TYLER v. JOHNSON et al

Filing 12

MEMORANDUM AND ORDER denying 11 Motion to Stay the petition. Petitioner shall have 45 days from the date of the entry of this Order to submit a new motion for a stay that complies with Rhines v. Weber, 544 U.S. 269 (2005). If Petitioner fails t o submit for filing an amended 2254 petition within 45 days of the date of the entry of this Order, then this Court will consider Docket Entry #1 as Petitioner's one and only all-inclusive 2254 Petition, which may be subject to dismissal without prejudice for failure to exhaust state court remedies. Signed by Judge Madeline Cox Arleo on 10/31/17. (sr, )(N/M)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TORY TYLER,

Civil Action No. 16-5081(MCA)

Petitioner,
v.

MEMORANDUM AND ORDER

STEPHEN JOHNSON, et al.,
Respondents.

This matter has been opened to the Court by Petitioner’s filing of a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C.

§ 2254, and his subsequent filing of a motion for a stay to

exhaust certain unspecified claims in state court. (ECF Nos. 1, 10.) For the reasons explained in
the Memorandum and Order, the Court will deny Petitioner’s motion for a stay without prejudice
to his filing of a new motion for a stay within 45 days that complies with Rhines v. Weber, 544
U.S. 269 (2005).
Petitioner’s Petition was docketed on August 19, 2016. (ECF No. 1.) The form submitted
by Petitioner contains the required notice pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.
2000). (See Id. at 17.) By Order dated October 17, 2016, the Court directed Respondents to
answer the Petition. (ECF No. 3.) On February 3, 2017, Respondents filed their Answer,
arguing in relevant part that the Petition is subject to dismissal for failure to exhaust state court
remedies with respect to Grounds Three, Four, and Five. (ECF No. 10, Answer at 27.)
In response, Petitioner filed a motion for a stay, in which he states as follows:

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6. In filing my petition, some of my issues were not exhausted in
the State courts as stated in my petition.’
7. I still have other issues that are unexhausted in the State courts.
(ECF No, 1 1-1, Certification at ¶ 6-7.) It is not clear if Petitioner belatedly seeks to amend his
Petition to add additional unexhausted claims of if he seeks a stay to exhaust only Grounds
Three, Four, and Five. In any event, Petitioner provides no other facts about his unexhausted
claims.
Under The Antiterrorism Effective Death Penalty Act of 1996 (“AEDPA”), this Court
may not grant a writ of habeas corpus under 28 U.S.C.

§ 2254 unless the petitioner has exhausted

the remedies available in the courts of the State or exhaustion is excused under 28 U.S.C.

§

2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998); Lambert v.
Blackwell. 134 F.3d 506, 513 (3d Cir.1997): Toulson

V.

Beyer, 987 F.2d 984 (3d Cir. 1993). The

Exhaustion Doctrine requires a petitioner challenging a New Jersey conviction under

§ 2254 to

have fairly presented each federal ground that is raised in the petition to all three levels of the
New Jersey courts, that is, the Law Division, the Appellate Division, and the New Jersey
Supreme Court. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Rose v. Lundy, 455 U.S. 509
(1982). In addition, under AEDPA, except in extremely limited circumstances, the prisoner must
file this one all-inclusive

§

2254 petition within one year of the date on which the judgment of

conviction becomes final by the conclusion of direct review or the expiration of the time for
seeking such review. See 28 U.S.C.

§ 2244(d).

In Rhines v. Weber, the Supreme Court held that a district court has the authority to stay
a mixed

§ 2254 petition when a stay would be compatible with AEDPA’s purposes, Rhines, 544

U.S. at 276, and that “it likely would be an abuse of discretion for a district court to deny a stay

Petitioner’s Petition does not clearly indicate that any of his claims are unexhausted.
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and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics. In such circumstances, the district court
should stay, rather than dismiss, the mixed petition.” Id. at 278. See also Heleva v. Brooks, 581
F.3d 187 (3d Cir. 2009) (holding that stay-and-abeyance under Rhines standard also applies to a
request to stay a

§ 2254 petition which contains only unexhausted claims). The Rhines Court

explained:
If a petitioner files a timely but mixed petition in federal district
court, and the district court dismisses it under [Rose v. Lundy, 455
U.s. 509 (1982)] after the limitations period has expired, this will
likely mean the termination of any federal review. For example, if
the District Court in this case had dismissed the petition because it
contained unexhausted claims, AEDPA’s 1—year statute of
limitations would have barred Rhines from returning to federal
court after exhausting the previously unexhausted claims in state
court.
Rhines, 544 U.S. at 275.
Here, the Court will deny Petitioner’s motion for a stay without prejudice because
Petitioner has not met the requirements for a stay by showing (1) that his unexhausted claims are
potentially meritorious, (2) that he has good cause for failing to exhaust, and (3) the absence of
intentionally dilatory litigation tactics. As such, the Court will deny Petitioner’s motion for a
stay without prejudice to his filing of a new motion for a stay within 45 days that complies with
Rhines. The motion for a stay must clearly identify each unexhausted claim and show the
following: (1) that Petitioner’s unexhausted claims are potentially meritorious; (2) that he has
good cause for failing to exhaust; and (3) the absence of intentionally dilatory litigation tactics.
It is therefore on this

day of 1 2017,
:tiOiiJ

ORDERED that the motion (ECF No. 11) to stay the
WITHOUT PREJUDICE; and it is further

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§ 2254 Petition is DENIED

ORDERED that Petitioner has 45 days from the date of the entry of this Order to submit
a new motion for a stay that complies with Rhines v. Weber, 544 U.s. 269 (2005); and it is

further
ORDERED that, if Petitioner fails to submit for filing an amended

§ 2254 petition within

45 days of the date of the entry of this Order, then this Court will consider Docket Entry #1 as

Petitioner’s one and only all-inclusive

§ 2254 Petition, which may be subject to dismissal

without prejudice for failure to exhaust state court remedies; and it is finally
ORDERED that the Clerk shall serve this Order by regular mail upon Petitioner at the
address on file.

1j4aAv$

e

Madeline Cox Arleo, District Judge
United States District Court

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