HUBBARD v. WARDEN, NEW JERSEY STATE PRISON et al
Filing
27
OPINION filed. Signed by Judge Anne E. Thompson on 6/12/2018. (mps)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FRANK HUBBARD,
HONORABLE ANNE E. THOMPSON
Petitioner,
Civil Action
No. 14-7258 (AET)
v.
STEPHEN D'ILIO, et al.,
OPINION
Respondents.
RECEIVl;D
APPEARANCES:
J\D.I 13 2018
Frank Hubbard, Petitioner pro se
47656/997956
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
flAT~O
M
\JW;ILLIAM T. WALSH
CLERK
Christopher C. Josephson, Deputy Attorney General
Off ice of the New Jersey Attorney General
R.J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Attorney for Respondents Stephen D'Ilio, Attorney General
of the State of New Jersey, and New Jersey Parole Board
THOMPSON, District Judge:
I .
INTRODUCTION
Petitioner Frank Hubbard ("Petitioner") has submitted a
petition, pro se, for a writ of habeas corpus pursuant to 28
u.s.c.
§ 2254.
(See Am. Pet., ECF No. 3.)
Respondents Stephen
D'Ilio, Attorney General of the State of New Jersey, and New
Jersey Parole Board (collectively "Respondents") oppose the
petition.
(Answer, ECF No. 11.)
For the reasons stated herein,
the Court concludes that it cannot grant the petition and that
no certificate of appealability is warranted.
II •
BACKGROUND
On July 6, 1982, the New Jersey Superior Court sentenced
Petitioner to a term of life imprisonment. 1
of Conviction, ECF No. 11-4 at p. 45.)
incarcerated since that time.
the first time in 2006.
(See July 6,
1982 J.
Petitioner has been
Petitioner was denied parole for
In 2012,
2
the New Jersey Parole Board
(the "Board") again denied Petitioner parole.
It is the Board's 2012 parole denial which Petitioner is
challenging in this
§
2254 matter.
Petitioner principally
argues that the Board impermissibly considered and emphasized
Petitioner's pre-1982 criminal history and pre-2006 history of
institutional infractions when it denied him parole in 2012. 3
As further explained by the New Jersey Superior Court,
Appellate Division, "[i]n April 1982, a jury found [Petitioner]
guilty of murder and robbery [as a result of his involvement in
the June 1981 robbery of David O'Neil, during which Mr. O'Neil
was shot and killed].
[Petitioner] was sentenced to life
imprisonment on the murder conviction with a twenty-five-year
mandatory minimum." Hubbard v. New Jersey State Parole Bd., No.
A-0205-12T2, 2014 WL 901933, at *1 (N.J. Super. Ct. App. Div.
Mar . 10 , 2 014 ) .
1
2
Although the relevant parole proceedings began in 2011, the
Board's final decision denying Petitioner parole occurred in
2012.
Petitioner's habeas petition presents two formal grounds.
Ground on·e, Petitioner argues that the Board violated the ex
post facto provisions of the Constitution when it considered
Petitioner's pre-2006 actions in rendering its 2012 parole
3
2
In
Initially, this Court notes that the Board's authority to
consider Petitioner's pre-2006 actions is the result of a 1997
amendment deleting the word "new", from§ 30:4-123.56(c} of the
New Jersey Parole Act of 1979 (the "Parole Act"}.
Hubbard v.
New Jersey State Parole Bd., No. A-0205-12T2, 2014 WL 901933, at
*2 (N.J. Super. Ct. App. Div. Mar. 10, 2014).
As explained by
the New Jersey Superior Court, Appellate Division:
Prior to 19 9 7 ,
[ N . J . Stat . Ann . § ] 3 0 : 4-12 3 . 5 6 ( c }
addressed the criteria for considering parole after an
initial denial:
An inmate shall be released on parole on the
new parole
eligibility date
unless
new
information . . . indicates by a preponderance
of the evidence that there is a substantial
likelihood that the inmate will commit a crime
under the laws of this State if released on
parole at such time.
In 1997, the [New Jersey] Legislature adopted various
amendments to the parole law, including an amendment
deleting the word
'new'
from
[§ 30:4-123.56(c}],
permitting the Board to consider any information at the
subsequent hearing. That amendment was enacted to allow
the Board to weigh all relevant information in an
inmate's record when considering that inmate's parole
eligibility at second and subsequent hearings.
