SIMMS v. BARTOWSKI et al
Filing
11
OPINION filed. Signed by Judge Mary L. Cooper on 5/24/2011. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
:
:
:
:
:
:
:
:
THOMAS SIMMS,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
Civil Action No. 10-6084 (MLC)
O P I N I O N
COOPER, District Judge
Petitioner, Thomas Simms, seeks a writ of habeas corpus
under 28 U.S.C. § 2254.
Petitioner also moved to have this
proceeding stayed while he exhausts his state court remedies,
pursuant to 28 U.S.C. § 2254(c).
For the reasons stated below,
this Court will deny Petitioner’s motion for a stay.
I.
PROCEDURAL BACKGROUND
Petitioner was indicted on March 21, 2001 by a Monmouth
County Grand Jury which charged Petitioner with four counts of
attempted murder; four counts of aggravated assault; four counts
of aggravated assault with a deadly weapon; four counts of
aggravated assault, pointing a firearm; possession of a weapon
for an unlawful purpose; unlawful possession of a weapon;
acquiring a handgun without a permit to purchase; evidence
tampering; hindering apprehension; and conspiracy to commit
murder.
(Resp.’s Br., Ex. 14, Da1-13.)
On May 7 through May 23, 2002, Petitioner and his codefendant, Michael Simms, were tried jointly in New Jersey
Superior Court before the Honorable Ira E. Kreizman, J.S.C. and a
jury.
(Id. at Ex. 1-12.)
On May 23, 2002, the jury found
Petitioner guilty of two counts of attempted murder (Counts One
and Three), two counts of attempted passion/provocation
manslaughter (as lesser offenses of Counts Two and Four), and all
of the remaining charges in the indictment except for acquiring a
handgun without a permit to purchase and conspiracy to commit
murder.
(Id. at Ex. 14, Da14-27.)
The jury also found that
Petitioner had committed a “violent crime” by using a deadly
weapon or causing serious bodily injury in the commission of the
crimes charged in Counts One through Eight of the indictment.
(Id. at Ex. 14, Da20.)
Petitioner moved for a new trial arguing that: (1) the
charge as to attempted passion/provocation manslaughter was
incomplete because it did not include instructions on “course of
ill treatment” (State v. Guido, 191 A.2d 45 (N.J. 1963)) or
“mutual combat” (State v. Crisantos, 508 A.2d 167, 172 (N.J.
1986)); and (2) the verdict was inconsistent.
(Id. at Ex. 13
(10-11 to 16-19).)
On September 27, 2002, Judge Kreizman denied Petitioner’s
motion for a new trial and imposed his sentence.
(Resp.’s Br.,
Ex. 13 (28-6 to 41-2).) Petitioner received an aggregate sentence
of forty years of imprisonment subject to an 85% parole
disqualifier.
(Id. at Ex.13 (65-15 to 76-13); Id. at Ex. 14,
Da28-30.)
2
On or about December 9, 2002, a Notice of Appeal was filed
on Petitioner’s behalf.
(Id. at Ex. 14, Da31.)
Petitioner’s
appellate counsel raised the following points in his brief:
(1) Because the instructions given to the jury were
confusing and because the charges relating to the
shooting were presented sequentially on the verdict
sheet, the jurors were perforce directed to consider
passion/provocation manslaughter only if they found the
Defendant not guilty of murder, in violation of State
v. Coyle;
(2) the trial judge’s refusal to instruct the jurors
that a continuing course of ill treatment could provide
the basis for a verdict of passion/provocation
manslaughter deprived Defendant of the right to due
process of law and a fair trial. U.S. CONST. AMENDS.
VI, XIV; N.J. CONST. (1947) ART. I, PARAS 1, 9, 10.;
(3) the conviction under Count Seventeen for possession
of a weapon for an unlawful purpose should have been
merged into the conviction for attempted
passion/provocation manslaughter under either Counts
One or Three;
(4) the trial court violated Defendant’s federal
constitutional right to due process and his right to a
jury trial when it sentenced him to consecutive terms
and to terms greater than the presumptive term based
upon facts neither admitted by Defendant nor found by
the jury.
(Id. at Ex. 14, 17.)
Petitioner also filed a pro se brief appellate brief,
alleging the following:
(1) the instructions given to the jury were so
confusing and misleading as to cause reversible error;
(2) a significant physical confrontation and/or a
continuing course of ill-treatment could constitute
adequate provocation for the shootings of Parrish and
Amin Suluki;
(3) the sentencing court failed to be guided by general
provisions when determining whether to impose a
concurrent or consecutive sentence, and the code’s
3
paramount sentencing goals that punishment fit the
crime, not criminal, and that there be a predictable
degree of uniformity in sentencing while sentencing
defendant.
