MYRTLE v. WARDEN, NEW JERSEY STATE PRISON et al

Filing 14

MEMORANDUM AND ORDER TO SHOW CAUSE. Petitioner shall Show Cause in writing within thirty (30) days of the date of this Order as to why the 6 Amended Petition should not be dismissed as untimely and as a mixed Petition. The Clerk of the Court shall serve a copy of this Order upon Petitioner by regular U.S. mail. Signed by Judge Brian R. Martinotti on 6/6/2018. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOEL MYRTLE,

Civil Action No. 14-7218-BRM
Petitioner,

v.

MEMORANDUM AND
ORDER TO SHOW CAUSE

STATE OF NEW JERSEY,
Respondent.

THIS MATTER has been opened to the Court by Petitioner Joel Myrtle (“Petitioner”),
upon the filing of his Amended Petition for a Writ of Habeas Corpus (“Amended Petition”) (ECF
No. 6) brought pursuant to 28 U.S.C. § 2254, and an application to proceed in forma pauperis
(“IFP Application”). 1 (ECF No. 4.) For good cause appearing, Petitioner’s IFP Application is
GRANTED, and the Court will screen the Amended Petition for summary dismissal pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas
Rules”) and determine whether it “plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief.” For the reasons explained in this Memorandum and Order,
the Court will direct Petitioner to SHOW CAUSE why his Amended Petition should not be
dismissed as untimely and as a mixed petition under the Antiterrorism Effective Death Penalty Act
(“AEDPA”).

1

This matter was originally assigned to the Honorable Joel A. Pisano and was subsequently
transferred to the Honorable Freda L. Wolfson, then the undersigned. (ECF Nos. 8, 13.)
1

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This Court recounts only the facts necessary to this Memorandum and Order. 2 Petitioner’s

Judgment of Conviction (“JOC”) is dated May 20, 2005. (ECF No. 12-1 at 28-29). Petitioner’s
Notice of Appeal was stamped “Received” on June 17, 2005. (Notice of Appeal (ECF No. 12-1)
at 30.) On April 2, 2008, the Appellate Division affirmed Petitioner’s conviction and sentence in
an unpublished decision. See State v. Myrtle, No. A-5540-04T4, 2008 WL 860956, at *14 (N.J.
Super. Ct. App. Div. Apr. 2, 2008). The Supreme Court denied certification on June 12, 2008.
State v. Myrtle, 196 N.J. 85 (Jun. 12, 2008).
Petitioner subsequently filed a pro se petition for post-conviction relief (“First PCR”),
which is dated March 15, 2010, and is stamped “Received” on May 19, 2010. (Pro-Se Petition for
Post Conviction Relief (ECF No. 12-1) at 53-60.) It appears the First PCR was subsequently
dismissed without prejudice by Order dated February 24, 2012, and Petitioner’s original filing date
was explicitly preserved in the Order. (Order dismissing First PCR (ECF No. 12-1) at 61.)
On September 16, 2014, Petitioner reinstated his PCR (“Second PCR”), which was
stamped “Received” on September 23, 2014. (ECF No. 12-1 at 63-123; see also Brief in Support
of Motion for PCR (“Counseled PCR Brief”) (ECF No. 12-1) at 1-26.) Among other claims,
Petitioner’s Second PCR requests a new trial based on newly discovered evidence from a
Department of Justice Investigation of the Newark Police Department. (ECF No. 12-1 at 15-23,
Counseled PCR Brief, at 10-18; see also 12-1 at 73-123, Investigation of the Newark Police
Department, United States Department of Justice Civil Rights Division, dated July 22, 2014.) It is
not clear whether Petitioner has exhausted the claims raised in his PCRs, most notably the claim

2

The Court relies on the state court record attached to Petitioner’s July 14, 2016 submission to
the Court. (See ECF No. 12 and attached documents.)
2

for newly discovered evidence, by raising the claims therein to every level of the state court. In a
letter to this Court dated July 12, 2016, Petitioner appears to state his Second PCR was dismissed
with prejudice by the Essex County Superior Court, but he has not attached the notice of dismissal
or informed the Court as to whether he appealed the dismissal of his second PCR to the Appellate
Division and New Jersey Supreme Court. (ECF No. 12.)
Petitioner’s initial habeas Petition is dated November 16, 2014, and was docketed on
November 18, 2014. (ECF No. 1.) The Court administratively terminated the matter because
Petitioner did not pay the filing fee or use the correct form. Petitioner subsequently submitted an
application to proceed in forma pauperis and an Amended Petition on the correct form. (ECF Nos.
4, 6.) The Amended Petition raises seven grounds for relief (ECF No. 6 at 6-17), and contains the
required notice pursuant to Mason v. Myers, 208 F.3d 414 (3d Cir. 2000). (ECF No. 6 at 17.)
II.

