# PAVLYIK v. NOGAN

> District Court, D. New Jersey · January 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10274776

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL PAVLYIK, | Civil Action No. 19-17691 (KMW)
Petitioner,
v. : MEMORANDUM OPINION
PATRICK NOGAN, et al., :
Respondents. :

WILLIAMS, DISTRICT JUDGE
Petitioner Michael Pavlyik (“Petitioner”) is a state prisoner confined at East Jersey State
Prison, in Rahway, New Jersey. He is proceeding pro se with the instant petition for a writ of
habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1). The Court has reviewed
the relevant records and the parties’ submissions. As explained more fully below, the Court finds
that the Petition is mixed-——i.e., it contains both exhausted and unexhausted claims. Because the
Court may not adjudicate such a petition, the Court will permit Petitioner to elect between (i)
withdrawing his unexhausted claims and having the Court rule on his remaining claims; or (ii)
requesting a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to return to state court to
exhaust his unexhausted claim.
I. BACKGROUND
The Court recounts only the facts necessary to assess whether Petitioner has fully exhausted
the grounds for habeas relief alleged in the Petition. The New Jersey Superior Court, Appellate
Division provided the following factual summary in its March 26, 2014 opinion:
A jury found [Petitioner] [] guilty of eight crimes involving sexual
abuse of his stepdaughter, A.A., and one weapons offense. The
abusive conduct commenced in February 2004, when A.A. was

eight years old, and continued until February 2007. It occurred in
New Jersey on the weekends and during the summer weeks while
A.A., who lived with her father in Maryland, was in the eare of her
mother and stepfather in their New Jersey home. Ordinarily, three
other younger children were staying in the home when A.A.
visited—one is defendant’s child and two are A.A.’s half-siblings.

A.A., who was fifteen years old when the case was tried in 2011,
testified that [Petitioner] started sexually abusing her in 2004, when
she was eight years old and continued until 2007, when she was
eleven years old. A.A. acknowledged enjoying her time in New
Jersey with her family and, for a time, wanting to live there rather
than in Maryland. Nevertheless, A.A. testified about what
[Petitioner] did to her and caused her to do to him while she was
with him,
A.A. described a variety of sexual acts to which defendant subjected
her to over the three-year period: penile penetration of her vagina on
one occasion; touching of her breasts; causing her to touch his penis;
cunnilingus; and causing her to engage in fellatio.
(ECF No. 22-6, State v. MP., No. A-2498-11T3 at 1-2 (N.J. Super. Ct. App. Div. March 26,
2014).)
The Gloucester County Grand Jury returned Indictment No. 07-12-01225-I, charging
Petitioner with endangering the welfare of a child, N.JS.A. § 2C:24-4a (count one); aggravated
sexual assault, N.J.S.A. § 2C:14-2a(1) (counts two, three, four); sexual assault, N.J.S.A. § 2C:14-
2b (counts five, six, seven); showing obscene material to a minor, N.J.S.A § 2C:34-3b(2) (count
eight); and possession of a destructive device, N.J.S.A, § 2C:39-3a (count nine), (ECF No. 22-2.)
On April 1, 2011, following a jury trial presided over by the Honorable Walter L. Marshall,
J.S8.C., Petitioner was convicted on all counts. (See ECF Nos. 22-38.) On July 1, 2011, Petitioner
was sentenced to a total term of thirty-three years imprisonment, subject to the No Early Release
Act (“NERA”). (See ECF No. 22-39.)

