NAYEE v. D'ILIO et al

Filing 10

MEMORANDUM ORDER granting 3 Petitioner's Motion to Stay; Ordering that within 30 days of the date of this Order, Petitioner must file his PCR petition in state court; further Ordering that Petitioner shall file a request to reopen this action within 30 days after exhaustion of his state law claims; Administratively terminating this action. Signed by Judge Peter G. Sheridan on 9/9/2015. (eaj) Modified on 9/9/2015 (eaj, ).

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANIL NAYEE,
Civil Action No. 15-1288 (PGS)
Petitioner,
MEMORANDUM ORDER
v.
STEPHEN M. D’ILIO,
Respondent.
Petitioner Anil Nayee (“Petitioner”), a prisoner currently confined at New Jersey State
Prison in Trenton, New Jersey, has submitted a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C.

§ 2254.

(ECF No. 1.) This matter is currently before the Court pursuant to Petitioner’s

request to stay these proceedings so that he may exhaust two claims in state court. (ECF No. 3.)
IT APPEARING THAT:
1. In his Petition, Petitioner raises two allegedly unexhausted claims:
GROUND EIGHT: DEFENDANT WAS DEPRIVED OF HIS
RIGHT TO COUNSEL GUARANTEED BY THE SIX [sic]
AMEND. AND DUE PROCESS GUARANTEED BY FIFTH AND
FOURTEEN [sic] AMEND. OF THE UNITED STATES CONST.
AND Art. 1, Para. 10 OF THE NEW JERSEY CONST. WHEN
THE TRIAL JUDGE CONDUCTED AN EX PARTE
INTERVIEW OF SWORN JUROR, “E R. “, IN HER CHAMBER
[sic] WITHOUT THE TRIAL COUNSEL’S OR DEFENDANT’S
PRESENCE. FURTHERMORE THE TRIAL COURT VIOLATED
THE SPIRIT OF N.J. STAT. ANN. 2B:23-10, R. 3:16(b), R. 1:86(a) AND (g).
GROUND NINE: PETITIONER IS ENTITLED TO POST
CONVICTION RELIEF DUE TO THE INEFFECTIVE
ASSISTANCE OF TRIAL, APPELLATE, PCR COUNSELS IN
VIOLATION OF SECURING HIS RIGHTS UNDER THE
UNITED STATES CONSTITUTION AMENDMENT FIFTH, SIX
[sic] AND FOURTEEN
[sic]; AND NEW JERSEY
CONSTITUTION UNDER ARTICLE I, PARAGRAPH 10 OF

NEW JERSEY CONSTITUTION WHEN THEY FAILED TO
NOTICE AND BRING CLEARLY OBVIOUS VIOLATION ON
THE RECORD OF TRIAL JUDGE’S EX PARTE INTERVIEW OF
JUROR, “E.R.”, WITHOUT THE TRIAL COUNSEL’S PRESENT
[sic] AND DEFENDANT’S PRESENT [sic].
(Pet. 36-40) (capitalization in original).
2. A state prisoner applying for a writ of habeas corpus under § 2254 in federal court must
first “exhaust[ ] the remedies available in the courts of the State,” unless “(i) there is an absence
of available State corrective process; or (ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.” 28 U.S.C.

§

2254(b)(1); see also Rose v. Lundy, 455 U.S.

509, 515 (1982). A petitioner must exhaust state remedies by presenting his federal constitutional
claims to each level of the state courts empowered to hear those claims, either on direct appeal or
in collateral post-conviction relief proceedings. See, e.g., O’Sullivan v. Boerekel, 526 U.S. 838,
847 (1999) (announcing the rule “requiring state prisoners to file petitions for discretionary review
when that review is part of the ordinary appellate review procedure in the State”).
3. Recognizing the complexities that face prisoners who must exhaust state remedies
while complying with the one-year statute of limitations period for

§ 2254 habeas petitions as set

out in § 2244(d)(1), the United States Court of Appeals for the Third Circuit has held that “[s]taying
a habeas petition pending exhaustion of state remedies is a permissible way to avoid barring from
federal court a petitioner who timely files a mixed petition [containing both exhausted and
unexhausted claims].” Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). Indeed, the Third
Circuit has stated that “when an outright dismissal could jeopardize the timeliness of a collateral
attack, a stay is the only appropriate course of action.” Id. at 154.
4. Since Crews, however, the United States Supreme Court has explained when a stay
should be issued; specifically:

____day

stay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to
present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines that there was good
cause for the petitioner’s failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that failure,
the district court would abuse its discretion if it were to grant him a
stay when his unexhausted claims are plainly meritless.
[IJt likely would be an abuse of discretion for a district court to deny
a stay and to dismiss 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.
Rhines v. Weber, 544 U.S. 269, 277—78 (2005).
5. In this case, the Court finds that Petitioner has sufficiently meet the requirements of
Rhines. Petitioner was denied his opportunity to raise these claims in state court when PCR
counsel failed to raise them in his collateral proceeding. See Baker v. Ricci, No. 09-3654 (KM),
2013 WL 4833415, at *12 (D.N.J. Sept. 9, 2013) (applying Martinez v. Ryan, 132 S.Ct. 1309
(2012) to find good cause for a stay when appellate counsel failed pursue a direct appeal); Blake
v. Baker, 745 F.3d 977, 983 (9th Cir. 2014) (“IAC by post-conviction counsel can be good cause
for a Rhines stay”). Moreover, the Appellate Division itself already found that these claims are
potentially meritorious. See State v. Nayee, No. A-4559-1 1T2, 2014 WL 2197863, at *2, n.6 (N.J.
Super. Ct. App. Div. May 28, 2014) (“Although not raised by defendant, we note the court’s failure
to conduct all interviews on the record, and in the presence of counsel, was error.”) Finally,
Petitioner did not engage in intentional dilatory tactics because he filed his habeas Petition and
request for a stay nine months after the Appellate Division first identified this issue and only two
months after the New Jersey Supreme Court denied his petition for certification.
IT IS, therefore, on this

of

_L.I.A, 2015,

No. 3) is
ORDERED that Petitioner’s Application for a stay of this action (ECF
GRANTED; and it is further
file his PCR
ORDERED that within 30 days of the date of this Order, Petitioner must
petition in state court containing the claims detailed above; and it is further
this action
ORDERED that Petitioner shall return to this Court by filing a request to reopen
within 30 days after exhaustion of his state law claims; and it is further
in this Order,
ORDERED that, if Petitioner should fail to comply with the deadline set forth
without further
this Court may vacate this Order nune pro tune and dismiss all unexhausted claims
notice; and it is further
timeliness
ORDERED that nothing in this Order shall be construed as a finding as to the
n, see Mayle
of any additional claims that may be asserted in any future petition or amended petitio
v. Felix, 545 U.S. 644, 125 S.Ct. 2562 (2004); and it is further
ner by
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Petitio
regular mail; and it is further
ORDERED that the Clerk of the Court shall administratively terminate this action.

Peter G. Sheridan, U.S.D.J.