TAYLOR v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, No. 2:2017cv07270 - Document 2 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Madeline Cox Arleo on 12/18/2017. (ld, )
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TAYLOR v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY Doc. 2 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SOLADEEN BASS TAYLOR, Civil Action No. 17-7270(MCA) Petitioner, v. MEMORANDUM OPINION WILLIE BONDS, et al., Respondents. This matter is opened to the Court by Petitioner Soladeen Bass Taylor (“Petitioner”), upon the filing of his petition for a writ of habeas corpus (the “Petition”) (ECF No. 1) brought pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court finds that the Petition currently pending before the Court is a “second or successive” habeas petition pursuant to 28 u.s.C. 2244(b) for which Petitioner has not sought or received authorization from the Court of Appeals to file in the District Court. As such, the Court is without jurisdiction to consider the Petition at this time and must either dismiss the Petition or transfer it to the Court of Appeals for the Third Circuit. For the reasons explained below, the Court will dismiss the Petition without prejudice to Petitioner’s filing of the Petition in the Third Circuit Court of Appeals but declines to transfer the Petition pursuant to 28 U.S.C. Because Petitioner has filed a § 1631. § 2254 petition this Court is required, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, to screen the Petition and determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Under this Rule, the Court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarlandv. Scott, 512 U.S. 849, 856 (1994). Dockets.Justia.com Based on Petitioner’s habeas petition and the available portions of the state court and of federal record, it appears that, following a jury trial, defendant was convicted of four counts first-degree robbery, N.J.S.A. 2C:15—l; two counts of aggravated assault, N.J.S.A. 2C:12— 1(b)(1), (4); and one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39— . 4(a); attempted murder, N.J.S.A. 2C:5—1, 11—3; and unlawful possession of a weapon, N.J.S.A *1 (N.J. Super. Ct. 2C:39—5(c)(2). See State v. Taylor, No. A-6320-08T1, 2011 WL 5902620, at ve App. Div. Nov. 28, 2011). Defendant was sentenced to an aggregate custodial term of fifty-fi one years, subject to twenty-seven and one-half years of parole ineligibility. Id. Save merger of was aggravated assault count with the attempted murder conviction, the judgment of conviction e Court affirmed on appeal. State v. Bass, No. A—0061—94 (App. Div. Feb. 6, 1996). The Suprem denied defendant’s petition for certification. State v. Bass, 145 N.J. 371 (1996). In the meantime, on March 8, 1996, on the State’s motion pursuant to State v. 1-laliski, er, to 140 N.J. 1 (1995), the trial court resentenced defendant, as a second-time Graves Act offend State a mandatory extended term, N.J.S.A. 2C:43—6c; N.J.S.A. 2C:43—7c; N.J.S.A. 2C:44—3(d); v. Franklin, 184 N.J. 516, 534 (2005), consisting of: forty-years with a twenty-year parole assault disqualifier on the four robbery counts; a concurrent eighteen months on the aggravated r charge; a consecutive ten years with a five-year parole disqualifier on the attempted murde the conviction; and a consecutive five years with a two-and-one-half year parole disqualifier on ve years in unlawful possession of a weapon charge. Defendant’s aggregate sentence was fifty-fi 0, at prison, with a twenty-seven and one-half parole disqualifier. See Taylor, 2011 WL 590262 *1. 