Petitioner filed a Notice of Appeal with the Appellate Division. (ECF No. 22-4.) Counsel
filed a brief on direct appeal in which Petitioner argued:
(1) THE TRIAL COURT VIOLATED [PETITIONER’S]
CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS
DEFENSE AS WELL AS HIS CONFRONTATION CLAUSE
RIGHTS BY EXCLUDING EVIDENCE REGARDING THE
SEXUAL RELATIONSHIPS BETWEEN C.D. AND VICTIM.
(2) THE ADMISSION OF MISLEADING TESTIMONY THAT
HASSLER INTERROGATED VICTIM EMPLOYING THE
RATAC PROTOCOL DENIED [PETITIONER] HIS RIGHTS TO
DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE
CONSTITUTION.
(3) THE TRIAL COURT VIOLATED [PETITIONER’S]
CONSTITUTIONAL RIGHTS TO A _ FAIR TRIAL AS
ENUNCIATED IN STATE v. MICHAELS AND N.IR.E.
803(C){27).
(4) ADMISSION OF THE EROTIC VIDEOS/PHOTOGRAPHS
VIOLATED NEW JERSEY RULE OF EVIDENCE 403 AND
THEREBY DENIED [PETITIONER] BOTH DUE PROCESS OF
LAW AND A FAIR TRIAL.
(5) THE TRIAL COURT ERRED UNDER STATE v, SANDS BY
RULING THAT [PETITIONER’S] 1997 CONVICTION COULD
BE INTRODUCED BY THE STATE TO IMPEACH HIS
CREDIBILITY DEN YING DEFENDANT BOTH DUE PROCESS
OF LAW AND A FAIR TRIAL.
(6) THE TRIAL COURT ERRED UNDER RULE 3:15-2(B) BY
JOINING THE CHARGE PURSUANT TO N.JS.A. 2C:39-3(A),
POSSESSION OF A DESTRUCTIVE DEVICE, WITH THE
ALLEGED SEXUAL OFFENSES THEREBY DENYING
[PETITIONER] BOTH DUEPROCESS AND A FAIR TRIAL,
(7) THE NEED FOR INSTRUCTION AS TO LESSER-
INCLUDED OFFENSES TO POSSESSION OF A
DESTRUCTIVE DEVICE, IN VIOLATION OF N.J.S.A. 2C:39-
3(A), WAS CLEARLY INDICATED BY THE RECORD.
(8) THE TRIAL WAS SO INFECTED WITH ERROR THAT
EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE
REVERSAL, THE AGGREGATE OF THE ERRORS DENIED
[PETITIONER] A FAIR TRIAL.

(9) THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE,
AFTER EXPIRATION OF HIS PRISON TERM, [PETITIONER]
WILL BE CLOSESLY MONITORED FOR THE REST OF HIS
LIFE AND WILL BE A LOW RISK TO RE-OFFEND,
(ECF No. 22-5 at 3-6.) The Appellate Division noted in its opinion that Petitioner filed a pro se
brief raising the following claims:
(1) TRIAL COUNSEL ERRED IN FAILING TO ALLOW
PSYCHOLOGIST C.T. TO TESTIFY ON BEHALF OF THE
DEFENSE.
(2) THE TRIAL COURT ERRED IN ALLOWING THE
INTRODUCTION OF OTHER CRIME EVIDENCE SO
SANITIZED THAT ALL RELEVANCE WAS WASHED FROM
IT, IMPERMISSIBLY PREJUDICING [PETITIONER].
(3) TRIAL COURT COMMITTED PLAIN ERROR IN
ALLOWING VIDEOTAPED STATEMENT TO BE REPLAYED
IN COURTROOM WITHOUT THE CONTEXT OF CROSS-
EXAMINATION PLUS ALLOWED THE CHARGES AGAINST
THE [PETITIONER] TO BE ENTERED MULTIPLE TIMES VIA
ORAL AND DIGITAL MEDIUM, THEREBY OVERLY
PREJUDICING [PETITIONER]IN JURY’S EYES.
(4) TRIAL COURT ERRED BY NOT CHARGING THE LESSER-
INCLUDED OFFENSE OF SEXUAL ASSAULT WHICH, WHEN
PENETRATION IS NOT PROVEN, IS THE NEXT STEP DOWN
THE CRIMINAL LADDER. THE JURY WAS ONLY GIVEN
THE OPPORTUNITY TO FIND THE [PETITIONER] GUILTY
OF EITHER A FIRST DEGREE CRIME OR NOTHING. AS
THERE WAS NO SEMEN, NO WITNESSES, NO
CORROBORATING EVIDENCE OF ANY SORT, COMBINED
WITH THE AMBIGUITY PRESENT IN THE STATE’S
MEDICAL EXPERT’S TESTIMONY AND THE FACT THAT
THE SOLE IOTA OF PROOF THAT CUNNILINGUS OR
FELLATIO EVEN OCCURRED IS THE VICTIM SAYING IT
DID, THE JURY IS LEFT WITH ROOM FOR DOUBT AS TO
WHETHER PENETRATION EVER OCCURRED,
(5) TRIAL COURT ERRED IN ALLOWING VICTIM TO
TESTIFY THAT [PETITIONER] WAS DRUNK ALL THE TIME.
(6) TRIAL COURT ERRED IN ALLOWING EXTRANEOUS
MARITAL AIDS TO BE DISPLAYED ~ AIDS THAT WERE

