ALLEN v. MR. STEPHEN D'ILIO et al

Filing 16

MEMORANDUM and ORDER directing the Clerk to serve the Bureau a notice of electronic filing of this order; if the action is refer County Prosecutor, the Bureau will use its best efforts to file a referral letter indicating the name of that office with in 14 calendar days from the date of the Order to Answer; It is Ordered that Respondents may file a Motion to Dismiss on timeliness grounds only within 45 days of the date of this order. If no motion is filed Respondents shall file an answer within 45 days of entry of this order. Signed by Judge Brian R. Martinotti on 8/14/2019. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN L. ALLEN, JR.,

Case No. 3:14-cv-4492 (BRM)

Petitioner,
v.

MEMORANDUM AND ORDER

MR. STEPHEN D'ILIO,
Respondent.

THIS MATTER has been opened to the Court by Petitioner John L. Allen, Jr.
(“Petitioner”), upon the filing of his petition for a writ of habeas corpus (the “Petition”) (ECF No.
1) brought pursuant to 28 U.S.C. § 2254. For the reasons explained in this Memorandum and
Order, Respondents shall file a limited answer addressing timeliness and exhaustion, including the
relevant record. The limited answer may be in the form of a motion to dismiss.
Because Petitioner has filed a § 2254 petition, this Court is required, pursuant to Rule 4 of
the Rules Governing Section 2254 Cases, to screen the Petition and determine whether it “plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief.”
Under this Rule, the Court is “authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Under AEDPA, Congress prescribed a one-year period of limitation for the filing of federal
habeas corpus petitions by state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (2004); 28
U.S.C. § 2241(d)(1). Pursuant to 28 U.S.C. § 2241(d)(1), [t]he limitation period shall run from
the latest of—

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(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
For pre-AEDPA convictions, which included those cases in which a prisoner’s conviction became
final before April 24, 1996, a state prisoner had a year from April 24, 1996, the effective date of
the AEDPA to seek federal habeas relief. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Under 28 U.S.C. 2241(d)(2),“[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 section.” This exception
to the one-year limitation period is known as statutory tolling and provides that the one-year
limitations period is tolled during the time a properly filed application for post-conviction relief is
pending. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003). An application for postconviction relief is considered “pending” within the meaning of § 2244(d)(2) during the period
between a lower state court's ruling and the period a petitioner has to seek review of the decision,
whether or not the appeal was actually sought. Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).
However, “the time during which a state prisoner may file a petition for writ of certiorari in the
United States Supreme Court from the denial of his state post-conviction petition does not toll the

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one-year state of limitations under 28 U.S.C. § 2244(d)(2).” Stokes v. D.A. of the County of Phila.,
247 F.3d 539, 542 (3d Cir. 2001).
Here, it appears Petitioner’s judgment of conviction became final before April 24, 1996. 1
Therefore, it appears Petitioner had one year from April 24, 1996, the effective date of the AEDPA,
to seek federal habeas relief, Burns, 134 F.3d at 111, or to file a petition for postconviction relief.
Section 2244(d)(2) tolls the statute of limitations with respect to the “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.”

It also appears Petitioner filed at least one petition for

postconviction relief (“PCR”) prior to submitting his habeas Petition for filing on July 9, 2014.
(See ECF No. 1 at 3-6); however, Petitioner has not stated whether he filed more than one PCR or
whether any subsequent PCRs were accepted as properly filed by the state court. Petitioner has
attached to his Petition an Order from the Supreme Court of New Jersey, denying a petition for
certification, which is dated July 9, 2013. 2 His Petition is dated exactly one year later, July 9,
2014.
Petitioner also appears to acknowledge that most of the Grounds for relief listed in his
Petition are unexhausted. This Court may not grant a writ of habeas corpus under 28 U.S.C. § 2254
unless the petitioner has exhausted the remedies available in the courts of the State or exhaustion
is excused under 28 U.S.C. § 2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d Cir.

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In the instant Petition, Petitioner lists the date of his Judgment of Conviction as July 10, 1991.
(ECF No. 1, Pet. at 1.) According to the Petition, Petitioner appealed his conviction and the
Appellate Division denied his direct appeal on May 4, 1995. (Id. at 2.) The Petition states that
the New Jersey Supreme Court denied his Petition for Certification on July 5, 1999. (Id.)
Petitioner does not state whether he filed a petition for certiorari with the United States Supreme
Court, and the Court assumes for purposes of this screening that Petitioner did not file a petition
for certiorari but adds to its calculation the 90 days in which Petitioner could have filed for such
review. Thus, it appears that Petitioner’s conviction became final on October 3, 1995.
2

