BERMUDEZ v. D'ILIO

Filing 6

MEMORANDUM ORDER that within 60 days from the date of entry of this Order, the parties may expand the record in the manner as directed in this Order. Signed by Judge Michael A. Shipp on 8/31/2016. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ARIEL BERMUDEZ,
Civil Action No. 15-3567 (MAS)
Petitioner,

v.

MEMORANDUM ORDER

STEPHEN M. D'ILIO, et al.,
Respondents.

This matter comes before the Court on the Petition for Writ of Habeas Corpus of Petitioner
Ariel Bermudez ("Petitioner"), for relief under 28 U.S.C. § 2254. Respondents filed an Answer
(ECF No. 4), and Petitioner filed a Reply (ECF No. 5). The Court has considered the Petition, the
records of the proceedings in this matter, the Answer, and the Reply. It appearing:
1.

Pursuant to a guilty plea, Petitioner was convicted of armed robbery and other

related crimes in two separate indictments. State v. Bermudez, No. A-Ol 18-07T4, slip op. at 1,
ECF No. 4-7 (N.J. Super. Ct. App. Div. Aug. 2, 2010) ("Bermudez f'). The details of Petitioner's
crimes are not·important for the purposes of the instant Order. What is relevant is that during his
arrest at a motel room, two handguns were found and seized as evidence. Id. at 5-6. During the
course of the prosecution, the State offered Petitioner a plea deal of a twenty-year term of
imprisonment, on the condition that he would not move to challenge the admissibility of the
handguns. State v. Bermudez, No. A-2684-12T2, slip op. at 2, ECF No. 4-15 (NJ. Super. Ct. App.
Div. Oct. 31, 2014) ("Bermudez If'). Petitioner did not accept the initial plea offer and, instead,
proceeded with a motion to suppress the handguns, so the initial plea offer was withdrawn. (Tr.

of Plea Cutoff 3:14-18, ECF No. 4-21.) The trial court ruled against Petitioner on his suppression
motion. Bermudez II at 3.
2.

After failing to suppress the handguns from evidence, Petitioner pled guilty in an

open-ended plea, and was given a mandatory extended-term sentence of thirty years due to a prior
armed robbery conviction. Id. The conviction and sentence were affirmed on direct appeal, and
the New Jersey Supreme Court denied certification. Id. at 4. Petitioner then filed an application
for post-conviction relief ("PCR"), arguing, among other things, that he received ineffective
assistance of counsel during plea negotiations, because counsel erroneously advised him that he
could avoid the extended-term sentence by pleading open-ended. Id. at 4-5. The PCR trial court
denied the application, id. at 5, and that denial was affirmed on appeal, id. at 6. The New Jersey
Supreme Court again denied certification. (ECF No. 4-18.)
3.

Petitioner asserts two grounds for relief in the instant Petition: (1) Petitioner's trial

counsel was ineffective in providing adequate advice regarding the initial plea offer, causing
Petitioner to erroneously reject the initial plea offer; and (2) the PCR trial court erred in denying
Petitioner's PCR application without an evidentiary hearing with regard to the advice Petitioner
received during the negotiations of the initial plea offer.
4.

With regard to Claim I, Respondents argue that Petitioner has procedurally

defaulted on the claim, because he did not raise the claim in state court. The Court agrees, since
the state appellate court has already ruled on whether Petitioner raised this claim in his direct
appeal or his PCR application. In addressing Petitioner's claim regarding the initial plea offer, the
PCR appeals court in Bermudez II found that "defendant contends for the first time that he relied
on faulty advice from trial counsel to reject the State's twenty-year plea offer ... and instead,
pursued a meritless motion to suppress and thereafter entered a[n] open-ended plea and received a

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mandatory extended-term sentence[.]" Bermudez II at 6 (emphasis added). The PCR appeals court
went on to hold that "generally, we will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is available unless the
matter involves the trial court's jurisdiction or is of public importance. No exception applies here."
Id. (citations and quotation marks omitted). As such, since Petitioner no longer has the opportunity

to raise this claim in state court, 1 it would appear, at first blush, that Petitioner's claim is
procedurally defaulted.
5.

