SUAREZ v. JOHNSON et al
OPINION. Signed by Judge Kevin McNulty on 11/07/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 17-2767 (1(M)
KEVIN MCNULJTY. U.S.D.J.
The petitioner. William Suarez. is a state prisoner proceeding pro se with a petition for
writ of habeas corpus under 28 U.S.C.
§ 2254. Mr. Suarez now moves for a protective stay of the
case to allow him to exhaust some of his claims in state court. For the following reasons, this
motion will be granted.
BACKGROUND AND PLEADINGS
In 2006. Mr. Suarez was convicted in New Jersey Superior Court. Law Division. Union
County. of four criminal counts: first-degree murder, under N.J. Stat. Ann.
(2); second-degree possession of a handgun for an unlawful purpose. under N.J. Stat. Ann.
2C:39-4(a)(l); and two counts of third-degree possession of a handgun for an unlawftfl purpose,
under N.J. Stat. Ann.
§ 2C:39-5(b). That court sentenced Mr. Suarez to a total of 70 years’
imprisonment, with no parole eligibility for 53 years. Mr. Suarez appealed the conviction and the
sentence to the Superior Court, Appellate Division, which affirmed both. Mr. Suarez sought
certification from the Supreme Court of New Jersey. which was denied.
In August 2010, Mr. Suarez filed a verified petition for post-conviction relief (“PCR”),
asserting that he received ineffective assistance of counsel at trial. The Superior Court apparently
assigned counsel for the PCR proceeding. but Mr. Suarez also filed his own pro se
supplementary brief advancing various arguments regarding his representation at trial. The
Superior Court denied the PCR petition. and Mr. Suarez appealed this decision. The Appellate
Division affirmed the denial, and the Supreme Court again declined to grant certification.
Mr. Suarez filed a second PCR petition on February 14, 2017, asserting that lie received
ineffective assistance of counsel during his initial PCR proceeding. While Mr. Suarez identifies
two grounds for relief, he in fact seems to raise three distinct theories of what his PCR counsel
should have argued: (I) that trial counsel was ineffective by failing to sufficiently investigate and
challenge an allegedly false affidavit used to acquire a search warrant (“the Warrant Argument”);
(2) that trial counsel was ineffective by failing to sufficiently argue that an initial. warrantless
entn’ and a resulting protective sweep were improper and by failing to obtain testimony from Mr.
Suarez’s landlord in connection with that entry (“the Entry Argument”): and (3) that the New
Jersey Supreme Court’s holding in State
Davila. 203 N.J. 97(2010), should have been applied
retroactively as to the propriety of the protective sweep (“the Drn’ila Argument”). On March 15,
2017, the Superior Court denied this petition as untimely under R. 3:22-I 2(a)(2)(C). Mr. Suarez
appealed this decision to the Appellate Division, and this appeal remains pending.
Meanwhile, Mr. Suarez filed this habeas petition, dated April 10, 2017 (received by the
Court April 2 I, 2017). Mr. Suarez lists five grounds upon which he challenges his conviction: (I)
that the trial court erred by denying a motion to suppress evidence based on an allegedly
No party has provided the Court with a copy of the pleadings in the second PCR proceeding.
Instead, the papers in support of the stay motion appear to quote from the second PCR petition,
and it is this language that the Court relies upon in this opinion. The Court has additionally
considered the factual allegations in grounds four and five of the underlying habeas petition,
which, according to Mr. Suarez, involve the same claims as those in the second PCR petition.
improper entrance into Mr. Suarez’s residence by a police officer; (2) that Mr. Suarez was
deprived a fair trial by a police officer’s reference in trial testimony to “a person I can’t
mention”: (3) that trial counsel was ineffective by failing to call as a witness Mr. Suarez’s
landlord to testify regarding the propriety of the police entry into Mr. Suarez’s residence; (4) that
PCR counsel was ineffective by failing to argue that trial counsel was ineffective on the basis
that he failed to challenge a police officer’s affidavit used to obtain a search warrant for Mr.
Saurez’s residence; and (5) that PCR counsel was ineffective by failing to argue that Mr.