(Id. at Ex.16.)
On February 18, 2005, the New Jersey Appellate Division
affirmed Petitioner’s convictions and the imposition of
consecutive terms on the attempted murder convictions, but
vacated Petitioner’s sentences and remanded for re-sentencing in
accordance with Blakely v. Washington, 542 U.S. 296
(2004), as
interpreted and applied in State v. Natale, 861 A.2d 148 (N.J.
App. Div. 2004), aff’d in part & rev’d in part, 878 A.2d 724
(N.J. 2005).
On February 28, 2005, the State filed a Notice of
Petition for Certification to the New Jersey Supreme Court,
seeking review of the portion of the Appellate Division’s holding
vacating Petitioner’s sentences and remanded for re-sentencing.
(Id. at Ex. 20.)
On March 11, 2005, Petitioner’s counsel filed a
letter in opposition to the State’s petition for certification
and a Notice of Cross-Petition for Certification and a letter
cross-petition in support thereof.
(Id. at Ex. 21, 22.)
On March
17, 2005, the State filed a brief in support of its petition for
certification and a letter in opposition to Petitioner’s
cross-petition for certification.
(Id. at Ex. 24-25.)
On September 23, 2005, the New Jersey Supreme Court granted
the State’s petition for certification, but summarily remanded
the matter to the trial court for re-sentencing in accordance
4
with State v. Natale, 878 A.2d 724 (N.J. 2005). (Id. at
Ex. 34.)
Also on that same day, the New Jersey Supreme Court denied
Petitioner’s cross-petition for certification. (Id.)
On November 29, 2005, pursuant to Natale, Judge Kreizman resentenced Petitioner and imposed the original sentence. (Id. at
Ex. 27 (18-1 to 20-18); Ex. 34, Da70-72.)
Petitioner appealed
and on February 6, 2007, the Appellate Division’s Excessive
Sentencing Panel affirmed Petitioner’s sentence. (Id. at Ex.29
(72-21 to 73-2).
On April 20, 2007, Petitioner filed a pro se
petition for post-conviction relief (“PCR”) alleging that:
(1) Petitioner’s federal and state 6th Amendment
constitutional right to due process was violated, and
thus deprived defendant of a fair trial;
(2) Trial counsel deprived defendant of his federal and
state constitutional right to effective assistance of
counsel;
(3) The ineffective assistance of appellate counsel
deprived defendant of his federal and state
constitutional right to effective assistance of
counsel; and
(4) The defendant’s excessive sentence is cruel and
unusual in violation of his Eighth Amendment rights.
(Id. at Ex. 34.)
Petitioner was subsequently appointed counsel to represent
him in the PCR proceedings, and, on August 19, 2008, counsel
filed a brief in support of Petitioner’s PCR petition arguing:
(1) Defendant was denied the effective assistance of
trial counsel in that counsel failed to adequately
prepare for trial;
(2) Defendant was denied effective assistance of
appellate counsel;
5
(3) The accumulation of errors made by defense counsel
and trial judge so prejudiced the defendant as to
undermine the right to receive a fair trial by jury;
(4) Unjust elements used in constructing the
defendant’s sentence resulted in the trial court
abusing it’s [sic] sentencing discretion requiring a
reversal of the defendant’s sentencing phase due to an
illegal sentence.
(Id. at Ex. 31.)
On October 10, 2007, the State filed a brief in
opposition to Petitioner’s PCR application.
On November 13, 2008, Judge Kreizman denied Petitioner’s PCR
petition. (Id. at Ex. 33.) On April 22, 2009, Petitioner filed a
Notice of Appeal.
Appellate counsel filed a brief in support of
Petitioner’s appeal from the trial court’s denial of PCR, alleging
that “Defendant’s attempted murder convictions must be reversed
due to ineffectiveness of counsel and this matter must be remanded
for an evidentiary hearing because a prima facie case of
ineffectiveness of counsel was established.”
30-51.)
(Id. at Ex. 34, pp.
Petitioner also filed a pro se supplemental brief in
support of his appeal, again arguing that the jury instructions on
attempted murder and attempted passion/provocation manslaughter
were erroneous.
(Id. at Ex. 35.)
On May 14, 2010, the Appellate
Division affirmed the order denying PCR for substantially the
reasons expressed by Judge Kreizman in his November 13, 2008
opinion. (Petition for Writ of Habeas Corpus, Ex. A, 3-7.)
On
October 7, 2010, the New Jersey Supreme Court denied Petitioner’s
petition for certification.
