RASHID v. STATE OF NEW JERSEY
Filing
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OPINION. Signed by Judge Joel A. Pisano on 12/7/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES RASHID,
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Petitioner,
v.
STATE OF NEW JERSEY,
Respondents.
Hon. Joel A. Pisano
Civil Action No. 11-7033 (JAP)
OPINION
APPEARANCES:
CHARLES RASHID, #232838C
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
Petitioner Pro Se
PISANO, District Judge
Charles Rashid, an inmate incarcerated at New Jersey State Prison, filed a “NOTICE OF
MOTION FOR STAY AND ABEYANCE” and a “MOTION FOR STAY AND ABEYANCE
OF HABEAS CORPUS PROCEEDINGS UNDER 28 U.S.C. § 2254 UNTIL STATE
REMEDIES EXHAUST.” (Dkt. 1, 1-1.) Having thoroughly reviewed Petitioner’s submissions,
this Court will deny the motion for lack of jurisdiction and deny a certificate of appealability.
I. BACKGROUND
Petitioner asserts that on July 23, 2004, the New Jersey Superior Court, Law Division,
Middlesex County, entered a judgment of conviction after a jury found him guilty of murder and
related offenses. The Law Division imposed an aggregate sentence of 69 years imprisonment,
with an 85% mandatory minimum period of parole ineligibility. See State v. Rashid, 2008 WL
4092819 (N.J. Super. Ct., App. Div., Sept. 5, 2008). Petitioner appealed, and on September 5,
2008, the Appellate Division affirmed the conviction and remanded for resentencing. Id. On
November 25, 2008, the New Jersey Supreme Court denied certification. See State v. Rashid,
197 N.J. 16 (2008) (table). Petitioner asserts that on December 11, 2008, the Law Division
resentenced him on remand, imposing the same sentence. (Dkt. 1-1 at 3.) Petitioner alleges that
he filed a petition for post-conviction relief, which the Law Division denied on August 18, 2011,
and on August 18, 2011, he filed a notice of appeal from the order denying post conviction relief.
On October 27, 2001, Rashid executed the motion for stay, and presumably handed it to
prison officials for mailing to the Clerk, along with his certification, proposed order and cover
memo. He seeks an “Order Staying and Holding in abeyance Habeas Corpus proceedings, until
all State remedies have been exhausted.” (Dkt. 1.)
II. DISCUSSION
A. Standard of Review
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.
Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a § 2254 petition to “specify all the
grounds for relief available to the petitioner,” “state the facts supporting each ground,” “state the
relief requested,” be printed, typewritten, or legibly handwritten, and be signed under penalty of
perjury. 28 U.S.C. § 2254 Rule 2(c). Habeas Rule 4 requires a judge to sua sponte dismiss a §
2254 petition without ordering a responsive pleading “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief in the district court.” 28 U.S.C. §
2254 Rule 4; see Mayle v. Felix, 545 U.S. 644, 655 (2005). Thus, “Federal courts are authorized
to dismiss summarily any habeas petition that appears legally insufficient on its face.”
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McFarland, 512 U.S. at 856; see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000);
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
B. Subject Matter Jurisdiction
Lack of subject matter jurisdiction may be raised by the Court sua sponte at any time.
See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); Louisville & Nashville
Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908); Van Holt v. Liberty Mutual Fire Ins. Co., 163
F.3d 161, 166 (3d Cir. 1998). "The exercise of judicial power under Art. III of the Constitution
depends on the existence of a case or controversy," and "a federal court [lacks] the power to
render advisory opinions." U.S. Nat’l Bank of Oregon v. Independent Ins. Agents of America,
Inc., 508 U.S. 439, 445 (1993 ) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)); see also
Flast v. Cohen, 392 U.S. 83, 97 (1968); see also Aetna Life Ins. Co. of Hartford, Conn. v.
Haworth, 300 U.S. 227, 240-241 (1937).
Section 2254(a) of Title 28 of the United States Code gives a district court jurisdiction to
entertain a habeas petition challenging a state conviction or sentence only on the ground that the
inmate’s custody violates federal law:
[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).
Thus, to invoke habeas corpus review by a federal court, the petitioner must satisfy two
jurisdictional requirements: the status requirement that the petitioner be “in custody,” and the
substance requirement that the petition challenge the legality of that custody on the ground that it
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is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989). Petitioner satisfies the status
requirement because, according to the Petition, he is in custody of the State of New Jersey
pursuant to a state criminal conviction and sentence.