Another amendment modified the criteria for denial,
changing it from ''substantial likelihood that the inmate
will commit a crime . . . if released on parole" to "has
failed to cooperate in his or her own rehabilitation or
. . . there is a reasonable expectation that the inmate
will violate conditions of parole[.]"
denial.
In Ground Two, Petitioner asserts that the Board
improperly based its parole denial on misinformation in a 2006
letter from the Camden County Prosecutor's Office. Both of
these claims will be discussed in further detail below.
3
Id. at *2 (emphasis added)
(citations omitted).
as a result of these amendments,
§
In other words,
30:4-123.56(c) of the Parole
Act, now reads, in pertinent part, as follows:
An inmate shall be released on parole on the new parole
eligibility date unless new information . . . indicates
by a preponderance of the evidence that there is a
substantial likelihood tha't the inmate rvd11 COfflfA:it a
crime under the laws of this State if released on parole
at such time the inmate has failed to cooperate in his
or her own rehabilitation or that there is a reasonable
expectation that the inmate will violate conditions of
parole imposed . . . if released on parole at that time.
N.J. Stat. Ann.
§
30:4-123.56(c)
(language stricken by the 1997
amendments included) .
Against this statutory backdrop, the Appellate Division
summarized Petitioner's relevant parole proceedings as follows:
4
[Petitioner] was first considered for parole in 2006.
Parole was denied and [Petitioner] received a ninetysix-month [Future Eligibility Term ("FET")]. The panel
explained,
"after
twenty-six
( 2 6)
years
of
incarceration, you have not shown the requisite amount
of rehabilitative progress in reducing the likelihood of
future criminal activity."
{Petitioner]
was
again considered for parole
in
September 2011. The hearing officer referred the matter
to a Board panel for a hearing.
[Petitioner] appeared
before a two-member Board panel in November 2011.
The
panel
denied
parole
for
the
following
reasons:
[Petitioner's] prior criminal record; the nature of
[Petitioner's] crimes were increasingly more serious; he
was incarcerated for multi-crime convictions; his parole
had been revoked in the past for commission of a new
State court factual findings are presumed correct unless
rebutted by clear and convincing evidence. See 28 U.S.C. §
2254(e) (1). As Petitioner has not rebutted the factual findings
of the Superior Court of New Jersey by clear and convincing
evidence, this Court will rely on those findings.
4
4
offense; [Petitioner's] prior incarceration and a prior
opportunity of parole failed to deter his criminal
activity;
his
institutional
infractions
were
"numerous [,] persistent [and] serious in nature;" and
[Petitioner]
had displayed
"[i]nsufficient problem
resolution."
The panel amplified the final reason as
follows:
[Petitioner was] involved in murder while on
parole for murder but he appears to believe
that since he didn't pull the trigger, he was
less responsible for his criminal behavior.
He cannot explain why he was participating in
a robbery while on parole.
[Petitioner] was referred to a three-member Board panel
for the establishment of an FET.
In his argument for
mitigation before the three-member panel, [Petitioner]
again maintained that he was not the shooter during the
robbery of [David] O'Neil and the prosecutor's claim to
the contrary was not true.
On February l, 2012, the
three-member Board panel established an FET of eightyfour months for [Petitioner] .
[Petitioner] appealed to the full Board and on July 25,
2 012, the Board adopted the panel decisions denying
parole and setting [Petitioner's] FET of eighty-four
months.
Hubbard, 2014 WL 901933, at *l.
This Court's review of the underlying decisions and
findings of the Board in support of its 2012 parole denial
confirms that the Board placed significant emphasis on, inter
alia, Petitioner's history of institutional infractions, which
the Board characterized as being "numerous, persistent,
serious in nature."
[and]
(See July 25, 2012 Notice of Final Agency
Decision, ECF No. 11-5 at p. 91.)
In underscoring this point,
the Board appears to have given little regard to the fact that
5
Petitioner has been infraction-free since May 26, 2005.
(See
Feb. 29, 2012 Notice of Decision, ECF No. 11-5 at p. 71.}
The
Board additionally stressed that Petitioner committed numerous
crimes of violence in the years before his 1982 murder
conviction, and relatedly, that Petitioner committed many of
those acts after being paroled in 1974 and 1977.
(See,
generally, id. at p. 68-77.}
The Board additionally focused on the fact that Petitioner
denied being the individual who shot David O'Neil during a 2012
parole hearing.
