NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DARNELL DIXON,

Civil Action No. 11-3213 (DMC)

Petitioner,

V. : OPINION

GREG BARTKOWSKI, et al.,

Respondents.

APPEARANCES:

DARNELL DIXON, Petitioner pro se

4* 291129/487146-B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

STEPHEN A. POGANY, ESQ.

ESSEX COUNTY PROSECUTOR’S OFFICE

50 West Market Street

Newark, New Jersey 07102

Counsel for Respondents

CAVANAUGH, District Judge

Petitioner Darnell Dixon (“Petitioner” or “Dixon”), a

convicted state prisoner presently confined at the New Jersey

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

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging his 1998 New Jersey state court judgment of

conviction. On January 14, 2013, Petitioner filed a motion

(Docket No. 25), seeking leave to hold this matter in stay and

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abeyance so as to allow Petitioner to return to state court and

fully exhaust his state court remedies. For the reasons stated

herein, Petitioner’s motion for a stay or abeyance is denied,

I. BACKGROUND

On October 24, 1996, Dixon was indicted by an Essex County

Grand Jury, Indictment No. 3394-10-96, on charges of first

degree murder, felony murder, first-degree robbery, seconddegree aggravated assault, third-degree unlawful possession of a

weapon, and second-degree possession of a weapon for an unlawful

purpose. Dixon also was separately indicted that same day on a

charge of second-degree possession of a dangerous weapon by a

convicted felon, under Indictment No. 3395-10-96. A jury trial

was held before the Honorable F. Michael Giles, J.S.C. in

February 1998. On February 24, 1998, the jury returned a guilty

verdict on the charges of robbery, aggravated assault, unlawful

possession of a weapon, possession of a weapon for an unlawful

purpose, and possession of a weapon by a convicted person. The

jury acquitted Dixon on the charges of first-degree murder and

felony murder, but did find Dixon guilty of the lesser included

offense of second-degree reckless manslaughter.

On May 20, 1998, Judge Giles sentenced Petitioner to an

extended term of 20 years with 10 years parole ineligibility on

the reckless manslaughter charge, to be served consecutive to

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the sentence on a prior conviction under Indictment No. 2287-6-

95, and a prison ten of 20 years with 10 years parole

ineligibility on the aggravated assault charge to be served

consecutive to the reckless manslaughter conviction and the

sentence on Indictment No. 2287-6-95. Judge Giles also

sentenced Petitioner to concurrent tens as follows: a prison

ten of 10 years with five years parole ineligibility on the

conviction for unlawful possession of a weapon; a prison ten of

20 years with a 10-year parole disqualifier on possession of a

weapon for an unlawful purpose; and a prison ten of five years

on possession of a dangerous weapon by a convicted felon.

Dixon appealed his conviction and sentence to the Superior

Court of New Jersey, Appellate Division. On June 1, 2000, the

Appellate Division affined Dixon’s conviction, but remanded the

matter for resentencing. Dixon filed a petition for

certification with the Supreme Court of New Jersey on June 22,

2000. The New Jersey Supreme Court denied certification on

November 7, 2002.

On October 31, 2000, Judge Giles re-sentenced Petitioner in

accordance with the remand. Specifically, on Indictment No.

3394-10-96, Dixon was sentenced to an extended ten of 20 years

in prison with a 10-year parole disqualifier on Count One, the

reckless manslaughter charge, to be served consecutive to the

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sentence on Indictment No. 2287-6-95; a prison term of 10 years

with five years parole ineligibility on Count Four, the

aggravated assault charge, to be served consecutive to the

reckless manslaughter charge and to the sentence on Indictment

No. 2287-6-95. Dixon also was sentenced to a prison term of

five years on the unlawful possession of a weapon charge to be

served concurrently with Counts One and Four, but consecutive to

the sentence on Indictment No. 2287-6-95. Count Six, possession

of a weapon for an unlawful purpose, was merged with Count One,

reckless manslaughter. On Indictment No. 3395-10-96, possession

of a dangerous weapon by a convicted felon, Dixon was sentenced

to 7 years in prison to be served consecutive to Indictment Nos,

3394-10-96 and 2287-6-95. In short, Petitioner was sentenced to

an aggregate term of 37 years in prison with 15 years parole

ineligibility.

Petitioner appealed his resentencing to the Appellate

Division. On October 15, 2001, the Appellate Division affirmed

the resentencing. On November 7, 2002, the New Jersey Supreme

Court denied certification.

