Petitioner. Civil Action No. 11—4182 (PGS)

GREG BARTKOWSKI, et al.. OP I N 1 0 N

Respondents.

APPEARANCES:

MICHAEL DARREN DARBY. #537015B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625Petitioner Pro Se

SHERIDAN, District Judge

Michael I)arren Darby, a prisoner incarcerated at New Jersey State Prison, flied a Petition

for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254(a), in the United States District Court

for the District of Maryland, challenging a judgment of conviction entered in the Superior Court

of New Jersey, Cumberland County. on December 9, 1991. By Order entered July 21, 2011.

Judge Benson Everett Legg transferred the matter to the District of New Jersey because theproper venue for a § 2254 petition challenging a New Jersey conviction is the District of NewJersey. Having thoroughly reviewed Petitioners submissions and this Court’s docket. see Darhv

v. Ricci. Civil No. 08-4929 (NLH)) slip op. (i).N.J. May 20. 2009), and. for the Ibllowing

reasons. this Court vill dismiss the Petition for lack of jurisdiction as a successive petition, and

den a certificate of appealability.
withdraw the plea and imposed a life sentence. with a 30—year period of parole ineligibility for

murder. and a consecutive 1 5-year term, with five years of parole ineligibility. Ibr the armed

robberies. See State v. Darbv. 2008 WL 2121748 at *1 (N.J. Super.. App. Div., May 20. 2008).

Although Petitioner asked counsel to appeal. no direct appeal was taken. e Darbv at * 1.

Petitioner liled a state petition for post-conviction relief on in October 2005. and the Law

Division denied relief on February 14, 2007. Petitioner appealed. 1)arbv at * 1. The

Appellate Division affirmed the order denying post-conviction relief in an opinion filed May 20,2008. j at *2*3. On September 9, 2008, the New Jersey Supreme Court denied certification.See State v. Darby, 196 N.J. 464 (2008) (table); (Pet. ¶ 1 1(b)(8).)

Petitioner filed his first 2254 Petition in this Court on October 3, 2008. By Order and

accompanying Opinion entered April 28, 2009, Judge Hillman dismissed the Petition as

untimely, pursuant to Habeas Rule 4, see 28 U.S.C. § 2254 Rule 4, and denied a certificate of

appealability.’ Judge Hillman reasoned that, although Petitioner’s conviction became final in

The Petition itself raised four grounds:

Ground Onc a’Dl NI \I OF Lii FC fIVE ASSIS FANCF OF

COUNSI I h’COt NSf I INI Ill CTIVENLSS BY DH\l \l 01R1GHI 01 APPF \I C INI I F! Cl I\ ENESS OF POS I

PROC H DING Cot NSLI d INIJI I CITvLNESS OF PC R

APPELLATE COUNSEL.

(continued...)
because Petitioner was not prevented from asserting his claims by extraordinary circumstances,

and he did not exercise reasonable diligence. 1-lowever, Judge Hillman permitted Petitioner to

submit a statement arguing that the Petition is not time barred, and to account for the period from

April 23. 1997 (when the statute of limitations expired) and October 2005 (when he tiled hisstate petition for post-conviction relief), as well as the period from September 9. 2008 (when the

(...continued)

Ground Two: PETITION FOR POST CONVICTION RELIEF

COURT FAiLED IN ITS SPECIFIC PURPOSE TO NOTICE. ORREMEDY OBVIOUS; a/LACK OF JURISDICTION BYSENTENCING COURT; b/SUBSTANTIAL DEPRIVATiON OF

DEFENDANT S 11 1)1 RAI CONSTITUTIONAl RIGFI ES

c/IMPOSITION 01111 FOAL SENTENCE OR THAT NOT

AUTHORIZEI) BY LAW.

Ground Three: a/DFFEN1)ANT WAS FACED WITH

CHALLENGES HE SHOULD NOT HAVE BEEN EXPOSEDTO; b/DENIED FAIRNESS AND ACCESS TO THE COURT.

Ground Four: a/THE PETITION FOR POST CONVICTIONRELIEF IN THIS MATTER HAS BEEN WRONGFULLY

DENIED; b/CONVICTION WAS OBTAINED BY USE OF

COERCED CONI FSSION VIOLA EING FEDERAlCONSTITUTIONAL PRIVILEGE AGAINST SELF

INCRIMIN Al ION c (ON’v ICI ION AND DENIAL OF RE 1111

ON P051 PROCI LDING \\ I RF OB fAINFD BYCONS III II ION \1 I \ll I RF 01 PROSFCU1 ION 10

DISC lOS! IO Dl FE ND \N I L II)FNC1 F \‘vORABI 1 10

TIlE DEFFNI)ANI.

Pet. 1 2. Grounds One—Four.
New Jersey lacked jurisdiction to accept his guilty plea to murder without an indictment, contraryto the Indictment Clause of Fifth Amendment of the United States Constitution and New JerseyCourt Rules 3 :4-2(b)(7) and 3:7-2; (2) there is no statute of limitations applicable to his challenge

to his guilty plea; and (3) the petition should be considered properly filed as he sought to correctan illegal sentence. On May 20, 2009, Judge Hiliman considered Darby’s arguments that the

Petition should not be dismissed as time barred, dismissed the Petition with prejudice as

untimely, and denied a certificate of appealability. Darby then filed a “Motion for Stay and

Abeyance on Mixed Petition Pending Exhaustion on Rule 60(b) Motion Made in the CourtWherein Plea Was Entered,” which Judge Hiliman denied on December 13, 2010. On May 16,

2011, the Third Circuit denied Darby’s request for a certificate of appealability.

