TAYLOR v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
Filing
2
OPINION. Signed by Judge Madeline Cox Arleo on 12/18/2017. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SOLADEEN BASS TAYLOR,
Civil Action No. 17-7270(MCA)
Petitioner,
v.
MEMORANDUM OPINION
WILLIE BONDS, et al.,
Respondents.
This matter is opened to the Court by Petitioner Soladeen Bass Taylor (“Petitioner”),
upon the filing of his petition for a writ of habeas corpus (the “Petition”) (ECF No. 1) brought
pursuant to 28 U.S.C.
§ 2254. For the reasons set forth below, the court finds that the Petition
currently pending before the Court is a “second or successive” habeas petition pursuant to 28
u.s.C. 2244(b) for which Petitioner has not sought or received authorization from the Court of
Appeals to file in the District Court. As such, the Court is without jurisdiction to consider the
Petition at this time and must either dismiss the Petition or transfer it to the Court of Appeals for
the Third Circuit. For the reasons explained below, the Court will dismiss the Petition without
prejudice to Petitioner’s filing of the Petition in the Third Circuit Court of Appeals but declines
to transfer the Petition pursuant to 28 U.S.C.
Because Petitioner has filed a
§ 1631.
§ 2254 petition this Court is required, pursuant to Rule 4 of
the Rules Governing Section 2254 Cases, to screen the Petition and determine whether it “plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief.”
Under this Rule, the Court is “authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.” McFarlandv. Scott, 512 U.S. 849, 856 (1994).
Based on Petitioner’s habeas petition and the available portions of the state court and
of
federal record, it appears that, following a jury trial, defendant was convicted of four counts
first-degree robbery, N.J.S.A. 2C:15—l; two counts of aggravated assault, N.J.S.A. 2C:12—
1(b)(1), (4); and one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39—
.
4(a); attempted murder, N.J.S.A. 2C:5—1, 11—3; and unlawful possession of a weapon, N.J.S.A
*1 (N.J. Super. Ct.
2C:39—5(c)(2). See State v. Taylor, No. A-6320-08T1, 2011 WL 5902620, at
ve
App. Div. Nov. 28, 2011). Defendant was sentenced to an aggregate custodial term of fifty-fi
one
years, subject to twenty-seven and one-half years of parole ineligibility. Id. Save merger of
was
aggravated assault count with the attempted murder conviction, the judgment of conviction
e Court
affirmed on appeal. State v. Bass, No. A—0061—94 (App. Div. Feb. 6, 1996). The Suprem
denied defendant’s petition for certification. State v. Bass, 145 N.J. 371 (1996).
In the meantime, on March 8, 1996, on the State’s motion pursuant to State v. 1-laliski,
er, to
140 N.J. 1 (1995), the trial court resentenced defendant, as a second-time Graves Act offend
State
a mandatory extended term, N.J.S.A. 2C:43—6c; N.J.S.A. 2C:43—7c; N.J.S.A. 2C:44—3(d);
v. Franklin, 184 N.J. 516, 534 (2005), consisting of: forty-years with a twenty-year parole
assault
disqualifier on the four robbery counts; a concurrent eighteen months on the aggravated
r
charge; a consecutive ten years with a five-year parole disqualifier on the attempted murde
the
conviction; and a consecutive five years with a two-and-one-half year parole disqualifier on
ve years in
unlawful possession of a weapon charge. Defendant’s aggregate sentence was fifty-fi
0, at
prison, with a twenty-seven and one-half parole disqualifier. See Taylor, 2011 WL 590262
*1.
1997.
On July 29, 1996, defendant filed a PCR petition, which was denied on October 20,
and
The Appellate Division affirmed, State v. Bass, No. A—217l—97 (App. Div. May 21, 1999),
2
v. Bass. 162 N.J. 129
the Supreme Court denied defendants petition for certification. State
(1999).
, which was
On September 1, 2000, Petitioner filed a petition for writ of habeas corpus
(Civ. Act. No. 00docketed in this District and assigned to the Honorable Faith S. Hochberg.
to Petitioner (Id. at
4298). On September 8, 2000, Judge Hochberg provided a Mason notice
n. (Id. at ECF No. 8.)