On January 22, 2003, Dixon filed his first pro se petition

for post-conviction relief (“PCR”) . This petition was

subsequently withdrawn by Dixon due to problems with counsel.

(Respondents’ Exhibit N - November 2, 2007 PCR Motion Transcript

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at 6:6-15.) Petitioner thereafter filed a second state PCR

petition on September 19, 2006. PCR counsel was assigned and

filed a supporting brief on March 27, 2007. On November 1,

2007, Dixon allegedly filed a motion for withdrawal of his PCR

counsel. On November 2, 2007, the Honorable Michael J. Nelson,

J.S,C. filed an Order denying the PCR petition.

On February 28, 2008, Petitioner filed an appeal from

denial of his PCR petition. Later, on August 20, 2008,

Petitioner filed a motion for summary reversal of the Order

denying the PCR petition, arguing that the PCR court had not

filed a written opinion referenced in the Order denying postconviction relief. On September 19, 2008, the Appellate

Division filed an order denying the motion for summary reversal,

but temporarily remanding the matter to Judge Nelson for

development of the record concerning the timeliness of the PCR

petition, and for findings of fact and conclusions of law

regarding both timeliness and merits of the petition. The

Appellate Division retained jurisdiction over the case, noting

that there was confusion between a 2002 PCR petition relating to

Indictment No. 2287-6-95 and the 2003 PCR petition relating to

Indictment Nos. 3394-10-96 and 3395-10-96.

On March 5, 2009, Judge Nelson filed a written opinion with

the Appellate Division denying the PCR petition. The Appellate

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Division affirmed denial of the PCR petition on June 29, 2010.

The New Jersey Supreme Court denied certification on January 7,

2011. Dixon filed this habeas petition on or about May 27,

2011.

On September 14, 2011, this Court issued an Opinion and

Order directing Petitioner to show cause in writing why his

petition should not be dismissed as time-barred under 28 U.S.C.

§ 2244(d). (Dkt. #44 4, 5.) Petitioner responded on October 26,

2011. (Dkt. 44 7.) On February 3, 2012, Petitioner filed a

motion to stay his habeas proceedings. (Dkt. 44 8.) He withdrew

his motion on May 30, 2012, after this Court had issued a Notice

and Order pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.

2000) . (Dkt. 44 11.) Petitioner then filed a supplemental

petition on June 5, 2012. (Dkt. # 13.) On October 9, 2012, the

Court issued an Order directing Respondents to answer the

petition. (Dkt. # 16.)

Respondents filed an answer to the petition, with the

relevant record on December 26, 2012. (Dkt. 4444 23, 24.) On

January 14, 2013, Petitioner filed this motion seeking a stay

and abeyance of his federal habeas petition while he returned to

state court to exhaust additional claims of ineffective

assistance of counsel. (Dkt. 4* 25.)

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II. ANALYSIS

A state prisoner applying for a writ of habeas corpus in

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

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

available State corrective process[ I or ... circumstances exist

that render such process ineffective.” 28 U.S.C. § 2254(b) (1);

Rose v. Lundy, 455 U.S. 509, 515 (1982); Heleva v. Brooks, 581

F,3d 187, 190 (3d Cir. 2009) . The courts of a state must be

afforded the first opportunity to pass upon federal

constitutional claims, in furtherance of the policies of comity

and federalism. See Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d

Cir. 2012); see also Rose, 455 U.S. at 516-18; Ieyva v.

Williams, 9504 F.3d 357, 366 (3d Cir. 2007) . 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. See Rose, 455 U.S. at 519; Castille v. Peoples,

489 U.S. 346, 349 (1989)

Further, to satisfy the exhaustion requirement, a

petitioner must fairly present all of his federal claims to the

state’s highest court before proceeding in federal court. Rolan

v. Coleman, 680 F,3d 311, 317 (3d Cir. 2012); see also 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

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meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question

presented”). The petitioner bears the burden of proving all

facts establishing exhaustion. See Toulson v. Beyer, 987 F.2d

984, 987 (3d Cir. 1993)

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) . However, because the one-year

statute of limitations enacted by the Antiterrorism and

Effective Death Penalty Act of 1996 (“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. “Staying a habeas petition pending

‘Title 28 U.S.C. § 2244(d) (1) (A) provides for a one-year period

of limitations from the date on which the judgment became final

by the conclusion of direct review or the expiration of the time

for seeking such review, subject to various statutory and

equitable tolling considerations. Recently, the Supreme Court

held that a claim of actual innocence can overcome this federal

habeas time, but only when petitioner “presents evidence of

innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the

trial was free of nonharmless constitutional error.” McQuiggin

v. Perkins, No. 12—126, 569 US. ————, 2013 WL 2300806 at *12

(May 28, 2013)

