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

Filing 3

OPINION filed. Signed by Judge Brian R. Martinotti on 1/4/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALLEN M. KUNZ,

Civil Action No. 16-8817 (BRM)

Petitioner,
v.

OPINION

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

MARTINOTTI, DISTRICT JUDGE:
Before this Court is the petition for a writ of habeas corpus (“Habeas Petition”) of Petitioner
Allen M. Kunz (“Petitioner”) brought pursuant to 28 U.S.C. § 22541 in which he seeks to challenge
his 1985 conviction for, inter alia, felony murder. (Civ. No. 16-8817, ECF No. 1.) The Court is
required to screen the Habeas Petition pursuant to Rule 4 of the rules governing § 2254 cases and
determine whether it “plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief.” Also before the Court is Petitioner’s motion for a stay of the Habeas
Petition. (Civ. No. 16-8817, ECF No. 2.) For the reasons set forth below, the Habeas Petition is
DISMISSED WITHOUT PREJUDICE for lack of jurisdiction, and his motion for a stay is
DENIED AS MOOT.
I.

BACKGROUND
Petitioner is a convicted state prisoner currently serving a life sentence with a thirty-year

period of parole ineligibility, arising out of his 1985 conviction for felony murder, first-degree
robbery, and possession of a weapon for an unlawful purpose. (Civ. No. 16-8817, ECF No. 1 at

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1.) Petitioner previously filed a direct appeal of his conviction in state court, which was ultimately
denied by the New Jersey Supreme Court. (Id.at 1-14). Petitioner also previously filed a petition
for a writ of habeas corpus in the Federal District Court for the District of New Jersey. (Id.at 1-14;
see also Kunz v. Morton, Civ. No. 97-2717). On October 9, 1997, the Honorable Anne E.
Thompson, U.S.D.J., dismissed that habeas petition with prejudice and denied Petitioner a
certificate of appealability. (Civ. No. 97-2717 at ECF Nos. 7 & 8.) Petitioner appealed that
dismissal, and the Third Circuit denied him a certificate of appealability in July 1998. (Civ. No.
97-2717 at ECF No. 12.) Petitioner thereafter filed several post-conviction relief petitions in the
state courts, to no avail. (Civ. No. 16-8817, ECF No. 1 at 1-14.)
On or about November 28, 2016, Petitioner filed the instant Habeas Petition. (Id.) In this
Habeas Petition, Petitioner argues pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding
that mandatory life without parole for juvenile offenders under 18 at the time of their crime is
unconstitutional), and Montgomery v. Louisiana, 136 S Ct. 718 (2016) (applying Miller
retroactively to cases on collateral review), his life sentence was unconstitutional because he was
under 18 at the time of his offenses. Petitioner has also filed a motion for a stay of the Habeas
Petitionm, pending exhaustion of his new claims in the state courts. (Civ. No. 16-8817, ECF No.
2.)
II.

LEGAL STANDARD
Pursuant to Rule 4 of the rules governing § 2254 cases, this Court is required to

preliminarily review a petitioner’s habeas petition and determine whether it “plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief.” Pursuant to this
rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).

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Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F. 3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews,132 S. Ct. 2148, 2151 (2012).
Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C.
§ 2244 (“AEDPA”), district courts are required to give great deference to the determinations of
the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, 125 S. Ct. 1372, 1376 (2015). “When reviewing state
criminal convictions on collateral review, federal judges are required to afford state courts due
respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual determination of
the state courts, “a determination of a factual issue made by a State court shall be presumed to be

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correct [and the] applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III.

DECISION
Petitioner seeks to challenge his sentence based on his contention that it was rendered

illegal pursuant to Miller and Montgomery. However, Petitioner has previously filed a habeas
petition with this Court, which was dismissed with prejudice by Chief Judge Thompson. Pursuant
to the AEDPA, this Court’s jurisdiction over a second or successive § 2254 petition is limited.
Specifically, 28 U.S.C. § 2244(b)(3)(A) requires a petitioner to “move in the appropriate court of
appeals for an order authorizing the district court to consider the application,” before he may file
a second or successive petition with the district court. Rule 9 of the rules governing § 2254
proceedings likewise requires that “[b]efore presenting a second or successive petition, the
petitioner must obtain an order from the appropriate court of appeals authorizing the district court
to consider the petition.” Absent authorization from the appropriate court of appeals, in this case
the Third Circuit, this Court lacks jurisdiction over a second or successive habeas petition. See 28
U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152 (2007) (district court “never had
jurisdiction to consider” successive petition where the petitioner “did not seek or obtain
authorization to file in the District Court”); Blystone v. Horn, 664 F. 3d 397, 412 (3d Cir. 2011)
(“A petitioner’s failure to seek such authorization from the appropriate appellate court before filing
a second or successive habeas petition acts as a jurisdictional bar”). “When a second or successive
habeas petition is erroneously filed in a district court without the permission of a court of appeals,
the district court’s only option is to dismiss the petition or transfer it to the court of appeals pursuant
to 28 U.S.C. § 1631.” Robinson v. Johnson, 313 F. 3d 128, 139 (3d Cir. 2002).

