WARD v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Susan D. Wigenton on 2/16/2021. (ams, )

Case 2:21-cv-01204-SDW Document 3 Filed 02/16/21 Page 1 of 6 PageID: 24

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ABDUL WARD,

Civil Action No. 21-1204 (SDW)

Petitioner,
v.

MEMORANDUM OPINION

THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.
IT APPEARING THAT:
1. On or about January 1, 2021, Petitioner, Abdul Ward, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in which he sought to challenge his state court conviction and
sentence. (ECF No. 1). Following notice from the Clerk of the Court, Petitioner paid the
applicable filing fee on or about February 11, 2021. (ECF Docket Sheet).
2. As Petitioner has now 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

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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
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. According to Petitioner, he was sentenced in March 2018. (ECF No. 1 at 1). He
appealed, but the Appellate Division affirmed his conviction in October 2018. (Id.). The New
Jersey Supreme Court thereafter denied certification in late January 2019. (Id.). Less than three
months later, Petitioner filed his petition for post-conviction relief on April 10, 2019. (Id.). That
petition was denied on January 10, 2020. (Id.). Petitioner “immediately appealed that decision,
and that appeal is still pending.” (Id.). As all of Petitioner’s current claims were raised for the
first time in Petitioner’s post-conviction relief proceedings, they have not yet been fully exhausted
as his “P.C.R. appeal [is] still pending,” (Id. at 8-14).
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
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

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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 on the merits. Likewise, because all of Petitioner’s claims are unexhausted, he cannot
proceed on only exhausted claims as he has none. This Court must therefore either dismiss his
petition without prejudice for lack of exhaustion, or stay the petition pending exhaustion.
Petitioner requests that the Court pursue the latter course and stay his petition to “stop the clock”
on his habeas limitations period, as he believes he has already used up a third of that period. (ECF
No. 1 at 1).
6.

A district court may only grant a stay of an unexhausted 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. Although Petitioner believes he has spent a significant portion of his one year habeas
limitations period, it appears that he is mistaken. The one year habeas limitations period does not
yet begin to run until a habeas petitioner’s conviction becomes final with the conclusion of direct
appellate review or the expiration of the time for seeking such review, including the ninety-day

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period for filing a petition for a writ of certiorari in the United States Supreme Court. See Ross v.
Varano, 712 F.3d 784, 798 (3d Cir. 2013); Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 84 (3d Cir. 2013). Even where that limitations period has begun to expire, the limitations
period is subject to statutory tolling which automatically stops the running for the period while the
petition has a properly filed petition for post-conviction relief “pending” in the state courts,
including during a timely direct appeal of such a petition. Jenkins, 705 F.3d at 85. Here, Petitioner
filed his habeas petition within 90 days of the denial of his petition for certification before the New
Jersey Supreme Court. As such, it appears that, as of the time he filed his PCR petition, his habeas
limitations period had not even begun to run. Id. at 84; Ross, 712 F.3d at 798. As there is nothing
before the Court which would indicate that Petitioner’s PCR was not “properly filed,” his habeas
limitations period continued to be tolled throughout the pendency of his PCR petition and his
“immediate appeal[]” of the denial of that petition. Jenkins, 705 F.3d at 85; (ECF No. 1 at 1). As
Petitioner indicates that his appeal remains pending, Petitioner’s one-year limitations period thus
has not yet begun to run, and Petitioner is in no danger of losing his right to file a habeas petition
at this time.
8. Even assuming Petitioner’s habeas claims are potentially meritorious and that Petitioner
has not engaged in dilatory practices, Petitioner has failed to show good reason for his failure to
fully exhaust his claims prior to filing his habeas petition as his one year limitations period has not
yet begun to run and he is in no danger of being prevented from filing a habeas petition were the
Court to dismiss his habeas petition. Petitioner is therefore not entitled to a stay of his petition at
this time, and his habeas petition is therefore dismissed without prejudice for lack of exhaustion.
See Rhines, 544 U.S. at 277-78; Crews, 360 F.3d at 152; Ragland, 2015 WL 1035428 at *2.

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Petitioner is free to file a new habeas petition after his PCR appeal, including the filing of a petition
for a writ of certification, concludes.
9. 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 petition is unexhausted and that Petitioner’s habeas petition should be dismissed
without prejudice as a result, Petitioner’s habeas petition is inadequate to 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.

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10. 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. An appropriate order follows.

Dated: February 16, 2021

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

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