NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAY SAMELSON, :

: Civil Action No. 11-853 (RMB)

Petitioner, :

:

v. : OPINION

:

CHARLES WARREN, :

:

Respondent. :

APPEARANCES:

JAY SAMELSON, Petitioner pro se

449314-387443B 

Kintock IV, Building 1 

4 South Industrial Blvd. 

Bridgeton, New Jersey 08302 

JASON MAGID, Counsel for Respondent

Assistant Prosecutor

Camden County Prosecutor’s Office

25 North Fifth Street

Camden, New Jersey 08102

BUMB, District Judge

This matter is before the court pursuant to a petition for a

writ of habeas corpus under 28 U.S.C. § 2254, filed by Petitioner

Jay Samelson (“Petitioner”). The respondent is Charles Warren. 

For the reasons stated below, the Petition is denied on the

merits.1

1

 To the extent that Petitioner's claims are procedurally defaulted

and/or unexhausted, as argued by Respondent, this Court will deny them on the

merits pursuant to 28 U.S.C. § 2254(b)(2) (“An 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

Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (“We would permit

Bronshtein to attempt on remand to establish a reason to excuse his procedural

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 1 of 11 PageID: 210
I. BACKGROUND

On February 10, 2003, Petitioner pled guilty to two counts

of first degree carjacking in violation of N.J.S.A. 2C: 15-2a(2)

in exchange for the dismissal of the remaining counts of the

sixteen count indictment. (Resp’t’s Answer, Ex. Rta1, Plea Tr.

2:6-13, February 10, 2003.) Specifically, in return for

Petitioner’s guilty plea, the State agreed to recommend a

concurrent term of thirteen years, subject to the No Early

Release Act2; a five year period of parole supervision upon his

release; and all mandatory fines and penalties. (Id. at 2:13-

22.) 

Petitioner provided a factual statement in support of his

guilty plea. He stated the following: On May 9, 2002, in Berlin,

New Jersey, Petitioner, armed with a BB gun, approached an

individual’s vehicle while that individual was inside of the

vehicle at a car wash. (Id. at 10:1-12.) While pointing the BB

gun at him, Petitioner forced the victim to take him to an ATM

machine where he had the victim withdraw money and give it to

him. (Id. at 10:15-25.) 

default, but we find it unnecessary to do so because it is apparent that the

claims in question lack merit. Under 28 U.S.C. § 2254(b)(2), we may reject

claims on the merits even though they were not properly exhausted, and we take

that approach here”).

2 N.J.S.A. 2C:43-7.2, No Early Release Act, mandates a period of parole

ineligibility of eighty-five percent of the sentence imposed upon convictions

of certain enumerated crimes, in particular, the crime of first degree

carjacking, N.J.S.A. 2C:15-2a(2) and/or (4).

2

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 2 of 11 PageID: 211
He also stated that on May 16, 2002, in Berlin, New Jersey,

Petitioner, armed with a BB gun, attempted to rob another victim

as he had done on May 9, 2002, while at the same car wash. (Id.

at 12:1-7.) However, during a scuffle, the victim escaped. 

(Id.) Petitioner took the victim’s vehicle and thereafter, was

arrested by law enforcement in said vehicle. (Id. at 12:5-16.) 

On March 28, 2003, Petitioner was sentenced in accordance

with the negotiated plea agreement, to a concurrent term of

thirteen years, subject to the NERA five year period of parole

supervision upon his release, and all mandatory fines and

penalties. (Resp’t’s Answer, Ex. Rta2, Sentencing Tr. 6:4-20,

March 28, 2003.) 

On July 10, 2006, Petitioner filed an appeal of his

conviction, nunc pro tunc, with the Superior Court of New Jersey,

Appellate Division. In three different orders issued on

September 14, 2006, November 30, 2006, and January 29, 2010, the

Appellate Division directed Petitioner to provide a certification

from his trial attorney, pursuant to State v. Molina, 187 N.J.

531 (2006), and State v. Altman, 181 N.J. Super. 539 (App. Div.

1981), certifying that he or trial counsel had made a timely

request for an appeal or in the alternative, that he had

requested trial counsel to file a timely appeal on his behalf.

