UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ERIK MCMILLAN,

Petitioner, : Civil No. 11-1586 (JLL)

v. : OPINION

GREG BARTKOWSKI, et al.,

Respondents -

APPEARANCES:

ERIK McMILLAN, Petitioner pro se

# 366709B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

MICHELLE JASMINE GHALI, Counsel for Respondents

Union County Prosecutor’s Office

32 Rahway Avenue

Elizabeth, New Jersey 07202

LINARES, District Judge

Petitioner Erik NcMillan, a prisoner currently confined at

New Jersey State Prison in Trenton, New Jersey, submitted a

petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. The respondents are Michelle Ricci and the Attorney

General of New Jersey. This matter is presently before the Court

pursuant to Petitioner’s submission of an application/petition to

stay this matter in order to allow him to exhaust certain claims

in state court. (Docket Entry No. 8.) For the reasons stated

herein, the application must be denied.

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I. BACKGROUND

On March 18, 2011, Petitioner Erik McMillan (“Petitioner”)

filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. (Pet., Docket Entry No. 1.) Petitioner raises

the following grounds for relief in his petition:

Ground One: Petitioner was deprived of his due process right to fundamental fairness when the State was not

barred from retrying Petitioner a fourth time when (a) the indictment was not dismissed after the mistrial of

the first trial; (b) the prosecutor did not exercise

sufficient diligence to control his witness to prohibit

testimony in conflict with the court’s order sanitizing

the prospective testimony; and (c) there were readily

available alternatives to a mistrial;

Ground Two: Petitioner was deprived of his due process right to fundamental fairness when the indictment was not

dismissed after the trial court warned that it would be

dismissed if the error reoccurred during the retrial, and

the error did in fact recur when witness used the term

robber during Petitioner’s second trial;

Ground Three: The state court’s ruling that Petitioner

was not deprived of his sixth amendment constitutional

right to confrontation when the Court allowed Akcasoy’s testimony to be read during Petitioner’s second trial was

contrary to clearly established federal law.

Ground Four: The state court’s ruling that Petitioner was

not deprived of his due process right to a fair trial by the introduction of Petitioner’s mug shot was contrary to

clearly established federal law.

Ground Five: The state court’s ruling that Petitioner was

not deprived of his due process right to a fair trial by the trial court’s charge to the jury on identification

which was improper and incomplete was contrary to clearly

established federal law.

Ground Six: The state court’s ruling that Petitioner was

not deprived of his due process right to a fair trial by the cumulative effect of the improper instructions

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regarding inconsistent statements and alibi was contrary

to clearly established federal law.

Ground Seven: The state court’s ruling that Petitioner

was not deprived of is due process right to a fair trial

by the trial court’s handling of the jury’s request for

a read-back was contrary to clearly established federal

law.

Ground Eight: The state court’s ruling that Petitioner

was not deprived of his due process rights to a fair

trial by the prosecutor’s improper comments in his

opening arguments before the jury was contrary to clearly

established federal law.

Ground Nine: The state court’s ruling that Petitioner was

not deprived of his due process right to a fair trial by the failure of the trial court to give a cross-racial

identification charge was contrary to clearly established

federal law.

Ground Ten: The state court’s ruling that Petitioner was

not deprived of his of [sic] Sixth Amendment

constitutional right by the incorrect jury instructions

was contrary to clearly established federal law.

Ground Eleven: The state court’s ruling that Petitioner

was not deprived of his right to due process by being denied an expert on custodial interrogations was contrary

to clearly established federal law.

Ground Twelve: The state court’s ruling that Petitioner

was not placed in double jeopardy was contrary to clearly established federal law.

Ground Thirteen: The state court’s ruling that Petitioner

was not deprived of his Sixth Amendment right to

effective assistance of counsel by the deficient

representation during plea negotiations was contrary to

clearly established federal law.

