NAYEE v. D'ILIO et al

Filing 47

MEMORANDUM & ORDER that the Clerk shall reopen this case for the purpose of deciding Petitioner's two outstanding motions; Petitioner's application to proceed in forma pauperis on appeal is denied as unnecessary; Petitioner's motion fo r leave to file a brief in support of his motion to expand the certificate of appealability 46 is GRANTED; Petitioner's motion to expand the certificate of appealability 45 is DENIED; the Clerk shall re-close this case. Signed by Judge Peter G. Sheridan on 9/08/2021. (jem)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANIL NAYEE,
Petitioner,

Civ. No. 15-1288 (PGS)

V.

STEPHEN D’ILIO, et a!.,

MEMORANDUM & ORDER

Respondents.

Petitioner, Anil Nayee (“Petitioner” or “Nayee”), is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254.

On April 23, 2021, this

Court denied Petitioner’s habeas petition on the merits, but granted a certificate of appealability
on two of Petitioner’s claims. (See ECF 41 & 42). Thereafter, Petitioner filed a notice of appeal.
(See ECF 43). After the filing of the notice of appeal, Petitioner filed an application to proceed in
forma pauperis along with what this Court construes as a motion to expand the certificate of
appealability and a motion to file a brief in support of his motion to expand the certificate of
appealability. (See ECF 45 & 46). Given these filings, this Court will reopen this action for the
sole purpose of deciding Petitioner’s motions.
Initially, Petitioner seeks informapauperis status to pursue his appeal. The United States
Court of Appeals for the Third Circuit though has already granted Petitioner informa pauperis
status. (See C.A. 21-2022 Dkt. No. 9). Therefore, Petitioner’s application before this Court is
denied as unnecessary.
Next, Petitioner has filed both a motion to expand the certificate of appealability as well
as a motion to file a brief in support of his motion to expand the certificate of appealability. (See

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ECF 45 & 46). This Court sees no reason to deny Petitioner’s request to file a brief in support of
his request to expand the certificate of appealability. Therefore, that motion is granted.
Nevertheless, this Court denies Petitioner’s request to expand the certificate of
appealability. In denying Petitioner’s entire habeas petition on the merits, this Court granted a
certificate of appealability on two claims; namely Claims I and III. Those claims raised the
following issues:
1. Denial of due process and ineffective assistance of counsel when Petitioner appeared
before the jury in prison garb (“Claim I”); and
2. Trial court error in failing to instruct the jury on the lesser included offense of
manslaughter (“Claim III”).
Petitioner though seeks to expand the certificate of appealability to also include the following
claims:
1. Improper admission of hearsay statement concerning the victim’s state of mind about her
fear of Petitioner and appellate counsel’s ineffectiveness for not raising this issue on
appeal (“Claim V”).
2. Ineffective assistance of counsel by failing to advise petitioner of the full consequences
of declining a plea offer (“Claim VI”).
3. Petitioner deprived right to counsel when trial judge conducted ex parte interview ofjuror
E.R. in her chambers without Petitioner’s trial counsel being present (“Claim VIII”).
4. Trial, appellate and PCR ineffective assistance of counsel by failing to notice and object
to trial judge’s ex parte interview ofjuror E.R. (“Claim IX”).
(See ECF 45-1 at 2-3).

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Pursuant to 28 U.S.C.

§

2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C.

§

2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.

§

2253(c)(2). “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 the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
This Court applied the certificate of appealability standard outlined above in deciding not
to grant a certificate of appealability on Claims V, VI, VIII and IX in its previous opinion.
Nothing in Petitioner’s motion and brief to expand the certificate of appealability warrants
including these additional claims to the certificate of appealability. Accordingly, Petitioner’s
motion to expand the certificate of appealability is denied.’
Accordingly, IT IS on this

day of02l,

ORDERED that the Clerk shall reopen this case for the sole purpose of deciding
Petitioner’s two outstanding motions; and it is further
ORDERED that Petitioner’s application to proceed informapauperis on appeal (ECF 452) is denied as unnecessary as the United States Court of Appeals for the Third Circuit has
already granted Petitioner’s application to proceed informapauperis on appeal; and it is further
ORDERED that Petitioner’s motion for leave to file a brief in support of his

motion to

expand the certificate of appealability (ECF 46) is granted; and it is further

1

This Court notes that Petitioner has also filed a motion to expand a certificate of appealability
with the United States Court of Appeal for the Third Circuit that remains pending.
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ORDERED that Petitioner’s motion to expand the certificate of appealability (ECF 45) is
denied; and it is further
ORDERED that the Clerk shall serve this memorandum & order on Petitioner by regular
U.S. mail; and it is further
ORDERED that the Clerk shall re-close this case.

PETER G. SHERIDAN
United States District Judge

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