6
On or about November 22, 2010, Petitioner filed a petition
for a writ of habeas corpus here, raising these claims:
Ground One: Confusing jury instructions, sequential
verdict sheet, on charges of passion, forced jury to
consider passion only after finding defendant not
guilty of attempted murder in violation of defendant’s
Fourteenth Amendment, Due Process and Fair Trial
Right’s [sic].
Ground Two: Trial court refused to charge continuing
course of ill treatment [sic] in passion/provocation
instruction, depriving defendant of Due Process and
Fair Trial Rights.
Ground Three: Confusing and misleading jury
instructions, in violation of defendant’s Rights to
Fair Trial and Due Process
Ground Four: Sentencing court was not guided by general
provisions while imposing consecutive sentence, and
punishment does not fit the crime
Ground Five: The trial court erred in failing to
precisely identify what help was needed regarding
question from the jury during deliberations,
consequently furnishing an inappropriate response that
did not deliver the guidance needed. Counsel was
ineffective for failing to object to same.
Ground Six: Sentencing court abused its discretion in
consecutive sentence, undermining the mitigating facts
found by the jury, in violation of defendant’s
Constitutional Right to a Trial by Jury.
Ground Seven: Defendant was prejudiced by accumulation
of errors collectively impacting jury deliberations
and the outcome of trial, impeding on defendant’s
Rights to Due Process and Trial by Jury.
Ground Eight: Denial of effective assistance of
appellate counsel, in violation of defendant’s
Constitutional Right to Counsel.
Ground Nine: Verdict pattern produced by jury proves
the jury adhered to erroneous instructions while
deliberating primary offenses, in violation of
defendant’s Rights to Trial by Jury and Due Process.
In his petition, Petitioner alleges that the claim raised in
Ground Nine of his habeas petition is unexhausted.
7
On November
22, 2010, Petitioner moved to stay his habeas petition and hold
it in abeyance so that he could return to state court to exhaust
the allegedly unexhausted claim in Ground Nine.
In the motion,
Petitioner alleges that “[e]vidence proving jury was guided by
erroneous instructions in their deliberations was omitted in
claim raised on direct appeal.”
Petitioner argues that appellate
counsel is at fault for failing to recognize or discover the
value of the jury’s verdict pattern, which Petitioner claims
“could not have been the result of adherence to the curative
instruction, upon which the Appellate Division relied to deny
relief.”
Petitioner further alleged that he had good cause for
failing to exhaust this claim in state court because, due to his
“capacity as a layman,” he “was unable to professionally decipher
the information existing in the verdict” until August 27, 2010.
On February 2, 2011, Petitioner filed a second petition for
PCR in New Jersey Superior Court, arguing:
(1) Appellate counsel’s performance on direct appeal
was deficient due to failure to include evidence of
deliberating process jury followed in erroneous
instruction issue, and failure to preserve other
meritorious issues suitable for direct appeal for
habeas review, in violation of Defendant’s
constitutional right to counsel;
(A) Verdict pattern produced by jury proves jury
adhered to erroneous instruction while deliberating
primary offenses, in violation of defendant’s Rights to
Trial by Jury and Due Process;
(B) Appellate counsel’s failure to raise ineffective
assistance of trial counsel issue, hinders appellate
relief and prevents Federal review;
8
(C) Appellate counsel failed to raise meritorial [sic]
issue that consecutive terms of attempted murder
impedes on findings of the jury;
(D) Appellate counsel failed to raise meritorial [sic]
issue that isolated jury deliberations of multiple
counts of passion precluded consideration of evidence
connecting all victims to provocation, absent specific
instructions.
(Resp.’s Br., Ex. 37, 38; Petitioner’s Motion for Stay,
Attachment # 1, pp. 6-14.)
This Court issued a notice to Petitioner on February 18,
2011, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
advising Petitioner that he may either: (1) “have [his] ending §
2254 Petition ruled upon as filed; or (2) [w]ithdraw [his] pending
§ 2254 Petition and file one all-inclusive § 2254 Petition
subject to the one-year statute of limitations.”
Also on that
date, this Court entered an Order directing respondents to submit
a response to Petitioner’s motion for a stay within 45 days.
On
March 1, 2011, Petitioner filed a request for a 90-day extension
of time in which to make a decision regarding his options under
the Mason Order.
On March 15, 2011, Petitioner submitted a
response to the Mason Order, stating that he chooses to withdraw
his pending § 2254 Petition and file one all-inclusive § 2254
Petition subject to the one-year statute of limitations but that
choice is expressly contingent on the denial of his request for
the extension and if the Court denies Petitioner’s request for a
stay.
