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

Filing 6

MEMORANDUM AND ORDER that Petitioner's motion for a protective stay of this action 3 is Granted. It is further ordered that the Clerk shall Administratively Terminate this proceeding. Petitioner shall file any request to reopen this proceeding within 30 days of the exhaustion of his claims currently pending in state court. This Memorandum and Order has been sent via USPS on 06/21/2019. Signed by Chief Judge Freda L. Wolfson on 06/20/2019. (jmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANTOINE DENNIS,
Petitioner,
v.
STEPHEN JOHNSON et al.,
Respondents.

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Civil No. 18-9408 (FLW)

MEMORANDUM AND ORDER

Petitioner pro se, Antoine Dennis (“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.) Upon a preliminary review of the
Petition, the Court noted that Petitioner’s seventh and eighth grounds for relief were explicitly
unexhausted, and Petitioner was directed to either request a protective stay under Rhines v.
Weber, 544 U.S. 269 (2005), to withdraw his unexhausted claims, or to withdraw his entire
Petition. (See ECF No. 2.) The Court concurrently gave Petitioner the notice required under
Mason v. Myers, 208 F.3d 414 (3d Cir. 2000), and directed Petitioner to notify the Court whether
the original Petition was his one, all-inclusive Petition or whether he wished to withdraw the
original Petition and submit an amended, all-inclusive § 2254 Petition. (Id.)
In response, Petitioner indicated that he withdraws his original Petition and submits an
all-inclusive Amended Petition with another unexhausted ground for relief. (See ECF Nos. 4 &
4-1.) Petitioner simultaneously filed a motion for a protective stay under Rhines. (ECF No. 3.)
He alleges that his post-conviction relief (“PCR”) counsel was ineffective and incompetent in
failing to adequately consult with Petitioner and investigate the case and that, as a result, counsel
failed to raise certain arguments that Petitioner’s trial counsel provided constitutionally

ineffective assistance. (See ECF No. 3-1.) Petitioner indicates that he has now raised those
claims in grounds seven, eight, and nine of his Amended Petition and that he is presently seeking
to exhaust those claims by way of a second PCR proceeding before the New Jersey courts. (See
id.) Accordingly, he moves for a protective stay of this habeas proceeding while he finishes
exhausting those grounds in his second PCR proceeding. As respondents have not yet been
served, there is no opposition to this stay motion.
In Rhines, 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 whether good cause exists for the petitioner’s failure to exhaust all claims in
state court, whether the unexhausted claims are potentially meritorious, and whether the
petitioner is employing the litigation simply as means of delay. See Rhines, 544 U.S. at 277;
Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009).
Considering the circumstances presented by Petitioner, I find that a protective stay is
warranted. First, Petitioner has alleged good cause for his failure to previously exhaust his
unexhausted claims, as he contends that the only reason these claims were not previously
exhausted was the alleged ineffective assistance provided by his PCR counsel. Turning to the
potential merit of Petitioner’s unexhausted claims, I construe each of his claims as asserting
claims that Petitioner’s trial counsel provided ineffective assistance, specifically by failing to
raise objections to evidence obtained following execution of an allegedly defective warrant, by
failing to adequately argue that the conviction was against the weight of the evidence, and by

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failing to object to certain jury instructions. 1 (See Am. Pet., ECF No. 4 at 32–41.) Without
access to any underlying record or the resolution of any credibility determinations, I cannot
conclude from the material presented that these claims are “plainly meritless.” See Rhines, 544
U.S. at 277. 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. Instead it
seems that he merely wishes to exhaust unexhausted habeas claims while not permitting the
limitations period on his exhausted claims to lapse—a valid concern.
Accordingly, IT IS, on this 20th day of June 2019,
ORDERED that Petitioner’s motion for a protective stay of this action, (ECF No. 3), is
hereby GRANTED; and it is further
ORDERED that the Clerk shall ADMINISTRATIVELY TERMINATE this proceeding;
and it is further
ORDERED that Petitioner shall file any request to reopen this proceeding within 30 days
of the exhaustion of his claims currently pending in state court; and it is further
ORDERED that the Clerk shall serve this Memorandum and Order on Petitioner by
regular U.S. mail.
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/s/ Freda L. Wolfson
FREDA L. WOLFSON
U.S. Chief District Judge

1

Petitioner frames these arguments as claims that he received ineffective assistance from his
PCR counsel. Nevertheless, reading his pro se Amended Petition liberally, I construe it as
asserting claims that his trial counsel was ineffective, relying on ineffective assistance of PCR
counsel to avoid the bar of procedural default that might otherwise apply, under Martinez v.
Ryan, 566 U.S. 1 (2012).
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