ECF No. 2) On January 23, 2002, Judge Hochberg denied the Petitio
a certificate of
Petitioner appealed, and on January 15, 2003, the Third Circuit denied
to establish a basis for
appealability, finding that the Petition was untimely and that he failed
statutory or equitable tolling. (PACER, 3d Cir. Dkt. No. 02-1655).
state court to
Several years later, on February 15, 2006, defendant filed a motion in
the application,
correct an illegal sentence on state law grounds,’ and the motion judge denied
WL 5902620, at *2. The
finding no merit to defendant’s excessive sentence claim. Taylor, 2011
5902620, at *2, It does
Appellate Division affirmed on November 28, 2011. Taylor. 2011 WL
not appear that Petitioner filed a petition for certification.
ber 15, 2017
The instant habeas petition was docketed nearly six years later on Septem
whether the Petition filed in
and appears to allege that his sentence is unconstitutional. At issue is
ed by the Supreme
this matter is an unauthorized second or successive Petition. As explain
Court,
[t]he Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) established a stringent set of procedures that a prisoner
“in custody pursuant to the judgment of a State court,” 28 U.S.C. §
2254(a), must follow if he wishes to file a “second or successive”
habeas corpus application challenging that custody, § 2244(b)(1).
In pertinent part, before filing the application in the district court, a
TO GRAVES ACT EXTENDED TERM, IS
Petitioner argued that “HIS ENHANCED SENTENCE PURSUANT
TO HAVE A JURY DETERMINE ALL FACTS
ILLEGAL AS IT VIOLATES HIS CONSTITUTIONAL RIGHT
NCE.” Tailor, 2011 WL 5902620, at *2 (N.J.
BEYOND A REASONABLE DOUBT ESSENTIAL TO HIS SENTE
Super. Ct. App. Div. Nov. 28, 2011)
3
prisoner ‘shall move in the appropriate court of appeals for an
order authorizing the district court to consider the application.” §
2244(b)(3)(A). A three-judge panel of the court of appeals may
authorize the filing of the second or successive application only if
it presents a claim not previously raised that satisfies one of the
two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez
v. Crosby, 545 U.s. 524, 529-530. 125 S.Ct. 2641, 162 L.Ed.2d
480 (2005); see also Felker v. Turpin, 518 U.S. 651, 656-657, 664,
116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).
who presents a claim not
Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Thus, a prisoner
previously raised may file a second/successive
§ 2254 petition only if he first obtains an order
er the motion. See 28
from the appropriate circuit court authorizing the district court to consid
U.S.C.
lacks jurisdiction to
t
2
§ 2244(b)(3)(A). Absent such authorization, the distric court
address the merits of such a petition. See 28 U.S.C.
§ 2244(b)(4). Here, based on the available
sentence that Petitioner
record, the Petition challenges the same Judgment of Conviction and
that Petition was adjudicated
challenged in his first habeas petition before Judge Flochberg, and
or successive petition
Under § 2244(b)(3), the court of appeals must determine that a second
)(2)’s new-rule or actualpresents a claim not previously raised that is sufficient to meet § 2244(b
(2005). Section
530
innocence provisions. See Gonzalez v. Crosby, 545 U.S. 524, 529—
2244(b)(2) provides:
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless:
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
of
(ii) the facts underlying the claim, if proven and viewed in light
establish by clear
the evidence as a whole, would be sufficient to
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
adjudicated must be
28 U.S.C. § 2244(b)(2). Thus, any claim that has not already been
constitutional law or new facts
dismissed unless it relies on either a new and retroactive rule of
showing a high probability of actual innocence.
2
4
amounts
and dismissed on timeliness grounds in 2002. As such, Petitioner’s filing in this matter
to a second or successive Petition under 28 U.S.C.
