NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

GARY HRENIUK, :

:

Petitioner, :

:

v. :

:

KAREN BALICKI, et al., :

:

Respondents. :

 :

Civil Action No. 11-52 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

1. Petitioner, Gary Hreniuk, filed a Petition for Writ of

Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging a

judgment of conviction entered on September 22, 2000, in New

Jersey Superior Court, Middlesex County. (Dkt. entry no. 6.) 

The Petition raises one ground:

TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ASSERTING

DIMINISHED CAPACITY AS A DEFENSE.

Supporting Facts: PRIOR TO OFFENSE, DEFENDANT WAS

DIAGNOSED WITH ORGANIC BRAIN DYSFUNCTION, ORGANIC BRAIN

DISEASE, AND PROGRESSIVE DEGENERATIVE DEMENTIA. 

DEFENDANT WAS CHARGED WITH KILLING HIS WIFE. ALTHOUGH

THE JURY HEARD EVIDENCE THAT DEFENDANT WAS INTOXICATED ON

ALCOHOL, THE JURY WAS NEVER MADE AWARE OF DEFENDANT’S

ORGANIC BRAIN DISEASE BECAUSE TRIAL COUNSEL ABANDONED

DIMINISHED CAPACITY AS A DEFENSE. COUNSEL’S REASON FOR

ABANDONING DIMINISHED CAPACITY, I.E., THAT COUNSEL DID

NOT WANT THE DEFENSE EXPERT TO BE CROSS-EXAMINED ABOUT

ALLEGED ACTS OF DOMESTIC VIOLENCE, IS OBJECTIVELY

UNREASONABLE BECAUSE CLINICAL EVIDENCE OF DEFENDANT’S

ORGANIC BRAIN DISEASE COULD HAVE BEEN ADMITTED THROUGH

THE TESTIMONY OF DEFENDANT’S TREATING CIVILIAN PHYSICIANS

Case 3:11-cv-00052-MLC Document 35 Filed 03/21/13 Page 1 of 6 PageID: 1013
WITHOUT EVER RISKING THE INTRODUCTION OF UNPROVEN

ALLEGATIONS OF DOMESTIC VIOLENCE. 

(Id. at 6.)

2. On August 3, 2011, Respondents filed an Answer and the

record. (Dkt. entry nos. 11-22.)

3. Before this Court is Hreniuk’s motion to appoint Dr.

John J. Verdon, Jr., as an expert and/or to conduct an

evidentiary hearing. (Dkt. entry no. 27.) 

4. Respondents oppose the motion to appoint Dr. Verdon and

to grant an evidentiary hearing, arguing that Cullen v.

Pinholster, 131 S.Ct. 1388 (2011), prohibits this Court from

considering evidence beyond the state court record and that, in

any event, 28 U.S.C. § 2254(e)(2) bars an evidentiary hearing.

5. In his reply, Hreniuk alternatively asks this Court to

stay the matter to allow him to return to state court to develop

the state court record with respect to Dr. Verdon’s testimony. 

(Dkt. entry no. 33, at 12.) Respondents do not oppose this

request.

6. Pinholster held that, where a § 2254 petitioner’s claim

was adjudicated on the merits in state court proceedings, “review

under [28 U.S.C.] § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the merits .

. . This backward-looking language requires an examination of

the state-court decision at the time it was made. It follows

2

Case 3:11-cv-00052-MLC Document 35 Filed 03/21/13 Page 2 of 6 PageID: 1014
that the record under review is limited to the record in

existence at that same time - i.e., the record before the state

court.” 131 S.Ct. at 1398. As the federal habeas scheme leaves

“primary responsibility” with the state courts, “[i]t would be

contrary to that purpose to allow a petitioner to overcome an

adverse state-court decision with new evidence introduced in a

federal habeas court and reviewed by that court in the first

instance”. Id. at 1399. The Court held that “evidence

introduced in federal court has no bearing on § 2254(d)(1)

review. If a claim has been adjudicated on the merits by a state

court, a federal habeas petitioner must overcome the limitation

of § 2254(d)(1) on the record that was before that state court.” 

Id. at 1400.

