LANE v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 18

MEMORANDUM AND ORDER Denying 10 MOTION to Stay filed by TRAVIS LANE without prejudice. The Clerk shall serve this Order by regular mail upon Petitioner. Signed by Judge Freda L. Wolfson on 6/20/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TRAVIS LANE,

Civil Action No. 15-4108(FLW)

Petitioner,
v.

MEMORANDUM AND ORDER

THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.

This matter has been opened to the Court by Petitioner’s filing of an Amended Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and his second motion for a stay to
exhaust certain claims in state court. (ECF Nos. 10, 11.) Respondents oppose Petitioner’s
motion for a stay, and have attached exhibits showing that the PCR court has already denied
Petitioner’s second PCR, which appears to raise the issues for which Petitioner seeks a stay.
Respondents further contend that Petitioner has not exhausted the claims in his second PCR by
filing an appeal of the denial of his second PCR to the Appellate Division or the New Jersey
Supreme Court. For the reasons explained in the Memorandum and Order, the Court will deny
Petitioner’s motion for a stay and order Petitioner to inform the Court within 30 days as to
whether he intends to exhaust the claims raised in his second PCR by appealing, albeit belatedly,
the denial of his second PCR to every level of the state court. If Petitioner does not intend to
appeal the denial of his second PCR, Petitioner shall either withdraw his unexhausted claims or
provide a valid reason(s) to excuse his procedural default of these claims.

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On February 11, 2016, Petitioner filed a motion for a stay to go back to state court and
exhaust unspecified claims for relief. (ECF No. 5.) Pursuant to Rhines v. Weber, 544 U.S. 269
(2005), the Court denied the stay without prejudice to Petitioner’s filing of (1) an amended
petition that includes all federal grounds for relief that he wishes to raise in his § 2254 petition
(both exhausted and unexhausted), and (2) a new motion for a stay if any of the grounds in the
amended petition are as yet unexhausted. 1 (ECF No. 9.) The Court also, in accordance with
Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), notified Petitioner of the consequences of filing a
§ 2254 Petition under AEDPA. (Id.)
On November 9, 2016, Petitioner filed a second motion for a stay and an Amended
Petition that raises four grounds for relief. (ECF Nos. 10, 11.) The Amended Petition alleges
that Grounds One and Two have been duly exhausted. (See ECF No. 11.) The unexhausted
claim appear to be Grounds Three and Four of the Amended Petition. (ECF No. 11, Pet. at 414.) In Ground Three, Petitioner alleges that the trial court erred in disposing of post-conviction
relief application without defense counsel’s presence and at least a representation that conferred
with defendant and had investigated merits of the petition. (Id., Pet. at 9.) In support of this
ground for relief, Petitioner alleges that his counsel appeared telephonically on his behalf. (See

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In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has the
authority to stay a mixed § 2254 petition when a stay would be compatible with the
Antiterrorism Effective Death Penalty Act’s (AEDPA) purposes, Rhines, 544 U.S. at 276, and
that “it 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. In such circumstances, the district court should stay, rather than
dismiss, the mixed petition.” Id. at 278. See also Heleva v. Brooks, 581 F.3d 187 (3d Cir. 2009)
(holding that stay-and-abeyance under Rhines standard also applies to a request to stay a § 2254
petition which contains only unexhausted claims).
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id.) In Ground Four of the Amended Petition, Petitioner alleges that trial counsel failed to
properly conduct a pre-trial investigation of the state’s witnesses. (Id., Pet. at 10.)
On November 30, Respondent filed a brief in opposition to Petitioner’s motion, which
attaches exhibits showing that Petitioner submitted a second PCR on January 5, 2016 that raised
two grounds for relief. (ECF No. 13-1, Petitioner’s second PCR dated Jan. 5, 2016.) Petitioner
alleged that (1) trial counsel was ineffective for not properly investigating witnesses’
identification of the defendant and that (2) PCR counsel provided ineffective assistance of
counsel for appearing telephonically on the defendant’s behalf in court. (Id.) Respondent has
also attached copies of the PCR court’s Opinion and Order dismissing with prejudice Petitioner’s
second PCR. (ECF No. 13-2, PCR court’s Opinion and Order dated Apr.28, 2016.) Respondent
has represented to the Court that Petitioner did not file an appeal of the denial of his second PCR.
(See ECF No. 13, Respondent’s Brief at 3.)
Petitioner, in his second motion for a stay, failed to inform the court that PCR court had
already denied his second PCR; furthermore, Petitioner has not informed the Court whether he
intends to appeal, albeit belatedly, the denial of his second PCR to every level of the state court,
which he must do in order to exhaust these claims. 2
Under AEDPA, this Court may not grant a writ of habeas corpus under 28 U.S.C. § 2254
unless the petitioner has exhausted the remedies available in the courts of the State or exhaustion
is excused under 28 U.S.C. § 2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d
Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997); Toulson v. Beyer, 987 F.2d
984 (3d Cir. 1993). The Exhaustion Doctrine requires a petitioner challenging a New Jersey

