RHODES v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 6/18/2018. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT RHODES,
Civil Action No. 17-13178 (SDW)
Petitioner,
v.
OPINION
THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.
WIGENTON, District Judge:
Presently before the Court is the amended petition for a writ of habeas corpus of Robert
Rhodes (“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court
conviction (ECF No. 7). The State filed a response to the petition (ECF No. 12), to which
Petitioner has replied. (ECF No. 15). For the following reasons, this Court will deny the petition
and deny Petitioner a certificate of appealability.
I. BACKGROUND
Following his arrest in May 2015, Petitioner Robert Rhodes was indicted on multiple state
drug charges including knowingly maintaining or operating a heroin production facility in
violation of N.J. Stat. Ann. § 2C:35-4. (Document 2 attached to ECF No. 12 at 24-27). Because
Petitioner had an extensive criminal history involving multiple prior felonies and because a firearm
was recovered in a search of Petitioner’s home, Petitioner was also charged by way of a second
indictment with being a felon in possession of a firearm (referred to in the record as a “certain
persons” offense) in violation of N.J. Stat. Ann. § 2C:39-7. (Id. at 28-29). On November 9, 2015,
Petitioner pled guilty to both the maintaining charge and the certain persons offense in the Superior
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Court of New Jersey in Union County. (Document 6 attached to ECF No. 12). Pursuant to the
plea agreement offered by the state, Petitioner was required to plead to the maintaining a heroin
production facility charge, for which he would receive a recommended sentence of eight years
with a four year parole disqualifier, and to the certain persons offense, for which he would receive
a five year sentence with a five year parole disqualifier, while the remaining drug charges would
be dismissed. (Id. at 6-7). In the plea agreement, the State also indicated its intent to recommend
that these two sentences be served consecutively. (Id.).
At his plea hearing, however, Petitioner expressed dissatisfaction with his attorney because
he believed that the State had miscalculated the appropriate sentence for his heroin facility charge
under the New Jersey Attorney General’s Brimage guidelines1 and because he believed that it
amounted to either double counting or a double jeopardy issue for him to both have his heroin
facility charge enhanced for possessing a weapon while also receiving a separate sentence for the
certain persons offense. (Id. at 4-15). Essentially, Petitioner believed that, pursuant to the
guidelines, his total sentence should have been an eight year term with a four year parole
disqualifier, notwithstanding the additional certain persons offense.
(Id.).
In an extensive
colloquy, the plea judge explained to Petitioner that he would be free at sentencing to argue that
his certain persons offense should run concurrent to his heroin facility charge, but that he did not
have the ability to pick and choose which parts of the state’s plea deal he would accept – Petitioner
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The Brimage guidelines are a special set of rules which govern and control prosecutorial
discretion in making sentencing recommendations for offenders charged with violations of New
Jersey’s Comprehensive Drug Reform Act of 1987, N.J. Stat. Ann. § 2C:35-1 to 36-1. See, e.g.,
State v. Brinson, 2018 WL 525420, at *2-3 (N.J. App. Div. Jan 24, 2018). “The Brimage
guidelines are intended to provide uniform standards for plea offers for CDRA offenses, and
reduce the chance of disparity in sentencing” which can result from a prosecutor’s authority to
waive mandatory minimum terms for certain drug offenses pursuant to N.J. Stat. Ann. § 2C:3512. Id. at *3, *5.
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could either plead guilty to both charges and argue at sentencing that the two sentences should run
concurrently, or he could refuse the deal and proceed to trial. (Id. at 15-31). Petitioner ultimately
accepted the judge’s explanation, and chose to plead guilty to both charges. (Id. at 32-54). As
part of that plea, Petitioner stated that he was now satisfied with his attorney, and that he
understood the rights that he was waiving by pleading guilty, though he still felt the recommended
sentence was “excessive.” (Id. at 36-41). As part of the factual basis for his plea, Petitioner
admitted that he had knowingly operated a heroin production facility in North Plainfield, and that
police had covered a considerable amount of heroin and paraphernalia from that facility. (Id. at
42-45). Petitioner also admitted that he knowingly possessed a handgun and that he had previously
been convicted of a drug-related felony. (Id. at 50-53).
Following this guilty plea, Petitioner appeared for sentencing on January 22, 2016.
(Document 7 attached to ECF No. 12). At sentencing, Petitioner again argued that it would amount
to double counting or something approaching a double jeopardy violation for Petitioner to receive
a consecutive sentence for the certain persons offense after his heroin facility recommended
sentence had already been adjusted for the use of a firearm. (Id. at 4-6). After considering these
arguments, the trial court ultimately concluded that Petitioner’s sentences on the two offenses
should run concurrently with one another, and thus sentenced Petitioner to an eight year sentence
with a four year parole disqualifier on the heroin facility charge and a concurrent five year sentence
with a five year parole disqualifier on the certain persons offense, ultimately resulting in a sentence
of eight years with a five year parole disqualifier. (Id. at 11-20).