(Resp’t’s Answer, Ex. Ra5-7.) Petitioner never complied with

said instruction and on April 13, 2010, the Appellate Division

3

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 3 of 11 PageID: 212
denied his request for reconsideration. (Id. at Ra8.)

On April 27, 2010, Petitioner submitted a request to file a

petition for certification as within time and petition for

certification to the New Jersey Supreme Court. (Id. at Ra11.) 

Petitioner argued that the Appellate Division had erred in

finding that he had failed to satisfy the criteria set forth in

State v. Altman, 181 N.J. Super. 539 (App. Div. 1981), and that

the State had waived its right to respond to the petition for

certification because it had failed to file any response in the

Appellate Division. (Id. at Ra11.) On November 16, 2010, the New

Jersey Supreme Court allowed Petitioner to file his petition for

certification as within time, but denied the petition for

certification. (Id. at Ra10 & 14.)

While his appeal was pending before the Appellate Division,

Petitioner filed a petition for post-conviction relief in the New

Jersey Superior Court, Law Division, Criminal Part, Camden

County. In an order dated March 5, 2010, the judge dismissed

the petition without prejudice since Petitioner filed it while

his petition for certification to the New Jersey Supreme Court

was still pending. (Id. at Ra9.) 

On February 16, 2011, Petitioner filed the instant petition

for writ of habeas corpus. (Docket Entry No. 1.) Thereafter, on

April 25, 2011, he filed a legal memorandum in support of his

petition. (Docket Entry No. 3.) He raises only one ground: 

4

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 4 of 11 PageID: 213
The lower court (Camden, Law Division) failed to properly

sentence in accordance with the 2C Criminal Code

Sentencing Guidelines. There were substantial,

competent, credible mitigation found in the Record, and

noted by the Sentencing Judge, but the same mitigation

was not properly weighed and balanced to arrive at the

appropriate sentence in accordance with state decisional

law. The New Jersey State Appellate Court and the

state’s high court refused to hear arguments on the issue

required under state law.

(Pet. 6.) 

II. DISCUSSION 

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254 provides, in pertinent

part:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted unless it appears

that–

(A) the applicant has exhausted the remedies available in

the courts of the State; or

(B)(i) there is an absence of available State corrective

process; or 

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An 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...

5

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 5 of 11 PageID: 214
(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or 

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. 

“A state-court decision is contrary to this Court's clearly

established precedents if it applies a rule that contradicts the

governing law set forth in our cases, or if it confronts a set of

facts that is materially indistinguishable from a decision of

this Court but reaches a different result.” Brown v. Payton, 544

U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S. 362,

405-06 (2000)). The “unreasonable application” prong of AEDPA

applies when a “state court identifies the correct governing

legal principle from [the Supreme] Court's decisions but

unreasonably applies that principle to the facts.” Adamson v.

Cathel, 633 F.3d 248, 255-56 (3d Cir. 2011)(quoting Wiggins v.

Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). 

The test is “an objective one and does not permit a court to

grant relief simply because the state court might have

incorrectly applied federal law to the facts of a certain case.” 

Id. (citing Wiggins, 539 U.S. at 520–21). 

A state court may render an adjudication on the merits of a

6

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 6 of 11 PageID: 215
federal claim by rejecting the claim in an order unaccompanied by

an opinion explaining the reasons relief has been denied. See

Harrington v. Richter, –––U.S. ––––, ––––, 131 S.Ct. 770, 784,

178 L.Ed.2d 624 (2011) (“a state court need not cite or even be

aware of [Supreme Court] cases.... Where a state court's decision

is unaccompanied by an explanation, the habeas petitioner's

burden still must be met by showing there was no reasonable basis

for the state court to deny relief.”) 

