PATRICK v. STATE OF NEW JERSEY et al

Filing 2

MEMORANDUM OPINION. Signed by Judge Susan D. Wigenton on 1/18/18. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIP PATRICK,

Civil Action No. 18-410 (SDW)

Petitioner,
v.

MEMORANDUM OPINION

THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.

IT APPEARING THAT:
1. On January 11, 2018, Petitioner, Philip Patrick, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in which he seeks to challenge his state court conviction and
sentence. (ECF No. 1).
2. Because Petitioner has paid the appropriate filing fee, Rule 4 of the Rules Governing
Section 2254 Cases requires the Court to screen Petitioner’s habeas petition and determine whether
it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief.” Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856
(1994).
3. Pursuant to 28 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 when he has presented each of 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
1

WL 5869605, at *3 (D.N.J. Nov. 22, 2011); see also Ragland v. Barnes, No. 14-7924, 2015 WL
1035428, at *1-3 (D.N.J. March 10, 2015). “Where any available procedure remains for the
applicant to raise the question presented in the courts of the state, the applicant has not exhausted
the available remedies.” Tinsley, 2011 WL 5869605 at *3; see also 28 U.S.C. § 2254(c). A New
Jersey state prisoner will therefore only have properly exhausted his claims where he has presented
all of his claims “to the Superior Court of New Jersey, Law and Appellate Divisions, and to the
New Jersey Supreme Court.” Barnes, 2015 WL 1035428 at *1.
4. In his habeas petition, Petitioner states that he was convicted and sentenced in 2014.
(ECF No. 1 at 1). Petitioner appealed, and his conviction was affirmed in October 2016. (Id. at
2). The New Jersey Supreme Court thereafter denied certification on January 24, 2017. (Id. at 23). Petitioner thereafter filed a post-conviction relief petition in the state courts, which still remains
pending before the PCR trial level court. (Id. at 3). While some of Petitioner’s claims appear to
have been exhausted on direct appeal, all of the ineffective assistance of counsel claims contained
in his current petition appear to have been first presented to the state courts in his PCR petition,
which remains pending at this time. Those claims have thus never been squarely presented to the
Appellate Division or the New Jersey Supreme Court, and it is clear that Petitioner has failed to
exhaust his ineffective assistance claims. As Petitioner has not otherwise shown that process is
unavailable or ineffective in the state courts, and indeed suggests to the contrary to the extent he
is pursuing PCR relief in the state courts, Petitioner’s habeas petition is an unexhausted mixed
petition. Barnes, 2015 WL 1035428 at *1-3.
5. Where a District Court is faced with a habeas petition that contains unexhausted claims,
the District Court has 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

2

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).” Mallory v. Bickell, 563 F. App’x 212, 215 (3d Cir. 2014) (citing
Rhines v. Weber, 544 U.S. 269, 274-78 (2005)). Because this Court cannot determine the merits
of Petitioner’s claims on the information contained in his habeas petition, this Court cannot deny
his claims, and must either dismiss the petition, permit Petitioner to withdraw his unexhausted
claims, or permit Petitioner to seek a stay of this matter pending exhaustion. A district court,
however, 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] 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 within the one year statute of limitations period. 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.
7. Here, Petitioner has provided no explanation for his filing of his habeas petition prior
to the conclusion of his PCR litigation. At least three months of his one year limitation period
remain 1 as his state court conviction did not become final until April 24, 2017, when the time for

1

Because the habeas limitations period is statutorily tolled while a properly filed collateral attack
is pending in the state courts, see, e.g., Munchinski v. Wilson, 694 F.3d 308, 327 (3d Cir. 2012),
he may well have significantly more time remaining, and the at least three months which remain
3

the filing of a petition for certiorari expired following the denial of relief by the New Jersey
Supreme Court. As such, this Court finds that Petitioner has not shown that a stay pending
exhaustion would be warranted in this manner. Crews, 360 F.3d at 152; Williams, 411 F. App’x
at 461; Ragland, 2015 WL 1035428 at *2. This Court will therefore dismiss Petitioner’s current
habeas petition without prejudice for lack of exhaustion. However, if Petitioner would prefer to
proceed only on his unexhausted claims, he is free to delete his unexhausted claims and refile his
habeas petition within thirty days.
8. 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).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a [Certificate of Appealability] 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 jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Because jurists of reason could not disagree with this Court’s conclusion that
Petitioner’s ineffective assistance claims are unexhausted and that Petitioner’s habeas petition
should be dismissed without prejudice as a result, Petitioner’s habeas petition is inadequate to

would not begin to run until his PCR litigation ceases to be pending before the state courts if his
pending PCR petition were properly filed.
4

deserve encouragement to proceed further at this time, and Petitioner must be denied a certificate
of appealability as to this Court’s dismissal of his petition for lack of exhaustion.
9. In conclusion, Petitioner’s petition for a writ of habeas corpus (ECF No. 1) shall be
DISMISSED WITHOUT PREJUDICE for lack of exhaustion, and Petitioner shall be DENIED a
certificate of appealability. If Petitioner wishes to refile his petition without his unexhausted
claims, he may do so within thirty days. An appropriate order follows.

Dated: January 18, 2018

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

5