PRALL v. N.J.D.O.C. et al
Filing
38
OPINION filed. Signed by Judge Anne E. Thompson on 4/29/2014. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TORMU E. PRALL,
Petitioner,
v.
N.J.D.O.C., et al.,
Respondents.
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Civil Action No. 11-6355(AET)
OPINION
APPEARANCES:
Tormu E. Prall
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner pro se
Renee M. Robeson
Assistant Mercer County Prosecutor
Office of the Mercer County Prosecutor
Mercer County Courthouse
P.O. Box 8068
209 South Broad Street
Trenton, NJ 08620
Counsel for Respondents
THOMPSON, District Judge
Petitioner Tormu E. Prall, a prisoner currently confined at
New Jersey State Prison in Trenton, New Jersey, has submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging his 2008 conviction on aggravated assault and
related charges.
The respondents are the New Jersey Department
of Corrections and Gary M. Lanigan, Commissioner.
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 all
of the 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. 1
I.
BACKGROUND
The relevant facts are set forth at length in the opinion
of the Superior Court of New Jersey, Appellate Division. 2
See
1
Also pending before the Court is Petitioner’s Motion [36] to
expedite this matter. As grounds for his request to expedite,
Petitioner states that he has postponed appearing before the
Parole Board pending the resolution of this matter. As parole
would not moot the Petition, the request to expedite will be
denied. In any event, the Court notes that the parties have
advised the Court that Petitioner is also serving a life
sentence, so it cannot be said that Petitioner is suffering
particular harm from having this matter proceed in the ordinary
course. In addition, Petitioner seeks in the Motion for certain
portions of the record provided by Respondents to be stricken.
As there does not appear to be any inaccuracy in any of the
records provided by Respondents, this request, too, will be
denied.
2
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
State v. Prall, 2011 WL 2622405 (N.J. Super. App. Div. July 6,
2011).
Briefly, the charges against Petitioner arose out of an
incident on October 18, 2006, in which officers of the Trenton
Police Department responded to a call regarding criminal
mischief, a broken window at a residence, and were directed to a
white U-Haul van, which they approached first in their patrol
car and then on foot.
The driver of the van, later identified
as Tormu Prall, accelerated toward the police officers on more
than one occasion, nearly striking an officer, then drove at
high speed through the streets of Trenton.
He was arrested
later that evening.
As a result of these events, Petitioner was indicted on
charges of aggravated assault (fourth degree), N.J.S.A. 2C:121b(5)(a); eluding police (second degree), N.J.S.A. 2C:29-2b; and
resisting arrest (fourth degree), N.J.S.A. 2C:29-2a(2).
(Answer, Ex. 1, Indictment.)
Before trial, Petitioner signed a pre-trial memorandum
acknowledging that he had been advised of his right to be
present at trial and that, if he did not appear for trial on the
date fixed (which was then November 13, 2007) or any adjourned
trial date thereafter, a bench warrant would be issued for his
rebutting the presumption of correctness by clear and convincing
evidence.”
arrest and the trial court had the right to conduct the trial in
his absence. 3
Nevertheless, Petitioner did not appear for trial
on November 13, 2007, or on the adjourned trial date of December
17, 2007, or on the adjourned trial date of January 7, 2008.
After hearing argument from all counsel, the trial court found
that Petitioner had knowingly and voluntarily waived his right
to be present at trial and ruled that the trial would proceed in
absentia. (Answer, Ex. 15, Trial Transcript, 3-10 (Jan. 7,
2008).)
At the conclusion of the jury trial, Petitioner was
convicted on all counts.
On February 5, 2010, the trial court
sentenced Petitioner to an aggregate term of ten years
imprisonment, with a five-year parole disqualifier.
Petitioner appealed his conviction and sentence.