However, the Court's procedural default analysis does not end there. Procedural

default may be excused, and a federal habeas court may address the claim, if the petitioner shows
cause and prejudice for the default or that a fundamental miscarriage of justice will occur if the
claim is not addressed. Collins v. Secy ofPa. Dep 't ofCorr., 742 F.3d 528, 542 n.8 (3d Cir. 2014)
(citation omitted). As applied to the facts of this case, the question of whether there is cause to
excuse Petitioner's procedural default has already been answered by the Supreme Court. In
Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court expressly recognized good cause for

failure to exhaust. The Martinez Court held that in states where ineffective trial counsel claims
can only be brought on PCR (such as New Jersey), failure to raise an ineffective trial counsel claim
on PCR is good cause to excuse the failure to exhaust. Id. at 1318; see State v. Preciose, 129 N.J.
451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffectiveassistance-of-counsel claims on direct appeal because such claims involve allegations and
evidence that lie outside the trial record.").

In those states, the Martinez Court reasoned, a

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New Jersey Court Rules require a PCR claim to be raised within five years after the date of entry
of conviction and sentence. N .J. Ct. R. 3 :22-12(a)(l ). Since Petitioner's conviction and sentence
were issued on November 9, 2006, (Pet. 1, ECF No. 1), Petitioner can no longer raise his claim in
state court.
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defendant's only meaningful opportunity to challenge the effectiveness of his trial counsel, a right
guaranteed by the Sixth Amendment, is on PCR. Id. at 1315. As such, when a defendant loses
that opportunity, either due to failure of the PCR counsel to raise the claim, or simply because the
defendant did not have a PCR counsel at all, federal courts cannot bar such claim in a habeas
petition on procedural default grounds; doing so would indirectly deprive a defendant of his
constitutional right to assistance of trial counsel. Id. at 1317-18. Here, as the state court already
found, PCR counsel simply did not raise the claim in PCR trial court, and that failure is good cause
to excuse procedural default under Martinez.
6.

Respondents further argue that there was no prejudice, asserting that even if trial

counsel erroneously believed that Petitioner's extended-term was discretionary, the thirty-year
sentence Petitioner received was within the sentencing range of that discretionary term. However,
Respondents incorrectly assume that the prejudice analysis of Petitioner's ineffective assistance
claim depends on the eventual outcome. Instead, in the context where a petitioner asserts that he
would have accepted a plea offer, the prejudice analysis for an ineffective assistance claim is
whether
but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and sentence
that in fact were imposed.
Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012); see Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)

("[A]n [ineffective assistance of counsel] analysis focusing solely on mere outcome determination,
without attention to whether the result of the proceeding was fundamentally unfair or unreliable,
is defective.").
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7.

When a defendant is faced with the decision of whether to accept a plea offer, there

is a material difference between advising him that "you might receive a thirty-year sentence,
depending

~n

the judge's discretion" versus "you will receive a thirty-year sentence due to your

prior conviction." In this case, there was a ten-year difference between the first plea offer of twenty
years and the thirty-year sentence Petitioner received under the mandatory extended-term. If
Petitioner had been informed with certainty that he would receive a thirty-year sentence ifhe lost
at trial, as opposed to being advised that the extended-term was at the judge's discretion which
Petitioner might avoid (see Pet. 17), there is a reasonable probability that he may have chosen to
accept the first plea offer and would have received a lesser sentence. See Lafler, 132 S. Ct. at 1386
("[A]ny amount of [additional] jail time has Sixth Amendment significance.") (quoting Glover v.
United States, 531 U.S. 198, 203 (2001)). As such, it appears that Petitioner may be able to meet

the cause and prejudice requirement for excusing a procedural default.
8.

Accordingly, pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the

United States District Courts, the Court directs the parties to "expand the record by submitting
additional materials relating to the petition." More specifically, the parties may obtain and submit
any evidence that would tend to show: (1) whether PCR counsel was deficient in pursuing
Petitioner's ineffective assistance claim with regard to the initial plea offer; and (2) whether trial
counsel offered adequate advice during negotiations of the initial plea offer. Evidence may include
but is not limited to any affidavit from the PCR and/or trial counsel. See Grimes v. Superintendent
Graterford SCI, 619 F. App'x 146, 149 (3d Cir. 2015) (holding that federal courts may expand the

record and conduct hearings on excuses for procedural default at the state level).

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IT IS therefore on this _\_ day of August 2016,

ORDERED that, within sixty (60) days from the date of entry of this Order, the parties
may expand the record in the manner as directed above; and it is further

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

MI~

UNITED ST A TES DISTRICT JUDGE

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