The Order was entered on July 12, 2013.
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1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997); Toulson v. Beyer, 987 F.2d 984
(3d Cir. 1993). To satisfy the exhaustion requirement, “state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
“The burden is on the habeas petitioner to prove exhaustion.” DeFoy v. McCullough, 393 F.3d
439, 442 (3d Cir. 2005). The exhaustion doctrine mandates that the claim “must have been ‘fairly
presented’ to the state courts.” Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)). “Fair presentation means that a petitioner must
present a federal claim’s factual and legal substance to the state courts in a manner that puts them
on notice that a federal claim is being asserted.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir.
2010) (citations and internal quotation marks omitted). In sum, the exhaustion doctrine requires
the petitioner to afford the state courts “the opportunity to resolve the federal constitutional issues
before he goes to the federal court for habeas relief.” Id. (quoting Zicarelli v. Gray, 543 F.2d 466,
472 (3d Cir.1976)); see also Gould v. Ricci, No. CIV. 10-1399 NLH, 2011 WL 6756920, at *2
(D.N.J. Dec. 19, 2011) (explaining same). The exhaustion doctrine therefore requires a petitioner
challenging a New Jersey conviction under § 2254 to have fairly presented each federal ground
that is raised in the petition to all three levels of the New Jersey courts, that is, the Law Division,
the Appellate Division, and the New Jersey Supreme Court. See O'Sullivan v. Boerckel, 526 U.S.
838 (1999); Rose v. Lundy, 455 U.S. 509 (1982).
Furthermore, federal district courts may not adjudicate mixed petitions, i.e. petitions that
contain both exhausted and unexhausted claims. See Rhines v. Weber, 544 U.S. 273 (2005).
Normally, the Court is directed to dismiss a mixed petition without prejudice, id. at 274, but a stay
and abeyance may be appropriate when a dismissal without prejudice would cause Petitioner to

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run afoul of the habeas statute of limitations, and lose his opportunity to seek federal habeas
review. See id. at 275-76. As the Supreme Court instructed, “stay and abeyance is . . . appropriate
when the district court determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court.” Id. at 277. District courts should grant a stay instead of dismissing 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.” Id. at 278. If a stay is not warranted, then the petitioner may elect to
delete the unexhausted claims. See Gould, 2011 WL 6756920, at *3; if he does not delete the
unexhausted claims, then the Court must either (a) dismiss the entire § 2254 petition as
unexhausted, id. (citing Rose v. Lundy, 455 U.S. 509 (1982), or (b) deny all grounds raised in the
§ 2254 petition on the merits, pursuant to 28 U.S.C. § 2254(b)(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”). See, e.g., Carrascosa v. McGuire, 520 F.3d
249 255 (3d Cir. 2008).
Because the Court is unable to discern whether the Petition is timely and because it appears
that most of his claims are unexhausted, the Court will direct Respondents to file a limited answer
addressing (1) the timeliness of the Petition on a claim by claim basis and (2) whether any of the
claims are unexhausted/procedurally defaulted.

In reply to Respondents’ limited answer,

Petitioner may provide any basis he may have for statutory or equitable tolling and/or clarify
whether he seeks a stay pursuant to Rhines to exhaust his state court remedies as to any
unexhausted claims.
Accordingly, for the reasons set forth above and for good cause appearing,
IT IS on this 14th day of August 2019,

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ORDERED that the Clerk of the Court shall serve, pursuant to Rule 4 of the Habeas Rules,
a Notice of Electronic Filing of this Order on the State of New Jersey, Department of Law & Public
Safety, Division of Criminal Justice, Appellate Bureau (“the Bureau”), in accordance with the
Memorandum of Understanding between this Court and the Bureau; and it is further
ORDERED, also in accordance with the Memorandum of Understanding, that if the
Bureau intends to refer the action to a County Prosecutor’s Office, the Bureau will use its best
efforts to upload to CM/ECF a “referral letter” indicating the name of that office within fourteen
(14) calendar days from the date of the Order to Answer; and it is further
ORDERED that, within 45 days of the date of this Order, Respondent shall file a
limited answer addressing (1) the timeliness of each claim presented in the Petition and (2)
address whether each claim is exhausted; the limited answer may be in the form of a motion
to dismiss; and it is further
ORDERED that Respondents’ answer shall adhere to the requirements of Habeas Rule
5(c) and (d) in providing the relevant state court record of proceedings, including any pro se filings;
and it is further
ORDERED that the answer shall contain an index of exhibits identifying each document
from the relevant state court proceedings that is filed with the answer; and it is further
ORDERED that Respondents shall electronically file the answer, the exhibits, and the list
of exhibits; and it is further
ORDERED that all exhibits to the Answer must be identified by a descriptive name
in the electronic filing entry, for example:
“Exhibit #1 Transcript of [type of proceeding] held on XX/XX/XXXX” or

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“Exhibit #2 Opinion entered on XX/XX/XXXX by Judge YYYY”; and it is
further
ORDERED that Petitioner may file and serve a reply to the answer within forty-five (45)
days after Respondents file the answer, see Habeas Rule 5(e); the reply should address the
timeliness of the Petition and provide any basis Petitioner may have for statutory or equitable
tolling and/or clarify whether he seeks a stay to exhaust state court remedies; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Memorandum and Order
to Petitioner at the address on file.
s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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