BACON-VAUGHTERS v. JOHNSON et al

Filing 8

MEMORANDUM AND ORDER denying 5 Motion to Stay and Granting 6 Motion for Leave to File. It is further ordered that the Clerk of Court shall docket the proposed Amended Petition as the Operative pleading in this case. Signed by Chief Judge Freda L. Wolfson on 06/27/2019. (jmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
KENNETH BACON-VAUGHTERS,
:
:
Petitioner,
:
Civ. No. 18-9034 (FLW)
:
v.
:
:
STEVEN JOHNSON et al.,
:
MEMORANDUM AND ORDER
:
Respondents.
:
_________________________________________ :

Petitioner pro se, Kenneth Bacon-Vaughters (“Petitioner”), a state prisoner presently
incarcerated at New Jersey State Prison, in Trenton, New Jersey, seeks to bring a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (See ECF No. 1.) In conjunction with his
Petition, Petitioner filed a motion “for leave to file a substantially equivalent petition for writ of
habeas corpus” and a motion for a protective stay of the proceeding. (ECF Nos. 2 & 3.) I
construed the former motion as simply requesting the Court to accept a petition completed on the
wrong district’s habeas form and, having interpreted it as such, granted the motion. (ECF No. 4.)
I denied Petitioner’s stay motion, however, as the Petition did not include any claims that
appeared to be unexhausted. (Id.) In the interests of justice, I noted that Petitioner’s stay motion
implied that his habeas Petition might not contain all of Petitioner’s potential claims and,
accordingly, I permitted Petitioner an opportunity to withdraw his Petition and submit one allinclusive habeas petition and, if applicable, another motion for a protective stay. (See id.)
In response, Petitioner filed another motion “for leave to file a substantially equivalent
petition,” which included a proposed Amended Petition. (ECF Nos. 6 & 6-1.) He
simultaneously filed another motion for a protective stay. (ECF No. 5.) The Amended Petition

adds a claim, in Ground Six, that the trial court failed to properly consider Petitioner’s
youthfulness when imposing a sentence, citing Miller v. Alabama, 567 U.S. 460 (2012), and
State v. Zuber, 152 A.3d 197 (N.J. 2017).1 (ECF No. 6-1 at 12–13.) Petitioner indicates that this
argument was not raised on direct appeal or during his initial PCR proceeding because Miller
and Zuber were “decided after [his] conviction and sentence.” (Id.) Petitioner argues that this
habeas proceeding should be stayed because he filed a motion to correct his sentence in June
2018, which remains pending before the state courts.2 (See ECF No. 5.) As respondents have
not yet been served, there is no opposition to either of Petitioner’s motions.
Once again, it is unclear as to what Petitioner seeks in his instant motion “for leave to file
a substantially equivalent petition.” Indeed, as the Court previously granted Petitioner leave to
withdraw his original petition and submit an amended, all-inclusive § 2254 petition, his proposed
Amended Petition, (ECF No. 6-1), will be accepted as the operative pleading in this matter.
Thus, to the extent this is the relief Petitioner seeks, (ECF No. 6), it is granted.
There is no basis, however, to grant Petitioner’s motion for a protective stay. In Rhines v.
Weber, 544 U.S. 269 (2005), the Supreme Court found that a court presented with a mixed
habeas petition—that is, a petition containing both exhausted and unexhausted claims—may
grant a protective stay to permit the petitioner to exhaust the unexhausted claims without letting
the limitations period expire on the exhausted claims assuming three elements are satisfied. See
id. at 275–78. Those three elements are (1) whether good cause exists for the petitioner’s failure

1

The Amended Petition also omits a ground for relief included in the original Petition, in which
Petitioner alleged that the trial court had erred by failing to instruct the jury on the elements of
criminal attempt. (See ECF No. 1 at 9.)
2

