CHAVARRIAGA v. LANIGAN

Filing 16

OPINION filed. Signed by Judge Michael A. Shipp on 3/15/2013. (eaj)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALEXANDRA CHAVARRIAGA,
Petitioner,
v.
GARY M. LANIGAN, et al.,
Respondents.

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Civil Action No.: 12-7700 (MAS)
OPINION

APPEARANCES:
FREDERIC J. GROSS, ESQ.
7 East Kings Highway
Mt. Ephraim, New Jersey
Counsel for Petitioner

08059

CAROL MARIE HENDERSON, ASSISTANT ATTORNEY GENERAL
OFFICE OF THE N.J. ATTORNEY GENERAL
DIVISION OF CRIMINAL JUSTICE, APPELLATE SECTION
P.O. Box 086
Trenton, New Jersey 08625
Counsel for Respondents
SHIPP, District Judge
This matter is before the Court pursuant to a petition for a
writ of habeas corpus under 28 U.S.C. § 2254, filed by counsel for
Petitioner Alexandra Chavarriaga.

Principally, Petitioner seeks

immediate release from prison on the ground that her sentence of
confinement has been completed and Petitioner is being held beyond
the expiration of her sentence.

(Petition, Count I.)

Petitioner’s

challenge to her May 21, 2009, New Jersey state court conviction
(Petition, Count II) has been stayed pending her exhaustion of state
court remedies as required under 28 U.S.C. § 2254(b)(1)(A).

(See

this Court’s January 24, 2013 Opinion and Order, Docket entry nos.
5 and 6.)

Respondents have provided an answer to Count I of the

Petition, as directed, regarding Petitioner’s claim for immediate
release.

(Docket entry no. 13.)

For the reasons stated below, this

Court will deny Petitioner’s writ for habeas relief on Count I of
the petition.
I.

BACKGROUND

The Court will address the factual and procedural history as
to the claim set forth in Count I of this habeas petition seeking
immediate release from prison.

Petitioner is a state inmate

presently confined at the Edna C. Mahan Correctional Facility for
Women (“EMCF”) in Clinton, New Jersey, serving a seven year prison
term imposed by the Superior Court of New Jersey, Somerset County,
pursuant to a judgment of conviction entered on or about May 21, 2009.
(Petition, ¶¶ 2, 3, 22.)
Petitioner contends that she is being confined beyond the
expiration of her prison term.

As stated above, Petitioner was

sentenced on May 21, 2009, to a seven year prison term.

In Exhibit

A attached to the Petition, Petitioner alleges that, as of October
31, 2012, the State calculated that the confinement portion of
2

Petitioner’s sentence will be complete on May 7, 2013.
Ex. A.)

(Petition,

This Court takes judicial notice of the New Jersey

Department of Corrections (“NJDOC”) website for offender searches
which shows, as of this date, that Petitioner’s current maximum
release date is April 13, 2013, a variance of 24 days in Petitioner’s
favor.

See https://www6.state.nj.us/DOC_Inmate.

Petitioner claims, however,

that Respondents have failed to

restore credits lost as a result of a wrongful prison disciplinary
action that was overturned on November 2, 2012, after a remand for
a rehearing from the Appellate Division. 1

(Petition, ¶¶ 5, 10.)

In

particular, Petitioner alleges that she accumulated 11 days of
commutation time per month while confined at Garrett House but only
received 4 days per month for the eleven months she was confined to
maximum security at EMCF because of a wrongful disciplinary action.
(Id., ¶ 12.)

Further, Petitioner alleges that she accumulated 5 days

per month of minimum time while confined at Garrett House, but
received no credit for minimum time from Respondents due to the
wrongful prison disciplinary action.

(Id., ¶ 13.)

Petitioner also

claims that, because of her confinement at EMCF, her accumulation
of work credits dropped substantially.

1

(Id., ¶ 14.)