(Docket Entry No. 8.)
Petitioner further stated that “in
the event of an extension and/or granting of the motion to stay,
9
[his] decision to withdraw pending § 2254 Petition shall become
null and void.”
On
April 4, 2011, Respondents filed their
response to the motion to stay.
II.
FACTUAL BACKGROUND
The facts of this case were recounted in state court.
This
Court, affording the state court’s factual determinations the
appropriate deference, see 28 U.S.C. § 2254(e)(1), will reproduce
the factual recitation as set forth by the New Jersey Appellate
Division on February 18, 2005, as to Petitioner’s direct appeal
from his judgment of conviction and sentence:
The charges against defendant arose from an incident
occurring on October 19, 2000, on Throckmorton Street
in the Borough of Freehold. The evidence adduced by
the State, if credited, discloses the following.
That evening, Anthony Parrish, Amin Suluki and Marcus
Bailey were at the home of Timothy Parrish at 79
Throckmorton Street. At approximately 10:00 p.m.,
co-defendants Michael Simms and Jamaal Sconiers drove
to Throckmorton Street and parked in the driveway of a
neighbor of Timothy Parrish. A verbal argument ensued
between the two groups, but there was no physical
confrontation.
Michael Simms and Sconiers got back in the car and
left, driving over to the area of Ford Avenue in
Freehold. When Michael Simms saw his brother -- the
defendant -- he exited the vehicle and they had a
conversation, during which Michael Simms asked
defendant “if he had a gun on him.”
At defendant’s direction, Sconiers drove Michael Simms
and defendant to a house located on Center Street where
defendant had been renting a room. Defendant and
Michael Simms went inside the house and, when they
emerged, defendant was wearing a dark colored
sweatshirt. Defendant then told Sconiers to drive them
to the corner of Ford and Lloyd Avenues, where they
picked up co-defendant John Simms, the uncle of the
10
Simms brothers. Sconiers then drove them all to the
Parrish house on Throckmorton Street.
When they arrived, defendant alighted from the vehicle
and engaged Anthony Parrish in an aggressive verbal
argument; Michael Simms, John Simms and Sconiers also
exited the vehicle. Anticipating a physical fist fight,
Anthony instructed Amin to go inside the Parrish house
and tell Timothy to come outside. When Timothy and Amin
emerged from the house, Anthony took off his leather
jacket and threw it to the ground.
Defendant then took out a nine-millimeter pistol he had
concealed on his person and shot Anthony behind his
left ear. Defendant then shot Bailey in the face,
Timothy in the face, and Amin in the buttocks as he was
attempting to run away. None of the victims was armed,
nor had they threatened anyone with a weapon. Anthony,
Bailey and Timothy sustained severe and lifethreatening injuries, but survived. Amin sustained
injuries that required abdominal surgery and removal of
a portion of his intestines; he also survived.
After the shootings, defendant, Michael Simms, and John
Simms entered Sconiers’ vehicle, and all four drove
away. At defendant’s instruction, Sconiers drove them
to the home of his friend Velisse Hamilton, in the
Cliffwood Beach/Matawan area. Defendant convinced
Hamilton to loan him her car, although Hamilton knew
nothing about the shootings. Defendant, Michael Simms,
and John Simms then drove to New York City and rented a
motel room in Manhattan. At defendant’s request, his
girlfriend Ramona Hickman brought approximately $1,000
in cash and a cell phone to him in the motel room. The
next day, they moved to a motel in Yonkers, New York.
Meanwhile, Sconiers had turned himself in to the police
and ultimately testified at the trial of defendant and
Michael Simms. John Simms and Michael Simms later
turned themselves in, and defendant was apprehended in
Asbury Park on October 30, 2000.
After his capture, defendant gave a statement to the
police, admitting he had shot all four victims. At
trial, however, defendant denied shooting Timothy or
Amin, and relied on self-defense, testifying he had
shot Anthony and Bailey after he saw them reaching for
what he thought were weapons. . .
[In this case], the trial judge provided the jurors
with a fourteen page, sequential verdict sheet, and
then instructed the jury on the four attempted murder
11
charges contained in counts one through four,
essentially in conformity with the model charge for
attempted murder. See Model Jury Charges (Criminal),
Attempted Murder (December 7, 1992). The judge then
explained attempted passion/provocation manslaughter as
a lesser-included offense of attempted murder, and
described the four factors necessary to find that
offense. The judge repeatedly instructed the jury that
the burden to disprove passion/provocation remained, at
all times, with the State.