Suarez’s appellate counsel should have raised that trial counsel failed to sufficiently argue for
suppression based on an improper entry into Mr. Suareis residence and that PCR counsel should
have raised arguments as to the New Jersey Supreme Court’s holding in Dm1/a. Grounds four
and five seem to be identical to the arguments raised in the second PCR petition, comprising the
Warrant Argument, the Entry Argument, and the Davila Argument. Respondent filed a timely
response to the petition on July 28. 2017.
Mr. Suarez now moves for a protective stay of this action to pennit him to exhaust in
state court the arguments raised in grounds four and five of his petition. He concedes that these
arguments are presently unexhausted as he raised them in his second PCR petition, which is still
pending before the Appellate Division. Mr. Suarez asserts that if he were forced to complete his
second PCR proceeding without a protective stay, his already-exhausted claims would become
time bared before he could again raise his claims before this Court. Respondent filed no timely
opposition to this motion.
LEGAL STANDARDS AND APPLICATION
The petition in this proceeding is currently a mixed petition.” under Rose v. Lundy, 455
U.s. 509 (1982). as it contains both exhausted and unexhausted claims. 16 at 510, 522. When
presented with a mixed petition, a court may. in certain circumstances, grant a protective stay to
permit the petitioner to exhaust the unexhausted claims while suspending the limitations period
on the exhausted claims. Sec Rhines v. Weber, 544 U.S. 269, 275—78 (2005). Before granting
such a stay, the Court must examine whether good cause exists for the petitioner’s failure to
exhaust all claims in state court, whether the unexhausted claims are potentially meritorious, and
whether the petitioner is employing the litigation simply as means of delay. Sec Rhines, 544 U.S.
at 277; Gerber v. Varano, 512 F. App’x 131, 135 (3d Cir. 2013).
The Court must tirst explore the exact nature of the claims Mr. Suarez raised in his
second PCR proceeding. In his motion papers, Mr. Suarez explains those claims as follows:
Initial PCR counsel proved to be ineffective by failing to
investigate and raise upon petitioner’s request, that trial counsel
was prejudicially ineffective for failing to adequately investigate,
raise and challenge the veracity of the affidavit for the search
warrant, arguing that the finding of probable cause supporting the
issuance of the search warrant depended on intentional false and
fraudulent statements of material facts and willfully false
statements made in reckless disregard for the truth by Detective
Stephen Owsiany, violating petitioner’s constitutional rights. thus.
the search warrant must be voided and evidence obtained
Initial PCR counsel proved to be ineffective by failing to
adequately investigate petitioner’s case file and raising that raising
that [sic] appellate counsel failed to raise that trial counsel failed to
adequately investigate and argue the motion to suppress, because
the police’s initial entry and search of petitioner’s residence was
unlawful, and that the trial court unreasonably denied the motion to
suppress and that initial PCR counse[l] failed to investigate
relevant case law and raise that a new rule of constitutional law
applied to petitioner’s case retroactively, because the trial court
that decided on petitioner’s motion to suppress did so without the
benefit of the New Jersey Supreme Court’s opinion in Slate versus
Davila, where the record as developed does not address directly or
sufficiently satisfy the standard in Davila, that govern [sic]
protective sweeps that are conducted not incident to an arest[.]
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). a habeas
petitioner may not use “the ineffectiveness or incompetence of counsel during Federal or Stale
collateral post-conviction proceedings” as a basis for substantive relief. 28 U.S.C.
§ 22540): see
Thompson, 501 U.S. 722, 752 (1991) (“[A] petitioner cannot claim
constitutionally ineffective assistance of counsel in [state post-conviction! proceedings.”).
Reading Mr. Suarez’s claims pending in his second [‘CR proceeding at face value, they would be
interpreted as claiming ineffective assistance of [‘CR counsel, and this Court would be unable to
consider them. Nevertheless, a liberal reading of Mr. Suarez’s prose papers reveals that these
claims may have another dimension.2
Mr. Suarez’s motion paper explicitly refer to Martinez
Rim,, 566 U.S. I (2012). in
connection with an argument that his claims should not be considered procedurally barred. In
Martinez. the Supreme Court held that a habeas petitioner may assert the ineffectiveness of [‘CR
counsel, not as basis for reliefper se, but rather as cause to excuse a procedural default resulting
from a failure to raise ineffectiveness of trial counsel during an initial PCR proceeding. Id. at 17;
see also Lambert v. Warden Greene SC’L 861 F.3d 459. 469 (3d Cir. 201 7). Reading Mr.