Petitioner was charged with violating Standard *259 for failing
to produce urine on demand. (Petition at ¶¶ 6, 7.)
3

In sum, Petitioner alleges that a total of 77 days of commutation
credits, 55 days of minimum time credits, and an unspecified number
of work credits were wrongfully withheld from Petitioner that would
have reduced her maximum release date by at least 132 days.
Specifically, Petitioner contends that her mandatory release date
would be no later than December 27, 2012, or earlier if additional
commutation and minimum time credits are added for the months of
November

2012

and

December

2012.

(Id.,

¶¶

15,

16,

17.)

Consequently, Petitioner alleges that she is being held beyond the
expiration of her maximum release date and seeks her immediate
release from prison.
On March 12, 2013, the State filed an answer to the petition
together with the relevant state court and administrative record.
(Docket entry no. 13.)

The State provides the following background

relevant to this petition.
On December 22, 2011, Petitioner was ordered to provide a urine
sample, but she was unable to do so because she did not drink enough
water to void a sufficient amount to be sampled.

As a result, on

December 23, 2011, a disciplinary charge *.259 was filed for “failure
to comply with an order to submit a specimen for prohibited testing.”
N.J.A.C. 10A:4-4.1.

A disciplinary hearing was held on December 30,

2011, and the hearing officer found Petitioner guilty of the

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disciplinary charge.

Petitioner was sanctioned with the loss of

visitation privileges for one year.

(Ra2.) 2

That same day, on December 30, 2011 Petitioner filed an
administrative appeal of the hearing officer’s decision.

(Ra3.)

Petitioner argued that she had been unable to provide a urine sample
because she was not provided with any drinking water for the two-hour
time period she was given to produce a urine sample.

She further

argued that she made a good faith effort to comply, by voiding twice,
but was informed that the amount was insufficient.

Consequently,

she was not given a reasonable opportunity to comply with the order
as required under N.J.A.C. 10A:3-5.11(i).

(Id.)

On January 3, 2012, the decision of the hearing officer was
upheld on administrative appeal.

(Ra4.)

Thereafter, on February

16, 2012, Petitioner filed an appeal to the Superior Court of New
Jersey, Appellate Division.

(Ra1.)

On April 9, 2012, Petitioner

filed a motion for a stay of the administrative decision and for
summary reversal.

(Ra5.)

for summary disposition.

On May 21, 2012, the NJDOC filed a motion
(Ra6.)

both motions on June 11, 2012.

The Appellate Division denied

(Ra5, 6.)

On August 24, 2012, the NJDOC filed a motion for a temporary
remand so as to allow the NJDOC to determine whether water was made

“Ra” refers to the Respondents’ appendix or List of Exhibits set
forth in this matter at Docket entry no. 13-22.
5
2

available to Petitioner when she was asked to provide a urine sample.
(Ra7.)

The Appellate Division granted the motion for remand on

September 24, 2012, and further ordered that the remand be completed
within 45 days.
the appeal.

The Appellate Division retained jurisdiction over

(Ra7.)

On November 2, 2012, the NJDOC dismissed the *.259 disciplinary
charge because it was unable to complete the remand proceedings
within the 45 day time frame set by the Appellate Division.

The NJDOC

then notified the Appellate Division, on November 28, 2012, that
Petitioner’s *.259 disciplinary charge had been dismissed, thus
rendering the disciplinary appeal moot.

(Ra8.)

On December 4, 2012, Petitioner’s counsel wrote to the appellate
court arguing that the matter was not moot.

Petitioner then raised

for the first time that, despite having dismissed the disciplinary
charge against Petitioner, the NJDOC had not restored commutation
and work credits allegedly lost by reason of the initial December
30, 2011 disciplinary decision.

(Ra9.)

The NJDOC then filed a motion to dismiss the disciplinary appeal
as moot on December 28, 2012.

(Ra10, Ra11.)

opposition on January 8, 2013.

(Ra12.)

Petitioner filed

The Appellate Division

dismissed Petitioner’s appeal as moot on January 11, 2013.

(Ra13.)

