NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANTHONY RULLAN, :

:

Petitioner, :

:

v. :

:

ROBERT M. BALICKI, :

:

Respondents. :

 :

Hon. Noel L. Hillman

Civil Action No. 11-4497 (NLH)

O P I N I O N

APPEARANCES:

ANTHONY RULLAN, #41734

Cumberland County Jail

54 W. Broad Street

Bridgeton, New Jersey 08302

Petitioner Pro Se 

HILLMAN, District Judge

Anthony Rullan, who is presently incarcerated at Cumberland

County Jail, filed a Petition for a Writ of Habeas Corpus under

28 U.S.C. § 2254 challenging a judgment of conviction entered on

March 28, 2008, in the Superior Court of New Jersey, Cumberland

County. For the reasons expressed below, and because the

Petition, as drafted and read in light of the available state

court decisions, shows that the claims are not exhausted, this

Court will dismiss the Petition without prejudice for failure to

exhaust available state court remedies and deny a certificate of

appealability.

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I. BACKGROUND

On March 28, 2008, the Superior Court of New Jersey, Law

Division, Cumberland County, sentenced Rullan to an eight-year

term of imprisonment after a jury found him guilty of seconddegree endangering the welfare of a child who was less than 16

years of age and fourth-degree lewdness. Rullan appealed,

raising the following grounds:

I. THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL

RIGHT TO A FAIR TRIAL BY FAILING TO GIVE THE JURY ANY

LIMITING INSTRUCTION ON THE FRESH[-]COMPLAINT DOCTRINE.

II. THE TRIAL COURT DENIED DEFENDANT HIS

CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT EXCLUDING

TESTIMONIES WHICH WERE INADMISSIBLE UNDER THE FRESH[-

]COMPLAINT DOCTRINE.

A. ANGELA STANLEY'S TESTIMONY.

III. THE TRIAL COURT DENIED DEFENDANT HIS

CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT GRANTING

DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO

DETECTIVE O'NEILL IN VIOLATION OF MIRANDA.

A. VINELAND POLICE OFFICER, DETECTIVE O'NEILL,

VIOLATED THE MIRANDA REQUIREMENT.

B. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S

MOTION TO SUPPRESS STATEMENTS MADE TO DETECTIVE

O'NEILL IN VIOLATION OF MIRANDA WARNINGS.

IV. THE PROSECUTOR'S SUMMATION AND DIRECT EXAMINATION

EXCEEDED THE BOUNDS OF PROPRIETY AND THEREBY VIOLATED

DEFENDANT'S RIGHT TO A FAIR TRIAL WARRANTING A

REVERSAL.

A. PROSECUTOR'S SUMMATION.

B. PROSECUTOR'S DIRECT EXAMINATION OF [ANDREW].

2

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V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S R.

3:20-1 MOTION TO SET ASIDE THE VERDICT.

VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S

R. 3:20-2 MOTION FOR A NEW TRIAL.

VII. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO

AN EIGHT (8) YEAR TERM OF IMPRISONMENT ON THE SECOND

DEGREE N.J.S.A. 2C:24-4a ENDANGERING THE WELFARE OF A

CHILD CHARGE AND HENCE SUBJECT TO THE REGISTRATION

REQUIREMENTS OF MEGAN'S LAW IN VIOLATION OF DEFENDANT'S

CONSTITUTIONAL RIGHTS AND THE SENTENCE IMPOSED BY THE

TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING

N.J.S.A. 2C:14-[4]b(1) WAS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT

TO AN EIGHT (8) YEAR TERM OF IMPRISONMENT ON THE

SECOND DEGREE N.J.S.A. 2C:24-4a ENDANGERING THE

WELFARE OF A CHILD CHARGE.

B. THE TRIAL COURT ERRED IN IMPOSING THE MEGAN'S

LAW REGISTRATION REQUIREMENTS ON DEFENDANT.

C. THE SENTENCE IMPOSED BY THE TRIAL COURT ON THE

DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A.

2C:14-[4]b(1) WAS MANIFESTLY EXCESSIVE.

State v. A.R., 2011 WL 6569, *2-3 (N.J. Super. Ct., App. Div.,

July 14, 2010).

On July 14, 2010, the Appellate Division affirmed. See

State v. A.R., 2011 WL 6569 (N.J. Super. Ct., App. Div., July 14,

2010) (Dkt. 3 at 2). On November 4, 2010, the New Jersey Supreme

Court denied certification. See State v. A.R., 205 N.J. 14

(2010) (table).