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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 v. Horn, 360 F.3d 146, 151 (3d

Cir. 2004) (referencing petitions containing both exhausted and

unexhausted claims). See also Heleva, 581 F.3d at (holding that

a petition could be eligible for stay even where only

unexhausted claims are asserted) . 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 Third Circuit also has noted that a pro se petitioner

is not likely to foresee the exhaustion issue on his own or to

know how to avoid it. Urcinoli v. Cathel, 546 F.3d 269, 276 (3d

Cir, 2008)

Thus, district courts “ordinarily have authority to issue

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

discretion.” Ryan v. Gonzales, ---U.S. ----, ----, 133 S.Ct.

696, 708, 184 L.Ed.2d 528 (2013) (quoting Rhines v. Weber, 544

U.S. 269, 276 (2005)) . The Supreme Court held that a district

court has discretion post-AEDPA 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

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then to return to federal court for review of his exhausted

petition (without being time-barred). Rhines, 544 U.S. at 277.

While 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.” Id. 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), petitioners could frustrate AEDPA’ s goal

of finality by dragging out indefinitely their federal habeas

review.” Id. at 277-78.

In line with AEDPA’s purposes, the Supreme Court held that

a stay and abeyance should be available only in limited

circumstances. 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, or petitioner engaged in intentionally dilatory

litigation tactics. Rhines, 544 U.S. at 277-78.

In this case, Petitioner has requested such a stay so that

he can exhaust, in state court, additional claims asserting

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ineffective assistance of counsel that were not previously

raised by his state PCR counsel. Petitioner relies on the

recent Supreme Court decision in Martinez v. Ryan, ---U.S.

----, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) . In Martinez, the

Supreme Court held that inadequate assistance of counsel at

initial state PCR proceedings may establish cause for a

prisoner’s procedural default of a claim of ineffective

assistance at trial. 132 S..Ct. at 1317-18. The Court further

held that AEDPA did not bar petitioner from using

ineffectiveness of his state PCR counsel to establish “cause”

for his procedural default, and that remand was required to

determine whether petitioner’s attorney in his first state PCR

proceeding was ineffective, whether underlying ineffective

assistance of trial counsel claim was substantial, and whether

petitioner was prejudiced. Id. at 1320-21.

Here, Dixon now wishes to bring the following additional

claims regarding the ineffectiveness of his trial counsel, which

Dixon asserts were not raised by his first state PCR counsel:

(1) Trial counsel failed to request relaxation of the plea cut

off based on a material change of circumstances; (2) Trial

counsel failed to advise Dixon of his extended term status as a

persistent offender; (3) Trial counsel failed to inform Dixon as

to his exposure to consecutive sentences; (4) Trial counsel

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failed to object to the trial court allowing a television in the

jury assembly room; (5) Trial counsel failed to advise Dixon of

a conditional plea that Petitioner could, after his Miranda

suppression hearing but before trial, plead guilty, obtain a

lesser sentence, and appeal the ruling in the Miranda

suppression hearing; (6) Trial counsel failed to advise

Petitioner of his right to testify at trial; and (7) Trial

counsel failed to present Petitioner with all material

information needed to make an informed decision to accept a plea

offer, that is, counsel failed to advise Dixon about an

aggregate maximum parole disgualifier of 15 years. (Dkt. 4* 25-1

at 3, 4.)

In Dixon’s second state PCR proceeding (the first PCR

petition having been withdrawn), the following grounds were

raised: (1) The jury instruction on accomplice liability for

robbery improperly placed the burden of proof on the defense to

disprove an essential element of the offense; 2(2) Trial counsel

rendered ineffective assistance by failing to have Juror 4* 6

removed from the panel; (3) Both trial and appellate counsel

were ineffective in failing to object to the prosecutor’s

2This claim was raised by Dixon in his September 19, 2006

Supplemental Verified Amended Petition for Post-Conviction

Relief, (Dkt. 4* 23-16, RE V.) Petitioner also submitted a

supplemental brief in support of his PCR petition on September

19, 2006. (Id.)

