NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBIN STREATER, :

: Civil Action No. 11-1504 (RMB)

Petitioner, :

:

v. : OPINION

:

WILLIAM HAUCK, et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se

Robin Streater

#533852

Edna Mahan Correctional Facility

P.O. Box 4004

Clinton, NJ 08809

Counsel for Respondents

Nancy P. Scharff

Camden County Prosecutor’s Office

Motions & Appeals Unit

25 North Fifth Street

Camden, NJ 08102-1231

BUMB, District Judge

Petitioner Robin Streater, a prisoner currently confined at

Edna Mahan Correctional Facility, has submitted a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

respondents are William Hauck and Paula Dow.

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For the reasons stated herein, the Petition will be denied

on the merits, or in the alternative, dismissed for failure to

exhaust state court remedies.

I. BACKGROUND

Petitioner was indicted for numerous offenses, but on June

3, 2005, entered into a plea agreement. At the June 6, 2005 plea

hearing, Petitioner pled guilty to first degree aggravated

manslaughter. She was sentenced to a 17 year term of

incarceration on July 29, 2005, and the judgment of conviction

was filed by the Superior Court of New Jersey, Law Division,

Criminal Part, Camden County on August 1, 2005. Petitioner filed

a notice of appeal in the Superior Court of New Jersey, Appellate

Division on November 30, 2005. Oral argument was heard by the

Appellate Division on September 19, 2006 and the sentence was

affirmed on September 22, 2006. Petitioner filed a petition for

certification in the New Jersey Supreme Court, which was denied

there on January 31, 2007. On July 30, 2007, Petitioner filed a

motion to withdraw her guilty plea, which was interpreted by the

court as a motion for post-conviction relief (“PCR”). The court

heard oral arguments on December 23, 2008 and filed an order to

deny PCR on January 5, 2009. The Appellate Division affirmed on

July 26, 2010. Thereafter, Petitioner filed a petition for

certification, which was denied on January 7, 2011. The clerk of

2

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the court here received Petitioner’s undated petition on March

17, 2011.1

 

II. 28 U.S.C. § 2254

As amended by the Antiterrorism and Effective Death Penalty

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

part:

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.

28 U.S.C. § 2254 (a).

With respect to any claim adjudicated on the merits in state

court proceedings, the writ shall not issue 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 determinated 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.

28 U.S.C. § 2254(d).

1

The petition as received appears to have missing pages. 

Petitioner did not respond to the notice filed pursuant to Mason

v. Meyers, 208 F.3d 414 (3d Cir. 2000), as to whether she wished

for the petition as filed to be her one all-inclusive § 2254

petition. Further, Petitioner did not submit any traverse to the

response submitted by Respondents, in which Respondents noted

that certain pages appeared to be missing. This Court will rule

on the petition as filed. 

3

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A state court decision is “contrary to” Supreme Court

precedent “if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases,” or “if the

state court confronts a set of facts that are materially

indistinguishable from a decision of th[e] Court and nevertheless

arrives at a result different from [the Court’s] precedent.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O’Connor, J.,

for the Court, Part II). A state court decision “involve[s] an

unreasonable application” of federal law “if the state court

identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case,” and may involve an

“unreasonable application” of federal law “if the state court

either unreasonably extends a legal principle from [the Supreme

Court’s] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply,” (although the Supreme Court expressly

declined to decide the latter). Id. at 407-09. To be an

“unreasonable application” of clearly established federal law,

the state court’s application must be objectively unreasonable. 

Id. at 409. In determining whether the state court’s application

of Supreme Court precedent was objectively unreasonable, a habeas

court may consider the decisions of inferior federal courts. 

Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).

4

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Even a summary adjudication by the state court on the merits

of a claim is entitled to § 2254(d) deference. Chadwick v.

Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v.

Angelone, 528 U.S. 225, 237 (2000)). 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),

cert. denied, 532 U.S. 924 (2001). 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).

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 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)).

5

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Although a petition for writ of habeas corpus may not be

granted if the Petitioner has failed to exhaust his remedies in

state court, a petition may be denied on the merits

notwithstanding the petitioner’s failure to exhaust his state

court remedies. See 28 U.S.C. § 2254(b)(2); Lambert v.

Blackwell, 387 F.3d 210, 260 n.42 (3d Cir. 2004); Lewis v.

Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).

Finally, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. 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).

III. ANALYSIS

A. Petitioner’s Claims

1. Claims Regarding Ineffective Assistance of Counsel

In point one of the petition, Petitioner states that defense

counsel rendered constitutionally ineffective assistance during

the trial and plea proceeding and during sentencing. 