Suarez’s papers in this light, it may be appropriate to construe the Warrant Argument and the
Entry Argument, within grounds four and five of his petition. as part of a claim of ineffective
assistance of i’Hal counsel. That is, Mr. Suarez may be claiming that he failed to raise ineffective
The Court notes that the Rules Governing the Courts of the State of New Jersey explicitly
3:22permit a subsequent [‘CR petition to assert the ineffectiveness of prior [‘CR counsel.
4(b)(2)(C). These rules of the state courts carry no weight in this Court. particularly when
explicitly contradicted by federal law governing habeas proceedings.
assistance of trial counsel previously because of the allegedly ineffective assistance of his PCR
counsel. That interpretation is buttressed by Mr. Suarez’s focus on trial counsel’s alleged
failures: that trial counsel should have challenged the affidavit submitted in support of obtaining
a search warrant for Mr. Suarez’s residence and should have, essentially, devoted greater energy
to demonstrating that the initial entry into Mr. Suareis residence was improper. (ECF No. I at
Interpreting the Warrant Argument in this manner seems to place it directly within the
narrow scope of Martinez. Mr. Suarez is alleging that his trial counsel was ineffective by failing
to seek suppression of key evidence on the basis that the police used a false affidavit to obtain a
search warrant for Mr. Suarez’s residence. While Mr. Suarez would generally be barred from
asserting this claim that was not raised in prior state proceedings, see R. 3:22-4, one may infer
from the petition that he feels the ineffective assistance of [‘CR counsel caused this procedural
default. (See ECF No. I at 24.)
As the Warrant Argument in ground four states a potential claim under Martinez. it is not
facially medtless.3 The ineffective assistance of PCR counsel should also be treated, at this stage,
as asserting good cause under the Rhines standard for the failure to exhaust the Warrant
argument. See Hreniuk
Balicki, Civ. A. No. 11-52 (MLC). 2013 WL 1187107, at
Mar. 21, 2013). Accordingly, Mr. Suarez’s efforts to exhaust state remedies as to the
Argument in ground four appear sufficient to justify the grant of a protective stay.
The Warrant argument. then, is suflicient to justi1’ a stay. I note, however, that the
arguments in ground five of the petition would not meet the protective-stay standard of Rhines.
The parties should note that this analysis applies only to the stay motion presently before the
Court. This opinion should not be construed as any broader assessment of the merits of Mr.
The Dan/a Argument within ground five can only be read as asserting that PCR counsel
was ineffective for failing to raise Dm1/a during the first PCR proceeding. This Court is clearly
barred by the terms of the AEDPA from hearing such a claim. See 28 L’.S.C. § 2254(i). \Vhile
the Entry Argument portion of ground five might be read as a Marti,zez claim, it is not clear that
any portion of this claim (read in this manner) remains unexhausted. In the first PCR proceeding,
Mr. Suarez raised the argument regarding trial counsel’s failure to obtain trial testimony from
Mr. Suarez’s landlord, and the state court explicitly considered it. (Response. Ex. 5, ECF No. 95, Supp. Br., at ECF pp. 92, 97—100.) Likewise, arguments regarding the propriety of the initial
entry into Mr. Suarez’s residence were raised both at trial and on direct appeal. (Response, Ex. 1,
Br. & Appeal on BehalfofDef-Appellant, at 24—28 (ECF pp. 31—35).) Arguments raised at trial,
of course, cannot support a claim that counsel was ineffective for nor raising them. And
arguments raised and exhausted during the first PCR proceedings do not require the help of
Rhines to excuse their nonexhaustion. The Entn’ Argument and the Dm1/a Argument in ground
five thus fail to meet either prong of the Rhines standard for granting a protective stay.
Nevenheless, a stay will be granted based on the Warrant Argument raised in ground four
and concurrently in the second PCR petition, to pemlit its exhaustion.
For the foregoing reasons, Mr. Suarez’s motion for a protective stay of this habeas
proceeding will be granted. Mr. Suarez shall file any request to reopen this action within 30 days
after the exhaustion of his claims currently pending in state court. An appropriate order
accompanies this opinion.
United States District Judge
DATED: November 7,2017
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