REEVES v. HOLMES
OPINION filed. Signed by Judge Joel A. Pisano on 5/27/2014. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTOPHER HOLMES, et al.,
Civil No. 11-5700 (JAP)
PISANO, DISTRICT JUDGE
Petitioner Troy Reeves (“Petitioner”), a prisoner currently confined at South Woods State
Prison in Bridgeton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Respondents have answered the Petition and the Answer and accompanying
state court record suggest that Petitioner has failed to exhaust his state court remedies with respect
to certain claims asserted here. Accordingly, for the reasons stated herein, Petitioner will be
ordered to show cause why the Petition should not be dismissed without prejudice for failure to
exhaust state remedies. For the reasons stated herein, Petitioner shall, within forty-five days,
show cause as to why the petition should not be dismissed as unexhausted.
This Court, affording the state court’s factual determinations the appropriate deference, see
28 U.S.C. § 2254(e)(1),1 will simply reproduce the recitation of facts as set forth by Superior
Court of New Jersey on direct appeal:
Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”
Following trial, a jury convicted defendant, Troy Reeves, of
robbery, N.J.S.A. 2C:15-1, and aggravated assault, N.J.S.A.
2C:l5-1b(1). The judge imposed a sentence of fifteen years with an
eighty-five percent period of parole ineligibility under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery
conviction and a concurrent seven-year term on the aggravated
Defendant appeals and we affirm the
conviction but remand for modification of the sentence.
On September 12, 2003, Joseph Grosz was standing near the
Lakewood Bus Terminal, waiting for the arrival of his daughter.
His sixteen-year-old son, Bryce, was waiting in Grosz’s truck. The
lights at the terminal were on and visibility was good. At
approximately 9:50p.m., Grosz saw two black men, one wearing a
red sweatjacket, and later identified as defendant, and another
unidentified individual "huddling" around a white man, saying
“[y]ou’re going to give it to me, you’re going to give it to me, give
me it, you know, I’m going to hurt you, I’m going to hurt you.”
Defendant and the other individual began hitting the man. The
man fell to the ground. They then began kicking the victim in the
head, neck, face, and ribs. Eventually, defendant reached into the
man’s pocket and took what Grosz believed was a wallet.
An older black man, who appeared to know the perpetrators,
approached and told them “[l]eave it alone ... you did what you did,
get out of here, the police are going to come.” The two attackers hit
the victim one or two more times. Defendant then walked up to the
several commuters standing around the platform, lifted his red
sweatjacket, revealing a forty-five caliber handgun, and said, “[a]ny
fucking body talks to the police, you’re fucking dead.” Grosz was
close enough to defendant to reach out and touch the gun.
The two men left the platform. Grosz began to follow them.
When Grosz realized he did not have his cell phone, he ran back to
the terminal, got a phone from Bryce, and told Bryce that when the
police arrived to tell them that he was following the two
perpetrators. Grosz resumed following the two individuals, caught
sight of them again for a short time, but lost them as they rounded a
After the police arrived, Grosz pointed out the people who were in
the area during the assault, as well as the older man who interceded.
After talking to the various people, the police were able to develop a
suspect. Later that evening, Grosz was shown a photograph array
and identified defendant as the man wearing the red sweatjacket.
The victim, James Gruber, was unconscious and did not have his
wallet. Approximately one week later, Gruber’s mother identified
the victim as her son. At the time, he was still unconscious. After
he regained consciousness, he could not recall the robbery. He
suffered blunt-force trauma to the head, a fractured skull, fractured
ribs, and sixteen stitches on his eye. The left side of his body was
weakened, requiring him to use a cane to walk, and his speech was
affected. When he regained consciousness, he realized his wallet,
containing his social security card, birth certificate, County ID, and
some loose papers was missing. Grosz and Gruber admitted to
prior criminal convictions.
Title 28 U.S.C. § 2254 provides, in pertinent part:
The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
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 States.
28 U.S.C. § 2254(a).
A federal court’s habeas review of state court convictions is circumscribed, however, in
various ways. Of particular concern, here, is the requirement that a person in custody pursuant to
the judgment of a state court exhaust his state remedies before turning to the federal courts under
(b)(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted unless it appears that–
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) (i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement
unless the State, through counsel, expressly waives the requirement.
(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
28 U.S.C. § 2254(b).
It is appropriate for a federal habeas court to raise sua sponte any concern that the
petitioner has not exhausted his state court remedies. See, e.g., Granberry v. Greer, 481 U.S. 129,
133-34 (1987), cited in Day v. McDonough, 547 U.S. 198, 214 (2006).