Petitioner thereafter appealed his sentence, with his appeal being heard on an excessive
sentence calendar by the Superior Court of New Jersey – Appellate Division. (Document 8
attached to ECF No. 12). On appeal, Petitioner argued that, under the Brimage guidelines, he
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should only have received the eight year sentence with a four year parole disqualifier and that the
“certain persons [offense] should not have been part of the plea offer” and that he thus should not
have received the five year parole disqualifier from the certain persons offense. (Id. at 2-3). The
State in turn argued that, under the Brimage guidelines, Petitioner could have been subjected to a
twelve year sentence on the heroin facility charge consecutive to the five year certain persons
offense, and that Petitioner’s concurrent sentence was thus an “excellent deal” for Petitioner, and
that neither the plea offer nor sentence ultimately violated his rights. (Id. at 4). On September 21,
2016, the Appellate Division affirmed Petitioner’s sentence, finding that the sentencing judge
“correctly applied the sentencing guidelines” and did not abuse its discretion in sentencing
Petitioner. (Document 3 attached to No. 12).
Petitioner thereafter filed a petition for certification with the New Jersey Supreme Court.
(ECF No. 7 at 20-22). In his petition for certification, Petitioner once again argued that the
Brimage guidelines had been improperly applied, and that he should have received a total sentence
of eight years with a four year period of parole ineligibility, rather than the eight year sentence
with a five year ineligibility period Petitioner received. (Id.). The New Jersey Supreme Court
denied Petitioner’s petition for certification on February 7, 2017. (Document 5 attached to ECF
No. 12).
II. DISCUSSION
A. Legal Standard
Under 28 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
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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 837, 846 (3d Cir. 2013); see also Parker v. Matthews, 567 U.S. 37, 40-41 (2012). Under
the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 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 corpus 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.
28 U.S.C. § 2254(d)(1)-(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 S. 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
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).
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B. Analysis
In his amended habeas petition, Petitioner argues that the prosecutor in his criminal matter
misapplied the Brimage guidelines, and that, as a result of this miscalculation, he received an eight
year sentence with a five year parole disqualifier instead of the four year parole disqualifier that
he believes he should have received. Petitioner also asserts that this resulted in a sentence which
amounted to an “abuse of discretion” from the sentencing court and that his sentence “violates the
Double Jeopardy” Clause, presumably because his possession of a firearm both enhanced his
Brimage guidelines calculation and was the basis for the additional certain persons offense. (ECF
No. 7 at 6). Respondents argue that Petitioner’s claims are not properly exhausted because his
claims were not squarely presented to the New Jersey Appellate Courts in their current form –
specifically, Respondents assert that Petitioner’s request for his certain persons offense to be
vacated was never presented to the state courts.
Pursuant to 28 U.S.C. § 2254(b)(1), habeas relief may not be granted to a convicted state
prisoner 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 for the prisoner. Generally, a prisoner satisfies the statute’s 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); Tinsley v. Johnson, No. 10-3365, 2011 WL 5869605, at *3
(D.N.J. Nov. 22, 2011). A convicted prisoner in New Jersey therefore properly exhausts his claims
by fairly presenting them to the Superior Court of New Jersey Law Division and Appellate
Division, and ultimately to the New Jersey Supreme Court. See Ragland v. Barnes, No. 14-7924,
2015 WL 1035428, at *1-3 (D.N.J. March 10, 2015). It is not sufficient that a petitioner merely
has “been through the state courts,” a Petitioner must instead actually exhaust his claims by “fairly
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present[ing]” them in a context where the state courts had the “opportunity to hear the claim[s]
sought to be vindicated.” Picard, 404 U.S. at 276. A claim is not “fairly presented” where the
claim in question was only presented to the state appellate courts “in a procedural context in which
its merits will not be considered.” Castille v. Peoples, 489 U.S. 346, 351 (1989).
In this matter, while Petitioner presented his claim that the State and sentencing judge
misapplied the Brimage calculations to all three levels of the state courts, Petitioner did not present
this claim as a double jeopardy claim to either the Appellate Division or the New Jersey Supreme
Court, instead presenting his claim solely as a challenge to the application of the guidelines. (See
Documents 3, 8 attached to ECF No. 12). Petitioner did, however, assert that he should not have
received the additional five year parole disqualifier associated with his certain persons offense at
both appellate levels, and counsel for Petitioner clearly stated in the Appellate Division transcript
that the “certain persons [offense] should not have been part of the plea offer” as a result of the
Brimage issue, and incorporated that into his petition for certification. (See Document 8 attached
to ECF No. 12 at 2; Document 3 attached to ECF No. 12 at 2). It thus appears that Respondents
are incorrect in asserting that Petitioner failed to ask to have his certain persons offense vacated
on direct appeal, but are nonetheless correct that Petitioner’s claim contains an unexhausted claim
insomuch as Plaintiff failed to properly raise his claim as a double jeopardy issue before the state
appellate courts. While this Court must conclude that Petitioner’s Double Jeopardy claim is
unexhausted, this Court need not dismiss the petition because Petitioner’s Double Jeopardy claim
is clearly without merit, and this Court may therefore deny it notwithstanding the failure to exhaust
pursuant to 28 U.S.C. § 2254(b)(2).
