MOORE v. BUECHELE et al

Filing 8

OPINION filed. Signed by Judge Freda L. Wolfson on 10/2/2015. (mmh)

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEROY T. MOORE,

Civil Action No. 15-1436 (FLW)

Petitioner,
v.

OPINION

ROBERT BUECHELE, et al.
Respondents.

WOLFSON, United States District Judge:
I.

INTRODUCTION
Petitioner Leroy T. Moore is a state prisoner currently incarcerated at South Woods State

Prison in Bridgeton, New Jersey. Petitioner is proceeding pro se with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges only the computation of his
jail time credits, and he has declared that this petition sets forth all grounds for relief and is his
one, all-inclusive habeas petition. (ECF No. 1, at 16.) The Court has screened the Petition for
summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts and finds that it is clear from the Petition that Petitioner has failed to
exhaust his available state remedies prior to filing the instant Petition. As such, the Court
administratively terminates the Petition at this time.

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II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court recounts only the facts relevant to the instant Opinion. Petitioner initially filed

his Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 24, 2015. (ECF
No. 1). On March 27, 2015, the Court administratively terminated the case for failure to pay the
filing fee or submit a complete application to proceed in forma pauperis. (ECF No. 2.) Petitioner
subsequently paid the filing fee, and the Court reopened the matter to screen Petitioner’s Petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts.
It appears from his Petition and attachments that Petitioner pleaded guilty to several drug
offenses, and was sentenced on June 12, 2014. (ECF No. 1.) He did not appeal his convictions
or sentence. (Id.) As his only ground for relief, Petitioner alleges that “prison officials failed to
provide Petitioner with his jail credits and gap time credits that [were] awarded to Petitioner
through his sentencing.” (Id., Pet. at 6.) Regarding the exhaustion of his state remedies,
Petitioner states as follows:
Filed remedy to classification (July 2014) requesting my
jail and gap time credits to be awarded as they appear on my JOC,
received no response. On August 18, 2014, I filed another
grievance [to] which the Respondents stating that I’m not entitled
to such credits (see exhibits)[.]
(ECF No. 1.) Petitioner has submitted attachments with his Petition, including his Judgment of
Conviction (“JOC”) and his correspondence with individuals at the Department of Corrections
regarding the alleged error in the calculation of his sentence. (Id.) Petitioner does not specify
the relief he is seeking in his Petition. (Id.)

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III.

ANALYSIS
a. Standard for Sua Sponte Dismissal
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.

Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a petition to “specify all the grounds
for relief available to the petitioner,” “state the facts supporting each ground,” “state the relief
requested,” be printed, typewritten, or legibly handwritten, and be signed under penalty of
perjury. 28 U.S.C. § 2254 Rule 2(c). Habeas Rule 4 requires a judge to sua sponte dismiss a
petition without ordering a responsive pleading “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court.” 28 U.S.C. § 2254
Rule 4. As such, “[f]ederal courts are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.” McFarland, 512 U.S. at 856. The Court notes, however,
that a pro se pleading is held to less stringent standards than more formal pleadings drafted by
lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions must be construed liberally and
with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.1998); Lewis v.
Attorney General, 878 F.2d 714, 721–22 (3d Cir. 1989). Nevertheless, a federal court can
dismiss a habeas corpus petition without the filing of an answer if “it appears on the face of the
petition that petitioner is not entitled to [habeas] relief.” Siers v. Ryan, 773 F.2d 37, 45 (3d Cir.
1985), cert. denied, 490 U.S. 1025 (1989); see also McFarland, 512 U.S. at 856; United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may be dismissed where “none of the
grounds alleged in the petition would entitle [petitioner] to [habeas] relief”); see also Mayle v.
Felix, 545 U.S. 644, 655 (2005); Mastrosimone v. New Jersey Dep't of Corr., No. CIV. 14-1710,
2015 WL 4638246, at *2 (D.N.J. Aug. 4, 2015) (administratively terminating habeas petition