Although the judge initially stated the jury was to
consider passion/provocation manslaughter only after
considering and finding defendant not guilty of the
primary offense, he explained:
If the State has disproved at least one of
the factors of passion/provocation
manslaughter, you can go back to the
attempted murder. If the State has failed to
prove any of those, has failed to prove all
four of those, if you find that there is
passion/provocation manslaughter, then you
find the defendant guilty of
passion/provocation manslaughter which is a
lesser offense than attempted murder.
However, later in the charge, the trial judge then
instructed as follows:
In each of the counts, count one, for
example, question number one. If you find
Thomas Simms not guilty of attempted murder
of Anthony Parrish, you go to . . .
[question] 1A . . . How do you find the
defendant Thomas Simms on the lesser-included
offense of attempted passion/provocation
manslaughter.
If you have answered number one guilty, you
just move right on, you don’t consider it. If
you find him not guilty, you consider the
attempted passion/provocation manslaughter.
That goes for each of the defendants in
regard to all four victims, counts one
through eight. Each have a lesser included
offense of attempted passion/provocation
manslaughter.
...Deliberations began but were interrupted when the
jury requested that it be re-instructed on the elements
of attempted murder and attempted passion/provocation
12
manslaughter. The judge reiterated his previous
explanation of attempted murder and then moved on to
attempted passion/provocation manslaughter, instructing
in pertinent part:
If the State has proven those elements [of
attempted murder] to you beyond a reasonable
doubt, you find the defendant guilty. If you
find that the State has failed to prove any
of those elements, you find him not guilty as
to each of the four counts; that, as to the
four victims.
The next thing you asked me to give the
elements of passion/provocation manslaughter.
Defendant is charged with attempted murder.
He is not charged with attempted
passion/provocation manslaughter.
The defendant says you should find me not
guilty because passion/provocation
manslaughter is a lesser-included offense and
then move on to that if you find the
defendant not guilty of attempted murder.
The defendant has raised his defense that he
was provoked to act and his actions were done
in the heat of passion. Therefore, if you
find defendant not guilty of attempted
murder, then you consider the lesser-included
offense of attempted passion/provocation
manslaughter.
In order for the State to carry its burden,
it must prove beyond a reasonable doubt that
the provocation was insufficient to arouse
the passion of an ordinary person beyond his
power or control.
Again, the State must prove that the
provocation was inadequate. Remember I told
you at the beginning of the case the State
has the burden of proving the defendant’s
guilt. The defendant could raise defenses but
the State has the burden of overcoming those.
So the State has to prove one of those four
factors is not present.
...[T]he parties did not object to the recharge and
deliberations resumed until the jury submitted the
following...question later that day, as related by the
trial judge:
13
At 3:10 I received the following question:
Should the jury consider [question] 1 and
[question] 1A on all counts regarding the
attempted murder and attempted passion/
provocation manslaughter as alternatives that
should be considered at the same time or must
the jury find the defendant not guilty on the
attempted murder charge before discussing,
considering guilty or not guilty on the 1A
attempted passion/provocation manslaughter?
The trial judge provided the following response:
Our law is set up, the most serious charge,
we work down and the attempted murder is the
most serious charge. . .
So the answer is that the first thing you
have to do is make a determination as to
whether or not the defendant is guilty . . .
or not guilty of attempted murder of each of
the four victims. . . .If you find no, if you
make a determination that he . . . [is] not
guilty of whatever the courts are, then your
deliberation are finished. With regard to 1
and 1A . . . and so forth, move on down.
If you determine the defendant [is] guilty of
attempted murder, then you consider whether
or not the State has disproved any of the
elements of passion/provocation.
So you are going to make a determination
first as to whether or not the State has
proven beyond a reasonable doubt that the
defendant [is] . . . guilty of attempted
murder. If you answer is no, you move out of
the attempted murder count of the indictment,
you move on to the next.
If you find yes, then
factors as to whether
attempted murder down
manslaughter which is
you understand? Okay,
back into the room. .
you consider those four
or not you reduce the
to passion/provocation
a lesser offense. Do
all right, you can go
. .
The jury then resumed deliberations. Upon inquiry
immediately after providing the instruction, counsel
for defendant expressed the following objection:
The only thing I’m a little concerned is that
the jury, if they determine the lesser14
included offense of attempted passion/
provocation manslaughter, when they check off
that box guilty of that, are they going to
check off attempted murder guilty also? In
other words, they’ll say guilty of attempted
murder?