7. In this case, the parties do not dispute that the New

Jersey courts adjudicated Hreniuk’s habeas claim on the merits

and that 28 U.S.C. § 2254(d) governs his claim. 

8. Respondents correctly point out that review under 28

U.S.C. § 2254(d)(1) is “limited to the record that was before the

state court that adjudicated the claim on the merits.” 

Pinholster, 131 S.Ct. at 1398. Since this Court has not

determined that Hreniuk has satisfied § 2254(d)(1), Pinholster

prohibits this Court from appointing an expert and granting an

evidentiary hearing at this time. See Grant v. Lockett, No. 10-

3804, 2013 WL 828491, at *5 (3d Cir. Mar. 7, 2013) (“[A]s a

3

Case 3:11-cv-00052-MLC Document 35 Filed 03/21/13 Page 3 of 6 PageID: 1015
general rule, ‘district courts cannot conduct evidentiary

hearings to supplement the existing state court record under 28

U.S.C. § 2254(d)’”) (quoting Brown v. Wenerowicz, 663 F.3d 619,

629 (3d Cir. 2011)). 

9. Hreniuk argues, alternatively, that this Court should

hold his habeas petition in abeyance to allow him to return to

state court to develop the record with Dr. Verdon’s testimony. 

(Dkt. entry no. 33, at 12.) Respondents have not opposed this

request. 

10. District courts “ordinarily have authority to issue

stays, where such a stay would be a proper exercise of

discretion.” Ryan v. Gonzales, 133 S.Ct. 696, 708 (2013)

(quoting Rhines v. Weber, 544 U.S. 269, 276 (2005)); see Enelow v.

New York Life Ins. Co., 293 U.S. 379, 382 (1935) (district court

may stay a case “pending before it by virtue of its inherent

power to control the progress of the cause so as to maintain the

orderly processes of justice”). While the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) “does not deprive

district courts of [this] authority . . . it does circumscribe

their discretion. Any solution to this problem must . . . be

compatible with AEDPA’s purposes.” Rhines, 544 U.S. at 276. In

addition, where a stay is warranted, a district court “should

place reasonable time limits on a petitioner’s trip to state

court and back,” since “[w]ithout time limits [on stays],

4

Case 3:11-cv-00052-MLC Document 35 Filed 03/21/13 Page 4 of 6 PageID: 1016
petitioners could frustrate AEDPA’s goal of finality by dragging

out indefinitely their federal habeas review.” Id. at 277-78. 

1

11. In this case, Hreniuk has provided good cause for his

failure to present Dr. Verdon’s testimony to the Law Division

during the evidentiary hearing on his first post-conviction

relief petition, i.e., his post-conviction attorney was deficient

in failing to call Dr. Verdon and there is a reasonable

probability that this failure had an effect on the outcome of the

post-conviction relief proceeding. Cf. Martinez v. Ryan, 132

S.Ct. 1309 (2012) (ineffective assistance of post-conviction

counsel may establish cause for procedural default of a claim of

ineffective assistance of trial counsel). And there is no

indication that Hreniuk has engaged in intentionally dilatory

litigation tactics. Under these circumstances, granting a stay

will not undermine the purposes of the AEDPA. This Court will

accordingly grant Hreniuk’s request to stay his habeas petition

Rhines held that a district court has discretion post-AEDPA 1

to stay a mixed habeas petition (containing some claims that have

not been exhausted in the state courts) to allow the petitioner

to present his previously unexhausted claims to the state court

in the first instance, and then to return to federal court for

review of his exhausted petition (without being time-barred). 

The Court found that it “likely would be an abuse of discretion

for a district court to deny a stay and to dismiss 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.” Rhines, 544 U.S. at

278. The precise holding in Rhines does not control this case,

as Hreniuk’s § 2254 Petition is not a mixed petition. 

5

Case 3:11-cv-00052-MLC Document 35 Filed 03/21/13 Page 5 of 6 PageID: 1017
while he returns to state court in order to attempt to present

Dr. Verdon’s testimony.

12. The Court will issue an appropriate Order.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: March 21, 2013

6

Case 3:11-cv-00052-MLC Document 35 Filed 03/21/13 Page 6 of 6 PageID: 1018