1997. On July 29, 1996, defendant filed a PCR petition, which was denied on October 20, and The Appellate Division affirmed, State v. Bass, No. A—217l—97 (App. Div. May 21, 1999), 2 v. Bass. 162 N.J. 129 the Supreme Court denied defendants petition for certification. State (1999). , which was On September 1, 2000, Petitioner filed a petition for writ of habeas corpus (Civ. Act. No. 00docketed in this District and assigned to the Honorable Faith S. Hochberg. to Petitioner (Id. at 4298). On September 8, 2000, Judge Hochberg provided a Mason notice n. (Id. at ECF No. 8.) ECF No. 2) On January 23, 2002, Judge Hochberg denied the Petitio a certificate of Petitioner appealed, and on January 15, 2003, the Third Circuit denied to establish a basis for appealability, finding that the Petition was untimely and that he failed statutory or equitable tolling. (PACER, 3d Cir. Dkt. No. 02-1655). state court to Several years later, on February 15, 2006, defendant filed a motion in the application, correct an illegal sentence on state law grounds,’ and the motion judge denied WL 5902620, at *2. The finding no merit to defendant’s excessive sentence claim. Taylor, 2011 5902620, at *2, It does Appellate Division affirmed on November 28, 2011. Taylor. 2011 WL not appear that Petitioner filed a petition for certification. ber 15, 2017 The instant habeas petition was docketed nearly six years later on Septem whether the Petition filed in and appears to allege that his sentence is unconstitutional. At issue is ed by the Supreme this matter is an unauthorized second or successive Petition. As explain Court, [t]he Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court,” 28 U.S.C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody, § 2244(b)(1). In pertinent part, before filing the application in the district court, a TO GRAVES ACT EXTENDED TERM, IS Petitioner argued that “HIS ENHANCED SENTENCE PURSUANT TO HAVE A JURY DETERMINE ALL FACTS ILLEGAL AS IT VIOLATES HIS CONSTITUTIONAL RIGHT NCE.” Tailor, 2011 WL 5902620, at *2 (N.J. BEYOND A REASONABLE DOUBT ESSENTIAL TO HIS SENTE Super. Ct. App. Div. Nov. 28, 2011) 3 prisoner ‘shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.s. 524, 529-530. 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also Felker v. Turpin, 518 U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). who presents a claim not Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Thus, a prisoner previously raised may file a second/successive § 2254 petition only if he first obtains an order er the motion. See 28 from the appropriate circuit court authorizing the district court to consid U.S.C. lacks jurisdiction to t 2 § 2244(b)(3)(A). Absent such authorization, the distric court address the merits of such a petition. See 28 U.S.C. § 2244(b)(4). Here, based on the available sentence that Petitioner record, the Petition challenges the same Judgment of Conviction and that Petition was adjudicated challenged in his first habeas petition before Judge Flochberg, and or successive petition Under § 2244(b)(3), the court of appeals must determine that a second )(2)’s new-rule or actualpresents a claim not previously raised that is sufficient to meet § 2244(b (2005). Section 530 innocence provisions. See Gonzalez v. Crosby, 545 U.S. 524, 529— 2244(b)(2) provides: A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and of (ii) the facts underlying the claim, if proven and viewed in light establish by clear the evidence as a whole, would be sufficient to and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. adjudicated must be 28 U.S.C. § 2244(b)(2). Thus, any claim that has not already been constitutional law or new facts dismissed unless it relies on either a new and retroactive rule of showing a high probability of actual innocence. 2 4 amounts and dismissed on timeliness grounds in 2002. As such, Petitioner’s filing in this matter to a second or successive Petition under 28 U.S.C. § 2244(b) and does not fall into recognized 473, 4853 exceptions to the “second or successive” rule. See, e.g., Slack v. McDaniel, 529 U.S. habeas 86 (2000) (explaining that “[a] habeas petition filed in the district court after an initial es is not petition was unadjudicated on its merits and dismissed for failure to exhaust state remedi (explaining a second or successive petition); Magwood v Patterson, 561 U.S. 320, 342 (2010) that first habeas petition challenging a new sentence is not second or successive under § 2244(b) with even though Petitioner had previously filed a habeas petition challenging prior sentence dismissal respect to the same judgment). By contrast, courts are generally in agreement that the ing any of a first federal petition as untimely constitutes an adjudication on the merits, render 1030 (9th later-filed petition “second or successive.” See, e.g., McNabb v. Yates, 576 F.3d 1028, failure to Cir. 2009) (“We therefore hold that dismissal of a section 2254 habeas petition for sive for comply with the statute of limitations renders subsequent petitions second or succes purposes of the AEDPA ....