Although Petitioner does not make this explicit, I infer from his filings and the procedural
history of this case that his motion before the state courts argues that his sentence is improper in
light of Zuber and Miller.
2

to exhaust all claims in state court, (2) whether the unexhausted claims are potentially
meritorious, and (3) whether the petitioner is employing the litigation simply as means of delay.
See id. at 277; Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009).
I examine first whether Petitioner can show good cause for his failure to exhaust. As
Zuber was not decided until January 2017, he may be able to show good cause for his failure to
exhaust a claim arising under that case. On the other hand, Petitioner cannot show good cause
for his failure to exhaust any claim arising under Miller, which was decided in June 2012—well
over a year before Petitioner filed his first PCR petition in October 2013. (See ECF No. 6-1 at
17.)
Turning to the potential merit of Petitioner’s unexhausted claims requires the Court to
determine the nature of those claims. Petitioner argues that the trial court should have
considered his youthful age at the time of the offense as a mitigating factor in imposing his
sentence. (ECF No. 6-1 at 12.) In Miller, the U.S. Supreme Court held “that the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders,” further explaining that a sentencing court must “take into account
how children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Miller, 567 U.S. at 479–80. The Supreme Court of New Jersey
subsequently held, in Zuber, that New Jersey courts must consider the same concerns before
imposing “sentences that are the practical equivalent of life without parole” or “consecutive
terms that would result in a lengthy over all term of imprisonment for a juvenile.” Zuber, 152
A.3d at 201–02.
Given the manner in which Petitioner has raised the issue, I construe Ground Six of the
Amended Petition as primarily asserting a claim under Zuber. As Zuber is a matter of state, not

3

federal, law, however, it creates no basis for granting federal habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas corpus relief
does not lie for errors of state law.” (internal quotation marks omitted)). To the extent that
Ground Six could alternatively be construed as seeking relief under Miller, it still would not state
a potentially meritorious claim for habeas relief. The holding of Miller applies to mandatory
sentences of “life in prison without possibility of parole for juvenile offenders.” Miller, 567 U.S.
at 479. But the state court sentenced Petitioner to 40 years in prison with an 85% parole
disqualifier, not life without parole. (See ECF No. 6-1 ¶ 3.) Furthermore, the Miller holding
applies only to juvenile offenders. See Jackson v. Superintendent Mahanoy SCI, No. 18-1311,
2018 WL 3996627, at *1 (3d Cir. May 25, 2018); Graham v. Superintendent Somerset SCI, No.
17-3660, 2018 WL 2735398, at *1 (3d Cir. Apr. 17, 2018). Thus, it does not apply to Petitioner,
who indicates that he was 18 years old at the time of the crime. (See ECF No. 6-1 at 12.) See
also State v. Bacon-Vaughters, No. A-0583-11T3, 2013 WL 656248, at *3 (N.J. Super. Ct., App.
Div., Feb. 25, 2013). Accordingly, I do not find that Petitioner can raise a meritorious federal
claim under Miller, and stay would not be appropriate on this basis.
Lastly, there is no indication that Petitioner is attempting to use these processes as a
method of delay, and I perceive no way in which delay would presently help him. Nonetheless,
as the claim Petitioner is seeking to exhaust in state court forms no basis for federal habeas relief,
no reason exists to grant a protective stay. The denial of a stay results in no prejudice to
Petitioner, because his unexhausted habeas claim is facially meritless. Accordingly, the motion
for a protective stay is denied.
Furthermore, for the reasons already explained herein, Petitioner’s claim in Ground Six is
dismissed upon screening under Rule 4 of the Rules Governing § 2254 Cases. I find no basis,

