NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JAMES T. BANKOWSKI, :

: CIVIL ACTION NO. 11-3516 (MLC)

Petitioner, :

:

v. : O P I N I O N

:

EVELYN DAVIS, et al., :

:

Respondents. :

 :

COOPER, District Judge

Petitioner, James T. Bankowski, petitions for a writ of habeas

corpus under 28 U.S.C. § 2254. It appears that Petitioner is not

entitled to issuance of the writ at this time. Thus, the Court

will dismiss the Petition without prejudice. See 28 U.S.C. § 2243.

I. BACKGROUND

The following facts are taken from the Petition and its

attachments, as well as court records of which this Court takes

judicial notice, and are accepted as true for purposes of this

Opinion.1

This Court will take judicial notice of the dockets of 1

other courts in cases related to this Petition. See Fed.R.Evid.

201; S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group

Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999) (court may take

judicial notice of another court’s opinion, not for truth of

facts recited therein, but for existence of the opinion, which is

not subject to reasonable dispute over its authenticity); see

also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination of a

factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.”)

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Following a jury trial, Petitioner was found not guilty of

aggravated assault, but guilty of two counts of lesser-included

offenses of simple assault. The jury also found Petitioner

guilty of both second-degree witness tampering and third-degree

witness tampering. The trial judge sentenced Petitioner to an

aggregate of ten years, with three-and-one-third years of parole

ineligibility. State v. Bankowski, 2010 WL 4054117 (N.J. App.Div.

Oct. 13, 2010.) Petitioner directly appealed, and raised claims

regarding: his right to grand jury indictment; admission of

evidence of prior bad acts and failure to give limiting

instruction; failure to admit certain documents into evidence;

improper jury charge; prosecutorial misconduct; improper bias and

improper sua sponte allowance of evidence by trial judge;

improper references to restraining order; and manifestly

excessive sentence. Petitioner also filed a supplemental pro se

brief, in which he separately argued that his trial attorney was

ineffective in numerous respects, including: failing to call his

previous defense attorney as a trial witness; not offering the

audiotape of his wife’s voicemail messages into evidence; and,

not arguing that the wife had been “kidnaped” and that she had

been forced to testify under duress.

The New Jersey Appellate Division affirmed the conviction

and sentence on October 13, 2010. Bankowski, 2010 WL 4054117. 

As to the ineffective assistance of counsel claim, the Appellate

Division held:

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To the extent that certain of defendant’s pro se

arguments allege the ineffective assistance of his trial

attorney, such arguments are best reserved for a future

application for post-conviction relief (“PCR”) rather

than on this direct appeal, see State v. Preciose, 129

N.J. 451, 459-60, 609 A.2d 1280 (1992), and those

particular claims of ineffectiveness consequently are so

reserved if defendant timely seeks such PCR relief. 

Bankowski, 2010 WL 4054117, at *19.

The New Jersey Supreme Court denied certification on March

31, 2011. State v. Bankowski, 15 A.3d 325 (N.J. 2011).2

According to the allegations of the Petition and the Answer

provided by Respondents here, Petitioner has not filed a

state petition for post-conviction relief.

This Petition, sent to the Court on June 6, 2011,

followed. Here, Petitioner raises, among other claims, the

claim of ineffective assistance of trial counsel that was

raised on direct appeal, but not addressed.

II. DISCUSSION

A. Legal Standard

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.

As Petitioner did not seek a writ of certiorari from the 2

United States Supreme Court, his conviction became final on June

29, 2011, ninety days after the New Jersey Supreme Court denied

certification. See 28 U.S.C. § 2244(d)(1)(A).

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(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...

(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 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) (finding Supreme Court precedent and

statute “mandate that prior to determining the merits of [a]

petition, [a court] must consider whether [petitioner] is

4

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required to present [his or her] unexhausted claims to the

[state’s] courts”).

The exhaustion requirement is intended to allow state courts

the first opportunity to pass upon federal constitutional claims,

in furtherance of the policies of comity and federalism. 

Granberry v. Greer, 481 U.S. 129 (1987). Exhaustion also has the

practical effect of permitting development of a complete factual

record in state court, to aid the federal courts in their review. 

Lundy, 455 U.S. at 519.

A petitioner exhausts state remedies by presenting 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 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 petitioner’s claim has been considered on direct appeal); 28

U.S.C. § 2254(c) (“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

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exhaustion requirement is satisfied. Castille v. Peoples, 489

U.S. 346, 350 (1989).

Failure to exhaust may be excused if state process is

unavailable, but “state law must clearly foreclose state court

review of unexhausted claims.” Toulson v. Beyer, 987 F.2d 984,

987 (3d Cir. 1993). Also, “if a prisoner could establish that

the activities of the state authorities made the prisoner’s

resort to the state procedures in effect unavailable, exhaustion

would be excused.” Mayberry v. Petsock, 821 F.2d 179, 184 (3d

Cir. 1987). A petitioner generally bears the burden to prove all

facts establishing exhaustion. Toulson, 987 F.2d at 987.