(See id. at 73-75.}
The Board appears to have
emphasized this point to support its findings that Petitioner
lacked insight into his criminal behavior, attempted to minimize
his culpable conduct, and, ultimately, lacked sufficient problem
resolution skills.
(See id.}
In so doing, the Board appears to
have discounted that Petitioner also readily conceded that he
participated in the robbery of Mr. O'Neil, that this represented
"the biggest mistake of [his] life[,]" and that his actions on
June 22, 1981 were "dumb" and "stupid."
(Id. at 73-74.}
The Board also appears to have relied on contemporaneous
information in support of its 2012 parole denial, e.g., the
Board's factual findings regarding Petitioner's lack of an
adequate parole plan.
ECF No. 11-5 at p. 75.}
(See July 25, 2012 Final Agency Decision,
Moreover, the Board's finding that
Petitioner "continue[s] to remain a substantial threat to public
6
safety[,]"
(see id. at p. 76), is based on Petitioner's August
11, 2011 in-depth psychological evaluation.
(See Josephson
Cert., Ex. B, ECF No. 13 at 14.)
In sum, it appears that the Board emphasized Petitioner's
pre-1982 criminal record and
pre~2006
institutional infraction
history to find that Petitioner remained unfit for parole in
2012.
Conversely, the Board appears to have given little regard
to Petitioner's marked progress since his 2006 parole denial, as
evidenced by his infraction-free record since May 26, 2005, and
his participation in various rehabilitative programs, i.e., Cage
Your Rage, Thinking For a Change, and the STARS Program.
(See
July 25, 2012 Notice of Final Agency Decision, ECF No. 11-5 at
p. 75.)
Petitioner appealed the Board's 2012 parole denial to the
Appellate Division after the Board issued its Final Agency
Decision on July 25, 2012.
On appeal, Petitioner argued, inter
alia, that "the Board improperly failed to consider "'new'
information occurring after the initial denial of parole in
2006."
Hubbard, 2014 WL 901933, at *2.
In rejecting this
argument, the Appellate Division expressly found:
(1)
"that the
Board was [not] required to identify new evidence to justify
denial of parole [to Petitioner in 2012;]" and (2) that the
Board properly.considered and relied on pre-2006 information in
Petitioner's record to support its 2012 parole denial.
7
Id. at
*3, *4.
The Appellate Division nonetheless noted that the Board
also based its decision on information which occurred after
Petitioner last appeared before the Board in 2006.
Id. at *3.
Ultimately, the Appellate Division found that the Board's
2012 parole denial was supported by:
(1)
"the severity of
[Petitioner's] criminal history, whose current murder conviction
occurred while he was on parole for another murder[;]"
(2)
Petitioner's uhistory of forty-one disciplinary infractions;
although none since 2005[;]"
(3) the results of Petitioner's
2011 psychological evaluation, which "weighed heavily in the
Board's determination to deny parole[;]" and (4) the Board's
"conclusion that [Petitioner] lacked insight into his violent
behavior and that he minimized his maladaptive actions[,]" as
evidenced by the fact that Petitioner told the Board that he did
not shoot David O'Neil.
Id. at *3, *4.
The Appellate Division
also expressly noted that under the terms of Petitioner's life
sentence, he is neither entitled to "a presumption in favor of
parole" nor "primarily eligible for parole after serving [the
mandatory minimum of] twenty-five years." 5
Id. at *4.
In so
doing, the Appellate Division, like the Board, failed to
acknowledge - at least in any meaningful way - that since being
Petitioner has failed to rebut or otherwise challenge the
veracity of any of these factual findings, and as such, this
Court must presume that these facts are correct.
28 U.S.C. §
2254 (e) (1).
s
8
denied parole in 2006, Petitioner has remained infraction free,
has actively participated in various rehabilitative programs,
and otherwise appears to have markedly improved his prospects
for success if paroled.
The Appellate Division issued its opinion affirming the
Board's decision to deny Petitioner parole on March 10, 2014.
Id. at *5.
The New Jersey Supreme Court denied certification on
October 9, 2014.
Hubbard v. New Jersey State Parole Bd., 101
A.3d 1080 (N.J. 2014)
(table).
Petitioner initiated this § 2254 action on November 21,
2014.
(See ECF No. 1.)
Petitioner filed his amended§ 2254
petition on December 24, 2014.
