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

Filing 4

Order Granting Petitioner's 1 -1 Application to Proceed in forma pauperis, and directing Petitioner to show cause in writing within 30 days of the date of this Order, why the 2 Habeas Petition should not be dismissed as a mixed petition. Signed by Judge Brian R. Martinotti on 10/14/2020. (jmh)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
SAEED M. COUSAR
:
:
Petitioner,
:
Case No. 3:20-cv-7014 (BRM)
:
v.
:
:
ATTORNEY GENERAL OF THE STATE :
MEMORANDUM & ORDER TO SHOW
OF NEW JERSEY, et al.,
:
CAUSE
:
Respondents.
:
____________________________________:
THIS MATTER is opened to this Court on Petitioner Saeed M. Cousar’s (“Petitioner” or
“Cousar”) petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (See ECF 1 & 2.)
Petitioner has filed an application to proceed in forma pauperis (see ECF 1-1), which is granted.
This Court must also screen the habeas petition for summary dismissal pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”), and
determine whether it “plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief.” For the reasons explained in this memorandum and order, Petitioner must
show cause why his habeas petition should not be dismissed as a mixed petition under the
Antiterrorism Effective Death Penalty Act (“AEDPA”).
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
After a jury trial, Petitioner was convicted of third-degree theft by deception and third-

degree theft of identity. (See ECF 1 at 2-3.) He was sentenced to ten years imprisonment with a
five-year period of parole ineligibility. (See id. at 2.) Petitioner raised the following claims on
direct appeal to the New Jersey Superior Court, Appellate Division:

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Only the facts and history related to this memorandum and order are recited herein.

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POINT I
THE SLEW OF HIGHLY DETAILED AND IRRELEVANT
EVIDENCE OF PRIOR CONVICTIONS WAS INADMISSIBLE,
CAUSED UNDUE PREJUDICE, AND NECESSITATES
REVERSAL OF DEFENDANT'S CONVICTIONS.
A. INTRODUCTION
B. BECAUSE THERE WAS NO VALID NON-PROPENSITY
PURPOSE FOR THE ADMISSION OF THIS EVIDENCE, IT
FAILED TO MEET THE FIRST PRONG FOR ADMISSIBILITY
UNDER COFIELD.
I. Because Motive, Absence Of Mistake,
Opportunity, And Knowledge Were Irrelevant To
The Case, They Could Not Provide A Basis For The
Admission Of The Other-Bad-Act Evidence.
II. The Other-Bad-Act Evidence Did Not Meet The
Strict Requirements To Be Admissible To
Demonstrate Common Scheme Or Identity.
C. BECAUSE THE VOLUME AND DETAIL OF THE
EVIDENCE RENDERED ITS PREJUDICIAL IMPACT
GREATER THAN ITS PROBATIVE VALUE, IT FAILED TO
MEET THE FOURTH PRONG FOR ADMISSIBILITY UNDER
COFIELD.
D. THE ADMISSION OF THE FACT DEFENDANT'S PRIOR
BAD ACTS RESULTED IN CONVICTIONS WAS
INAPPROPRIATE AND UNDULY PREJUDICIAL.
E. THE FAILURE TO GIVE A [N.J.R.E.] 404(B) CHARGE
THAT CLEARLY EXPLAINED THE PERMISSIBLE USE OF
THE PRIOR-BAD-ACT EVIDENCE NECESSITATES
REVERSAL.
F. CONCLUSION.
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT WHEN, IN
SUMMATION, HE PRESENTED AN INFLAMMATORY
DISPLAY: A PUZZLE, MADE UP OF PIECES OF EVIDENCE
THAT, WHEN COMPLETE, CONSTITUTE DEFENDANT'S
FACE. (NOT RAISED BELOW).
POINT III
THE IDENTIFICATION OF DEFENDANT FROM THE
SURVEILLANCE STILLS WAS IMPROPER AND
NECESSITATES REVERSAL OF HIS CONVICTIONS. (NOT
RAISED BELOW).