Thus, 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). See also Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (finding that Supreme Court precedent, and the
AEDPA, mandate that prior to determining the merits of a petition, a court must consider whether
the petitioner is required to present his or her unexhausted claims to the state’s courts), cert.
denied, 532 U.S. 919 (2001). The petitioner generally bears the burden to prove all facts
establishing exhaustion. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
A petitioner exhausts state remedies by presenting his federal constitutional claims to each
level of the state courts empowered to hear those claims, either on direct appeal or in collateral
See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 847 (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 506, 513 (3d Cir. 1997) (collateral attack in state court is not required if the
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.”).
The petitioner must “fairly present” the federal claim to the state courts in a recognizable
way, so that the court is not required to “read beyond a petition or brief” to understand the claim.
Baldwin v. Reese, 541 U.S. 27, 32 (2004). The claims heard by the state courts must be the
“substantial equivalent” of the claims asserted in the federal habeas petition. Picard v. Connor,
404 U.S. 270, 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Reliance on
the same constitutional provision is not sufficient; the legal theory and factual basis must also be
the same. Picard at 277-78; Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir. 2010), affirmed sub
nom Greene v. Fisher, 132 S.Ct. 38 (2011).
Exhaustion allows 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, 131, 134-35 (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.
Failure to exhaust may be excused on the basis that state process is unavailable, but “state
law must clearly foreclose state court review of unexhausted claims.” Toulson v. Beyer, 987 F.2d
984, 987 (3d Cir. 1993).
Generally, district courts should dismiss petitions containing unexhausted claims in the
absence of a state court decision clearly precluding further relief, even if it is not likely that a state
court will consider the claims on the merits. Rose v. Lundy, 455 U.S. at 522; Banks v. Horn, 126
F.3d 206, 212-14 (3d Cir. 1997); see also Toulson, 987 F.2d at 989 (“Because no [New Jersey]
court has concluded that petitioner is procedurally barred from raising his unexhausted claims and
state law does not clearly require a finding of default, we hold that the district court should have
dismissed the petition without prejudice for failure to exhaust state remedies”). But see Christy v.
Horn, 115 F.3d 201, 206-07 (3d Cir. 1997) (“in rare cases exceptional circumstances of peculiar
urgency may exist which permit a federal court to entertain an unexhausted claim”).
More recently, the one-year statute of limitations enacted by AEDPA in 1996 “‘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)).2 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.” Crews, 360
F.3d at 151. Indeed, the Court of Appeals for the Third Circuit has held that “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:
[S]tay and abeyance should be available only in limited circumstances. Because
A “mixed” petition is one containing both exhausted and unexhausted claims. See Crews, 360 F.3d at 147.
granting a stay effectively excuses a petitioner’s failure to present his claims first to
the state courts, stay 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). The Rhines v. Weber stay
procedure is available even when a petitioner has exhausted none of the claims in his petition. See
Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009).
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 also 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 time-limit, the stay should be vacated nunc pro
tunc.”) (citations omitted).
Here, it appears to this Court that Petitioner has not exhausted certain claims in his Petition.
It appears that Petitioner never presented to the state court his claims here in grounds one and two
regarding the alleged non-disclosure of the Grand Jury Investigation Report. Further, while
Petitioner did present certain claims related to ineffective assistance of counsel at the state court
level, it appears that Petitioner never presented to any state court the specific issue raised here
related to obtaining video footage of the incident. Accordingly, it appears that at least some of
Petitioner’s claims are unexhausted. He has alleged no facts suggesting that state law prevented
him from presenting those claims to the Supreme Court of New Jersey.
Moreover, it appears that Petitioner will be forever foreclosed from bringing those claims
in a federal habeas petition if they are dismissed at this time because the timeliness of any future
habeas petition will be measured from the date that Petitioner’s conviction became final, as all
claims were known to him at that time. Accordingly, absent a stay, Petitioner may be forever
foreclosed from seeking federal habeas relief. However, Petitioner has alleged no facts that
would suggest that he had good cause for failure to timely and fully exhaust his state remedies or
that a stay would, therefore, be justified. Moreover, this Court has doubts as whether any of the
claims are meritorious. Accordingly, it appears that the Petition must be dismissed, rather than
stayed, for failure to exhaust state remedies.3
For the reasons set forth above, Petitioner will be ordered to show cause why the Petition
should not be dismissed without prejudice, rather than stayed pursuant to Rhines v. Weber, for
failure to exhaust state remedies. An appropriate order follows.
Dated: May 27, 2014
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
In the alternative, Petitioner may request to proceed with the fully exhausted claims in the Petition by withdrawing
unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
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