsel. Now yesterday in the morning’s mail I got a
certified letter from [Petitioner] in which he says this is not a Slater
issue. This is ineffective assistance of counsel. Now his request,
which I don’t join in, is that this case should go directly from this
Court to the plenary calendar and have a plenary appeal.
—

—

...

JUDGE FUENTES: On [post-conviction relief petition (“PCR”)] he
never filed?
[Counsel]: On what ought to be a PCR, but he didn’t have PCR
counsel. He made arguments which we normally would hear on a
PCR, but nothing was briefed. So I don’t know that it’s in his best
interest, even if this Court would agree to do that, because I don’t
think there’s a record for the Court to decide on ineffective
assistance of counsel. Now, what we do have is about a 125-page
transcript of what appears to be, for all intents and purposes, an
evidentiary hearing in a post-conviction relief case.
JUDGE FUENTES: You mean in the Slater motion?
[Counsel]: In the S/titer motion, Judge. So that would be how they
a frill hearing and heard from his former attorney. There was a
public defender there who represented [Petitioner]. And the judge
actually did make findings that there was no ineffective assistance
of counsel in this case and then ruled that none of the Slater factors
were met.

—

So this I spoke at length with the prosecutor and I think
what needs to be done in one of two ways, either that this Court
decides it can’t hear the appeal because it’s ineffective assistance of
counsel and suggests that maybe the way to go is post-conviction
relief, or the Court decides the Slater appeal based upon the record
it has, at which point the next step is for [Petitioner to file for] postconviction relief. I think one way or the other that’s where he’s
headed.
—

JUDGE FUENTES: Correct me if I’m wrong, but it seems to me
that it would be beneficial to your client not to pursue this appeal
because if the trial judge in the process of determining a Siciter
motion made a finding about the effectiveness of counsel he may be
from challenging that in a PCR case. There could be
precluded
issue [if the Appellate Division were to
some kind of estoppel
review the S/titer issue].
...

.

.

.

5

[Counsel]: I have made that point to him and yet his request as of
yesterday was this ought to be a plenary appeal. In the fullness of
time he may be right. I don’t think this is the time.
(Id. at 98-101). following this colloquy, the Appellate Division affirmed Petitioner’s sentence
under Excessive Sentence Calendar procedures without reaching the Slater or ineffective
assistance of counsel issues, but in so doing expressly stated that any decision on Petitioner’s
appeal was “without prejudice” to Petitioner’s “filing an application for post-conviction relief’ so
that he could raise his ineffective assistance of counsel claims in the correct forming with full
briefing and a full record. (See Document 4 attached to ECf No. 9).
Unhappy with the Appellate Division’s refusal to hear his ineffective assistance claims
without full briefing and a PCR record, Petitioner thereafter filed a petition for certification.
(Document 9 attached to ECF No. 5 at 1-20). Essentially, Petitionei- argued in his certification
petition that the Appellate Division erred in refusing to transfer his appeal to a plenary hearing and
that he had in any rate been denied his Due Process rights by the Appellate Division’s refusal to
hear his ineffective assistance claims prior to the filing and litigation of a PCR petition. (Id.). The
New Jersey Supreme Court, without comment on Petitioner’s arguments, denied Petitioner’s
certification petition on September 9, 2014. (Document 6 attached to ECF No. 9). Petitioner
thereafter filed a motion for reconsideration, which the New Jersey Supreme Court denied without
comment on December 15, 2014. (Document 7 attached to ECf No. 9). Petitioner did not seek
certiorari, and instead file his present habeas petition in this Court on or about February 7, 2016,
raising three claims of ineffective assistance of counsel arising out of counsel’s failure to file three
pre-trial motions. (ECF No. 1).

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II. DISCUSSION
A. Legal Standard

Under 2$ U.S.C.

§

2254(a), the district court “shall entertain an application for a writ of

habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d $37, $46 (3d Cir. 2013); see also Parker v. Matthews,

---

U.S.

---,

---,132 S. Ct. 214$,

2151(2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty

Act, 2$ U.S.C.