Specifically, Petitioner argues that counsel did not argue the

existence of mitigating factors at the sentencing stage and

failed to have Petitioner evaluated in a psychiatric examination

6

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to support evidence of mitigating factors in the manner of a

potential assessment of battered women’s syndrome. 

As to this issue, the Superior Court of New Jersey Appellate

Division stated on the record:

We’re satisfied that even if it would have been

appropriate for the trial court to have identified

provocation as a mitigating sentencing factor, that there

are such compelling aggravating factors in this case that

the Court could not conclude that a 20-year sentence which

is the presumptive, the old presumptive now midrange of

aggravated manslaughter would constitute an abuse of

discretion. 

And those aggravating factors particularly emanate out

of this defendant’s very substantial record that include

three prior convictions for aggravated assault and one for

arson, as well as numerous municipal court offenses. And in

light of that very substantial and serious record, we see no

basis upon which the 20-year term could be found to

constitute an abuse of discretion even if an additional –

even if some mitigating factors should have been identified

in the course of sentencing and we will affirm.

(Answer, Ex. Rta3, Appellate Division Transcript at 7-8

(September 19, 2006)). The Appellate Division affirmed the

sentence in an order filed September 22, 2006.

Petitioner raised this issue during PCR, and it in its later

opinion during the appeal of the PCR decision, the Appellate

Court similarly affirmed, stating that they were satisfied “that

no matter what more defense counsel may have said, the same

negotiated sentence would have been imposed and, based on our

scope of review, would have been affirmed. (Answer, Ex. Ra17,

Opinion of the Appellate Division at 4 (July 26, 2010)). 

7

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The Counsel Clause of the Sixth Amendment provides that a

criminal defendant “shall enjoy the right ... to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

The right to counsel is “the right to effective assistance of

counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)

(emphasis added).

To prevail on a claim of ineffective assistance of counsel,

a habeas petitioner must show both that his counsel’s performance

fell below an objective standard of reasonable professional

assistance and that there is a reasonable probability that, but

for counsel’s unprofessional errors, the outcome would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 694

(1984). A “reasonable probability” is “a probability sufficient

to undermine confidence in the outcome.” Strickland at 694. 

Counsel’s errors must have been “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” 

Id. at 687. “When a defendant challenges a conviction, the

question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695.

The performance and prejudice prongs of Strickland may be

addressed in either order, and “[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient

prejudice ... that course should be followed.” Id. at 697.

8

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There is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” 

Strickland, 466 U.S. at 689. As a general matter, strategic

choices made by counsel after a thorough investigation of the

facts and law are “virtually unchallengeable,” though strategic

choices “made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Id. at 690-

91. If counsel has been deficient in any way, however, the

habeas court must determine whether the cumulative effect of

counsel’s errors prejudiced the defendant within the meaning of

Strickland. See Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d

Cir. 1996).

Here, Petitioner has not shown that but for counsel’s

unprofessional errors, the outcome would have been different. On

the contrary, the court below stated that even if mitigating

factors had been presented, the sentence would have remained the

same. 

The state court decisions were neither contrary to, nor

involved an unreasonable application of, clearly established

federal law, nor were they based upon an unreasonable

determination of the facts in light of the evidence presented. 

Petitioner is not entitled to relief on this claim. 

9

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2. Claims Regarding Sentencing

In point two of the Petition, Petitioner alleges that her

sentencing hearing was tainted by inclusion of investigative

reports in the presentence report which was considered by the

court at sentencing. Petitioner argues that including

investigative reports regarding the underlying offense violated

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004).

Apprendi holds that, pursuant to the Sixth Amendment right

to trial by jury, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. 

Blakely reversed a sentence imposed under Washington state’s

sentencing system, explaining that “the relevant statutory

maximum is not the maximum sentence a judge may impose after

finding additional facts, but the maximum he may impose without

any additional findings.” Blakely, 542 U.S. at 302 (internal

quotations omitted). United States v. Booker, 534 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), applied the rule of Apprendi

to the United States Sentencing Guidelines, finding the

Guidelines unconstitutional and rendering them merely advisory

rather than mandatory.

10

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In State v. Natale, 373 N.J.Super. 226, 861 A.2d 148 (N.J.

App.Div. 2004), aff’d in part and rev’d in part, 184 N.J. 458,

878 A.2d 724 (N.J. 2005),2

 the New Jersey Supreme Court evaluated

the constitutionality of the New Jersey sentencing system in view

of the Apprendi line of cases. As it allowed for sentencing

beyond the statutory maximum presumptive term, the New Jersey

Supreme Court found the state sentencing system to be

unconstitutional and determined that the appropriate remedy would

be to follow the lead of Booker and abolish presumptive terms. 