At that point, the trial judge acknowledged that the
jury--almost immediately after having been given the
last instruction--had another question, and he
instructed that they write it out. Upon receipt of that
question, the judge stated:
The question came back, “Your answer is
inconsistent with what is written on the
verdict sheet. Is the verdict sheet incorrect
and if so should we get a revised sheet?”
In response, the judge informed the jury, as follows:
It was brought to my attention as you walked
in that one of the attorneys said the same
thing. The verdict sheet, first question,
how do you find the defendant Thomas Simms on
the first count which charges he did commit
the crime of attempted murder, et cetera.
Let me just say it again. If you find that
the two elements of attempted murder for any
of the counts have been proven to you beyond
a reasonable doubt, you next have to consider
passion/provocation and you would consider as
to whether or not the State has proven one of
those elements is not present beyond a
reasonable doubt, then that would fail.
If the State proves one of those elements to
you beyond a reasonable doubt, then
passion/provocation would fail and if you
find the elements of attempted murder, then
attempted murder, the verdict would be guilty.
If you find the State had failed to prove any
of those four and you find that
passion/provocation manslaughter is
appropriate, you would find the defendant not
guilty of the attempted murder but guilty of
passion/provocation manslaughter.
Upon inquiry, there was no objection by counsel to this
clarifying instruction....
(Exhibit # 31, Da37-40, 58-64.)
15
III. ANALYSIS
A.
Pro Se Pleading
Petitioner brings his habeas petition as a pro se litigant.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers.
Estelle v. Gamble, 429 U.S.
97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A
pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
See Royce
v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Att’y Gen.,
878 F.2d 714, 721-22 (3d Cir. 1989).
B.
Exhaustion of Remedies
A state prisoner applying for a writ of habeas corpus in
federal court must first “exhaust[] the remedies available in the
courts of the State,” unless “there is an absence of available
State corrective process[] or ... circumstances exist that render
such process ineffective”.
28 U.S.C. § 2254(b)(1) (“AEDPA”); see
Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134
F.3d 506, 513 (3d Cir. 1997) (finding Supreme Court precedent and
AEDPA “mandate that prior to determining the merits of [a]
petition, [a court] must consider whether [Petitioner] is required
to present . . . unexhausted claims to the [state’s] courts”).1
1
Although a petition for a writ of habeas corpus may not be
granted if the petitioner has failed to exhaust remedies in state
court, a petition may be denied on the merits notwithstanding the
petitioner’s failure to exhaust state court remedies. See 28
U.S.C. § 2254(b)(2); Lambert v. Blackwell, 387 F.3d 210, 260 n.42
(3d Cir. 2004); Lewis v. Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).
16
The exhaustion requirement is intended to allow state courts
the first opportunity to pass upon federal constitutional claims,
in furtherance of the policies of comity and federalism.
Granberry v. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at
516-18.
Exhaustion also has the practical effect of permitting
development of a complete factual record in state court, to aid
the federal courts in their review.
Rose, 455 U.S. at 519.
A petitioner exhausts state remedies by presenting federal
constitutional claims to each level of the state courts empowered
to hear those claims, either on direct appeal or in collateral
post-conviction proceedings.
See, e.g., O’Sullivan v. Boerckel,
526 U.S. 838 (1999) (“requiring state prisoners [in order to
fully exhaust their claims] to file petitions for discretionary
review when that review is part of the ordinary appellate review
procedure in the State”); Lambert v. Blackwell, 134 F.3d at 513
(collateral attack in state court not required if petitioner’s
claim has been considered on direct appeal); 28 U.S.C. § 2254(c)
(“An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise,
by any available procedure, the question presented.”)
Once a
Petitioner’s federal claims have been fairly presented to the
state’s highest court, the exhaustion requirement is satisfied.
Picard v. Connor, 404 U.S. 270, 275 (1971); Castille v. Peoples,
489 U.S. 346, 350 (1989).
17
The Petitioner generally bears the burden to prove all facts
establishing exhaustion.
Cir. 1993).
Toulson v. Beyer, 987 F.2d 984, 987 (3d
This means that the claims heard by the state courts
must be the “substantial equivalent” of the claims asserted in
the federal habeas petition.
Picard, 404 U.S. at 275.
Reliance
on the same constitutional provision is not sufficient; the legal
theory and factual predicate must also be the same.
Id. at 277.
But “when a Petitioner raises the same constitutional question in
both state and federal courts and the resolution of that question
requires the courts to review the same factual record, the failure
of the Petitioner to highlight the same facts in state court as
he does in federal court does not mean the federal claim is
non-exhausted.”
Landano v. Rafferty, 897 F.2d 661, 673 (3d Cir.
1990) (discussing Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir.
1984) and Bright v. Williams, 817 F.2d 1562, 1565 (11th Cir.