STANDARD OF REVIEW
“Federal courts are authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Habeas Rule 4 requires a district court to examine a
habeas petition prior to ordering an answer and, “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.” 28 U.S.C. § 2254; Rule 4.
Dismissal without the filing of an answer is warranted “if it appears on the face of the petition that
petitioner is not entitled to relief.” Id.; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at
437 (noting that a habeas petition may be dismissed where “none of the grounds alleged in the
petition would entitle [the petitioner] to relief”). As explained below, Plaintiff’s Amended Petition
appears to be subject to dismissal as certain claims are untimely and others are unexhausted.

3

III.

DECISION
a. Timeliness

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), the limitation period shall run from the
latest of—
(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.
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).

4

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
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).
A petitioner is only entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d)(2) for the
time during which a properly filed application for State postconviction or other collateral review
with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2). To fall within
the AEDPA tolling provision, the petition for state post-conviction review must have been both
pending and “properly filed.” Fahy v. Horn, 240 F.3d 239, 243 (3d Cir.), cert. denied, Horn v.
Fahy, 534 U.S. 944 (2001).
Finally, the statute of limitations set out in § 2244(d)(1) is applied on a claim-by-claim
basis. See Fielder v. Varner, 379 F.3d 113, 118 (3d Cir. 2004). Thus, “a late-accruing federal
habeas claim” does not “open the door for the assertion of other claims that had become timebarred years earlier.” Id. at 120.
Here, Petitioner’s direct review concluded on September 10, 2008, ninety days after the
New Jersey Supreme Court denied certification on June 12, 2008. Petitioner subsequently filed his
First PCR, which is dated March 15, 2010, and was stamped “Received” on May 19, 2010. (ECF
No. 12-1 at 53-60.) Thus, more than one year elapsed between the expiration of direct review and
the date on which Petitioner submitted his First PCR. Even if the Court were to give Petitioner the
benefit of the March 15, 2010 date, he filed his First PCR after the AEDPA limitations period had
expired. Because Petitioner’s limitations period expired before the filing of his PCR application,
no statutory tolling applies to Petitioner’s PCR review and the claims raised on direct appeal and

5

PCR appear untimely. See, e.g., Jesus v. D'Llio, No. CV 14-6494 (CCC), 2017 WL 519242, at *2
(D.N.J. Feb. 8, 2017) (explaining same).
The Courts have recognized that the statute of limitations may be equitably tolled where
extraordinary circumstances so warrant. United States v. Thomas, 713 F.3d 165, 174 (3d Cir.
2013). Equitable tolling should be granted sparingly and only when the principles of equity would
make the rigid application of a limitation period unfair. See Thomas, 713 F.3d at 174 (citing Pabon
v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). A petitioner must establish he has diligently
pursued his rights and that extraordinary circumstances stood in his way and prevented timely
filing to be eligible for equitable tolling. Id. (citing Holland v. Florida, 560 U.S. 631, 130 S. Ct.
2549, 2562–63 (2010)). Mere excusable neglect is not sufficient. Id. As summarized by the Third
Circuit, “[g]enerally, a litigant seeking equitable tolling [of the AEDPA’s one-year statute of
limitations] bears the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” Ross v. Varano, 712
F.3d 784, 798 (3d Cir. 2013) (citing Pace v. DiGuglielmo, 544 U.S. 408 (2005). Notably, “[t]his
obligation does not pertain solely to the filing of the federal habeas petition, rather it is an
obligation that exists during the period appellant is exhausting state court remedies as well.” Ross,
712 F.3d at 799 (citing LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005)). A determination of
whether a petitioner has exercised reasonable diligence is made under a subjective test: it must be
considered in light of the particular circumstances of the case. See Schlueter v. Varner, 384 F.3d
69, 74 (3d Cir. 2004) (“Due diligence does not require the maximum feasible diligence, but it does
require diligence in the circumstances.”) (internal quotation marks and citation omitted).
In the timeliness section of the Amended Petition, Petitioner refers to “State interference”
and the unavailability of transcripts as the reason for the untimeliness of his petition. (ECF No. 6

6

at 22.) His explanations are insufficient to warrant equitable tolling. Accordingly, Petitioner shall
show cause why his Amended Petition should not be dismissed as untimely and may, within thirty
(30) days, provide any arguments for equitable tolling that he would like the Court to consider.
b. Exhaustion
In addition to timeliness concerns, several of Petitioner’s claims appear to be unexhausted.
In particular, Petitioner appears to raise a claim of newly discovered evidence premised on a
Department of Justice Investigation of the Newark Police Department. Because this claim is
purportedly premised on newly discovered evidence, it may not be untimely, see 28 U.S.C. §
2241(d)(1)(D); it is unclear, however, whether Petitioner has exhausted this claim to every level
of the New Jersey courts. 3
Under AEDPA, 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.
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

3

The Court makes no determination at this time as to whether the alleged newly discovered
evidence would trigger the limitations period under 28 U.S.C. § 2241(d)(1)(D).