Turning to Petitioner’s Double Jeopardy argument, Petitioner essentially argues that his
sentence violates the clause because his possession of a handgun resulted in both an enhancement
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to his recommended sentence pursuant to his plea agreement and formed the basis for his separate
conviction for being a felon in possession of a firearm. The Double Jeopardy Clause of the United
States Constitution “provides that no person shall ‘be subject for the same offence to be twice put
in jeopardy of life or limb.’” United States v. Dixon, 509 U.S. 688, 695-96 (1993) (quoting U.S.
Const. amend. V). The clause protects individuals both from successive punishments and from
successive prosecutions for the same criminal offense. Id. at 696. As the Third Circuit has
explained,
“With respect to cumulative sentences imposed in a single
[prosecution], the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punishment
than the legislature intended.” Missouri v. Hunter, 459 U.S. 359,
366[] (1983). “Where [the legistlature] intended . . . to impose
multiple punishments [for a single act], imposition of such sentences
does not violate the Constitution.” Albernaz v. United States, 450
U.S. 333, 344[] (1981). Accordingly, a Double Jeopardy challenge
must fail if the statutory text clearly reflects a legislative intent to
impose multiple sentences on a defendant for a single underlying
transaction. See id. at 344 & n. 3[; United States v.] Bishop, 66 F.3d
[569, 573–74 (3d Cir. 1995)]. If, after inspection, Congress's intent
remains unclear, cumulative sentencing poses no double jeopardy
problem only if “each provision requires proof of a fact which the
other does not,” thereby satisfying Blockburger v. United States, 284
U.S. 299[] (1932). Bishop, 66 F.3d at 573 (quoting Blockburger, 284
U.S. at 304[]). However, “[b]ecause the [Blockburger] rule ‘serves
as a means of discerning congressional purpose[, it] should not be
controlling where, for example, there is a clear indication of contrary
legislative intent.’” United States v. Conley, 37 F.3d 970, 975–76
(3d Cir.1994).
United States v. Berrios, 676 F.3d 118, 138-39 (3d Cir. 2012).
In this matter, Plaintiff was charged and ultimately sentenced for two separate crimes – the
operation of a heroin production facility in violation of N.J. Stat. Ann. § 2C:35-4 and being a
convicted felon in possession of a weapon in violation of N.J. Stat. Ann. § 2C:39-7. Clearly, each
crime involves proof of a fact the other does not – the production facility charge requires that the
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State prove that Petitioner “knowingly maintain[ed] or operated any premises, place or facility
used for the manufacture of [heroin]” or “aid[ed], promote[d], finance[d] or otherwise
participate[d] in the maintenance of such [a facility].” N.J. Stat. Ann. § 2C:35-4. The certain
persons offense, in contrast, required that the State prove that Petitioner had previously been
convicted of a requisite felony offense – including Petitioner’s prior drug related felonies- and that
he thereafter “purchase[d], own[ed], possess[ed] or control[led] a firearm.” See N.J. Stat. Ann. §
2C:39-7; see also State v. Bailey, 213 N.J. 474, 488 (2018). The two offenses thus pass the
Blockburger test – each requires proof of an element the other does not – the drug facility offense
requires proof of the maintaining or operation of a drug production facility, while the certain person
offense requires proof of a prior requisite offense and possession of a firearm thereafter. It is thus
clear that the two crimes were intended by the legislature to be treated as different crimes and
punished separately, notwithstanding the fact that a Petitioner’s heroin facility sentence could be
more severe in light of his possession of a firearm. Berrios, 676 F.3d at 138-39. As the two
offenses are clearly separate offenses intended to be punished separately, Petitioner’s right to be
free of Double Jeopardy was not in any way impugned when he received separate – albeit
concurrent – sentences for these two crimes. Indeed, even were one to consider possession of a
weapon –which Petitioner contends was considered as a sentencing enhancing fact pursuant to the
Brimage guidelines to have been a part of the heroin facility charge, the certain persons crime still
has an element the facility charge does not – Petitioner’s prior felonies.2 Petitioner’s Double
2
In his reply, Petitioner attempts to resurrect his argument made to the trial court that receiving
both sentences also amounts to a “double counting” of his possession of the weapon which results
in his receiving punishment for possessing the weapon twice. Because the double counting issue
– as opposed to the Double Jeopardy claim – was raised in this matter for the first time in
Petitioner’s reply brief, this Court need not consider the argument. See, e.g., Judge v. United
States, 119 F. Supp. 3d 270, 284 (D.N.J. 2015). Even were the Court to consider it, however,
Petitioner’s double counting argument provides no basis for habeas relief. Double counting is
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Jeopardy claim is thus patently without merit and is denied notwithstanding Petitioner’s failure to
properly exhaust that claim. 28 U.S.C. § 2254(b)(2).