“Without presumptive terms, the ‘statutory maximum’ authorized by 

the jury verdict or the facts admitted by a defendant at his

guilty plea is the top of the sentencing range for the crime

charged, e.g., ten years for a second-degree offense.” Natale,

184 N.J. at 487 (citation omitted).

As to Petitioner’s claim regarding an alleged violation of

her Sixth Amendment right to a jury trial, this Court finds no

merit. Petitioner was sentenced pursuant to the plea agreement

which was negotiated by the parties. In its opinion affirming

the denial of PCR, the Superior Court of New Jersey Appellate

Division, while addressing the issue of ineffective assistance of

2While Petitioner did not include arguments based on State

v. Natale in her Petition before this court, Petitioner did raise

a Natale claim before the Superior Court of New Jersey Appellate

Division, as noted below. 

11

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counsel in regard to the sentencing proceeding, referenced this

issue in a footnote, stating:

While defendant can move to have removed from the presentence report any fact in contest which might adversely

affect her classification or parole status, the pre-sentence

report was probably not contested at sentencing as it would

have made no difference with respect to the negotiated

sentence imposed. See State v. Kunz, 55 N.J. 128 (1969). 

The Natale argument has no impact given this plea and

sentence below the then-presumptive term. State v. Natale,

184 N.J. 458 (2008). 

(Answer, Ex. Ra17, Appellate Division Opinion at 5, n.3 (July 26,

2010)). 

As Respondents note in their brief, while it could be

questioned whether Petitioner came with the Natale “pipeline,”3

Petitioner’s sentence of 17 year term of incarceration was three

years less than the presumptive term of 20 years, and as such,

the sentencing court’s imposition of that term would not have

violated Blakely or Natale. Further, the sentencing court

imposed the sentence as recommended in the plea agreement, and

Petitioner has pointed to nothing in the record to suggest that

the court was influenced by the challenged information from the

presentence report. 

3

The Natale decision was rendered on August 2, 2005 and

applied “pipeline retroactivity” to defendants whose cases were

on direct appeal at that time and those who had raised Blakely

claims during trial or during direct appeal. Natale, 184 N.J. at

494. 

12

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Petitioner has not provided this Court with any

justification to grant habeas relief as to this issue, and as

such, this claim for habeas relief will be denied. 

B. Exhaustion of State Court Remedies

In the alternative, as Respondents assert in their Answer,

Petitioner has failed to exhaust her state remedies with respect

to point two of the petition, her allegation that the sentencing

hearing was tainted by inclusion of investigative reports in the

presentence report. The record indicates that Petitioner did not

raise this claim on direct appeal or during PCR proceedings; it

appears that the issue was first raised during appeal of the PCR

decision. Since Petitioner’s claims as to this issue were not

fully exhausted, the Petition must be dismissed. 

A state prisoner applying for a writ of habeas corpus in

federal court must first “exhaust[] the remedies available in the

courts of the State,” unless “there is an absence of available

State corrective process[] or ... circumstances exist that render

such process ineffective ....” 28 U.S.C. § 2254(b)(1). See Rose

v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134

F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001)

(finding that “Supreme Court precedent and the AEDPA mandate that

prior to determining the merits of [a] petition, [a court] must

consider whether [petitioner] is required to present [his or her]

unexhausted claims to the [state’s] courts”).

13

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A petitioner exhausts state remedies by presenting his

federal constitutional claims to each level of the state courts

empowered to hear those claims, either on direct appeal or in

collateral post-conviction proceedings. See, e.g., O’Sullivan v.

Boerckel, 526 U.S. 838, 847 (1999) (“requiring state prisoners

[in order to fully exhaust their claims] to file petitions for

discretionary review when that review is part of the ordinary

appellate review procedure in the State”); Lambert v. Blackwell,

134 F.3d 506, 513 (3d Cir. 1997) (collateral attack in state

court is not required if the petitioner’s claim has been

considered on direct appeal); 28 U.S.C. § 2254(c) (“An applicant

shall not be deemed to have exhausted the remedies available in

the courts of the State, within the meaning of this section, if

he has the right under the law of the State to raise, by any

available procedure, the question presented.”) Once a

petitioner’s federal claims have been fairly presented to the

state’s highest court, the exhaustion requirement is satisfied. 

Castille v. Peoples, 489 U.S. 346, 351 (1989)(citing Picard v.

Connor, 404 U.S. 270, 275 (1971)).

The petitioner generally bears the burden to prove all facts

establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d

Cir. 1993). This means that the claims heard by the state courts

must be the “substantial equivalent” of the claims asserted in

the federal habeas petition. Picard, 404 U.S. at 275. Reliance

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on the same constitutional provision is not sufficient; the legal

theory and factual basis must also be the same. Id. at 277.