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under Rule 4 where it was clear on the face of the Petition that Petitioner failed to exhaust all
available administrative remedies).
b. Exhaustion of State Remedies
At issue here is whether it is clear from the face of the Petition that Petitioner failed to
exhaust all available state remedies related to the alleged denial of jail credits prior to filing his
Petition. Exhaustion of state remedies is a necessary prerequisite to a federal habeas petition.
See 28 U.S.C. § 2254(b)(1)(A). “Under Section 2254, a writ of habeas corpus may not be
granted unless the applicant has exhausted remedies available in state court or ‘unless there is an
absence of available corrective state process or state remedies are ineffective.’” Coady v.
Vaughn, 251 F.3d 480, 488 (3d Cir. 2001) (quoting Morris v. Horn, 187 F.3d 333, 337 (3d Cir.
1999); 28 U.S.C. § 2254(b)(1)). Section 2254(c) further provides that “[a]n applicant shall not
be deemed to have exhausted the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c). Thus, 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
proceedings. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838 (1999) (“requiring state prisoners
[in order to fully exhaust their claims] to file petitions for discretionary review when that review
is part of the ordinary appellate review procedure in the State”); Ross v. Petsock, 868 F.2d 639
(3d Cir. 1989); 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available procedure, the question presented.”).
Once a petitioner's federal claims have been fairly presented to the state's highest court, the

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exhaustion requirement is satisfied. Hohsfield v. Yatauro, No. CIV.A. 11-2000 GEB, 2011 WL
2418478, at *2 (D.N.J. June 13, 2011) (citing Picard v. Connor, 404 U.S. 270, 275 (1971);
Castille v. Peoples, 489 U.S. 346, 350 (1989)).
New Jersey law provides an absolute right to appeal any action or decision of a state
administrative agency to the Superior Court, Appellate Division, under: (a) the State
Constitution, N.J. Const. Art. VI, Sec. 5, ¶ 4, see Trantino v. N.J. State Parole Bd., 166 N.J. 113,
172, modified on other grounds, 167 N.J. 619 (2001); and also under (b) the New Jersey Court
Rules. See N.J. Ct. Rule 2:2–3(a)(2); see also Mastrosimone, 2015 WL 4638246, at *3
(explaining same). “This procedure allows for appeals from ‘inaction as well as action of a State
administrative agency.’” Mastrosimone, 2015 WL 4638246, at *3 (citing Trantino v. N.J. State
Parole Bd., 296 N.J. Super. 437, 459–460 (App. Div. 1997), modified on other grounds and
afff’d, 154 N.J. 1 (1998); Johnson v. State Parole Bd., 131 N.J. Super. 513, 517–18 (App. Div.
1974), certif. denied, 67 N.J. 94 (1975); Petrucelli v. Dep't of Civ. Service, 28 N.J. Super. 572,
575 (App. Div. 1953)). The New Jersey Court Rules additionally enable all litigants to seek
certification from the Supreme Court. See N.J. Ct. R. 2:12–3.
Here it is plain on the face of the Petition that Petitioner has not exhausted his state court
remedies regarding the alleged denial of jail and gap time credits as Plaintiff has merely filed two
internal grievances and does not indicate that he appealed the resulting administrative
determination – to the extent it is final – to the Superior Court, Appellate Division, and then to
the Supreme Court of New Jersey. The Court notes that if Petitioner’s challenges are
unexhausted, they are subject to dismissal without prejudice unless Petitioner establishes a valid
excuse from the exhaustion requirement. See Pratola v. S. State Corr. Facility, No. 137628,
2014 WL 4104636, at *3 (D.N.J. Aug. 19, 2014); Mastrosimone, 2015 WL 4638246, at *4. In

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this instance, the Court will administratively terminate the Petition for failure to exhaust his state
court remedies. The Court notes that Petitioner may attempt to reopen his Petition once he fully
exhausts his state court remedies. To the extent Petitioner has a valid excuse for failing to
exhaust, he may file an Amended Petition within 30 days.
IV.

CONCLUSION
The Court administratively terminates Petitioner’s Petition for failure exhaust state court

remedies. An appropriate Order follows.

__/s/ Freda L. Wolfson__________
Freda L. Wolfson, U.S.D.J.

Date: _October 2___________, 2015

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