On January 7, 2013, before the Appellate Division issued its
dismissal order above, Petitioner filed an application for emergent
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relief to a single judge of the Appellate Division.

Petitioner

argued that she was wrongly denied “remission” credits, which if
applied by the NJDOC, would have reduce her projected release date
to December 22, 2012.

(Ra14.)

In an Order filed on January 14,

2013, the Honorable Mitchel E. Ostrer, J.A.D., denied Petitioner’s
motion for emergent relief because Petitioner did not have an order
or decision denying the credits.

(Ra15.)

Petitioner moved for reconsideration of the January 14, 2013
Order, but then, on January 25, 2013, Petitioner’s counsel sent a
letter withdrawing the motion for reconsideration so as to pursue
habeas relief in federal court on the issue of credits.

(Ra16.)

In

fact, prior to the NJDOC’s December 28, 2012 motion to dismiss the
disciplinary appeal as moot, Petitioner already had filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254, on or about
December 18, 2012.

(Docket entry no. 1.)

On February 7, 2013, Petitioner was informed by letter from the
New Jersey State Parole Board (“NJSPB”) that she would be paroled
on February 20, 2013.

(Ra19.)

On February 11, 2013, however,

Petitioner refused parole and requested to serve her maximum term,
which was determined to be March 23, 2013.

(Ra20.)

On February 14,

2013, the NJSPB wrote to Petitioner confirming that she refused her
parole date of February 20, 2013, and requested to serve her maximum
term.

(Ra21.)
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Petitioner filed a reply to the NJDOC’s answer to her petition
on March 12, 2013, contesting the State’s non-exhaustion argument.
(Docket entry no. 15.)
II.
A.

ANALYSIS

Standards Governing § 2254 Petitions
At the outset, federal courts may “entertain an application for

a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court only on the ground that she is in
custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a).

By limiting habeas relief to

state conduct which violates “the Constitution or laws or treaties
of the United States”, § 2254 places a high threshold on the courts.
Typically, habeas relief will only be granted to state prisoners in
those instances where the conduct of state proceedings resulted in
a “fundamental defect which inherently results in a complete
miscarriage

of

justice”

or

was

completely

rudimentary demands of fair procedure.
512 U.S. 339, 354 (1994).

inconsistent

with

See, e.g., Reed v. Farley,

Thus, claimed violations of state law,

standing alone, will not entitle a petitioner to § 2254 habeas relief,
absent a showing that those violations are so great as to be of a
constitutional dimension.

See, Priester v. Vaughan, 382 F.3d 394,

401–02 (3d Cir. 2004).

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B.

Exhaustion Analysis of Section 2254 Claims
The NJDOC principally argues that this petition, namely Count

I of the petition at issue here, should be denied for failure to
exhaust state court remedies.

Generally speaking, exhaustion of

state remedies is a necessary prerequisite to a federal habeas
petition.

See 28 U.S.C. § 2254(b)(1)(A).

More specifically, the

statute provides, in pertinent part:
(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.
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), 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 [his or her] unexhausted claims to the [state’s] courts”).
Thus, exhaustion demands that a petitioner must fairly present all
federal claims to the highest state court before bringing them in
federal court pursuant to 28 U.S.C. § 2254.

See 28 U.S.C. § 2254(b)

and (c); Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir.

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2002); Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002), cert.
denied, 537 U.S. 1195 (2003).
Requiring exhaustion of claims in state court also promotes the
important goal of ensuring that a complete factual record is created
to aid the federal courts in their review of a § 2254 petition.
Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995).

A petitioner

seeking to invoke the writ of habeas corpus, therefore, bears the
burden of showing that all of the claims alleged have been “fairly
presented” to the state courts, and the claims brought in federal
court must be the “substantial equivalent” of those presented to the
state courts.

Evans v. Court of Common Pleas, 959 F.2d 1227, 1231

(3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73–74 (3d Cir. 1982).
A petitioner cannot avoid this responsibility merely by suggesting
that she is unlikely to succeed in seeking state relief, since it
is well-settled that a claim of “likely futility on the merits does
not excuse failure to exhaust a claim in state court.”