Petitioner’s counsel presented the following issues for appeal:
POINT I
THE INCULPATORY STATEMENT MADE BY THE DEFENDANT DURING
THE FIRST APPEARANCE PURSUANT TO R. 3:4-2 SHOULD HAVE
BEEN EXCLUDED ON THE GROUNDS OF FUNDAMENTAL FAIRNESS.
POINT II
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY
ON HOW TO EVALUATE ORAL STATEMENTS ALLEGEDLY MADE BY
THE DEFENDANT. (Not Raised Below)
POINT III
3
See generally State v. Hudson, 119 N.J. 165 (1990) (holding
that a defendant may waive his presence at trial by either a
written or oral waiver or by conduct evincing what is in effect
such a waiver).
PREJUDICIAL OTHER CRIME EVIDENCE WAS ADMITTED WITHOUT
LIMITING INSTRUCTIONS AND IN VIOLATION OF THE MANDATE
OF N.J.R.E. 403. (Not Raised Below)
POINT IV
THE SENTENCE IMPOSED OF TEN YEARS WITH A FIVE YEAR
PAROLE BAR WAS MANIFESTLY EXCESSIVE. IN ADDITION, THE
RESISTING ARREST CONVICTION MUST BE MERGED WITH THE
ELUDING COUNT AS IT WAS BASED UPON THE SAME CONDUCT.
A.
B.
The Quantum of Sentence Is Excessive.
The Resisting Arrest Conviction Must Be Merged
With the Eluding Charge
(Answer, Ex. 2, Pet. Brief on Appeal.)
Petitioner submitted a pro se Supplemental Brief in which
he raised the following issues:
I.
THE CONCLUSION THAT APPELLANT’S CONDUCT REVEALS A
KNOWING, VOLUNTARY, AND UNJUSTIFIED ABSENCE FROM TRIAL
WAS CONTRARY TO CLEARLY ESTABLISHED SUPREME COURT LAW.
II. N.J.S.A. 2C:4-4a(2)(g) AND N.J.S.A. 2C:4-6 ARE
UNCONSTITUTIONAL AS APPLIED.
III. 42 U.S.C. § 2000cc APPLIES IN APPELLANT’S
SITUATION BASED ON THE STATE’S RECEIPT OF FEDERAL
FUNDING.
IV. THE STATE’S PSYCHIATRISTS AND PSYCHOLOGISTS
CANNOT DICTATE AT WHICH POINT APPELLANT’S RIGHTS OF
RELIGIOUS FREEDOM ARE INFRINGED BY THE STATE.
V.
EMERGENCY RELIEF ENJOINING THE RETROACTIVE AND
PROSPECTIVE ENFORCEMENT OF N.J.S.A. 2C:4-4a(2)(g) AND
2C:4-6 IN APPELLANT’S CASE
(Answer, Ex. 4, Defendant’s Supplemental Brief on Appeal.)
In
essence, Petitioner was arguing that his religious convictions
prevented him from appearing at trial or participating in his
defense.
Petitioner also submitted a second pro se Supplemental
Brief in which he made further arguments in support of the
issues raised in his first pro se Supplemental Brief.
(Answer,
Ex. 5, Defendant’s Second Supplemental Brief on Appeal.)
On July 6, 2011, the Superior Court of New Jersey,
Appellate Division, affirmed the conviction.
State v. Prall,
2011 WL 2622405 (N.J. Super. App. Div. July 6, 2011).
In its
opinion, the Appellate Division referred only to the issues
raised by Petitioner’s counsel; no mention was made of the
issues raised in Petitioner’s pro se supplemental briefs.
Petitioner’s counsel timely filed with the Supreme Court of
New Jersey a petition for certification, raising the following
issues:
Please accept this letter in lieu of a formal
petition for certification. Mr. Prall relies upon the
points raised in the brief filed on his behalf in the
Appellate Division. On July 6, 2011, in a written
opinion the Appellate Court, per curiam, affirmed his
convictions and sentence.