Finally, Plaintiff challenges the application of New Jersey’s Brimage guidelines to his plea
agreement and, ultimately, to his sentence. Because federal habeas jurisdiction is only available
to remedy violations of the United States Constitution or federal law, habeas relief is ordinarily
not available for alleged errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67-69 (1991);
Lewis v. Jeffers, 490 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984); Riley v.
Taylor, 277 F.3d 261, 310 n. 8 (3d Cir. 2001). Similarly, a federal habeas court has no authority
to re-examine state court determinations on issues of state law. See Estelle; 502 U.S. at 67-69.
Because “sentencing is a matter of state criminal procedure and [generally] does not involve such
a denial of fundamental fairness as to fall within the purview of federal habeas corpus,” alleged
sentencing error by a state court will not warrant habeas relief unless the sentence imposed was
outside of the range authorized by the crime in question or was otherwise beyond the sentencing
judge’s authority to give. See, e.g., Sutton v. Blackwell, 327 F. Supp. 2d 477, 486 (D.N.J. 2004)
(quoting Grecco v. O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987).
Here, Petitioner challenges his sentence by arguing that the state court prosecutor and trial
court misapplied a set of state rules applicable to plea deals for drug offenses and the sentences
improper under New Jersey law where a fact intrinsic to the crime with which a Petitioner is
charged is used as an aggravating factor to enhance his sentence for that crime. See, e.g., State v.
Fuentes, 217 N.J. 57, 74-75 (2014). Here, while Petitioner’s possession of a weapon was
considered by the State in determining the appropriate plea agreement under the Brimage
guidelines, it was only used to affect the sentence for the drug crime, which did not include
possession of a weapon as an intrinsic element. Indeed, although relevant to the Brimage
calculation, there is no indication that the sentencing judge considered the weapon possession as
an aggravating factor with regard to Petitioner’s drug crime. In any event, that Petitioner possessed
a gun was not used to enhance the sentence for his certain persons offense, the only offense with
which he was charged that did include weapon possession as an intrinsic element, and there was
therefore no improper double counting in this instance.
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resulting therefrom – the Brimage guidelines – resulting in him receiving a higher sentence than
he believes was warranted for his offenses. All three levels of the New Jersey state courts heard
this claim and rejected it. This Court is without authority to second guess their determinations of
state law, including the determination that Petitioner’s plea agreement and sentence did not violate
the Brimage guidelines. Estelle, 502 U.S. at 67-69. The sentence Petitioner ultimately received –
eight years with a four year parole ineligibility term for his first degree heroin facility charge and
five years with a five year parole ineligibility for his second degree certain persons offense – was
within the statutory limits and was clearly within the discretion of the sentencing judge to issue.
See N.J. Stat. Ann. § 2C:43-6(a)(1)-(2) (first degree crimes punishable by term of 10-20 years,
second degree punishable by a term of 5-10 years); N.J. Stat. Ann. § 2C:35-12 (authorizing
sentences below mandatory minimums for drug charges resolved via plea agreement); N.J. Stat.
Ann. § 2C:39-7(b) (requiring a minimum term of at least five years, including a five year period
of parole ineligibility, for second degree certain persons offense); N.J. Stat. Ann. § 2C:35-4
(requiring minimum term of parole ineligibility of between one-third and one-half of total sentence
for first degree maintaining CDS facility charge). As Petitioner’s sentence was clearly within the
authority and discretion of the sentencing judge, because this Court is without authority to second
guess the state courts in their application of state law rules including the Brimage guidelines, and
and because Petitioner has otherwise failed to show that his sentence in any way violated his
federal statutory or constitutional rights, Petitioner has failed to show any valid basis for habeas
relief, and his habeas petition is therefore without merit. Petitioner’s habeas petition is therefore
denied.
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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).
Because Petitioner’s habeas claims are without merit for the reasons expressed above, he has failed
to make a substantial showing of a denial of a constitutional right, and his petition is not adequate
to receive encouragement to proceed further. This Court therefore denies Petitioner a certificate
of appealability.
IV. CONCLUSION
For the reasons stated above, Petitioner’s amended petition for a writ of habeas corpus
(ECF No. 7) is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate
order follows.
Dated: June 18, 2018
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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