On July 14, 2011, Rullan executed (and presumably handed to

prison officials for mailing) a Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2254 challenging the judgment of

conviction entered in the Superior Court of New Jersey,

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Cumberland County, dated March 28, 2008. The Petition raised 12

grounds. The Clerk received it on August 9, 2011. By Order

entered August 26, 2011, this Court: (1) notified Rullan of the

consequences of filing a § 2254 petition, see Mason v. Myers, 208

F. 3d 414 (3d Cir. 2000); (2) explained that a District Court may

not grant a writ of habeas corpus under 28 U.S.C. § 2254 unless

the applicant has exhausted the remedies available in the courts

of the State or exhaustion is excused under 28 U.S.C. §

2254(b)(1)(B) because there is an absence of available State

corrective process or circumstances exist that render such

process ineffective to protect the rights of the applicant, see

Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998); (3)

administratively terminated the case because the Petition was not

on the current form supplied by the Clerk, see Loc. Civ. R.

81.2(a); and (4) gave Rullan 30 days to file a petition on the

form provided by the Clerk. (Dkt. 2.) 1

 The online Inmate Locator of the New Jersey Department of 1

Corrections indicates that on September 13, 2010, Rullan was

released by state officials from Mid State Correctional Facility.

For the purposes of the Opinion, this Court presumes that he was

released on parole. But if Rullan was released on September 13,

2010, because his sentence expired, then this Court may not have

subject matter jurisdiction, since he may not have been “in

custody” within the meaning of 28 U.S.C. § 2254(a) when this §

2254 Petition was filed on July 14, 2011. Compare Maleng v.

Cook, 490 U.S. 488, 492 (1989) (habeas petitioner does not remain

“in custody” under a conviction after the sentence imposed for it

has fully expired), with Garlotte v. Fordice, 515 U.S. 39 (1995)

(habeas petitioner who is serving consecutive sentences is “in

custody” to attack sentence scheduled to run first, even after it

(continued...)

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On September 13, 2011, Rullan filed a § 2254 Petition (on

the current form provided by the Clerk) challenging the March 28,

2008, judgment of conviction. The Petition raises 12 grounds:

Ground One: TRIAL COUNSEL HAD BEEN INEFFECTIVE,

DENYING DEFENDANT-PETITIONER CORROBORATING AND

EXCULPATORY EVIDENCE AND TESTIMONY, THAT SUCH

ALLEGATION[S] AS RELATED TO ALLEGED VICTIM, [V.C.], HAS

BEEN ADDRESSED PRIOR TO THE CURRENT MATTER AND

SUBSEQUENTLY DISMISSED SINCE NO SUPPORT OF ANY SUCH

VIOLATIONS OCCURRING HAD BEEN DETERMINED.

Ground Two: JURY CHARGE/INSTRUCTIONS WERE NOT PROPERLY

GIVEN, THAT JURY HAD GONE AGAINST SUCH INSTRUCTIONS,

AND HAD INTERPRETED THE LAW THEMSELVES.

Ground Three: THAT EVIDENCE TO BE PRESENTED AND PRIOR

TESTIMONIES GIVES, SUPPORT TOWARDS DEFENDANTPETITIONER’S INNOCENCE AND REFLECTS THAT REASONABLE

DOUBT STILL REMAINS WHICH OUTWEIGHS THE JURY’S VERDICT

THAT DEFENDANT-PETITIONER IS GUILTY.

Ground Four: THAT JURY’S VERDICT WAS ARBITRARY AND

INCONSISTENT WITH FACTS OF MATTER.

Ground Five: THAT EVIDENCE TO BE PRESENTED AND PRIOR

TESTIMONY GIVEN SUPPORTS HIS INNOCENCE AND REFLECTS A

LACK OF CREDIBILITY BY ALLEGED VICTIM.

Ground Six: THAT STATE’S WITNESS’ TESTIMONY THAT

DEFENDANT DID NOT ASSAULT ALLEGED VICTIM, BUT HAD

ASSAULT[ED] ANOTHER UNIDENTIFIED UNDERAGE VICTIM HAD

PREJUDICED HIM, TAINTED JURY, DENYING DEFENDANT A FAIR

AND IMPARTIAL TRIAL.

Ground Seven: THAT STATE’S WITNESS HAD BEEN DENIED

OPPORTUNITY TO FINISH HIS TESTIMONY WHICH WAS

EXCULPATORY IN NATURE TOWARDS DEFENDANT.

Ground Eight: THAT THERE WERE THREE CRITICAL WITNESSES

THAT WERE NOT CALLED BY EITHER PARTY: DEFENDANT’S

WIFE; A COUNSELOR ONLY REFERRED TO AS “KIM;” AND A

“MCCABE.”