This Court lacks jurisdiction over Rashid’s motion, however, because he has not filed a §
2254 petition raising grounds asserting that he is in custody “in violation of the Constitution or
laws or treaties of the United States” 28 U.S.C. § 2241(c)(3). “In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. §
2254(a); accord Barry v. Bergen County Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997). In
reviewing a habeas petition, a federal court is not permitted to address a federal constitutional
claim pertinent to the facts of the case unless the petitioner asserts the claim as a ground for
relief.1 Nor may the Court recharacterize a ground asserted under state law as a federal
constitutional claim.2 While a District Court has the power to stay a petition “for habeas corpus
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See, e.g., Withrow v. Williams, 507 U.S. 680, 695-96 (1993) (where habeas petition
raised claim that the police had elicited petitioner’s statements without satisfying Miranda, the
district court erred when it “went beyond the habeas petition and found the statements
[petitioner] made after receiving the Miranda warnings to be involuntary under due process
criteria”); Baker v. Barbo, 177 F.3d 149, 156 n.7 (3d Cir. 1999) (where petition contains ground
asserting the ineffective assistance of counsel during plea negotiations and trial, court is not
permitted to consider ground, evident from the facts but not raised in the petition, that appellate
counsel was ineffective by failing to advise petitioner that he faced a longer sentence by
appealing the conviction).
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See Engle v. Isaac, 456 U.S. 107 119-20 & n.19 (1982) (insofar as petitioners simply
challenged the correctness of the self-defense instructions under state law, their petitions alleged
no deprivation of federal rights and § 2254 was inapplicable); Kontakis v. Beyer, 19 F.3d 110,
116-17 & n.10 (3d Cir. 1994) (where petitioner asserted in § 2254 petition that the exclusion of
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relief in which a state prisoner presents a federal court with a single petition containing some
claims that have been exhausted in the state courts and some that have not,” Rhines v. Weber,
544 U.S. 269, 271 (2005), this Court lacks subject matter jurisdiction to grant a stay in this case
because Petitioner has not actually filed a § 2254 petition raising grounds asserting that he is in
custody in violation of federal law.3
Two published decisions of the United States Court of Appeals for the Second Circuit,
and one unpublished decision of the United States Court of Appeals for the Third Circuit, are
instructive. In United States v. Leon, 203 F. 3d 162 (2nd Cir. 2000), the United States Court of
Appeals for the Second Circuit held that a federal court lacks jurisdiction to entertain a motion to
extend the time to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 when
no such petition has actually been filed “because there is no ‘case’ or ‘controversy’ within the
meaning of Article III of the Constitution.” Id. at 163. “Here, because [petitioner] has not yet
filed an actual § 2255 petition, there is no case or controversy to be heard, and any opinion we
were to render on the timeliness issue would be merely advisory.” Id. at 164. The court
concluded that “[i]f or when [petitioner] actually files a § 2255 petition, the District Court . . .
may consider his argument that such a petition should be considered timely.” Id. See also
United States v. McFarland, 125 Fed. App’x 573 (5th Cir. 2005).
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testimony violated his rights under state law, federal court may not consider ground, not set forth
in the petition, that exclusion of the testimony violated his federal due process rights).
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Furthermore, even if Rashid had filed a § 2254 petition in this Court, “[t]he time during
which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.” 28 U.S.C. § 2244(d)(2).
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In Green v. United States, 260 F. 3d 78 (2nd Cir. 2001), the United States Court of
Appeals for the Second Circuit indicated that if a motion to enlarge the time to file a § 2255
motion sufficiently articulates a cognizable claim for relief under § 2255, a district court may
treat the motion as a substantive motion for relief under § 2255, provided the court first notifies
the petitioner of the consequences of filing a § 2255 motion and offers him an opportunity to
withdraw the motion, rather than have it construed as a § 2255 motion. Id. at 83-84. However,
the Green court held that because the petitioner “had not articulated any basis in fact or in law for
relief under section 2255, the district court did not err by failing to treat his motion to extend
time as a substantive section 2255 motion.” Id. at 84.