§ 2244 (“AEDPA”), district courts are required to give great deference to the

determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpits unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
2$ U.S.C.

§ 2254(d)(l)-(2). Federal law is clearly established for these purposes where it is clearly

expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald,

---

U.S.

---,

---,

125 5. Ct. 1372, 1376 (2015). “When

reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute

7

that they were wrong.”

Id.

Where a petitioner challenges an allegedly erroneous factual

determination of the state courts. “a determination of a factual issue made by a State court shall be
presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

B. Analysis

Respondents argue that Petitioner’s habeas petition must be dismissed as his claims have
not been frilly exhausted in the state courts. Pursuant to 2$ U.S.C.

§ 2254(b)(1), habeas relief may

not be granted to an individual confined pursuant to an order of the state courts unless the petitioner
has “exhausted the remedies available in the courts of the State,” there is an absence of process in
the state courts, or there are circumstances which render the state process ineffective. A petitioner
generally satisfies this exhaustion requirement by fairly presenting his claims to the highest level
of the state courts. See Picard v. Connor, 404 U.S. 270, 275 (1971); Tinslev

1’.

Johnson, No. 10-

3365, 2011 WL 5869605, at *3 (D.N.J. Nov. 22, 2011). Where the state appellate courts have not
yet ruled on a petitioner’s claims. see Castille v. Peoples, 489 U.S. 346, 350 (1989). and “any
available procedure remains for the [petitioner] to raise the question presented in the courts of the
state, the applicant has
see also 2$ U.S.C.

not

exhausted the available remedies.” Tinsley, 2011 WL 5869605 at *3;

§ 2254(c). A New Jersey state prisoner can therefore satisfy the exhaustion

requirement only by fairly presenting his claims to the Superior Court of New Jersey, Law and
Appellate Divisions, and to the New Jersey Supreme Court.” Ragland v. Barnes, No. 14-7924,
2015 WL 1035428, at y3 (D.N.J. March 10, 2015). It is likewise not sufficient that a petitioner
has merely “been through the state courts,” a claim will only be said to have been fairly presented,

and thus properly exhausted, where the state courts had the “opportunity to hear the claim sought

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be vindicated.” Picard, 404 U.S. at 276. A claim is not “fairly presented” sufficient to satisfy the
exhaustion requirement where some available process remains and the claim was only presented
to the state appellate courts “in a procedural context in which its merits will not be considered.”
Castille, 489 U.S. at 351.
In this matter, Petitioner presents three ineffective assistance of counsel claims which he
appears to have raised in the state trial court, albeit in the fonu of bases for the withdrawal of his

guilty plea pursuant to Stater rather than as separate, stand-alone claims. Even assuming argttendo
that this was sufficient to satisfy trial level exhaustion, Petitioner’s claims were never fairly
presented to the Appellate Division or New Jersey Supreme Court. This is apparent from the
Appellate Division record. Both Petitioner’s notice of appeal and other court documents filed by
his appellate counsel indicated that Petitioner sought in his appeal only to challenge his sentence,
resulting in his claims being placed on an excessive sentence oral argument only calendar date by
the Appellate Division. It was only shortly before that argument date that Petitioner sought to add
his ineffective assistance claims to his appeal by moving the Appellate Division to transfer his
appeal to a plenary calendar, a motion in which his appellate counsel did not join. Both the
Appellate Division judges and Petitioner’s own appellate counsel expressly stated during the
colloquy quoted above that it would be better for the Appellate Division to deny that motion and
decline to hear Petitioner’s ineffective assistance claims because those claims would be more
properly brought through a petition for post-conviction relief.

