MCDANIEL v. WARREN
Filing
4
MEMORANDUM OPINION AND ORDER granting Petitioner's IFP application; that the Petition, Docket Entry No. 1 , is dismissed without prejudice, as unexhausted; that no certificate of appealability shall issue; that Petitioner's application req uesting expedited adjudication of this matter, Docket Entry No. 2 , is dismissed as moot; that the Clerk shall serve this Memorandum Opinion and Order upon Petitioner by regular mail and close the file on this matter. Signed by Judge Peter G. Sheridan on 7/25/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
________________________________
:
:
:
Petitioner,
:
:
v.
:
:
CHARLES C. WARREN, JR., et al., :
:
Respondents.
:
________________________________:
MICHAEL PAUL MCDANIEL,
Civil Action No. 12-2102 (PGS)
M
O
A
O
E
P
N
R
M O R A N D U M
I N I O N
D
D E R
This matter comes before the Court upon filing of a petition
by Michael Paul McDaniel (Petitioner) for a writ of habeas corpus
(“Petition”), Docket Entries Nos. 1 and 1-2, pursuant to 28 U.S.C.
§ 2254. The Petitioner asserts that he has already served his
“maximum”
sentence,
and
that
the
New
Jersey
Department
of
Corrections (“DOC”) unduly holds Michael Paul McDaniel in custody.
Petitioner
also
inapplicable
to
asserts
his
that
instant
the
§
exhaustion
2254
requirement
challenge,
since
he
was
was
challenging an administrative execution of his sentence.
Michael Paul McDaniel’s public record at the DOC website
corresponding to his current prison number indicates that he was
convicted on July 1, 2011 in the Superior Court of New Jersey, Law
Division,
Monmouth
County,
on
weapons
offenses.
In
addition,
Petitioner was convicted on September 23, 2011, in the Superior
Court of New Jersey, Law Division, Ocean County, on controlled
substance offenses.
See
Each sentence was a three-year term. The Petition asserts that the
Monmouth County sentence was ordered to run concurrent to the Ocean
County sentence, allegedly with a “403 days gap-time credit,” but
that credit was not honored by the DOC in violation of the sentence
expressly imposed by Michael Paul McDaniel’s state sentencing
judge.
Docket Entry No. 1-2.
Petitioner asserts that the exhaustion requirement does not
apply
to
his
Petition.
However,
this
assertion
is
facially
frivolous, and warrants this Court’s recital of the previous
warning given to Plaintiff by Judge Wigenton that such allegations
might be
construed
as
abuse
of writ
and,
therefore, subject
Petitioner to sanctions, if warranted. However, the Court finds it
warranted to grant Petitioner the benefit of the doubt and explains
below the exhaustion requirement which is to be applied to § 2254
petitions.
The Exhaustion Requirement
A state prisoner applying for a writ of habeas corpus in a
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
2
v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134 F.3d
506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001) (finding
that “Supreme Court precedent and the 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”).
[his
or
her]
In fact, exhaustion
of state remedies has been required for more than a century, since
the Supreme Court’s decision in Ex parte Royall, 117 U.S. 241
(1886).
While exhaustion is not a jurisdictional requirement, it
is designed to allow state courts the first opportunity to pass
upon federal constitutional claims, in furtherance of the policies
of comity and federalism.
See Granberry v. Greer, 481 U.S. 129,
131, 134-35 (1987); Rose v. Lundy, 455 U.S. 509, 516-18
(1982).
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.
See Rose, 455 U.S. at 519.
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
3
(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”).
Once a petitioner's federal claims have been fairly
presented to the state's highest court, the exhaustion requirement
[*13] is satisfied.
See Castille v. Peoples, 489 U.S. 346, 350
(1989); Picard v. Connor, 404 U.S. 270, 275 (1971). The petitioner
generally
bears
exhaustion.
1993).
the
burden
to
prove
all
facts
establishing
See Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.
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 basis must also be the same.
See id. at 277.