Generally, district courts should dismiss petitions

containing unexhausted claims in the absence of a state court

decision clearly precluding further relief, even if it is not

likely that a state court will consider the claims on the merits. 

Rose v. Lundy, 455 U.S. at 522; Banks v. Horn, 126 F.3d 206, 212-

14 (3d Cir. 1997); see also Toulson, 987 F.2d at 989 (“Because no

[New Jersey] court has concluded that petitioner is procedurally

barred from raising his unexhausted claims and state law does not

clearly require a finding of default, we hold that the district

court should have dismissed the petition without prejudice for

failure to exhaust state remedies”). But see Christy v. Horn,

115 F.3d 201, 206-07 (3d Cir. 1997) (“in rare cases exceptional

circumstances of peculiar urgency may exist which permit a

federal court to entertain an unexhausted claim”). 

Because the one-year statute of limitations enacted by AEDPA

in 1996 is not statutorily tolled by the premature filing of a

federal habeas petition, see Duncan v. Walker, 533 U.S. 167

(2001), federal courts sometimes may stay § 2254 habeas

proceedings to permit prisoners to exhaust state claims. 

Petitioner has not requested such a stay. 

The exhaustion requirement is a “total exhaustion” rule;

that is, all claims presented in the federal habeas petition must

15

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have been exhausted in state court. Rose v. Lundy, 455 U.S. 509

(1982). At the time Lundy was decided, there was no statute of

limitation on the filing of federal habeas petitions. The

enactment in 1996 of a one-year limitations period for § 2254

habeas petitions,4 however, “‘has altered the context in which

the choice of mechanisms for handling mixed petitions is to be

made.’” Crews v. Horn, 360 F.3d 374, 379 (2d Cir. 2011), cert.

denied, 534 U.S. 1015 (2001)). Because of the one-year

limitations period, dismissal of a timely-filed mixed petition

may forever bar a petitioner from returning to federal court. 

“Staying a habeas petition pending exhaustion of state remedies

is a permissible and effective way to avoid barring from federal

court a petitioner who timely files a mixed petition.” Crews,

360 F.3d at 151. The Court of Appeals for the Third Circuit has

held that “when an outright dismissal could jeopardized the

timeliness of a collateral attack, a stay is the only appropriate

course of action.” Crews, 360 F.3d at 154. 

The Supreme Court has somewhat limited the stay-and-abeyance

rule announced in Crews. 

[S]tay and abeyance should be available only in limited

circumstances. Because granting a stay effectively excuses

a petitioner’s failure to present his claims first to the

state courts, stay and abeyance is only appropriate when the

district court determines there was good cause for the

petitioner’s failure to exhaust his claims first in state

court. Moreover, even if a petitioner had good cause for

4

 See 28 U.S.C. § 2244(d).

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that failure, the district court would abuse its discretion

if it were to grant him a stay when his unexhausted claims

are plainly meritless.

...

On the other hand, 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. In such circumstances, the district court should

stay, rather than dismiss, the mixed petition. ... For the

same reason, if a petitioner presents a district court with

a mixed petition and the court determines that stay and

abeyance is inappropriate, the court should allow the

petitioner to delete the unexhausted claims and to proceed

with the exhausted claims if dismissal of the entire

petition would unreasonably impair the petitioner’s right to

obtain federal relief. 

Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (citations omitted).

Even where a stay and abeyance is appropriate, the district

court’s discretion in structuring the stay is limited by the

timeliness concerns reflected in the one-year statute of

limitations. “Thus, district courts should place reasonable time

limits on a petitioner’s trip to state court and back.” Id. at

278. See also Crews, 360 F.3d at 154 (“If a habeas petition is

stayed, the petitioner should be given a reasonable interval,

normally 30 days, to file his application for state postconviction relief, and another reasonable interval after the

denial of that relief to return to federal court. If a

petitioner fails to meet either time-limit, the stay should be

vacated nunc pro tunc.”)(citations omitted).

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Here, it appears that Petitioner failed to exhaust the

claims presented here as point two. Thus, Petitioner has

presented this Court with a “mixed” petition, but has not

requested a stay, nor has she presented any facts or argument

suggesting that there is good cause for the failure to exhaust

state remedies. There is no reason to ask Petitioner if she

would like to withdraw her unexhausted claim and proceed with the

exhausted claim (point one of the petition), as the both claims

asserted in the petition are meritless, as discussed above. 

IV. 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, Petitioner has failed to make a substantial showing of

the denial of a constitutional right. No certificate of

appealability shall issue.

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V. 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: August 16, 2012 

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