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. 

Lundy, 455 U.S. at 522; see 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.”) 

The exhaustion doctrine is a “total” exhaustion rule. That

is, “a district court must dismiss habeas petitions containing

both unexhausted and exhausted claims.” Lundy, 455 U.S. at 522. 

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When 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,3

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 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, “when an outright dismissal could

jeopardize the timeliness of a collateral attack, a stay is the

only appropriate course of action.” Id. at 154. However:

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

circumstances. . . . [S]tay 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

the petitioner engaged in intentionally dilatory

See 28 U.S.C. § 2244(d). 3

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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, a 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 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).

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

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v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Att’y Gen.,

878 F.2d 714, 721-22 (3d Cir. 1989).

B. Analysis

Petitioner here has filed a “mixed” petition, containing

both exhausted and unexhausted claims. Specifically, Ground Nine

of the Petition, ineffective assistance of counsel, is

unexhausted. The Court also notes that in the claims raised in

Grounds One through Three and Six through Eight of the Petition,

as well as when these claims were raised on direct appeal in the

state courts, Petitioner asserts only issues related to

violations of state law. He does not allege the deprivation of

any federal constitutional rights. 

4

State law provides direct appeal and collateral review

processes adequate to test Petitioner’s unexhausted claims. See,

 “In conducting habeas review, a federal court is limited 4

to deciding whether a conviction violated the Constitution, laws,

or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 67-68 (1991); 28 U.S.C. § 2254(a). “If a state prisoner

alleges no deprivation of a federal right, § 2254 is simply

inapplicable.” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982). In

reviewing a § 2254 petition, a federal court is not permitted to

address a federal constitutional claim pertinent to the facts of

the case unless the petitioner asserts the claim as a ground for

relief. That is, “errors of state law cannot be repackaged as

federal errors simply by citing the Due Process Clause.” Johnson

v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). In addition, “it

is well established that a state court’s misapplication of its

own law does not generally raise a constitutional claim.” Smith

v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citations and internal

quotation marks omitted); see Smith v. Zimmerman, 768 F.2d 69,

71, 73 (3d Cir. 1985).

9

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e.g., N.J.Ct.R. 3:22 (Post-Conviction Relief). Indeed, in its 5

opinion affirming Petitioner’s conviction and sentence, the

Appellate Division explicitly directed Petitioner to pursue his

ineffective assistance-of-counsel claim in a state petition for

post-conviction relief. Petitioner did not do so. Accordingly,

he cannot establish good cause for failure to exhaust his state

remedies that would permit this Court to stay this proceeding

pending exhaustion of the unexhausted claim.

Moreover, as Petitioner’s conviction did not become final

until June 29, 2011, his one-year limitations period for filing a

§ 2254 petition has not yet expired. Accordingly, his ability to

return to federal court following exhaustion of his state

remedies would not be precluded by dismissal without prejudice of

this Petition at this time, provided Petitioner acts diligently

in exhausting his state remedies and returns to federal court

thereafter. See 28 U.S.C. § 2244(d)(1) and (2).

This “mixed” Petition will be dismissed without prejudice. 

Should Petitioner wish to drop all unexhausted claims, and

proceed only with the exhausted claims, he may move to re-open

this matter. In that event, the Court takes this opportunity to

remind Petitioner, as he was previously advised by this Court’s

As New Jersey Court Rule 3:22-12 sets forth a five-year 5

limitations period, from the date of entry of judgment, for first

state petitions for post-conviction relief, it does not appear

that Petitioner would be time-barred from pursuing his claim.

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June 21, 2011 Mason Order, that prisoners challenging the

legality of their detention pursuant to the judgment of a State

court must marshal in one § 2254 Petition all the arguments they

have to collaterally attack the State judgment and, except in

extremely limited circumstances, file this one all-inclusive

Petition within one year of the date on which the judgment of

conviction becomes final by the conclusion of direct review or

the expiration of the time for seeking such review. See 28

U.S.C. § 2244(d). Once a prisoner decides to proceed with such a

petition, he loses the ability to file a second or successive

petition under § 2254, absent certification by the Court of

Appeals for the Third Circuit and extraordinary circumstances.

Accordingly, should Petitioner wish to proceed only with his

exhausted claims, he may move to re-open this matter within 45

days after entry of the Court’s order and judgment here.

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

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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).

“When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying

constitutional claim, a [certificate of appealability] should

issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). Here, jurists of reason would not find it

debatable whether Petitioner has presented a mixed Petition. No

certificate of appealability shall issue.

IV. CONCLUSION

The Petition will be dismissed without prejudice. The Court

will issue an appropriate order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: March 16, 2012

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