Parker v.

Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
In those instances where a state prisoner has failed to exhaust
the legal remedies available to her in the state courts, federal
courts typically will refuse to entertain a petition for habeas
corpus.

See Whitney v. Horn, 280 F.3d at 250.

A petitioner who has

failed to properly pursue a claim in state court in accordance with
state legal procedures can overcome this procedural bar to habeas
10

relief only by showing either: (1) both a valid cause for the
procedural default and actual prejudice as a result of some violation
of federal law; see Johnson v. Pinchak, 392 F.3d 551, 563 (3d
Cir.2004), or (2) that the failure to review the petitioner’s claim
will inevitably “result in a fundamental miscarriage of justice,”
Coleman v. Thompson, 501 U.S. 722, 750 (1991).

See also 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”).
Here, the State argues that Petitioner failed to exhaust her
administrative and state court remedies regarding the alleged denial
of credits claim.

The State notes that Petitioner never filed any

action with the NJDOC in an effort to resolve the alleged loss of
credits against her sentence.

Rather, Petitioner first sought

redress for loss of commutation and work credits in her December 4,
2012 letter to the Appellate Division that the disciplinary appeal
was not moot.

Petitioner again raised the issue concerning credits

in her motion for emergent relief before the Appellate Division.

In

denying Petitioner’s request for emergent relief, Judge Ostrer
ruled:
Although defendant asserts the Department of Corrections
continues to penalize her as a result of the finding of
an asterisk offense that she appealed and after remand the
Department dismissed, she provides only a worksheet, and
does [sic] provide an order of the Department reflecting
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that she continues to bear consequences of the
now-dismissed asterisk charge and the Department refuses
to remove those consequences, nor does she provide us with
an order reflecting any attempt to seek review internally.
She may renew her application upon submission of an
appropriate order.
(Ra15.)
Petitioner counters the State’s non-exhaustion argument by
claiming (1) that she attempted to exhaust state remedies on at least
three occasions, and (2) that under the circumstances of this case,
exhaustion

would

not

be

Petitioner

principally

required.

relies

on

(Docket
pre-AEDPA

entry
case

no.

15-1.)

law,

namely

Codispoti v. Howard, 589 F.2d 135 (3d Cir. 1978), which is not
relevant to the circumstances at issue here.
In Codispoti, the United States Court of Appeals for the Third
Circuit excused petitioner’s non-exhaustion because petitioner’s
efforts had languished in state court for many years without
decision.
rulings.

In the instant case, there was no delay in state court
Rather,

the

Appellate

Division

promptly

denied

Petitioner’s belated request for emergent relief because Petitioner
did not exhaust her administrative remedies.
Moreover,

the

limited

e-mail

communications

between

Petitioner’s counsel and Deputy Attorney General Diane Moratti,
co-defense counsel in Petitioner’s civil rights action, Chavarriaga
v. State of New Jersey, Dept. of Corrections, Civil No. 12-4313 (MAS),
12

concerning alleged withholding of good time credits do not constitute
exhaustion of state administrative remedies.

Petitioner’s counsel

raised the matter initially on November 26, 2012, and then again on
December 9, 2012.

On December 11, 2012, Ms. Moratti responded with

a worksheet stating that Petitioner’s work and minimum credits were
correctly posted and that the alleged loss of commutation credits
had been removed.

Counsel then responded to Moratti that same day,

disputing Moratti’s statement and threatening to resort to federal
habeas relief, which he did by filing this habeas petition on
Petitioner’s behalf on December 18, 2012.
The Court finds that Petitioner’s explanation of events does
not

suffice

to

show

exhaustion.

There

simply

was

no

state

administrative order or administrative grievance process reflecting
that Petitioner attempted to resolve this dispute through normal and
proper administrative channels of review.