“) (cited with approval in Stokes v. Gehr, 399 F. App’x 697, 699 n. 2 g that a (3d Cir. 2010)); Villanueva v. United States, 346 F.3d 55, 58 (2d Cir. 2003) (holdin s any petition that has been dismissed as time-barred has been decided on the merits and render gs, No. 12— petition “second or successive” under the AEDPA); see also Candelaria v. Hastin 11—0733, 2011 3846, 2014 WL 2624766, at *3 (D.N.J. June 12, 2014); Terry v, Bartkowski, No. 8 NLH, WL 5142859, at *3 (D.N.J. Oct. 28, 2011); Pierce v. United States, No. CIV. 14-075 2015 WL 4653326, at *2 (D.N.J. Aug. 6,2015) Mason v. Because this Petition is “second or successive” there is no need to give notice under No. CIV. 12-599 PGS, Meyers, 208 F.3d 414 (3d Cir. 2000). See, e.g.. Ramnauth v. New Jersey, the form 2012 WL 4508129, at *4 (D.N.J. Sept. 27, 2012). The Court notes, however, that ECF No. 6, at 16.) Petitioner submitted provided him with the Mason notice. (See 5 Because Petitioner did not receive permission from the Third Circuit to file his second Petition, that Petition must either be dismissed for lack of subject matter jurisdiction or F.3d 128, transferred to the Third Circuit pursuant to 28 U.S.C. 1631. Robinson v. Johnson, 313 a 139 (3d Cir. 2002) (“When a second or successive habeas petition is erroneously filed in to district court without the permission of a court of appeals, the district court’s only option is dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631”). In deciding whether it is in the interest ofjustice to transfer a second or successive ra petition to the appropriate court of appeals, a district court may properly consider whethe ments petitioner “ha[s] alleged facts sufficient to bring his petition within the gatekeeping require ce of § 2244, which permits ‘second or successive’ petitions based upon newly discovered eviden Cir. or a new rule of constitutional law.” See Hatches v. Schultz, 381 F. App’x 134, 137 (3d t pursuant 2010) (affirming the district court’s dismissal of a second or successive petition brough to § 2255 and noting that “this inquiry as to the factual premise of [Petitioner’s) claims did not ”). require-and the District Court did not express-any opinion on the merits of the claims Here, however, the Petition also fails to comply with Rule 2 of the Habeas Rules. v. Scott, 512 “Habeas corpus petitions must meet heightened pleading requirements.” McFarland s for U.S. 849, 856 (1994). The Habeas Rules require the habeas petition to specify the ground relief, state the facts supporting each ground, and state the relief requested. See 28 U.S.C. § Litig., 180 2254 Rule 2(c) & (d), applicable through Rule 1(b); see also In re Advanta Corp. Sec. “the who, F.3d 525, 534 (3d Cir. 1999) (explaining that “factual allegations” are descriptions of purpose of what, when, where, and how: the first paragraph of any newspaper story”). “A prime court in Rule 2(c)’s demand that habeas petitioners plead with particularity is to assist the district not be determining whether the State should be ordered to ‘show cause why the writ should 6 granted.’ [28 U.s.c.] § 2243. Because the Petition does not clearly state the grounds for relief, requirements for a second or the Court is unable to determine whether it meets the gatekeeping of jurisdiction and successive petition. As such, the Court will dismiss the Petition for lack prejudice to Petitioner’s declines to transfer it to the Third circuit. The dismissal is without refihing of the Petition in the Third circuit Court of Appeals. n is dismissed for For the reasons explained in this Memorandum and Order, the Petitio lack ofjurisdiction. An Appropriate Order follows. ,‘L, Madeline Cox Arleo, District Judge United States District Court 7
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