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Petitioner has previously filed a habeas petition in this court, which was dismissed with
prejudice, therefore, this Habeas Petition is second or successive. Importantly, Petitioner’s prior
petition was dismissed with prejudice, meaning it was not dismissed based on a “technical or
procedural deficienc[y],” which could have been cured before refiling. See, e.g., McDaniels v.
Power, Civ. No. 08-3221, 2008 WL 2704821, at *3-4 (D.N.J. July 7, 2008). As such, Petitioner
has already been provided a “full and fair opportunity to raise a [federal] collateral attack” to his
conviction and any subsequent habeas petition is by definition second or successive. See, e.g., id.;
see also Murray v. Granier, 394 F. 3d 78, 80-81 (2d Cir. 2005) (decision on the merits of first
petition, including where first petition was dismissed as time-barred or decided in a manner that
could not otherwise be cured by refiling, renders second petition subject to second or successive
jurisdictional bar; any dismissal of a petition which presents a “permanent and incurable” bar to
federal relief is a decision on the merits sufficient to trigger second or successive bar). Therefore,
this Court is without jurisdiction to hear Petitioner’s current claims absent authorization from the
Third Circuit, which Petitioner has not, as of yet, acquired. See Robinson, 313 F. 3d at 139.
If a district court lacks jurisdiction over a habeas petition, the court must either dismiss the
petition without prejudice or transfer the matter to the appropriate Court of Appeals, if to do so
would be “in the interests of justice.” Id. Here, a transfer to the Court of Appeals would only be in
the interests of justice if Petitioner has alleged sufficient facts to “bring his petition within the
gatekeeping requirements” of [the habeas statute] permitting ‘second or successive’ petitions.”
Hatches v. Schultz, 381 F. App’x 134, 137 (3d Cir. May 21, 2010). Pursuant to the AEDPA, a
claim will only fall within those requirements if either (1) it relies on a new rule of constitutional
law made retroactive to cases on collateral review, (2) the factual predicate for the claim could not
have been discovered previously through due diligence, or (3) the facts underlying the claim are

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sufficient to establish that no reasonable factfinder would have found the applicant guilty absent
the alleged constitutional error. 28 U.S.C. § 2244(b)(2)(A)-(B)(ii).
Here, Petitioner asserts his Habeas Petition falls within the first of those three requirements,
arguing his claim arises under Miller, which was made retroactive by Montgomery. This assertion
is problematic, however, because Petitioner does not allege a Miller claim in his Habeas Petition.
In Miller, the Supreme Court did not render all life sentences for juvenile offenders
unconstitutional. The Supreme Court instead held “mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment.” 132 S. Ct. at 2460. The
Supreme Court’s holding in Miller was expressly limited to statutory schemes which require that
a juvenile offender receive life without parole without any consideration of other factors, such as
the juvenile’s age and maturity. Id. at 2469. In that regard, the Court explicitly declined in Miller
to determine whether life without parole for juvenile offenders itself is unconstitutional, instead
declaring only a mandatory sentence of such without consideration of individualized factors ran
afoul of the Eighth Amendment. Id. Montgomery likewise merely applied Miller retroactively to
collateral cases, and did not expand the level of relief available under Miller. 136 S. Ct. at 735-36.
Indeed, the Montgomery Court explained a Miller error could be corrected by “permitting juvenile
offenders to be considered for parole.”
In this Habeas Petition, Petitioner has not alleged a Miller claim. Petitioner does not claim
that he received a sentence of life without parole, or that the statutory scheme under which he was
sentenced required such a sentence. Instead, by Petitioner’s own admission, he received a life
sentence with a parole disqualifier of thirty years. (Civ. No. 16-8817, ECF No. 1 at 1.) Therefore,

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Petitioner became eligible for parole after thirty years in prison, 1 and his case does not fall within
the limited constitutional rule enunciated in Miller and applied retroactively in Montgomery. As
such, the Habeas Petition does not present a claim based on a newly recognized constitutional
right, but instead presents a claim that goes beyond any such established right.
Petitioner’s second or successive Habeas Petition does not fall within the gatekeeping
requirements of § 2244, and consequently, it would not be in the interests of justice to transfer this
matter to the Court of Appeals. Hatches, 381 F. App’x at 137. Accordingly, the Habeas Petition is
dismissed without prejudice for lack of jurisdiction. Because this Court does not have jurisdiction
to hear the Habeas Petition, Petitioner’s pending motion for a stay of his Habeas Petition is likewise
dismissed as moot.
IV.

CONCLUSION
For the reasons stated above, the Habeas Petition is DISMISSED WITHOUT

PREJUDICE for lack of jurisdiction, and Petitioner’s motion for a stay is DENIED AS MOOT.
An appropriate order will follow.

Date: January 4, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
United States District Judge

1

In fact, Petitioner apparently has already received a parole board hearing on his parole eligibility,
at which he was denied parole. See Kunz v. New Jersey State Parole Bd., 2016 WL 6311241, at *1
(N.J. App. Div. Oct. 28, 2016). As such, he cannot argue Miller error in light of the fact that the
Court expressly stated in Montgomery that parole consideration would remedy such error.
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