1987)); see Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding
supplemental evidence presented by prisoner “did not fundamentally
alter the legal claim already considered by the state courts”);
Stevens v. Del. Corr. Ctr., 295 F.3d 361, 370 (3d Cir. 2002)
(citing Vasquez, and concluding that claim was exhausted because
affidavits filed in federal court, which contained more facts than
submissions filed in state court, did not fundamentally alter
legal claim).
Where any available procedure remains for the
applicant to raise the question presented in the courts of the
18
state, the applicant has not exhausted the available remedies. 28
U.S.C. § 2254(c).
The exhaustion doctrine also is a “total” exhaustion rule,
meaning “a district court must dismiss habeas petitions containing
both unexhausted and exhausted claims [(‘mixed’ petitions)].”
Lundy, 455 U.S. at 522. When Rose v. Lundy was decided, there was
no statute of limitations for filing federal habeas petitions.
The enactment in 1996 of a one-year limitations period for § 2254
habeas petitions,2 however, “‘has altered the context in which
the choice of mechanisms for handling mixed petitions is to be
made.’”
Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004) (quoting
Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.), cert. denied, 534
U.S. 1015 (2001)).
Because of the one-year limitations period,
dismissal of a timely-filed mixed petition may forever bar a
petitioner from returning to federal court.
“Staying a habeas
petition pending exhaustion of state remedies is a permissible
and effective way to avoid barring from federal court a
Petitioner who timely files a mixed petition.”
at 151.
Crews, 360 F.3d
Indeed, “when an outright dismissal could jeopardize the
timeliness of a collateral attack, a stay is the only appropriate
course of action.”
Crews, 360 F.3d at 154.
The Supreme Court has somewhat limited the stay-and-abeyance
rule announced in Crews:
2
See 28 U.S.C. § 2244(d).
19
[S]tay and abeyance should be available only in limited
circumstances. ... [S]tay and abeyance is only
appropriate when the district court determines there
was good cause for the Petitioner’s failure to exhaust
his claims first in state court. Moreover, even if a
Petitioner had good cause for that failure, the district
court would abuse its discretion if it were to grant him
a stay when his unexhausted claims are plainly meritless.
...
On the other hand, it likely would be an abuse of
discretion for a district court to deny a stay and to
dismiss a mixed petition if the Petitioner had good
cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the Petitioner engaged in intentionally
dilatory litigation tactics. In such circumstances, the
district court should stay, rather than dismiss, the
mixed petition. ... For the same reason, if a
Petitioner presents a district court with a mixed
petition and the court determines that stay and
abeyance is inappropriate, the court should allow the
Petitioner to delete the unexhausted claims and to
proceed with the exhausted claims if dismissal of the
entire petition would unreasonably impair the
Petitioner’s right to obtain federal relief.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (citations omitted).
Even where stay and abeyance is appropriate, the district
court’s discretion in structuring the stay is limited by the
timeliness concerns reflected in the one-year statute of
limitations.
“Thus, district courts should place reasonable time
limits on a Petitioner’s trip to state court and back.”
Id. at
278; see Crews, 360 F.3d at 154 (“If a habeas petition is stayed,
the Petitioner should be given a reasonable interval, normally 30
days, to file his application for state post-conviction relief,
and another reasonable interval after the denial of that relief
to return to federal court.
If a Petitioner fails to meet either
20
time-limit, the stay should be vacated nunc pro tunc.”)
(citations omitted).
Petitioner alleges that he has not exhausted Ground Nine of
his petition, which states that the “[v]erdict pattern produced
by jury proves that jury adhered to erroneous instructions while
deliberating primary offenses, in violation of defendant’s Rights
to Trial by Jury and Due Process.”
Petitioner further states
that “[a]ppellate counsel’s diligence fell short of discovering
value of
the jury’s verdict pattern [and] defendant was unable
to discovery same until August 27, 2010, in his capacity as a
layman.
As this discovery occurred outside the time for
exhaustion, Petitioner moves for a stay to exhaust this ground in
the appropriate State Courts.”
Respondents argue in response that the claim in Ground Nine
has been fully exhausted in state court, as that claim is the
“substantial equivalent” of the claim raised in Point I of
Petitioner’s brief submitted to the Appellate Division on direct
appeal.
Point I of the Appellate Brief states: “Because the
Instructions Given to the Jury Were Confusing and Because the
Charges Relating to the Shooting Were Presented Sequentially on
the Verdict Sheet, the Jurors Were Perforce Directed to Consider
Passion/Provocation Manslaughter Only if They Found the Defendant
Not Guilty of Murder, In Violation of State v. Coyle.”