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vouching for the credibility of her witnesses in her summation;

(4) Trial Counsel was ineffective by failing to object at

sentencing to multiple extended terms to be served

consecutively; (5) Trial and appellate counsel were ineffective

by failing to communicate with Petitioner, failing to properly

investigate potential witnesses, and failing to adequately

prepare and research the law before and during trial and on

appeal; and (6) Trial and appellate counsel were ineffective by

failing to argue that the trial court should not have instructed

the jury that Petitioner was charged as the principal actor on

only Count Three of the indictment, by failing to request an

appropriate jury charge on accomplice liability for robbery, by

failing to request a charge of passion/provocation as a lesser

included offense to felony murder, by failing to aggressively

attack the credibility of a state witness, and by failing to

request a mistrial after the jury asked, “If one person commits

a robbery, are all others guilty?” 3 (Dkt. 44 23-16, RE V.)

On March 5, 2009, Judge Nelson issued a written decision

with regard to Dixon’s state PCR petition. (Dkt. 44 23-18, RE

X.) The PCR court noted that Dixon had initially filed a pro se

PCR petition on January 22, 2003, which Dixon withdrew because

3Claims (2) through (6) were raised by assigned PCR counsel in a

brief submitted on March 27, 2007, (Dkt. 44 23-16, RE V at 7-

17.) This Court notes that Dixon was acquitted on the robbery

charge.

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he had filed a grievance against his first PCR attorney, Harvey

R. Metzer, Esq. Dixon then filed an amended PCR petition on

September 19, 2006. (Id., RE X at 4.) Consequently, the PCR

court found that the PCR petition was time-barred pursuant to

N.J.Ct.R. 3:22-12, because it was filed on September 19, 2006,

8 years after Dixon was sentenced on May 20, 1998, or 3 years

after the five-year limitations under Rule 3:22-l2 had expired.

(Id., RE X at 7,) The court further remarked that Dixon failed

to offer any explanation for this untimeliness. Dixon failed to

assert excusable neglect or allege fundamental injustice as an

exceptional circumstance. (Id., RE X at 11.) The PCR court

also found that Petitioner’s substantive claims of ineffective

assistance of counsel lacked merit. (Id.) The Appellate

Division affirmed the denial of Dixon’s PCR petition in an

unpublished opinion on June 29, 2010. State v. Dixon, 2010 WL

2869575 (N.J. Super. A.D. Jun. 29, 2010)

In this case, Dixon has not provided this Court with good

cause for failure to exhaust the newly added claims in state

court before filing this habeas petition. He simply states that

he learned of these potential claims through inmate paralegals.

4This Court notes that Dixon was resentenced on remand on October

31, 2000. Using the later re-sentencing date for purposes of

determining the timeliness of Dixon’s PCR petition, the petition

was filed ll months after the limitations period expired.

Thus, the petition was still time-barred under Rule 3:22-12.

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Dixon also offers no evidence suggesting that the allegedly

unexhausted claims are potentially meritorious. All of the new

claims deal with ineffective assistance of counsel, and as

discussed above, the state court plainly rejected other numerous

claims of ineffective assistance of counsel previously asserted

by Dixon in his second state PCR proceedings.

More significantly, however, Dixon cannot show that he was

diligent in pursuing these claims. As demonstrated above, this

case has a convoluted history. Nevertheless, Petitioner has

exhibited clear and considerable dilatoriness in pursuing his

PCR claims. Dixon filed his first state PCR petition in January

2003, which was timely, but he withdrew it to pursue a grievance

against his first PCR counsel. Dixon then waited more than

three years later, on September 19, 2006, to file his second or

amended PCR petition (raising substantially the same claims as

originally filed). One day before the PCR court’s ruling on

November 2, 2007, Petitioner sought to remove counsel.

While Dixon filed this habeas petition on May 27, 2011,

four and a half months after the New Jersey Supreme Court denied

certification on January 7, 2011, Dixon waited more than eight

months to file a first application to stay this matter on

February 3, 2012, which he thereafter withdrew on May 30, 2012.

Dixon then filed a supplemental petition on June 5, 2012. After

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the State filed its answer to the petition on December 26, 2012,

and l9 months after he filed his habeas petition, Dixon filed

this second request to stay this matter so that he could exhaust

the above-mentioned claims in state court.

Under these circumstances, most particularly the

significant length of Dixon’s delay in seeking a stay to pursue

yet additional, unexhausted claims, this Court cannot find good

cause to stay this proceeding in order to permit Petitioner to

return to state court to pursue his allegedly unexhausted claim.

The motion for a stay and abeyance is denied accordingly.

III. CONCLUSION

For the foregoing reasons, the Court denies Petitioner’s

motion for issuance of a stay and abeyance. An appropriate

Order follows.

DENNIS

United State Judge

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