Darby filed the § 2254 presently before this Court in the District of Maryland on July 13,

2011. Petitioner challenges the judgment of conviction filed on December 9, 1991, in the

Superior Court of New Jersey, Cumberland County, after he pled guilty to murder and four

counts of armed robbery. (Dkt. 1 at 4.) The Petition raises two grounds:

Ground One: PETITIONER RECEIVED UNEQUALTREATMENT IN HIS ARREST AND SUBSEQUENTIMPRISONMFN1 N \ IOLAT ION OF BO FT HF UNI FEDSTATES CONSTITU HON AND CONSTITUTION OF THESTATE WHICH HE IS HELD UPON BEING UNLAWFULLY

HANDFD OVER BY BALTIMORE OFF1CIALS TO BE

TRANSPORTED AND HALED INTO A NEW JERSEY COURT

4
CI-IARADEOFS Isic] PROSECUTION VIOLATING DI. E

PROCESS SEPARATION OF POWERS AS ASSISTANTCOUNTY PROSI-CUTOR WAS NOT AUTHORIZED TO ACTALONE IN THIS CASE VIOLATES PROTECTIONS ANt)

REQUIREMENTS SET FORTH UNDER THE NEW JERSEYSTATE AND THE UNITED STATES CONSTITUTION

INVALIDATiNG THE PLEA AND CONVICTION RENDERING

THE IMPOSED SENTENCE ILLEGAL IS ALSO A DiRECTCONSEQUENCE OF HAVING BEEN UNLAWFULLYI IANDEI) OVER BY BALTiMORE POLICE TO NEW JERSEYDETECTIVES.

(I)kt. I at 7. 18.)

II. I)ISCUSSION

A. Jurisdiction

On April 24, 1996, Congress enacted the AEDPA, which governs a district courts

adjudication of a second or successive § 2254 petition. Specifically. § 2244(b)(3)(A) provides:

Before a second or successive application permitted by this section is filed in the district court,

the applicant shall move in the appropriate court of appeals for an order authorizing the district

Section 2254 of litle 28 of the United States Code confers jurisdiction on district courts

to issue a writ of habeas corpus in behalf ofa person in custody pursuant to the judgment ofaState court . on the ground that he is in custody in jolation of the Constitution or la\\ s or

treaties of the United Statcs. 28 U.S.C. § 2254(a). Although sections 2254 and 2244(b) “reIr[jto a habeas application. we usc the word petition’ interchangeabl with the \\ord

appIication. Magwood v. Patterson. I 30 S. Ct. 2788. 2791 n. I (2() 10),
28 U.S.C. § 2244( )(3) and (4).” 28 U.S.C. § 2254 Rule 9.

Thus, § 2244(b)(3)( ) establishes that a District Court lacks jurisdiction over an second

or successive § 2254 petition, absent authorization from the Court of Appeals. See Burton v.

Stewart, 549 U.S. 147, 152 (2007) (“[Bjecause the 2002 petition is a ‘second or successive’

Once a petitioner moves for authorization to file a second or successive § 2254

application, a three-judge panel of the Court of Appeals must decide within 30 days whether

there is a prima facie showing that the application satisfies the substantive requirements of §2244(b)(2). See 28 U.S.C. § 2244(b)(3)(D). Magwood v. Patterson, 130 S. Ct. 2788, 2796(2010) (“If an application is ‘second or successive,’ the petitioner must obtain leave from the

Court of Appeals before filing it with the district court”). Section 2244(b)(2) provides:

A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed

unless:

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral reviewby the Supreme Court, that was previously unavailable; or(B)(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clearand convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of theunderlying offense.

28 U.S.C. § 2244(b)(2).

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this Court 4 Petitioner’s first § 2254 petition was denied with prejudice. 5Petitioner has ‘twicebrought claims contesting the same custody imposed by the same judgment of a state court. As a

result, under AEDPA, he was required to receive authorization from the Court of Appeals before

filing his second challenge. Because he did not do so, [this] Court [is] without jurisdiction to

entertain it” Burton, 549 U.S. at 153.B. Dismissal or Transfer

“When a second or successive habeas petition is erroneously filed in a district court

without the permission of a court of appeals, the district court’s only option is to dismiss thepetition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631.” Robinson v.

Johnson, 313 F.3d 128, 139 (3d Cir, 2002). The Petition before this Court does not argue thatPetitioner satisfies the gatekeeping requirements of 28 U.S.C. § 2244(b)(2), nor does it mention

these requirements or make a prima facie showing. This Court accordingly declines to transferthe Petition to the Third Circuit as an application for authorization to file a second or successivepetition, and will dismiss the Petition for lack ofjurisdiction. Cf Hatches v, Schultz, 381 Fed.

The Petition does not assert that the Court of Appeals has granted authorization pursuant

to 28 U.S.C. § 2244(b). This Court has been unable to locate any request for authorization filedby Petitioner in the Third Circuit Court of Appeals on PACER.

A habeas petition is adjudicated on the merits when “a determination [was made] that

there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §2254(a) and (d).” 545 U.S. 524, 532 n.4 (2005).

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of constitutional law”).C. Cciiificate of’ Appealability

The AEDPA provides that an appeal may not be taken to the court of appeals from a final

order in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that

“the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This Court denies a certificate of appealability because jurists of reason would not

find it debatable that dismissal of the Petition for lack of jurisdiction is correct. See Slack v.

McDaniel, 529 U.S. 473. 484 (2000).

IlL CONCLUSION

Based on the foregoing. the Court dismisses the Petition for a Writ of Habeas Corpus for

lack ofjurisdiction and denies a certificate of appealability.

PETER C. SHERIDANUnited States District Judge

I)ATED: . 2011

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