(...continued) 1

has expired, until all consecutive sentences have been served). 

5

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Ground Nine: THAT ASSISTANT PROSECUTOR’S COMMENT

CONTRIBUTE[D] TO DEFENDANT’S BEING FOUND GUILTY BY

BOLSTERING ALLEGED VICTIM’S TESTIMONY GREATER

CREDIBILITY.

Ground Ten: THAT ASSISTANT PROSECUTOR’S ACT OF

INSTRUCTING DEFENSE COUNSEL WAS IMPROPER AND LIMITED

DEFENSE TO PURSUE AREAS WITHIN THEIR DEFENSE.

Ground Eleven: THAT DEFENDANT WAS DENIED OPPORTUNITY

TO IMPEACH ALLEGED VICTIM.

Ground Twelve: THAT STATE’S WITNESS’ TESTIMONY ABOUT

ALLEGED PRIOR BAD ACTS OR WRONGDOING BY DEFENDANT,

VIOLATED DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL

RIGHTS TO A FAIR AND IMPARTIAL TRIAL, DUE PROCESS,

EQUAL PROTECTION OF THE LAW, AND FUNDAMENTAL FAIRNESS.

(Dkt. 3 at 5, 7, 8, 10, 17, 18, 19.)

Rullan asserts in this § 2254 Petition that on July 15,

2011, he filed a petition for post-conviction relief in the Law

Division, which raises the 12 issues presented in this § 2254

Petition, and that this state petition is pending before the New

Jersey courts. (Dkt. 3 at 3, 5, 7, 8, 10, 17, 18, 19.)

II. DISCUSSION

A. Standard of Review

“Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). 

Habeas Rule 2(c) requires a § 2254 petition to “specify all the

grounds for relief available to the petitioner,” “state the facts

supporting each ground,” “state the relief requested,” be

printed, typewritten, or legibly handwritten, and be signed under

penalty of perjury. 28 U.S.C. § 2254 Rule 2(c). Habeas Rule 4

6

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requires a judge to sua sponte dismiss a § 2254 petition without

ordering a responsive pleading “[i]f it plainly appears from the

petition and any attached exhibits that the petitioner is not

entitled to relief in the district court.” 28 U.S.C. § 2254 Rule

4; see Mayle v. Felix, 545 U.S. 644, 655 (2005). Thus, “Federal

courts are authorized to dismiss summarily any habeas petition

that appears legally insufficient on its face.” McFarland, 512

U.S. at 856; see also United States v. Thomas, 221 F.3d 430, 437

(3d Cir. 2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985),

cert. denied, 490 U.S. 1025 (1989).

B. Exhaustion

The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

prohibits a District Court from granting habeas relief under §

2254 unless the petitioner has fairly presented each federal

ground in the § 2254 petition to each level of the state courts

or shown that exhaustion is excused under 28 U.S.C. §

2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d

Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.

1997); Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993). 

Specifically, the AEDPA provides:

(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 

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 (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,

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(b) & (c).

To satisfy the exhaustion requirement, “state prisoners must

give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the

State’s established appellate review process.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). “The burden is on the habeas

petitioner to prove exhaustion.” DeFoy v. McCullough, 393 F. 3d

439, 442 (3d Cir. 2005). The exhaustion doctrine mandates that

the claim “must have been ‘fairly presented’ to the state

courts.” Bronshtein v. Horn, 404 F. 3d 700, 725 (3d Cir. 2005)

(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “Fair

presentation means that a petitioner must present a federal

claim’s factual and legal substance to the state courts in a

8

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manner that puts them on notice that a federal claim is being

asserted.” Rainey v. Varner, 603 F. 3d 189, 198 (3d Cir. 2010)

(citations and internal quotation marks omitted). In summary,

the exhaustion doctrine requires the petitioner to afford the

state courts “the opportunity to resolve the federal

constitutional issues before he goes to the federal court for

habeas relief.” Id. (quoting Zicarelli v. Gray, 543 F. 2d 466,

472 (3d Cir. 1976)). 

Here, Rullan repeatedly concedes on the face of the Petition

that he has not exhausted any of the 12 claims raised in this

Petition. After each ground, the § 2254 form asks Rullan to

specify whether he raised this ground on direct appeal from the

judgment of conviction, or in a post-conviction motion or

petition in the state trial court. With respect to each ground

raised in the Petition, Rullan asserts that the ground was not

raised on direct appeal, but was raised in the pending state

petition for post-conviction relief filed in the Law Division on

July 15, 2011. (Dkt. 3 at 3, 6, 7, 9, 10, 11, 20.) In addition,

Rullan answered “yes” in response to the question asking if he

has any petition or appeal now pending in any court, for the

challenged judgment, adding the following: “Superior Court of

NJ, PCR Division, Cumberland County, Docket No.: 04-05-556I

04000332-1, Post-Conviction-Relief, Grounds One through Twelve.” 