(ECF No. 3.)
Petitioner's
amended pleading presents two grounds for this Court's review:
Ground One: The [Board] violated the ex post facto laws
of the United State Constitution by applying a 1997
amendment to a statute governing parole.
Ground Two:
In a letter to the [Board] opposing parole
the prosecutor from Camden County told the board that
[Petitioner] was the shooter.
[The] Board relied on
this misinformation.
(Am. Pet. at 1 12, ECF No. 3.)
Respondents filed their answer and accompanying record of
state proceedings on December l, 2015.
(ECF Nos. 11 and 12.)
Petitioner filed his reply on December 16, 2015.
9
(ECF No. 16.)
III. STANDARD OF REVIEW
28 U.S.C.
§
2254 permits a federal court to entertain a
petition for writ of habeas corpus on behalf of a person in
state custody, pursuant to the judgment of a state court, "only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
U.S.C.
§
28
2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
the claim:
(1) resulted in a decision that was contrary to, or
involved an
unreasonable
application
of,
clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28
u.s.c.
§ 2254(d).
A state court decision is "contrary to" Supreme Court
precedent "if the state court applies a rule that contradicts
the governing law set forth in [Supreme Court] cases," or "if
the state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent."
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
"[A] state-court decision is an unreasonable application of
10
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case."
White v. Woodall, 134 S. Ct. 1697, 1706, reh'g denied, 134
Ct. 2835 (2014).
s.
This Court must presume that the state court's
factual findings are correct unless Petitioner has rebutted the
presumption by clear and convincing evidence.
28 U.S.C.
§
2254 (e) (1).
IV. ANALYSIS
Before turning to the merits of Petitioner's specific
habeas arguments, this Court feels compelled to acknowledge
Petitioner's underlying frustrations with the parole process
that have led to his filing the current habeas petition.
As detailed above, in 2006, the Board denied parole to
Petitioner because Petitioner had not yet demonstrated enough
rehabilitative progress.
In 2012, the Board again found that
Petitioner remained unfit for parole.
The Board's 2012 parole
denial placed significant emphasis on Petitioner's pre-2006
history of institutional infractions and pre-1982 criminal
record.
The Appellate Division affirmed the Board's decision,
and expressly noted that the Board's consideration of these
facts was proper.
Petitioner's marked progress since being
denied parole in 2006, on the other hand, appears to have been
essentially ignored.
Indeed, the record before this Court
11
demonstrates that since 2006, Petitioner has made significant
efforts to become a viable candidate for parole, and that the
Board and the Appellate Division both deemed this undisputed
truth to be largely irrelevant in the parole calculus.
It
therefore appears that Petitioner validly fears that no matter
how much progress he makes while in custody, he will continue to
be denied parole in light of the crimes he committed decades ago
and institutional infractions he incurred prior to 2006.
This Court is troubled by the approach of the Board because
it obscures the entire purpose of a parole review.
Since 2006,
Petitioner's behavior appears to have been nothing short of
exemplary.
Nonetheless, the Board again denied Petitioner
parole in 2012, based largely on its consideration of acts,
which, while admittedly abhorrent, were committed many years
ago.
This Court's disapproval of the Board's approach, however,
is not the standard under which Petitioner's habeas claims are
adjudicated.
Instead, this Court is compelled to adjudicate
these claims under the Standard of Review detailed above.
Ao
Ground One - Petitioner's Ex Post Facto Claim
As noted supra, the word "new" was deleted from
§
30:4-
123 .56 (c) in 1997 to enable the Board to consider any
information in an inmate's record when considering that inmate's
parole eligibility at second and subsequent parole hearings.
In
Ground One, Petitioner argues that the Board's implicit reliance
12
on this amendment and express consideration of Petitioner's
entire criminal record and history of institutional infractions
to support its 2012 parole denial violates the Constitution's
prohibition on ex post facto lawmaking.
(Am. Pet. at
No. 3; see also Pet'r's Reply, ECF No. 16 at Point 1.)
~
12, ECF
This
Court is unable to agree.
The Constitution prohibits the federal and state
governments from passing any "ex post facto Law."
Const. art. I,
§
9, cl. 3; id. at
"Ex Post Facto Clause").
§
See U.S.
10, cl. 1 (hereinafter the
An ex post facto law is one "which
imposes a punishment for an act which was not punishable at the
time it was committed; or imposes additional punishment to that
then prescribed."