Ground Fourteen: The state court’s ruling that Petitioner

was not deprived of his Sixth Amendment constitutional

right to effective assistance of counsel by the failure

to properly investigate and provide an expert to support Petitioner’s contention that his statements to Office

[sic] Davis were involuntary as he did not properly waive

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his Miranda rights was contrary to clearly established

federal law.

Ground Fifteen: The state court’s ruling that Petitioner

was not deprived of his Sixth Amendment constitutional

right to effective assistance of counsel by the failure

to request that the court give a cross racial

identification charge to the jury was contrary to clearly

established federal law.

Ground Sixteen: The state court’s ruling that Petitioner

was not deprived of his Sixth Amendment constitutional

right to effective assistance of counsel by the failure

to adequately investigate and properly object to victim’s

being declared unavailable and having his prior testimony

read to the jury was contrary to clearly established

federal law.

Ground Seventeen: The state court’s ruling that

Petitioner was not deprived of his Sixth Amendment

constitutional right to effective assistance of counsel

by the failure of not moving for a new trial at some

point during or even after the conclusion of the third

trial on the basis of prosecutorial misconduct or the

court’s finding the key witness unavailable was contrary

to clearly established federal law.

Ground Eighteen: The state court’s ruling that Petitioner

was not deprived of his Sixth Amendment constitutional

right to effective assistance of appellate counsel by the

failure to adequately examine the record [or) raise

meritorious claims was contrary to clearly established

federal law.

Ground Nineteen: The state court’s ruling that Petitioner

was not deprived of his Sixth Amendment constitutional

right to effective assistance of counsel by the failure

to properly advise Petitioner of the risks of going before a jury vice accepting a plea bargain involving a

bench trial was contrary to clearly established federal

law.

Ground Twenty: The state court’s ruling that Petitioner

was not deprived of his constitutional right to due

process by the failure of the court to unseal the plea bargain records of the co-defendant in support of

Defendant’s claim of disparate sentences and that the

state failed to disclose the said plea offer of the co

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defendant was contrary to clearly established federal

law.

On June 22, 2011, this Court entered an order advising

Petitioner of his rights pursuant to Mason v. Meyers, 208 F.3d

414 (3d Cir. 2000) and giving him forty-five days to advise the

Court as to how he would like to proceed. (Mason Notice, Docket

Entry No. 2.) Petitioner responded, stating that he would like

his petition to be ruled upon as filed. (Mason Response, Docket

Entry No. 3.) On September 6, 2011, the Court ordered

Respondents to file an answer to the petition. (Order to Answer,

Docket Entry No. 4.) On October 7, 2011, Petitioner filed a

“Notice of Motion for a Stay and Abeyance” to allow Petitioner to

return to state court to “exhaust a motion for a new trial based

on newly discovered evidence, i.e. an affidavit which supports a

claims [sic] of prosecutorial misconduct.” (Pet’r’s Mot. Stay,

Docket Entry No. 7.) On October 18, 2011, Respondents filed

their Answer to the Petition. (Res’t’s Answer, Docket Entry No.

9-11.) On December 2, 2011, Petitioner filed a request for an

extension of time to file his traverse until after the Court

ruled upon his request for a stay. (Docket Entry No. 13.) On

December 6, 2011, Respondents filed opposition to this request

and Petitioner’s request for a stay because Petitioner failed to

provide any supporting affidavits indicating his basis for a

stay. (Res’t’s Opp’n to Stay, Docket Entry No. 14.) On December

15, 2011, Petitioner responded to this argument, stating that he

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is requesting a stay “to pursue a motion for a new trial in state

court based on newly discovered evidence concerning the plea

bargain received by the co-defendant. (Pet’r’s Reply to Stay,

Docket Entry No. 15.)

II. DISCUSSION

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty

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

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through counsel,

expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State,

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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.

28 U.S.C. § 2254.

As noted above, 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 ... .“ 5

28 U.S.C. § 2254(b) (1). See also Rose v. Lundy, 455 U.S. 509, 515

(1982) ; Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.