(Dkt. 3 at 12.) 

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Thus, Petitioner concedes on the face of the Petition that

none of the grounds have been exhausted and that his state

petition for post-conviction relief raising these same grounds is

pending before the Law Division of the New Jersey Superior Court. 

Where a § 2254 petition contains one or more unexhausted grounds

and a stay is not warranted, a District Court must either dismiss

the § 2254 petition without prejudice as unexhausted, pursuant to

28 U.S.C. § 2254(b)(1), or deny all claims in the petition on the

merits, pursuant to 28 U.S.C. § 2254(b)(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”). See Carrascosa

v. McGuire, 520 F. 3d 249 255 (3d Cir. 2008). 

C. Stay

“Where the timeliness of a habeas corpus petition is at

issue, 28 U.S.C. § 2244(d)(1), a District Court has the

discretion to stay a . . . habeas petition to allow complete

exhaustion in state court.” Williams v. Walsh, 411 Fed. App’x

459, 461 (3d Cir. 2011) (citing Rhines v. Weber, 544 U.S. 269,

277 (2005)); see also Heleva v. Brooks, 581 F. 3d 187 (3d Cir.

2009) (holding that stay-and-abeyance under Rhines standard also

applies to a request to stay a § 2254 petition which contains

only unexhausted claims); Benchoff v. Colleran, 404 F. 3d 812,

820 n.6 (3d Cir. 2005) (observing that Rhines “approved, but

10

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limited, the availability” of a stay). The Rhines Court

explained the rationale for a stay:

If a petitioner files a timely but mixed

petition in federal district court, and the

district court dismisses it under Lundy after

the limitations period has expired, this will

likely mean the termination of any federal

review. For example, if the District Court

in this case had dismissed the petition

because it contained unexhausted claims,

AEDPA’s 1-year statute of limitations would

have barred Rhines from returning to federal

court after exhausting the previously

unexhausted claims in state court.

Rhines at 275.

In determining whether to grant a stay, this Court must

initially consider whether timeliness is at issue, such that any

§ 2254 petition filed after exhausting state court remedies would

be time barred. Id. The AEDPA provides that “[a] 1-year period

of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State

court.” 28 U.S.C. § 2244(d)(1). The limitations period runs

from the latest of 

(A) the date on which the judgment became

final by the conclusion of direct review or

the expiration of the time for seeking such

review;

(B) the date on which the impediment to

filing an application created by State action

in violation of the Constitution or laws of

the United States is removed, if the

applicant was prevented from filing by such

State action;

11

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(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court and

made retroactively applicable to cases on

collateral review; or 

(D) the date on which the factual predicate

of the claim or claims presented could have

been discovered through the exercise of due

diligence . . . . 

28 U.S.C. § 2244(d)(1). 

The statute of limitations under § 2244(d) is subject to two

tolling exceptions: statutory tolling and equitable tolling. 

See Holland v. Florida, 130 S. Ct. 2549 (2010); Merritt v.

Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Miller v. N.J. State

Dep’t of Corr., 145 F.3d 616, 617-18 (3d Cir. 1998). Statutory

tolling is governed by § 2244(d)(2), which provides that “[t]he

time during which a properly filed application for State postconviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.” 28

U.S.C. § 2244(d)(2). An application is “filed” within the

meaning of § 2244(d)(2) when “it is delivered to, and accepted

by, the appropriate court officer for placement into the official

record.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations

omitted). 

And an application is “properly filed” when

its delivery and acceptance are in compliance

with the applicable laws and rules governing

filings. These usually prescribe, for

12

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example, the form of the document, the time

limits upon its delivery, the court and

office in which it must be lodged, and the

requisite filing fee . . . . In some

jurisdictions the filing requirements also

include, for example, preconditions imposed

on particular abusive filers, or on all

filers generally . . . . But in common

usage, the question whether an application

has been “properly filed” is quite separate

from the question whether the claims

contained in the application are meritorious

and free of procedural bar.

Artuz, 531 U.S. at 8-9 (citations omitted); see also Allen v.