See United States v. Brady, 88 F.3d 225, 227
(3d Cir. 1996), cert. denied,
519 U.S. 1094 (1997)
Cummings v. Missouri, 4 Wall. 227, 325-26 (1866)).
(quoting
The Ex Post
Facto Clause is therefore implicated when a law "retroactively
alter[s] the definition of crimes or increase[s] the punishment
for criminal acts."
(1990)
Collins v. Youngblood,
497 U.S. 37, 43
(citations omitted); accord California Dept. of Corr. v.
Morales,
514 U.S. 499, 506 n.3
(1995).
Significant authority compels this Court to conclude that
the Board did not violate Petitioner's rights under the Ex Post
Facto Clause when it considered the entirety of Petitioner's
record as a result of the 1997 amendment now being challenged by
13
Petitioner.
See Trantino v. New Jersey State Parole Bd., 752
A.2d 761 (N.J. Super. Ct. App. Div. 2000)
(holding that this
amendment did not substantively alter the criteria for release
on parole, and thus does not violate the Ex Post Facto Clause),
modified in part on other grounds, aff 'd in part, remanded, 764
A.2d 940 (N.J. 2001); accord Righetti v. Sherrer, No. 2:07-cv1608 (JAG), 2008 WL4755745, at *7 (D.N.J. Oct. 28, 2008)
("this
amended provision does not violate the Ex Post Facto Clause.");
Jenkins v. D'Amico, 2:06-cv-2027 (JAP), 2007 WL 1797649, at *4
(D.N.J. June 20, 2007)
(rejecting inmates' argument that
"because they were incarcerated for crimes that they committed
prior to the 1997 amendment, allowing the Board to consider
information [provided at earlier parole hearings] amounts to an
ex post facto imposition of punishment").
In light of the foregoing authority, this Court finds that
the Appellate Division did not unreasonably apply clearly
established federal law when it rejected Petitioner's argument
that the Board improperly failed to consider ''new" information
occurring after Petitioner's 2006 parole denial, expressly found
that the Board was not required to identify new evidence to
justify denial of parole to Petitioner in 2012, and ultimately
concluded that the Board's consideration and reliance on pre2006 information in Petitioner's record to support its 2012
14
parole denial was proper.
As such, this Court must deny habeas
relief as to Ground One.
B.
Ground Two - The Board Improperly Relied on a 2006
Letter from the Camden County Prosecutor's Office
Petitioner also asserts that the Parole Board improperly
relied on misinformation vis-A-vis a 2006 letter from the Camden
County Prosecutor's Office indicating that Petitioner shot
murder victim David O'Neil (see ECF No. 6 at Pa2}; Petitioner,
on the other hand, contends that he was merely present when Mr.
O'Neil was murdered in 1981. 6
(See Am. Pet. at qr 12, ECF No. 3.)
Initially, the Court notes that it is unable to find any
basis in the record to conclude that the Board expressly relied
on the substantive information in this letter.
Instead, this
Court's review of the record leads it to conclude that the
shooter/non-shooter distinction was not relied upon in the
Board's decision.
(See Feb. 29, 2012 Notice of Decision, ECF
No. 11-5 at p. 74 (noting that regardless of whether Petitioner
shot David O'Neil, u[he] was charged with Felony Murder due to
the fact that [Mr. O'Neil] was shot and killed during the course
of a robbery in which [Petitioner was] a participant.").}
It is undisputed that Petitioner was convicted for murder as a
result of Mr. O'Neil's death, however, the trial judge's order
of sentence indicated that the jury found that Petitioner was
not the shooter.
(See July 6, 1982 J. of Conviction at
Statement of Reasons for Sentencing, ECF No. 11-4 at p. 47.)
6
15
In addition, the implicit assumption underlying
Petitioner's Ground Two claim, i.e., that the Board would have
paroled Petitioner but-for the Board's reliance on the 2006
letter, is rebutted by the factual findings of the Appellate
Division.
The Board cited a number of reasons in support of its
2012 parole denial, many of which are unrelated to the specific
actions taken by Petitioner on the date of Mr. O'Neil's murder.
See Hubbard, 2014 WL 901933, at *3, *4.
In light of the foregoing, Petitioner's Ground Two claim
fails to provide any basis for this Court to conclude that
Petitioner is now uin custody in violation of the Constitution
or laws or treaties of the United States."