With respect to claims presented to, but unadjudicated by,

the state courts, however, a federal court may exercise pre-AEDPA

independent judgment. See Hameen v. State of Delaware, 212 F.3d

226, 248 (3d Cir. 2000); Purnell v. Hendricks, 2000 WL 1523144,

at *6 n.4 (D.N.J. October 16, 2000). In such instances, “the

federal habeas court must conduct a de novo review over pure

legal questions and mixed questions of law and fact, as a court

would have done prior to the enactment of AEDPA.” Appel v. Horn,

250 F.3d 203, 210 (3d Cir. 2001) (citing McCandless v. Vaughn,

172 F.3d 255, 260 (3d Cir. 1999)). “However, § 2254(e)(1) still

mandates that the state court’s factual determinations are

presumed correct unless rebutted by clear and convincing

evidence.” Simmons v. Beard, 590 F.3d 223, 231 (3d Cir.

2009)(citing Appel, 250 F.3d at 210.) The deference required by

§ 2254(d) applies without regard to whether the state court cites

to Supreme Court or other federal caselaw, “as long as the

7

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 7 of 11 PageID: 216
reasoning of the state court does not contradict relevant Supreme

Court precedent.” Priester v. Vaughn, 382 F.3d 394, 398 (3d

Cir. 2004) (citing Early v. Packer, 537 U.S. 3 (2002); Woodford

v. Visciotti, 537 U.S. 19 (2002)).

Finally, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. 

Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citing Estelle v.

Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519,

520 (1972). A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of

tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);

United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969). 

B. Analysis

A federal court's ability to review state sentences is

limited to challenges based upon “proscribed federal grounds such

as being cruel and unusual, racially or ethnically motivated, or

enhanced by indigencies.” See Grecco v. O'Lone, 661 F.Supp. 408,

415 (D.N.J. 1987) (citation omitted). Thus, a challenge to a

state court's discretion at sentencing is not reviewable in a

federal habeas proceeding unless it violates a separate federal

constitutional limitation. See Pringle v. Court of Common Pleas,

744 F.2d 297, 300 (3d Cir.1984). See also 28 U.S.C. § 2254(a);

Estelle v. McGuire, 502 U.S. 62, 67 (1991).

8

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 8 of 11 PageID: 217
“The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that

‘applies to noncapital sentences.’” Ewing v. California, 538

U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (citations

omitted). See also U.S. v. Walker, 473 F.3d 71, 79 (3d Cir.

2007). The Supreme Court has identified three factors that may

be relevant to a determination of whether a sentence is so

disproportionate to the crime committed that it violates the

Eighth Amendment: “(1) the gravity of the offense and the

harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences

imposed for commission of the same crime in other jurisdictions.”

Solem v. Helm, 463 U.S. 277, 292 (1983). Additionally, Justice

Kennedy has explained that Solem does not mandate comparative

analysis within and between jurisdictions, see Harmelin v.

Michigan, 501 U.S. 957, 1004–05 (Kennedy, J., concurring in part

and concurring in judgment), and he has identified four

principles of proportionality review—“the primacy of the

legislature, the variety of legitimate penological schemes, the

nature of our federal system, and the requirement that

proportionality review be guided by objective factors”—that

“inform the final one: The Eighth Amendment does not require

strict proportionality between crime and sentence. Rather, it

forbids only extreme sentences that are ‘grossly

9

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 9 of 11 PageID: 218
disproportionate’ to the crime.” Id. at 1001 (citations

omitted); Ewing, 538 U.S. at 23.

Here, Petitioner's challenge to the state court's sentencing

would not be reviewable in this Court; he has presented no

argument why his sentence is unconstitutional. Rather, he only

argues that the sentencing judge violated New Jersey sentencing

guidelines by failing to consider certain mitigating factors. 

This Court finds that Petitioner's sentence is not “grossly

disproportionate” to the crime he committed and as such, even had

he exhausted his remedies related to this issue, would not be

entitled to relief on this ground.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254. 

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

Here, jurists of reason would not disagree with this Court’s

10

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 10 of 11 PageID: 219
finding that Petitioner has failed to make a substantial showing

of the denial of a constitutional right. No certificate of

appealability shall issue.

IV. CONCLUSION

For the reasons set forth above, the Petition must be

denied. An appropriate order follows.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: March 15, 2012

11

Case 1:11-cv-00853-RMB Document 14 Filed 03/15/12 Page 11 of 11 PageID: 220