2

The Court expresses no opinion as to whether the state courts would accept Petitioner’s appeal
out of time.
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conviction under § 2254 to have fairly presented each federal ground that is raised in the petition
to all three levels of the New Jersey courts, that is, the Law Division, the Appellate Division, and
the New Jersey Supreme Court. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Rose v. Lundy,
455 U.S. 509 (1982).
If Petitioner does not intend to appeal the PCR’s court’s decision denying his second
PCR to each level of the state court, his claims remain unexhausted, and will be subject to
dismissal by this Court unless Petitioner can provide a valid reason(s) to excuse his procedural
default. Therefore, Petitioner shall inform the Court within 30 days as to whether he intends to
appeal the denial of his second PCR to each level of the state court. If Petitioner so informs the
Court, the Court will stay the action to permit Petitioner to exhaust the claims raised in his
second PCR. If Petitioner informs the Court that he does not intend to exhaust Grounds Three
and Four of the Amended Petition, he must either withdraw those claims or provide a valid
reason(s) why the Court should excuse his procedural default.
Respondents suggest that Petitioner is seeking to file a Third PCR. (ECF No. 13,
Respondents’ Brief at 3.) To the extent Petitioner is seeking a stay to file a third PCR that raises
claims that are substantially similar to the claims he has already raised in his second PCR, the
Court denies that request, as the PCR court would inevitably deny the third PCR for the same
reasons it denied the second PCR.
IT IS, THEREFORE, on this 20th day of June, 2017,
ORDERED that the motion (ECF No. 10) to stay the § 2254 Petition is DENIED
WITHOUT PREJUDICE for the reasons stated above; and it is further
ORDERED that within 30 days of the entry of this Order, Petitioner shall inform the
Court as to whether he intends to exhaust Grounds Three and Four of his Amended Petition by

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appealing the denial of his second PCR to every level of the state court; if Petitioner intends to
appeal the denial of his second PCR, the Court shall enter a separate Order staying the matter
pending the resolution of that appeal; and it is further
ORDERED that to the extent Petitioner does not intend to exhaust Grounds Three and
Four of his Amended Petition, he must either withdraw those claims or provide a valid reason(s)
why this Court should excuse his procedural default; if Petitioner elects to withdraw his
unexhausted claims or provide a reason(s) to excuse his procedural default, he must do so in a
signed writing within 30 days;
ORDERED that to the extent Petitioner seeks a stay to file a third PCR that raises claims
that are substantially similar to the claims he has already raised in his second PCR, that request is
DENIED; and it is further
ORDERED that if Petitioner fails to respond to the Court’s Order, then this Court will
consider Docket Entry #11 as Petitioner’s one and only all-inclusive § 2254 Petition and, absent
extraordinary circumstances, federal claims set forth in any second or successive § 2254 petition
will be subject to dismissal for lack of jurisdiction. See 28 U.S.C. § 2244(b); and it is finally
ORDERED that the Clerk shall serve this Order by regular mail upon Petitioner.

s/Freda L. Wolfson
Freda L. Wolfson
United States District Judge

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