4

however, to dismiss any other portion of the Petition under Rule 4 without an answer and the
record. Thus, respondents shall be served and I direct them to file an answer or a motion to
dismiss on timeliness grounds within 45 days.
Accordingly, IT IS, on this 27th day of June 2019,
ORDERED that Petitioner’s motion for leave to file a substantially equivalent petition for
a writ of habeas corpus, (ECF No. 6), to the extent it simply asks the Court to accept the
proposed Amended Petition despite superficial defects, is GRANTED; and it is further
ORDERED that the Clerk of the Court shall docket the proposed Amended Petition,
(ECF No. 6-1), as the operative pleading in this case; and it is further
ORDERED that Petitioner’s motion for a protective stay this proceeding, (ECF No. 5), is
DENIED; and it is further
ORDERED that Petitioner’s claim for relief in Ground Six of his Amended Petition (ECF
No. 6-1) is dismissed upon screening under Rule 4 of the Rules Governing § 2254 Cases; and it
is further
ORDERED that the Clerk of the Court shall serve, pursuant to Rule 4 of the Rules
Governing § 2254 Cases, a Notice of Electronic Filing of this Order on the State of New Jersey,
Department of Law & Public Safety, Division of Criminal Justice, Appellate Bureau (“the
Bureau”), in accordance with the Memorandum of Understanding between this Court and the
Bureau; and it is further
ORDERED also in accordance with the Memorandum of Understanding, that if the
Bureau intends to refer the action to a county prosecutor’s office, the Bureau will use its best
efforts to upload to CM/ECF a “referral letter” indicating the name of that office within fourteen
(14) calendar days from the date of this Order; and it is further

5

ORDERED that if the Petition appears to be untimely under the Antiterrorism and
Effective Death Penalty Act of 1996, within forty-five (45) days of the date this Order is filed,
Respondents may file a motion to dismiss the Petition on timeliness grounds only, provided that
the motion (1) attaches exhibits that evince all relevant state-court filing dates, (2) contains legal
argument discussing pertinent timeliness law, and (3) demonstrates that an answer to the merits
of the Petition is unnecessary; and it is further
ORDERED that if a motion to dismiss is filed, Petitioner shall have thirty (30) days to
file an opposition brief, in which Petitioner may argue any bases for statutory and/or equitable
tolling, and to which Petitioner may attach any relevant exhibits; and it is further
ORDERED that if Petitioner files an opposition, Respondents shall have ten (10) days to
file a reply brief; and it is further
ORDERED that if the motion to dismiss is subsequently denied, the Court will then
direct Respondents to file a full and complete answer to all claims; and it is further
ORDERED that if Respondents do not file a motion to dismiss the Petition, Respondents
shall file a full and complete answer to the claims asserted in the Amended Petition (except
Ground Six, which has been dismissed upon screening) within forty-five (45) days of the entry of
this Order; and it is further
ORDERED that Respondents’ answer shall respond to each factual and legal allegation
of the Petition, in accordance with Rule 5(b) of the Rules Governing § 2254 Cases; and it is
further
ORDERED that Respondents’ answer shall address the merits of each remaining claim
raised in the Amended Petition by citing to relevant federal law; and it is further

6

ORDERED that, in addition to addressing the merits of each remaining claim,
Respondents shall raise by way of the answer any appropriate defenses that Respondents wish to
have the Court consider, including, but not limited to, exhaustion and procedural default, and
also including, with respect to the asserted defenses, relevant legal arguments with citations to
appropriate federal legal authority; all non-jurisdictional affirmative defenses subject to waiver
not raised in Respondents’ answer or at the earliest practicable moment thereafter may be
deemed waived; and it is further
ORDERED that Respondents’ answer shall adhere to the requirements of Rule 5(c) and
(d) of the Rules Governing § 2254 Cases in providing the relevant state-court record of
proceedings, including any pro se filings; and it is further
ORDERED that the answer shall contain an index of exhibits identifying each document
from the relevant state-court proceedings that is filed with the answer; and it is further
ORDERED that Respondents shall electronically file the answer, the exhibits, and the list
of exhibits; and it is further
ORDERED that all exhibits to the answer must be identified by a descriptive name
in the electronic filing entry, for example:
“Exhibit #1 Transcript of [type of proceeding] held on XX/XX/XXXX” or
“Exhibit #2 Opinion entered on XX/XX/XXXX by Judge YYYY”; and it is
further
ORDERED that Petitioner may file and serve a reply to the answer within forty-five (45)
days after Respondents file the answer, see Rule 5(e) of Rules Governing § 2254 Cases; and it is
further

7

ORDERED that, within seven (7) days after any change in Petitioner’s custody status, be
it release or otherwise, Respondents shall electronically file a written notice of the same with the
Clerk of the Court.

/s/ Freda L. Wolfson
FREDA L. WOLFSON
U.S. Chief District Judge

8