In Anderson v. Pennsylvania Attorney General, 82 Fed. Appx. 745 (3d Cir. 2003), a state
prisoner filed a “Motion for an Extension of Time to File Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254" stating that “his grounds for habeas relief [were] based on the ineffective
assistance of counsel, in violation of his rights under the Sixth Amendment and the Due Process
Clause,” that the statute of limitations was about to expire, and that he needed more time to
prepare his § 2254 petition. Id. at 747. The United States District Court for the Middle District
of Pennsylvania denied the motion, and petitioner filed a motion for reconsideration through
counsel. Petitioner argued in the motion for reconsideration that, because the motion for an
extension of time was filed within the limitations period and it contained sufficient information
to constitute a § 2254 petition, the district court erred by failing to give him time to file a more
specific pleading or to notify him before dismissing the motion. The District Court denied the
motion, and the Third Circuit granted a certificate of appealability. The Third Circuit Court of
Appeals determined that the motion for an extension of time was filed four days before the
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statute of limitations expired and that the District Court had subject matter jurisdiction to rule on
the motion. The court found that Anderson’s allegations “that he is in custody in violation of the
law, that his grounds for relief are based on the ineffective assistance of counsel and that he
needed more time to file a habeas petition [were] sufficient to present a case or controversy and
invoke the court’s jurisdiction.” Id. at 749. Nevertheless, the court concluded that the District
Court did not err by failing to recharacterize the motion as a § 2254 petition or failing to provide
notice under Mason v. Meyers, 208 F. 3d 414 (3d Cir. 2000), and United States v. Miller, 197 F.
3d 644, 649-52 (3d Cir. 1999), because the motion for an extension of time did not sufficiently
state a claim for relief under § 2254 and Habeas Rule 2(c), and would therefore have been subject
to summary dismissal under Habeas Rule 4:
We further conclude that the District Court did not err by failing
to recharacterize Anderson’s motion as a § 2254 motion and
provide him notice under Miller and Mason where Anderson did
not sufficiently state a claim for relief. If the District Court had
recharacterized the motion, it was subject to summary dismissal.
See United States v. Thomas, 221 F. 3d 430, 438 (3d Cir. 2000)
(stating that vague and conclusory grounds for habeas relief are
subject to summary dismissal); Rule 2 of the Rules Governing
Section 2254 Cases (providing that habeas petitions shall set forth
all grounds for relief and facts supporting those grounds).
Anderson, 82 Fed. Appx. at 749.
Significantly, the Court of Appeals expressly rejected Anderson’s argument that the
District Court “had to know that the claims in his habeas petition were the same as those he
presented in state court because he was required to satisfy exhaustion requirements.” Id. at 750.
“The District Court cannot assume that a petitioner will bring the same claims in federal court
that he presented to the state courts.” Id.
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This Court lacks jurisdiction to entertain Rashid’s motion for a stay because he has not
filed a § 2254 petition over which this Court has jurisdiction. Unlike the motion for an extension
of time in Anderson, Petitioner’s filing does not give this Court subject matter jurisdiction
because Petitioner does not assert that “he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Because Petitioner has not actually filed a §
2254 petition, and the document he did file does not make the necessary assertions, “there is no
case or controversy to be heard, and any opinion [this Court] were to render on the [stay] issue
would be merely advisory.” Leon, 203 F. 3d at 164. This Court accordingly denies the motion
for stay for lack of subject matter jurisdiction.4 See Leon, 203 F. 3d at 164; Palmer v. Ricci,
2011 WL 2937361 (D.N.J. July 18, 2011) (dismissing for lack of jurisdiction requests for stay
and appointment of counsel where no habeas petition had been filed); Dykeman v. New Jersey,
2009 WL 2986399 (D.N.J. Sept. 15, 2009) (dismissing for lack of jurisdiction request to toll the
time to file a habeas corpus petition under 28 U.S.C. § 2254, where no petition had been filed);
Morris v. New Jersey, 2008 WL 4276926 (D.N.J. Sept. 9, 2008) (dismissing request to stay
under Rhines for lack of jurisdiction where no § 2254 petition had been filed).
C. Certificate of Appealability
Because Petitioner has not made a substantial showing of the denial of a constitutional
right, no Certificate of Appealability will issue pursuant to 28 U.S.C. § 2253(c). See Fed. R.
App. P. 22(b)(1).
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Alternatively, if Petitioner’s filings were sufficient to create a case or controversy and
this Court had subject matter jurisdiction under § 2254, then this Court denies Petitioner’s
request for a stay because Petitioner’s submission does not sufficiently state a claim for relief
under Habeas Rule 2(c), and therefore requires summary dismissal under Habeas Rule 4. See
Anderson, 82 Fed. Appx. at 749; Pantusco v. Lagana, 2010 WL 5253532 (D.N.J. Dec. 16, 2010).
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III. CONCLUSION
For the foregoing reasons, this Court denies the motion for lack of jurisdiction and
declines to issue a Certificate of Appealability.
S/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
DATED: December 7, 2011
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