28 U.S.C.
§
As such, this Court must deny habeas relief as to
2254 (a)) .
Ground Two.
c.
Petitioner's Request for Sealed Documents
Some of the documents which Respondents filed with their
answer contain confidential information, i.e., Petitioner's
presentence investigation report, pre-parole medical summary,
and psychological evaluation, as well as confidential remarks
presented to, and made by, the Board.
(See ECF No. 13.)
On
March 8, 2016, this Court granted Respondents' unopposed motion
to seal these documents.
( ECF
No. 1 7. )
On December 14, 2016, this Court received a letter from
Petitioner seeking clarification on the manner in which he could
16
obtain copies of these still-sealed documents. 7
(ECF No. 20.)
On December 23, 2016, this Court sent a letter to Petitioner
explaining that "New Jersey law prohibits disclosure of the
mental health records absent a court order" and that to properly
request these documents, Petitioner would have to "file a formal
motion .
. . setting forth [the] reasons why disclosure would
not 'compromise the safety of the inmate or others, or the
security or orderly operation of the correctional facility.'"
(ECF No. 21 (citing N.J. Admin. Code§ 10A:22-2.7(d) .)
On January 9, 2017, Petitioner filed a motion to obtain
copies of those documents.
(ECF No. 22.)
Petitioner asserts
that his motion should be granted because "there is no
penological interest involved" and because "[d]isclosure [of
these documents] is necessary to challenge any inaccurate
information in the event the Court may rely on [that]
information."
(Id.)
Neither of these arguments are persuasive.
First, this Court cannot agree that there is "no
penological interest involved" in these documents, as all of the
sealed documents ultimately speak to Petitioner's viability as a
parole candidate.
n.10 (2d Cir. 2001)
See Benjamin v. Fraser, 264 F.3d 175, 187
(defining "penological interests" broadly).
7
It fully appears that Petitioner has already received a copy
of the presentence report filed under seal.
(See Josephson
Deel. at ~ 6, ECF No. 12-1.)
17
That there is indeed a compelling penological interest in these
documents - including, most particularly, Petitioner's
psychological evaluation and the Board's "remarks" document
referencing that report - is further confirmed by the
Declaration filed in support of Respondents' motion to seal.
(Josephson Deel. at 91: 7, ECF No. 12-1 ("[N.J. Admin. Code]
10A:22-2.7(d) prohibits disclosure of an inmate's mental health
records to that inmate, largely because of the risk of
retaliation against the evaluator.•).)
This Court is similarly unable to agree that "[d]isclosure
of these documents is necessary [for Petitioner] to challenge
any inaccurate information contained therein in the event the
Court may rely on [that] information."
added).)
(ECF No. 22 (emphasis
That is because this Court's resolution of
Petitioner's specific habeas claims ultimately turns on the
findings set forth in the Appellate Division's 2014 Hubbard
opinion, i.e., the
~last
reasoned opinion* of the state court.
See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
The
substantive information in the sealed documents sought by
Petitioner ultimately does not bear on that analysis. 8
The Court nonetheless notes that the information in the sealed
documents is entirely consistent with the summary of the Board's
findings set forth in the Appellate Division's 2014 Hubbard
opinion.
8
18
In light of the foregoing, Petitioner's motion to obtain
copies of the sealed documents filed by the Respondents will be
denied.
D.
Certificate of Appealability
A petitioner may not appeal from a final order in a habeas
proceeding where that petitioner's detention arises out of his
state court conviction unless he has "made a substantial showing
of the denial of a constitutional right."
28
u.s.c.
§
2253(c).
"A petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve
encouragement to proceed further."
U.S. 322, 327 (2003).
Miller-El v. Cockrell, 537
For the reasons expressed above,
Petitioner has not made a substantial showing that he was denied
a constitutional right.
This Court does not find that jurists
of reason would disagree with this Court's resolution of
Petitioner's habeas claims, and therefore, this Court will deny
Petitioner a certificate of appealability.
19
V.
CONCLUSION
For the reasons stated above, Petitioner's habeas petition
is denied and a certificate of appealability shall not issue.
Petitioner's motion to obtain copies of the documents filed by
Respondents under seal is denied.
An accompanying Order will be
entered.
~··'& VZ::~Ahr~
v
ANNE E. THOMPSON
U.S. District Judge
20
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