Mr. Prall raised four points in appeal. First,
the court erred in admitting the defendant’s
inculpatory statement which was made during
arraignment in a hospital, and after the municipal
judge advised defendant he could ask a question. The
courts below held that the statement was “completely
voluntary,” not in response to questioning, and thus
admissible.
Second, the State introduced several oral
statements allegedly made by defendant. The court,
however, did not instruct the jury on how to evaluate
such statements pursuant to the Hampton/Kociolek
charges. State v. Hampton, 61 N.J. 250 (1972); State
v. Kociolek, 23 N.J. 400 (1957); see Model Charge on
tatements of Defendant,” revised 6/14/10.
Third, prejudicial other crime evidence was
admitted without any limiting instructions and in
violation of N.J.R.E. 403. ...
Finally, Mr. Prall’s aggregate sentence of 10
years, five years before parole was manifestly
excessive. ...
(Answer, Ex. 9, Defendant’s Petition for Certification.)
Petitioner did not submit to the Supreme Court of New Jersey any
pro se briefs raising additional issues.
The Supreme Court of
New Jersey denied certification on December 1, 2011.
State v.
Prall, 208 N.J. 600 (2011).
Petitioner did not petition the U.S. Supreme Court for a
writ of certiorari.
Accordingly, Petitioner’s conviction became
final for purposes of federal habeas review on February 29,
2012, ninety days after the Supreme Court of New Jersey denied
certification.
See generally 28 U.S.C. § 2244(d); Swartz v.
Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187
F.3d 333, 337 n.1 (3d Cir. 1999); U.S. Sup. Ct. R. 13.
Petitioner submitted this federal Petition for writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, on December 23,
2011, before his conviction became final pursuant to § 2244(d).
Here, Petitioner asserts the following grounds for relief:
(1) his absence from trial was not knowing and voluntary,
(Arguments I and II); (2) he was not able to participate in his
own defense, because of his religious beliefs, (Arguments III
and VI); he is actually innocent of the crime of conviction
(Argument IV); and he received ineffective assistance of counsel
(Argument V). 4
Petitioner has submitted two supplements to the
Petition (Docs. 2, 4), neither of which asserts any additional
grounds for relief.
On or about March 15, 2013, after filing this federal
habeas Petition and more than one year after his conviction
became final under § 2244(d), Petitioner filed his first state
petition for post-conviction relief in the trial court.
(Answer, Ex. 12, Petition for Post-Conviction Relief).
In his
state petition for post-conviction relief, Petitioner has
asserted claims of ineffective assistance of counsel.
The
parties’ most recent submissions to the Court indicate that the
petition for post-conviction relief is not yet concluded. 5
II.
JURISDICTION
“A federal court has jurisdiction to entertain a habeas
petition under 28 U.S.C. § 2254(a) ‘only if [a petitioner] is in
custody in violation of the constitution or federal law.’”
Leyva v. Williams, 504 F.3d 357, 362 (3d Cir. 2007) (citations
4
In Argument
not precluded
of counsel in
not raise the
5
VII, Petitioner appears to be arguing that he is
from presenting claims of ineffective assistance
a habeas proceeding, despite the fact that he did
claims on direct appeal.
As of October 25, 2013, the parties were still awaiting a
briefing schedule before the trial court. (Answer to
Supplemental Pet., Doc. No. 34-1, at 4.)
omitted).
Respondents assert that this Court lacks jurisdiction over
this Petition because Petitioner “maxed-out” on his sentence in
March 2013, and is presently confined pursuant to another
conviction and sentence.
(Answer, at 1.)
Petitioner asserts
that he became eligible for parole in March 2013, but that he
will not “max-out” on the sentence until some time in 2016.
This Court need not resolve this dispute, as the question
whether a petitioner is “in custody” under the challenged
conviction, thus affording jurisdiction to the reviewing federal
habeas court, is determined as of the date the petition is
filed.
See, e.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998)(cited
in Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004)).