The letter and e-mail

communication between Petitioner’s counsel and the NJDOC’s counsel
in connection with an unrelated federal litigation in an ongoing
civil rights complaint under 42 U.S.C. § 1983 does not constitute
the requisite administrative review contemplated for purposes of
exhaustion.
Moreover, Petitioner did not seek review before the New Jersey
Supreme Court.

Petitioner instead elected to eschew the full

exhaustion of state court remedies by withdrawing her motion for
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reconsideration before the Appellate Division and concentrating on
federal

habeas

relief.

Petitioner’s

allegations

of

NJDOC

gamesmanship does not discharge her obligation to exhaust state
administrative and court remedies before proceeding with this habeas
petition.
Thus, Petitioner’s failure to pursue available state remedies
is fatal to this petition.

Since Petitioner has failed to exhaust

her administrative and state remedies with respect to the allegedly
denied credits, Count I of her petition should be denied.

Indeed,

such petitions have routinely been denied in the past under similar
situations where, for instance, it has been shown that a petitioner
who is challenging a parole decision has not exhausted his other
remedies before proceeding to federal court.

See e.g., Warwick v.

Miner, 257 F. App’x 475 (3d Cir. 2007); Williams v. Winder, 232 F.
App’x 177 (3d Cir. 2007); Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001);
Cusatis v. Pa. Bd. Of Probation and Parole, 1:12-CV-791, 2012 WL
3960317, *6 (M.D. Pa. Aug. 8, 2012); Wilkinson v. Cameron, 3:10–CV–
1435, 2010 WL 4791661 (M.D. Pa. Nov. 18, 2010).
While

federal

courts

may

deviate

from

the

exhaustion

requirement and intervene in highly exceptional circumstances, such
an exception would be justified only if Petitioner lacked any real
opportunity to obtain redress in the state court, or if the corrective
process was so clearly deficient as to render futile any effort to
14

obtain relief.

See Duckworth v. Serrano, 454 U.S. 1 (1981).

Based

on the facts of this case, Petitioner cannot meet these stringent
requirements to obtain premature federal review of her claim.

She

clearly had other avenues of redress available in the state court
before proceeding here.

Specifically, she could have presented her

challenge to the alleged loss of commutation credits in a mandamus
action addressed to the original jurisdiction of Superior Court of
New Jersey.

See Williams v. Varano,

2009 WL 5126006, *3-4 (M.D.

Pa. Dec. 17, 2009); McCray v. Pennsylvania Dep't of Corrections, 582
Pa. 440, 872 A.2d 1127, 1131 (Pa. 2005) (finding the Commonwealth
Court to be the appropriate forum for petitioner's mandamus action
challenging the DOC's failure to provide credit for time served in
calculating new sentence).
Moreover,

Petitioner

has

neither

alleged

nor

shown

any

deficiency or irregularity in the state corrective process or other
justification sufficient to warrant exemption from the exhaustion
rule.

In particular, as observed by this Court above, nothing

contained in this petition indicates that an inordinate delay in the
adjudication of Petitioner's claim in Count I has occurred in the
past or will occur. 3

3

See Williams, 2009 WL 5126006 at *3-4.

This Court also notes that Petitioner was scheduled to be paroled
on February 20, 2013, which she declined.
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Finally, questions regarding the calculation of credits under
state law are issues that are particularly the province of state
courts.

See Stewart v. Smith, 3:10-CV-799, 2011 WL 837740, *6 (M.D.

Pa. Jan. 4, 2011).

Thus, a complete factual record developed by

state courts and administrative proceedings is critical to aid this
Court in review of Petitioner’s § 2254 habeas claim.
Therefore, this Court finds that Count I of this habeas petition
must be dismissed for failure to exhaust state remedies.
CONCLUSION
For the foregoing reasons, the Court will dismiss this habeas
petition for failure to exhaust state remedies as required under 28
U.S.C. § 2254(b)(1), or alternatively, Petitioner’s claim for habeas
relief under Count I of the petition will be denied for lack of merit
and as moot.

An accompanying Order is filed herewith.

__/s/ Michael A. Shipp
MICHAEL A. SHIPP
United States District Court

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