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, 987 F.2d at 987.
In
alternative, the Court of Appeals observed that, “if a prisoner
could establish that the activities of the state authorities made
the
prisoner’s
resort
to
the
4
state
procedures
in
effect
unavailable, exhaustion would be excused.”
Mayberry v. Petsock,
821 F.2d 179, 184 (3d Cir.), cert. denied, 484 U.S. 946 (1987).
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.
See 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”).
Notably, New Jersey law provides an absolute right to appeal
any action or decision of a state administrative agency to the
Superior
Court,
Appellate
Division,
under:
(a)
the
State
Constitution, N.J. Const. Art. VI, Sec. 5, para. 4, see Trantino v.
New Jersey State Parole Board, 166 N.J. 113, 172, modified on other
grounds, 167 N.J. 619 (2001); and (b) the New Jersey Court Rules.
See N.J. Ct. Rule 2:2-3(a)(2).
This procedure allows for appeals
from “inaction as well as action of a State administrative agency.”
Trantino v. New Jersey State Parole Board, 296 N.J. Super. 437,
459-460 (N.J. Super. Ct. App. Div. 1997), modified on other grounds
and affirmed, 154 N.J. 1 (1998); Johnson v. State Parole Board, 131
5
N.J. Super. 513, 517-18 (N.J. Super. Ct. App. Div. 1974), certif.
denied, 67 N.J. 94 (1975); see also Petrucelli v. Dep’t of Civ.
Service, 28 N.J. Super. 572, 575 (N.J. Super. Ct. App. Div. 1953)
(“The import of the rule embraces official administrative conduct
of a negative character as well, such as, for example, the refusal
to consider a meritorious petition, or to conduct a hearing, or to
render any decision in a controversial cause”).
Here,
Michael
Paul
McDaniel
asserts
that
the
DOC
is
erroneously executing his concurrent state sentences (imposed,
seven
and
ten
months
ago,
by
the
Monmouth
and
Ocean
County
Divisions of the Superior Court of New Jersey, Law Division).
It
is self-evident, and Petitioner concedes, that he did not exhaust
his state remedies.
Moreover, in light of Michael Paul McDaniel’s
assertion that the DOC willfully ignored the sentencing directives
of
his
state
judge,
his
challenges
are
uniquely
suited
for
resolution by state courts, and it would be a clear violation of
the policies of comity and federalism by this Court to deny state
courts the first opportunity to pass upon Petitioner’s federal
constitutional claims.
Therefore, Michael Paul McDaniel’s challenges in the instant
matter are dismissed, without prejudice, as unexhausted, since he
has failed to establish that either “there is an absence of
available State corrective process[] or . . . circumstances exist
that render such process ineffective.”
6
28 U.S.C. § 2254(b)(1).
The Court may issue a certificate of appealability only if the
petitioner “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
When a court
denies a habeas petition on procedural grounds, the prisoner must
demonstrate that jurists of reason would find it debatable: (1)
whether the petition states a valid claim of the denial of a
constitutional right; and (2) whether the court was correct in its
procedural ruling.
(2000).
See Slack v. McDaniel, 529 U.S. 473, 484
“Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to
proceed
further.”
Id.
Here,
the
Court
is
persuaded
that
reasonable jurists would not debate the correctness of this Court’s
conclusion that Petitioner’s challenges are subject to dismissal,
as unexhausted.
IT IS, therefore, on this 25th day of July, 2012,
ORDERED that Petitioner’s application to proceed in this
matter in forma pauperis, Docket Entry No. 1-1, is granted; and it
is further
ORDERED that the Petition, Docket Entry No. 1, is dismissed
without prejudice, as unexhausted; and it is further
ORDERED that no certificate of appealability shall issue; and
it is further
7
ORDERED that Petitioner’s application requesting expedited
adjudication of this matter, Docket Entry No. 2, is dismissed as
moot; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and
Order upon Petitioner by regular U.S. mail and close the file on
this matter.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
July 25, 2012
8
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