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POINT IV
EVEN IF NONE OF THE ERRORS WOULD BE SUFFICIENT
TO WARRANT REVERSAL, THE CUMULATIVE IMPACT OF
THOSE ERRORS DENIED DEFENDANT DUE PROCESS AND
A FAIR TRIAL. (NOT RAISED BELOW).
POINT V
DEFENDANT'S SENTENCE IS EXCESSIVE AND THE
IMPOSITION OF A DISCRETIONARY PAROLE
DISQUALIFIER UNCONSTITUTIONAL
State v. Cousar, No. A-2214-17T3, 2019 WL 6522383, at *1 (N.J. Super. Ct. App. Div. Dec. 4,
2019), cert. denied, 241 N.J. 328, 228 A.3d 214 (2020) (footnote omitted). The Appellate Division
affirmed the judgment of conviction. See id. The New Jersey Supreme Court denied certification.
See State v. Cousar, 228 A.3d 214. Petitioner did not seek a writ of certiorari to the United States
Supreme Court, nor did he file a post-conviction relief petition in state court. (See ECF 1 at 4.)
This Court received Petitioner’s federal habeas petition in June 2020. Petitioner raises
eighteen claims in his habeas petition. While some of these claims were clearly raised during
Petitioner’s direct appeal, it appears many others were not. By way of example only, Petitioner
federal habeas petition also includes the following claims amongst others:
1. Petitioner stood trial on an indictment based on perjured testimony (Claim Ten)
2. There was insufficient evidence to convict him (Claim 11)
3. Brady violation (Claim 13)
4. Prosecutorial misconduct during opening and guilt phases of trial (Claim 14)
5. Somerset Prosecutor’s Office was without jurisdiction to prosecute Petitioner in Somerset
County (Claim 17)
II.

LEGAL STANDARD AND DECISION
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
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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). To satisfy the exhaustion
requirement, “state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “The burden is on the habeas petitioner
to prove exhaustion.” DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005). The exhaustion
doctrine mandates the claim “must have been ‘fairly presented’ to the state courts.” Bronshtein v.
Horn, 404 F.3d 700, 725 (3d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
“Fair presentation means that a petitioner must present a federal claim’s factual and legal substance
to the state courts in a manner that puts them on notice that a federal claim is being asserted.”
Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (citations and internal quotation marks
omitted). In sum, the exhaustion doctrine requires the petitioner to afford the state courts “the
opportunity to resolve the federal constitutional issues before he goes to the federal court for
habeas relief.” Id. (quoting Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976)); see also Gould
v. Ricci, No.10-1399, 2011 WL 6756920, at *2 (D.N.J. Dec. 19, 2011) (explaining same). The
exhaustion doctrine thus requires a petitioner challenging a New Jersey conviction under § 2254
to have fairly presented each federal ground raised in the petition to all three levels of the New
Jersey courts, the Law Division, the Appellate Division, and the New Jersey Supreme Court.
Normally, a district court may dismiss a mixed petition (one containing both exhausted and
unexhausted claims) without prejudice, see Rhines v. Weber, 544 U.S. 269. 274 (2005), but a stay
and abeyance may be appropriate when a dismissal without prejudice would cause a petitioner to
run afoul of the habeas statute of limitations and lose his opportunity to seek federal habeas review.
See id. at 275-76. As the Supreme Court instructed in Rhines, “stay and abeyance is . . . appropriate

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when the district court determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court.” Id. at 277. District courts should grant a stay instead of dismissing 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.” Id. at 278. If a stay is not warranted, then the petitioner may elect to
delete the unexhausted claims. See Gould v. Ricci, No. 10-1399, 2011 WL 6756920, at *3 (D.N.J.
Dec. 19, 2011). If he does not delete the unexhausted claims, then the Court must either: (a) dismiss
the entire § 2254 petition as unexhausted, see id. (citing Rose v. Lundy, 455 U.S. 509 (1982)); or
(b) deny all grounds raised in the § 2254 petition on the merits, pursuant to 28 U.S.C. § 2254(b)(2)
which states “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.” See, e.g., Carrascosa v. McGuire, 520 F.3d 249, 255 (3d Cir. 2008).
Many of Petitioner’s claims appear to be unexhausted. Petitioner shall be given thirty (30)
days to inform this Court which of the claims in his habeas petition are duly exhausted. To the
extent any of his claims are unexhausted, Petitioner may either delete these claims or request a
stay to exhaust the claims in state court. 2 Petitioner’s failure to respond to this order to show cause
may result in a dismissal of his entire habeas petition without prejudice as mixed.
Accordingly,
IT IS on this 14th day of October 2020,
ORDERED Petitioner’s application to proceed in forma pauperis (ECF 1-1) is
GRANTED; and it is further

2

If Petitioner seeks a stay, he must establish good cause for his failure to exhaust, show his
unexhausted claims are potentially meritorious, and there is no indication that he engaged in
intentionally dilatory litigation tactics. See Rhines, 544 U.S. at 278.
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ORDERED Petitioner shall show cause in writing within thirty (30) days of the date of
this order why the habeas petition (ECF 1 & 2) should not be dismissed as a mixed petition; and
it is further
ORDERED within thirty (30) days of the date of this order, Petitioner shall inform this
Court which of his claims are unexhausted; to the extent claims are unexhausted, Petitioner may
choose to either: (1) withdraw his unexhausted claims and have this Court rule on his exhausted
claims; or (2) seek a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005); and it
is further
ORDERED if Petitioner fails to respond to this order, this Court will dismiss the habeas
petition without prejudice as a mixed petition; and it is further
ORDERED the Clerk shall serve a copy of this order on Petitioner by regular U.S. mail.

/s/Brian R. Martinotti
BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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