§ 2244(b) and does not fall into recognized
473, 4853
exceptions to the “second or successive” rule. See, e.g., Slack v. McDaniel, 529 U.S.
habeas
86 (2000) (explaining that “[a] habeas petition filed in the district court after an initial
es is not
petition was unadjudicated on its merits and dismissed for failure to exhaust state remedi
(explaining
a second or successive petition); Magwood v Patterson, 561 U.S. 320, 342 (2010)
that first habeas petition challenging a new sentence is not second or successive under
§ 2244(b)
with
even though Petitioner had previously filed a habeas petition challenging prior sentence
dismissal
respect to the same judgment). By contrast, courts are generally in agreement that the
ing any
of a first federal petition as untimely constitutes an adjudication on the merits, render
1030 (9th
later-filed petition “second or successive.” See, e.g., McNabb v. Yates, 576 F.3d 1028,
failure to
Cir. 2009) (“We therefore hold that dismissal of a section 2254 habeas petition for
sive for
comply with the statute of limitations renders subsequent petitions second or succes
purposes of the AEDPA
....“)
(cited with approval in Stokes v. Gehr, 399 F. App’x 697, 699 n. 2
g that a
(3d Cir. 2010)); Villanueva v. United States, 346 F.3d 55, 58 (2d Cir. 2003) (holdin
s any
petition that has been dismissed as time-barred has been decided on the merits and render
gs, No. 12—
petition “second or successive” under the AEDPA); see also Candelaria v. Hastin
11—0733, 2011
3846, 2014 WL 2624766, at *3 (D.N.J. June 12, 2014); Terry v, Bartkowski, No.
8 NLH,
WL 5142859, at *3 (D.N.J. Oct. 28, 2011); Pierce v. United States, No. CIV. 14-075
2015 WL 4653326, at *2 (D.N.J. Aug. 6,2015)
Mason v.
Because this Petition is “second or successive” there is no need to give notice under
No. CIV. 12-599 PGS,
Meyers, 208 F.3d 414 (3d Cir. 2000). See, e.g.. Ramnauth v. New Jersey,
the form
2012 WL 4508129, at *4 (D.N.J. Sept. 27, 2012). The Court notes, however, that
ECF No. 6, at 16.)
Petitioner submitted provided him with the Mason notice. (See
5
Because Petitioner did not receive permission from the Third Circuit to file his second
Petition, that Petition must either be dismissed for lack of subject matter jurisdiction or
F.3d 128,
transferred to the Third Circuit pursuant to 28 U.S.C. 1631. Robinson v. Johnson, 313
a
139 (3d Cir. 2002) (“When a second or successive habeas petition is erroneously filed in
to
district court without the permission of a court of appeals, the district court’s only option is
dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C.
§
1631”).
In deciding whether it is in the interest ofjustice to transfer a second or successive
ra
petition to the appropriate court of appeals, a district court may properly consider whethe
ments
petitioner “ha[s] alleged facts sufficient to bring his petition within the gatekeeping require
ce
of § 2244, which permits ‘second or successive’ petitions based upon newly discovered eviden
Cir.
or a new rule of constitutional law.” See Hatches v. Schultz, 381 F. App’x 134, 137 (3d
t pursuant
2010) (affirming the district court’s dismissal of a second or successive petition brough
to
§ 2255
and noting that “this inquiry as to the factual premise of [Petitioner’s) claims did not
”).
require-and the District Court did not express-any opinion on the merits of the claims
Here, however, the Petition also fails to comply with Rule 2 of the Habeas Rules.
v. Scott, 512
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland
s for
U.S. 849, 856 (1994). The Habeas Rules require the habeas petition to specify the ground
relief, state the facts supporting each ground, and state the relief requested. See 28 U.S.C.
§
Litig., 180
2254 Rule 2(c) & (d), applicable through Rule 1(b); see also In re Advanta Corp. Sec.
“the who,
F.3d 525, 534 (3d Cir. 1999) (explaining that “factual allegations” are descriptions of
purpose of
what, when, where, and how: the first paragraph of any newspaper story”). “A prime
court in
Rule 2(c)’s demand that habeas petitioners plead with particularity is to assist the district
not be
determining whether the State should be ordered to ‘show cause why the writ should
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granted.’ [28 U.s.c.]
§ 2243.
Because the Petition does not clearly state the grounds for relief,
requirements for a second or
the Court is unable to determine whether it meets the gatekeeping
of jurisdiction and
successive petition. As such, the Court will dismiss the Petition for lack
prejudice to Petitioner’s
declines to transfer it to the Third circuit. The dismissal is without
refihing of the Petition in the Third circuit Court of Appeals.
n is dismissed for
For the reasons explained in this Memorandum and Order, the Petitio
lack ofjurisdiction. An Appropriate Order follows.
,‘L,
Madeline Cox Arleo, District Judge
United States District Court
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