Siebert, 552 U.S. 3 (2007) (petition for state post-conviction

relief that was rejected by the state courts as untimely is not

“properly filed” under § 2244(d)(2)). A post-conviction relief

application remains pending in state court until “the state

courts have finally resolved an application for state post[-

]conviction relief [but] § 2244(d)(2) does not toll the 1-year

limitations period during the pendency of a petition for

certiorari.” Lawrence v. Florida, 549 U.S. 327, 332 (2007). 

In Pace v. DeGuglielmo, 544 U.S. 408, 416 (2005), the

Supreme Court ruled that a state petition for post-conviction

relief that is dismissed by the state court as untimely does not

toll the federal statute of limitations because an untimely state

petition for post-conviction relief is not “properly filed”

within the meaning of 28 U.S.C. § 2244(d)(2). In rejecting the

prisoner’s arguments, the Supreme Court observed that, in the

event that a state prisoner who is pursuing state post-conviction

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relief is “reasonably confused” as to whether the state petition

was timely or otherwise “properly filed,” then that prisoner

could file a protective § 2254 petition. The Court explained:

Finally, petitioner challenges the fairness of our

interpretation. He claims that a “petitioner trying in

good faith to exhaust state remedies may litigate in

state court for years only to find out at the end that

he was never ‘properly filed,’” and thus that his

federal habeas petition is time barred. A prisoner

seeking state postconviction relief might avoid this

predicament, however, by filing a “protective” petition

in federal court and asking the federal court to stay

and abey the federal habeas proceedings until state

remedies are exhausted. See Rhines v. Weber, ante, 544

U.S., at 278 . . . (2005). A petitioner's reasonable

confusion about whether a state filing would be timely

will ordinarily constitute “good cause” for him to file

in federal court. Ibid. (“[I]f 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 tactics,” then the district court likely

“should stay, rather than dismiss, the mixed

petition”).

Pace, 544 U.S. at 416-417 (some citations omitted).

In this case, Rullan’s conviction became final on February

3, 2011, when the time to file a petition for certiorari

expired. See 28 U.S.C. § 2244(d)(1)(A). The statute of 2

limitations ran for 162 days until July 15, 2011, when it was

statutorily tolled upon the filing of the state petition for

 Rullan states that he attempted to file a petition for 2

certiorari in the United States Supreme Court. (Dkt. 3 at 3.) 

However, this Court’s electronic research reveals no such filing. 

This Court will, for the purposes of this Opinion, use the

earliest possible date for calculating the one-year statute of

limitations.

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post-conviction relief (presuming the state petition for postconviction relief was “properly filed”). Under these

circumstances, the 365-day federal limitations period will be

statutorily tolled until “the state courts have finally resolved

[Rullan’s] application for state post[-]conviction relief.” 

Lawrence, 549 U.S. at 332. At that point, the 365-day

limitations period will pick up at day 163. Accordingly, if

Rullan’s state petition for post-conviction relief was “properly

filed,” then Rullan will have 203 days remaining on the 365-day

statute of limitations at the time the New Jersey courts finally

resolve his petition for post-conviction relief (and statutory

tolling stops). And since nothing in Rullan’s submissions

indicates that his state petition for post-conviction relief was

not “properly filed,” this Court sees no basis to stay the § 2254

Petition. This Court will accordingly dismiss the Petition 3

without prejudice for failure to exhaust available state court

remedies. See 28 U.S.C. §§2254(b)(1)(A), 2254(c). 4

 New Jersey Court Rules provide that a first petition for 3

post-conviction relief must generally be filed within five years

after the date of entry of the judgment of conviction. See N.J.

Ct. R. 3:22-12(a)(1).

 If the Law Division has determined that Rullan’s petition 4

for post-conviction relief was untimely or Rullan is “reasonably

confused” as to whether it was “properly filed,” then Rullan may

file a motion asking this Court to reconsider the dismissal of

this § 2254 Petition as unexhausted and to grant a stay; the

motion must specify facts showing the basis for Rullan’s

reasonable confusion as to the proper filing of the petition for

(continued...)

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D. Certificate of Appealability

Because Petitioner has not made a substantial showing of the

denial of a constitutional right, no Certificate of Appealability

will issue pursuant to 28 U.S.C. § 2253(c). See Fed. R. App. P.

22(b)(1). 

III. CONCLUSION

For the foregoing reasons, this Court will dismiss the

Petition without prejudice as unexhausted and decline to issue a

Certificate of Appealability.

 /s/ Noel L. Hillman 

NOEL L. HILLMAN

United States District Judge

DATED: December 7, 2011

At Camden, New Jersey

(...continued) 4

post-conviction relief. 

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