7

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, 526 U.S. 838; Rose
v. Lundy, 455 U.S. 509 (1982).
Federal district courts may not adjudicate mixed petitions, i.e., petitions that contain both
exhausted and unexhausted claims. 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 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

8

the Court must either (a) dismiss the entire § 2254 petition as unexhausted, id. (citing Rose, 455
U.S. 509, 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).
In his submissions to the Court, Petitioner appears to contend that exhaustion is futile. (See
ECF No. 6; ECF No. 12 at 2-14.) “Pursuant to 28 U.S.C. § 2254(b)(1), exhaustion is excused if a
return to state court would be futile because of ‘an absence of available State corrective process[,]
or . . . circumstances exist that render such process ineffective to protect the rights of the
applicant.’” Lines v. Larkins, 208 F.3d 153, 162–63 (3d Cir. 2000) Thus, as explained by the Third
Circuit:
“Futility” exists where: “a state’s highest court has ruled
unfavorably on a claim involving facts and issues materially
identical to those undergirding a federal habeas petition and there is
no plausible reason to believe that a replay will persuade the court
to reverse its field,” (citing Allen v. Attorney General of Maine, 80
F.3d 569, 573 (1st Cir. 1996); where the state provides no means of
seeking the relief sought, Wallace v. Cody, 951 F.2d 1170, 1172
(10th Cir. 1991), Dawan v. Lockhart, 980 F.2d 470, 475 (8th Cir.
1992); or where the state courts have failed to alleviate obstacles to
state review presented by circumstances such as the petitioner’s pro
se status, poor handwriting and illiteracy, Hollis v. Davis, 941 F.2d
1471, 1473-1475, 1479 (11th Cir. 1991), cert. denied, 503 U.S. 938,
112 S.Ct. 1478 (1992).
Id. “Futility” may also be founds where the state court would refuse on procedural grounds to hear
the merits of the claims; however, exhaustion may not be excused in this context unless state law
clearly forecloses state court review of claims which have not previously been presented to a state
court. Id. at 163 (citing (Toulson v. Beyer, 987 F.2d 984, 988-989 (3d Cir. 1993)). Here, Petitioner
has not met the futility requirements by showing the absence of available state court corrective
process or that the state court failed to alleviate obstacles to state review; rather, his futility
9

argument appears based on unsubstantiated allegations that his attorneys have thwarted his
attempts to obtain relief on his claims. (ECF No. 12 at 2-4.)
Therefore, Petitioner shall have thirty (30) days to inform the Court as to which of the
claims in his Amended Petition are duly exhausted – including the claim of newly discovered
evidence. To the extent any of his claims are unexhausted, he may either delete these claims or
request a stay to exhaust the claims in state court. 4
IT IS THEREFORE on this 6th day of June 2018,
ORDERED that Petitioner shall SHOW CAUSE in writing within thirty (30) days of the
date of this Order why the Amended Petition (ECF No. 6) should not be dismissed as untimely
and as a mixed petition; failure by Petitioner to timely respond to this Order may result in the
dismissal of the Amended Petition; and it is further
ORDERED within thirty (30) days of the date of this Order, Petitioner shall provide any
arguments for equitable tolling that he would like the Court to consider; and it is further
ORDERED that within thirty (30) days of the date of this Order, Petitioner shall inform
the Court as to which of his claims are unexhausted; to the extent his claims are unexhausted,
Petitioner may choose to either (1) withdraw his unexhausted claims and have the Court rule on
his exhausted claims; or (2) seek a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005); and it
is further
ORDERED that if Petitioner fails to respond to this Order, the Court will dismiss the
Petition as untimely and/or as a mixed petition; and it is finally

4

If Plaintiff seeks a stay, he must establish good cause for his failure to exhaust, show that his
unexhausted claims are potentially meritorious, and there is no indication that he engaged in
intentionally dilatory litigation tactics. Rhines, 544 U.S. at 278.
10

ORDERED that the Clerk of the Court shall serve a copy of this Order upon Petitioner by
regular U.S. mail.

_/s/Brian R. Martinotti_____________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

11