Respondents also argues that “although couched in different
terms, Ground Nine is the ‘substantial equivalent’ of the claim
21
Petitioner advanced before the Appellate Division under Point I of
his appellate brief.
Petitioner merely points to ‘[t]he manner
in which [the] jury recorded its verdict’ as additional evidence
in support of his claim that the trial court’s erroneous jury
instructions on attempted murder and attempted passion/
provocation manslaughter, along with the sequential verdict
sheet, violated his Fourteenth Amendment rights to due process
and a fair trial.
Petitioner’s failure to highlight these same
facts in state court does not constitute a failure to exhaust.”
(Resp. Br. at 35-36.)
Further, Respondents argue that because
the final verdict sheet was attached to Petitioner’s appellate
brief, this Court is privy to the same factual record that was
available to the state court. (Resp. Ex. 14, Da14-28).
The Court agrees with Respondents that Petitioner exhausted
the claim in Ground Nine of his petition.
Appellate counsel
argued in his brief to the Appellate Division on direct appeal
that “the court’s erroneous instructions and the sequential nature
of the verdict sheet combined to preclude passion/provocation
manslaughter as a lesser-included offense of first-degree
attempted murder, in direct violation of ...Mr. Simms’ Fourteenth
Amendment due process and fair trial rights.”
(Resp. Ex. 14, at
33-34.) Further, appellate counsel’s brief discussed the improper
verdict sheet and the results reached by the jury in specific
detail.
(Id. at 33-47.)
Finally, the completed verdict sheet
was attached to the brief for review by the Appellate Division.
22
The Appellate Division opinion stated that “[t]he verdict
itself suggests the jury fully understood these final instructions
and was not misled, since it found defendant guilty of attempted
passion/provocation manslaughter for the shootings of Anthony
Parrish and Marcus Bailey, the two victims defendant believed had
weapons, and guilty of attempted murder of Timothy Parrish and
Amin Suluki, the two men defendant conceded had made no threats
or threatening motions.”
(Resp. Ex. 31, Da64-66.)
It further
stated that “[t]o the extent we have not discussed any additional
arguments presented by defendant, we find them to be without
merit to warrant discussion in this opinion. R. 2:11-3(e)(2).”
(Id. at Da72.)
Therefore, this Court finds that the claims in
Ground Nine have been exhausted as they are substantially
equivalent to those claims raised on direct appeal.
Respondents also argue in their brief that though Petitioner
does not so state, some of his claims in Ground Eight of the
petition are unexhausted.
Specifically, that Petitioner suffered
ineffective assistance of appellate counsel because “[a]ppellate
counsel neglected to
present existing proof showing the jury was
not guided by curative effort of the court, regarding the manner
in which to deliberate offenses containing questions of passion,
on issue of erroneous jury instruction”; and “[a]ppellate counsel
failed to raise issue of ineffective assistance of trial counsel
on direct appeal.”
But Respondents argue that the substantive
23
allegations that underlie these two unexhausted claims have been
considered and rejected by the state courts.
(See Resp. Ex. #31,
Da64-66; Ex. 33 (19-1 to 26-2) (finding no prima facie showing of
ineffective assistance of trial counsel).
Therefore, Respondents
waive the exhaustion requirement as to these two unexhausted
claims raised in Ground Eight of Petitioner’s habeas petition.
See 28 U.S.C. § 2254(b)(3); Sharrieff v. Cathel, 574 F.3d 225,
227-30 (3d Cir. 2009); Carpenter v. Vaughn, 296 F.3d 138, 147-48
(3d Cir. 2002).
(Resp. Br. at 37-38).
Therefore, the Court finds that claims in the petition are
exhausted and Petitioner has not presented a “mixed petition”
appropriate for analysis under Rhines v. Weber.
See 544 U.S.
269, 277-78 (2005) (holding that it would be abuse of discretion
for district court to deny stay and dismiss mixed petition if
Petitioner had good cause for failure to exhaust, and his
unexhausted claims are potentially meritorious).
The Court will
deny Petitioner’s request for a stay; however, as Petitioner had
previously stated that he wished to withdraw his Petition should
the Court deny his request for a stay, the Court will re-issue an
Order pursuant to Mason v. Meyers,
208 F.3d 414 (3d Cir. 2000),
to allow Petitioner the opportunity respond in light of the
Court’s holding that the claims at issue are exhausted.
If
Petitioner no longer wishes to withdraw the petition, the Court
24
will order Respondents to file an answer.
The Court will issue
an appropriate order.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
May 24, 2011
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?