CHAVARRIAGA v. LANIGAN

Filing 38

MEMORANDUM and ORDER that within 21 days from the date of entry of this Order, Respondent shall supplement his Answer with additional briefing on the merger issue as directed above; further Ordering that Petitioner shall have 14 days after the filing of Respondent's supplemental briefing to file a reply. Signed by Judge Michael A. Shipp on 7/23/2015. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALEXANDRA CHAV ARRIAGA,
Civil Action No. 12-7700 (MAS)
Petitioner,

v.

MEMORANDUM AND ORDER

GARY M. LANIGAN,
Respondent.

THIS MATTER having come before the Court on Petitioner Alexandra Chavarriaga's

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. It appearing that:
1. In a Memorandum Opinion and Order filed on January 24, 2013, this Court found that

Count II of the habeas petition was unexhausted and stayed the habeas action pending the outcome
of Petitioner's state court collateral review proceedings.

However, the first count seeking

immediate release was scheduled for prompt review after the State filed a response to that count
of the petition. (ECF Nos. 5, 6.) On March 15, 2013, this Court dismissed with prejudice Count
I of the habeas petition. (ECF Nos. 16, 17.)
2.

On December 6, 2013, Petitioner moved to reopen after exhausting state court remedies

on Count II.

(ECF No. 24.) On May 30, 2014, the Court reopened the case and ordered

Respondent to file an answer addressing Count II of the Petition. (ECF No. 25.) In July of 2014,
Respondent filed an answer. (See ECF No. 32.)
3. In Count II, one of Petitioner's arguments for relief is that:
Defense counsel stated that if Petitioner were convicted on all counts, she would
spend the rest of her life behind bars; the presiding judge stated that petitioner's
exposure was "125 years"; [however, counsel erred because] as a matter oflaw, the
maximum legal sentence following conviction on all 24 counts was either ten years

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by operation of merger, or 15 years by operation of controlling New Jersey
Supreme Court precedent.

(ECF No. 1 at 9) (emphasis added). In the Answer, Respondent did not fully address this merger
claim. More specifically, Respondent did not address Petitioner's argument that "[u]nder New
Jersey law, the 24 counts of the indictment cannot be stacked as consecutive sentences. Rather,
the first 23 counts must merge for sentencing into Count 24. See State v. Hill, 182 N.J. 532, 542
(2005). Nevertheless, the judgment of conviction enumerates 24 separate convictions, in direct
disregard ofN.J.S.A. 2C: 1-8." (ECF No. 33 at 2.) 1
4. Before the Court can rule on Petitioner's ineffective assistance of counsel claim, the Court
must ascertain the validity and the extent of Petitioner's merger argument; that is, to what degree
were the state court and/or the prosecutors compelled, under state law, to merge the various counts
had this case gone to trial and a guilty verdict was returned as to all counts, and whether trial
counsel was ineffective in advising Petitioner on the effects of any potential merger with regard to
Petitioner's maximum sentencing exposure.

ORDERED that, within twenty-one (2

days from the date of entry of this Order,

Respondent shall supplement his Answer with additional briefing on the merger issue as directed
above; and it is further

Count 24 of Petitioner's indictment stated that Petitioner was being indicted for
... purposely [] obtain[ing] the property of multiple persons and businesses with a
total value in excess of $75,000.00 by deception, that is, by creating or reinforcing
the false impression that she was authorized to utilize the American Express credit
card of the Ross Public Affairs Group and by creating or reinforcing the false
impression that various checks drawn on the accounts of Stephen Ross and the Ross
Public Affairs Group were good and negotiable ...
(ECF No. 37-3 at 10.) It appears to the Court that Count 24 was indeed charged as an aggregate
offense as Petitioner asserts.
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ORDERED that Petitioner shall have fourteen (14) days after the filing of Respondent's

supplemental briefing to file a reply.

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