GAINES v. D'ILIO et al

Filing 13

MEMORANDUM AND ORDER that Grounds I and VI of the Petition are DISMISSED WITH PREJUDICE; that Respondents shall file a response to the Petition within 45 days. Signed by Judge Michael A. Shipp on 9/9/2016. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HERMAN L. GAINES,
Petitioner,

Civil Action No. 14-4966 (MAS)
MEMORANDUM AND ORDER

v.

STEPHEN D'ILIO, et al.,
Respondents.

HERMAN L. GAINES,
Petitioner,

Civil Action No. 15-0761 (MAS)
MEMORANDUM AND ORDER

v.

STEPHEN D'ILIO, et al.,
Respondents.

These matters come before the Court on two Petitions for Writ of Habeas Corpus filed by
Petitioner Herman L. Gaines pursuant to 28 U.S.C. § 2254. The first case, No. 14-4966, appears
to be simply a placeholder filed to avoid the expiration of the statute of limitations while
Petitioner was exhausting his state court remedies, (see Pet., ECF No. 1, No. 14-4966), and the
second case, No. 15-0761, contains Petitioner's full-fledged habeas petition. Because No. 150761 is the only matter where Petitioner filed an actual habeas petition on the court-approved
form, as required by Local Civil Rule 81.2, the Court terminates No. 14-4966 as duplicative, and
proceeds with No. 15-0761 ("Petition"). Moreover, since Petitioner has declared that the Petition
sets forth all grounds for relief and is his one, all-inclusive habeas petition, (Pet. 21, ECF No. 1,

No. 15-0761), the Court now screens the Petition for summary dismissal pursuant to Rule 4 of
the Rules Governing Section 2254 Cases in the United States District Courts, and it appearing:
1. The procedural history of the state proceedings in this matter appears to be quite
complicated.

It appears that Petitioner, after being convicted and sentenced for aggravated

manslaughter and other related crimes, filed a direct appeal, with the conviction affirmed but
remanded for resentencing.

Id. at 3.

Petitioner sought certification with the New Jersey

Supreme Court on the affirmance of conviction, which was denied. Id. Thereafter, it appears
that even before his resentencing had occurred, Petitioner filed his first application for postconviction relief ("PCR"). Id. at 4. After the resentencing, Petitioner filed an appeal of that
sentence. Id. at 5. Shortly after that, the first PCR application was terminated by Petitioner's
PCR counsel, Ingrid Yurchenco. Id. at 4.
2. More than a year later, it appears that the resentencing appeal was also terminated by a
different counsel, Claire Drugach. Id. at 5. A few months later, Petitioner filed his second PCR
application, which proceeded normally through the process, ultimately resulting in the New
Jersey Supreme Court declining certification on the denial of PCR. State v. Gaines, 220 NJ. 269
(2015). So, it appears that Petitioner had exhausted his state court remedies on his direct appeal
claims regarding his conviction, and the claims raised in the second PCR application.
3. Grounds I and VI of the Petition assert ineffective assistance of counsel claims against
Yurchenco and Drugach, for having terminated his first PCR application and resentencing
appeal, respectively, without his knowledge or consent.

With regard to the claim against

Yurchenco, ineffective assistance of PCR counsel is not a cognizable claim on federal habeas.
See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding

2

arising under section 2254."). As such, the Court does not have jurisdiction over the claim
against Yurchenco.
4. With regard to the claim against Drugach, the exhibits submitted by Petitioner flatly
contradict his assertion that the resentencing appeal was terminated without his knowledgeindeed, they show that Petitioner himself requested the termination. (See ECF No. 1-5 at 65
("I'd like to withdraw/dismiss my appeal."); id. at 70 ("Please do not file any briefs because I'm
trying to withdraw/dismiss my appeal."); ECF No. 1-6 at 9 ("I wrote you a May 7, 2006
correspondence informing you that I withdrew my pending appeal from the Appellate
Division[.]")). Accordingly, it plainly appears from the Petition and the attached exhibits that
Petitioner is not entitled to relief on Grounds I and VI of the Petition, and those claims are
dismissed with prejudice.
5. The balance of the Petition is permitted to proceed past screening.
IT IS therefore on this

g__..f1t day of

~

'2016,

ORDERED that Case No. 14-4966 is hereby DISMISSED as duplicative; it is further
ORDERED that Grounds I and VI of the Petition in Case No. 15-0761 are hereby
DISMISSED WITH PREJUDICE; it is further
ORDERED the Clerk 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; 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

3

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; it is further
ORDERED that, where the Petition appears to be untimely under the Antiterrorism and

Effective Death Penalty Act of 1996, within forty-five (45) days of the date this Order is filed,
Respondents may file a Motion to Dismiss the Petition on timeliness grounds only, provided that
the motion: (1) attaches exhibits that evince all relevant state court filing dates; (2) contains legal
argument discussing pertinent timeliness law; and (3) demonstrates that an Answer to the merits
of the Petition is unnecessary; it is further
ORDERED that, if a Motion to Dismiss is filed, Petitioner shall have thirty (30) days to

file an opposition brief, in which Petitioner may argue any bases for statutory and/or equitable
tolling, and to which Petitioner may attach any relevant exhibits; it is further
ORDERED that, if Petitioner files an opposition, Respondents shall have ten (10) days

to file a reply brief; it is further
ORDERED that, if the Motion to Dismiss is subsequently denied, the Court will then

direct Respondents to file a full and complete answer to all claims; it is further
ORDERED that if Respondents do not file a Motion to Dismiss the Petition, they shall

file a full and complete answer to all claims asserted in the Petition within forty-five (45) days of
the entry of this Order; it is further
ORDERED that Respondents' answer shall respond to each factual and legal allegation

of the Petition, in accordance with Habeas Rule 5(b); it is further
ORDERED that Respondents' answer shall address the merits of each claim raised in the

Petition by citing to relevant federal law; it is further

4

ORDERED that, in addition to addressing the merits of each claim, Respondents shall

raise by way of its answer any appropriate defenses which they wish to have the Court consider,
including, but not limited to, exhaustion and procedural default, and also including, with respect
to the asserted defenses, relevant legal arguments with citations to appropriate federal legal
authority; all non-jurisdictional affirmative defenses subject to waiver not raised in Respondents'
answer or at the earliest practicable moment thereafter may be deemed waived; 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; 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; it is further
ORDERED that Respondents shall electronically file the answer, the exhibits, and the

list of exhibits; 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 XXIXX/XXXX" or
"Exhibit #2 Opinion entered on XX/XX/XXXX by Judge YYYY"; 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 Rule 5(e) of the Habeas Rules; it is further
ORDERED that, within seven (7) days after any change in Petitioner's custody status, be

it release or otherwise, Respondents shall electronically file a written notice of the same with the
Clerk of the Court; and it is further

5

ORDERED that the Clerk shall serve this Order on Petitioner by regular mail.

Mic~

United States District Judge

6