1997) (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”)

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, 134 F.3d at

513 (collateral attack in state court is not required if the

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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, 350 (1989) ; Picard v. Connor, 404 U.S. 270, 275 (1971)

The petitioner generally bears the burden of proving all

facts establishing exhaustion. Toulson v. Bever, 987 F.2d 984,

987 (3d Cir. 1993). This means that the claims heard by the

state courts must be the same claims asserted in the federal

habeas petition. Picard, 404 U.S. at 276. Reliance on the same

constitutional provision is not sufficient; the legal theory and

factual basis must also be the same. 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

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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”) . More recently, because the

one-year statute of limitations enacted by AEDPA 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 requested such

a stay.

B. Analysis

Petitioner has asked this Court for a stay of these

proceedings so that he can exhaust, in state court, an

undescribed claim of prosecutorjal misconduct.

As noted above, the exhaustion requirement is a “total

exhaustion” rule; that is, all claims presented in the federal

habeas petition must 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 limitations on the filing of federal habeas

petitions. The enactment in 1996 of a one-year limitations

period for § 2254 habeas petitions,’ however, “‘has altered the

‘ 28 u.s.c. § 2244(d).

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context in which the choice of mechanisms for handling mixed

petitions is to be made.’” Crews v. Horn, 360 F.3d 146, 151 (3d

Cir. 2004) (quoting Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.

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. Indeed, the Court of

Appeals for the Third Circuit has held that “when an outright

dismissal could jeopardize 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

circuntstances. 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 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

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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 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.” çj1. 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

post-conviction 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).

Here, it appears that the claim Petitioner wishes to pursue

is not one that is contained in the current petition. Rather, it

appears that the claim is new. However, the only information

Petitioner provided about this potential new claim in his

original request for a stay is that he wishes to return to state

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court to “exhaust a Motion for a New Trial Based on Newly

Discovered Evidence, i.e. an affidavit which supports a claims

[sic] of prosecutorial misconduct.” (Pet’r’s Mot. Stay, Docket

Entry No. 7.) Even after Respondent pointed out Petitioner’s

failure to provide any information on the claim, Petitioner

provided only slightly more information in his reply, stating

that the request for the stay is so he can “pursue a motion for a

new trial in State court based on newly discovered evidence

concerning the plea bargain received by the co-defendant.”

(Pet’r’s Reply to Stay, Docket Entry No. 15.) As such,

Petitioner has failed to demonstrate good cause for his failure

to exhaust the claim with respect to which he seeks a stay.

Though he states that it is “newly discovered” evidence,

Petitioner provides no information as to when it was discovered.

Nor has Petitioner provided this Court with any evidence

suggesting that the unexhausted claims are “potentially

meritorious.” To the contrary, he has failed to describe them at

all other than the fact that it relates to his co-defendant’s

plea bargain. Even after being advised of his failure by

Respondents, Petitioner still did not provide sufficient

information to allow the Court to conclude that his claim is

potentially meritorious. Under these circumstances, this Court

cannot find that it would be appropriate to stay this proceeding

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in order to permit Petitioner to return to state court to pursue

his unexhausted new claim.

Since the petition as filed by Petitioner and answered by

Respondents does not contain this new, unexhausted claim, it is

unnecessary for the Court to grant Petitioner leave to advise the

Court whether he wishes to withdraw any unexhausted claims and

proceed with only the exhausted claims rather than face dismissal

without prejudice as a mixed petition. Therefore, the Court will

grant Petitioner sixty days from the date of this opinion to

submit any reply to Respondent’s Answer to the Petition.

Petitioner’s motion for an extension of time to file a reply

(Docket Entry No. 13) is hereby dismissed as moot.

III. CONCLUSION

For the reasons set forth above, Petitioner’s request for a

stay of this proceeding is denied. An appropriate order

follows.

Dated:

LINARES

States District Judge

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