Moreover, release does not moot a habeas petition where the
petitioner will suffer “collateral consequences” if his
conviction is allowed to stand.
Leyva, 504 F.3d at 363, (citing
DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005)).
Where a
petitioner is challenging a criminal conviction, the federal
habeas court may presume “collateral consequences.”
Id.
(citations omitted).
The parties here appear to be in agreement that Petitioner
was serving a sentence under the challenged conviction on
October 23, 2011, the date this Petition is deemed filed under
the federal “mailbox rule.” 6
Accordingly, this Court has
jurisdiction to hear Petitioner’s § 2254 Petition.
III.
DISCUSSION
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 § 2254.
(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 process; or
(ii) circumstances exist that render such
process ineffective to protect the rights of
the applicant.
6
Pursuant to the federal prisoner “mailbox rule,” a prisoner’s
federal habeas petition is deemed filed on the date it is placed
into the prison mail system. See Houston v. Lack, 487 U.S. 266
(1988); Burns v. Morton, 134 F.3d 109 (3d Cir. 1998).
(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 presented.
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). 7
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 ... .”
§ 2254(b)(1).
28 U.S.C.
See also Rose v. Lundy, 455 U.S. 509, 515 (1982);
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (finding
7
The Court notes that Respondents have raised the defense of
non-exhaustion with respect to the claim of ineffective
assistance of counsel. (Answer to Supplemental Petition, Doc.
No. 34-1, at 7.)
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 post-conviction proceedings.
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)). 8
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
8petition pending exhaustion of state remedies is a permissible
and effective way to avoid barring from federal court a
8
A “mixed” petition is one containing both exhausted and
unexhausted claims. See Crews, 360 F.3d at 147.
petitioner who timely files a mixed petition.”
at 151.
Crews, 360 F.3d
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-andabeyance rule announced in Crews.
[S]tay and abeyance should be available only in
limited circumstances. Because 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
exhausted none of the claims in his Petition.
The claims of
ineffective assistance of counsel are pending before the trial
court in a recently-filed state petition for post-conviction
relief.
It appears that Petitioner has never presented, to any
state court, any claim of actual innocence.
Petitioner’s
appellate counsel did not present to the New Jersey Supreme
Court any of Petitioner’s pro se issues regarding whether he
voluntarily waived his right to be present at trial or whether
religious convictions prevented him from participating in his
defense; nor did Petitioner present any of those claims pro se
to the Supreme Court of New Jersey.
Thus, whether or not the
Appellate Division considered those claims, and it appears that
it did not, Petitioner appears to have abandoned them before
presenting them to every level of the state courts that could
have considered them.
Accordingly, it appears that all 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.
That is 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, and the one-year
limitations period for filing a federal habeas petition expired
on March 1, 2013, before Petitioner filed his state petition for
post-conviction relief on March 15, 2013. 9
9
Thus, the pending
New Jersey courts have never adopted a prison “mailbox rule”
akin to the federal rule of Houston v. Lack, which deems federal
submissions “filed” when they are delivered to prison officials
for forwarding to the clerk of a federal court. See Mallard v.
Bartkowski, Civil No. 11-3442, 2013 WL 2481262 (D.N.J. June 10,
2013) (citing Oliver v. Lee, No. L-6590-08, 2012 WL 1414081, *3
state petition for post-conviction relief cannot act to toll the
federal limitations period.
See generally 28 U.S.C. § 2244(d);
Mallard v. Bartkowski, Civil No. 11-3442, 2011 WL 4991492, *5
(D.N.J. Oct. 18, 2011).
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 grave doubts 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.
IV.
CONCLUSION
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.
/s/ Anne E. Thompson
Anne. E. Thompson
United States District Judge
Dated:
4/29/14
(N.J. Super. App. Div. April 25, 2012)). Accordingly,
Petitioner’s state petition for post-conviction relief is not
considered filed until it was received by the state court.
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