Likewise, when Petitioner

challenged the Appellate Division’s decision to decline to hear Petitioner’s claims prior to a PCR
petition being filed, the New Jersey Supreme Court rejected that challenge by denying certification
and rejecting Petitioner’s reconsideration motion. It is thus clear that, at best, Petitioner attempted
to present his claims to the state appellate courts “in a procedtiral context in which [their] merits

9

[would] not be considered” as those claims should have been brought via a PCR

petition

and an

appeal therefrom, and as such he failed to fairly present his claims to all three levels of the state
courts. CastE/c, 489 U.S. at 351.
Petitioner

—

Likewise, some state court procedure remains available to

the filing and pursuit of a PCR petition. As some procedure remains available, and

the state appellate courts have yet to rule on the merits of Petitioner’s claims, Petitioner’s claims
are all unexhausted.
Because this Court has determined that Petitioner’s claims are unexhausted, this Court is
faced with four options: “(1) dismiss the petition without prejudice; (2) stay the proceedings and
hold them in abeyance until the claims are exhausted; (3) allow [Petitioner] to delete his
unexhausted claims [and proceed on any exhausted claims presented in the petition]; and (4) deny
the petition if [the District Court] found all of [Petitioner’s] unexhausted claims to be meritless
under

§ 2254(b)(2).” Malloiy v. Bicketi, 563 F. App’x 212, 215 (3d Cir. 2014) (citing Rhines

i;.

Weber, 544 U.S. 269, 274-78 (2005)). Because the Court cannot conclusively determine the merits

of Petitioner’s claims on the limited record available in light of the procedure through which
Petitioner’s claii-ns were originally raised, and because none of Petitioner’s claims are exhausted,
this Court can neither permit Petitioner to stand on his exhausted claims —as he has none
cannot reach the merits of his claims at this time. Thus, the Court has only

two options

—

and

—dismiss

the petition without prejudice as unexhausted or permit Petitioner to request that this matter be
stayed and held in abeyance until such time as he exhausts his claims through the filing of a PCR
petition

in the state courts. Id.
A

district

court may only grant a stay of an unexhausted or mixed petition in “limited

circumstances.” Rhines, 544 U.S. at 277. Specifically, the petitioner must have “good cause for
his failure to exhaust, his unexhausted claims [must be] potentially meritorious, and there [can be]

10

no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278.

Even where these requirements are met, a stay will generally only be warranted in those cases
where a dismissal of the petition without prejudice would result in the petitioner being unable to
timely file his habeas

petition.

See Crews v. Horn, 360 F.3d 146, 152 (3d Cir. 2004) (“where an

outright dismissal could jeopardize the timeliness of a collateral attack” a stay is appropriate);
Williams v. Walsh, 411 F. App’x 459, 461 (3d Cir. 2011) (“[w]here the timeliness of a habeas
corpus petition is at issue

.

.

.

a District Court has discretion to stay” the petition); Ragland, 2015

WL 1035428 at *2.
Because any future habeas petition filed by Petitioner were the Court to dismiss his current
petition would likely be time barred, a stay of this matter may be warranted. As Petitioner has not,
despite having the opportunity to do so, sought a stay of his current habeas petition, this Court is
inclined to dismiss this matter without prejudice. As Petitioner may not have been aware of the
potential availability of the stay and abeyance procedure, however, this Court will penuit
Petitioner, within forty-five days, to file a request for a stay. Failure by Petitioner to file a request
for a stay within that thirty days, however, will result in this matter being dismissed.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “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
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

11

“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 jttrists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Stack v. McDaniel, 529 U.S. 473, 484 (2000). Because
jurists of reason could not disagree with this Court’s conclusion that Petitioner’s claims are
unexhausted, Petitioner is denied a certificate of appealability to the extent he may seek to
challenge this Court’s determination that his claims are unexhausted rather than request a stay.

IV. CONCLUSION
For the reasons stated above, this Court finds that Petitioner’s claims are unexhausted.
Petitioner is therefore ORDERED that he shall present any request he may have for a stay of this
matter pending exhaustion within forty-five days, failure by Petitioner to make a request for a stay
shall result in this matter being DISMISED WITHOUT PREJUDICE. In any event, Petitioner is
DENIED a certificate of appealability to the extent he wishes to challenge the Court’s
determination that his claims are unexhausted. An appropriate order follows.

JO E L. LINARES,
ief Judge, United States District Court

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