NOT MENTIONED AS BEING INVOLVED IN ANY OF THE
CHARGES GAINST [PETITIONER]. THIS ALLOWANCE
CREATED AN UNFAIR PREJUDICE AGAINST THE
{PETITIONER], DENYING HIM OF HIS RIGHT TO DUE
PROCESS AND A FAIR TRIAL.
(7) [PETITIONER] WAS CHARGED AND CONVICTED OF
VIOLATING = -2€:39-3A. = =(WEAPONS POSSESION —
DESTRUCTIVE DEVICE (5” TUBE OF BLACK POWDER)
A. BECAUSE THE STATE AMENDED THE INDICTMENT TO
READ “A 5” TUBE OF BLACK POWDER,” THE CHARGE OF
VIOLATING N.J.8.A. 20:39-3(A) IS IMPROPER AS, WITHOUT
MORE PROOF, THE DEVICE MET THE STATUTORY
REQUIREMENTS OF A FIREWORK AND NOT A
DESTRUCTIVE DEVICE, SEE NVJS.A. 21:2-2. IN FACT, THE
DEVICE DID NOT EVEN MEET THE STATUTORY
DEFINITION OF A ‘DANGEROUS FIREWORK?’ AS IT DID
NOT EXCEED 5”,
B. THE BURDEN OF PROVING THE DEVICE WAS NOT AN
EXPLOSIVE DEVICE WAS IMPROPERLY SHIFTED TO
[PETITIONER] IN THIS CASE,
C. THE STATE’S WITNESS NEVER PROVED THE BLACK
POWDER WAS ACTUALLY EXPLOSIVE.
(8) THE PROSECUTOR’S EXPLICIT DESCRIPTION OF
EVENTS DURING HER SUMMATION CONSTITUTED
IMPERMISSIBLE APPEAL TO THE JUROR’S EMOTIONS.
(9) THE PROSECUTOR’S MISLEADING COMMENTS AND
MISREPRESENTATIONS OF FACTS IN HER SUMMATION
DENIED [PETITIONER] OF HIS RIGHT TO DUE PROCESS
AND A FAIR TRIAL.
(10) TRIAL COURT COMMITTED PLAIN ERROR IN
ALLOWING STATE’S WITNESS ALEXANDER PERRY TO
INJECT HEARSAY TESTIMONY PURPORTEDLY FROM THE
LAB TECHNICIAN WITHOUT HAVING SAID TECHNICIAN
PRESENT AND AVAILABLE FOR CROSS EXAMINATION.
(11) ERRORS AND OMISSIONS BY COUNSEL WERE SO
DEFICIENT AND EGREGIOUS THAT PREJUDICE TO THE
[PETITIONER]MUST BE PRESUMED.

(12) CONSIDERATION OF ISSUES RAISED FOR. THE FIRST
TIME ON APPEAL IS WARRANTED TO ADDRESS ERROR OF
CONSTITUTIONAL DIMENSION AFFECTING
DEFENDANT'S RIGHT TO A FAIR TRIAL,
(ECF No, 22-6, MZP., No. A-2498-11T3 at 5-6.) On March 26, 2014, the Appellate Division
affirmed Petitioner’s convictions. (ECF No. 22-6, M.P., No, A-2498-11T3.) On September 22,
2014, the New Jersey Supreme Court denied Petitioner’s petition for certification. (ECF No. 22-
7.)
Petitioner filed a pro se post-conviction relief (“PCR”) petition arguing:
(1) Trial counsel was deficient for failing to properly raise a legally
competent objection to the introduction of the highly suspect
testimony of C.D., who herself was a target of an investigation
involving sexual assaults against Anastasia, and then A.A., the
accuser in the present case by the Maryland authorities.
(2) Trial counsel was deficient for failing to raise a legally
competent objection to the suppression of the Maryland counselor
Jean Willemain’s testimony, where the alleged victim A.A. flatly
denied that anyone had touched her private parts in a confidential
report which was an egregious violation of the confrontation clause.
Trial counsel failed to properly request cross-examination of Jean
Willemain which had the capacity to impact the verdict.
(3) Trial counsel was deficient for failing to raise a legally
competent objection to the introduction of one erotic video for the
jury and by failing to raise a legally competent objection to the
introduction of testimony of LaPorta about three still “images that
appeared to be self-exploited.”
(4) Trial counsel was deficient for failing to raise any objection to
the introduction of Hassler’s testimony violated State v. McLean,
205 N.J. 438, 461-62 (2011) and N.J.R.E, 701 as her lay opinion
“crossed” over into the realm of expert testimony. Hassler was a fact
witness, never qualified or offered as an expert witness.
(5) Trial counsel was deficient for failing to raise a legally
competent objection to the introduction of Perry’s testimony which
similarly violated McLean [] and N.J.R.E. 701. Perry was never
offered nor qualified as an expert witness. However, he opined that
it was a destructive device. He also detailed that the device appeared

to be handmade. Hither these facts were within the ken of the
average juror or Perry improperly testified as an expert.
(6) Trial counsel was deficient for failing to raise a legally
competent objection to the introduction of Ballenger’s testimony
that the bag opened in court “contained most of the items that were
discovered,” violated State v. Branch, 182 NJ. 338, 348 (2005).
This testimony that the jury was only being presented with “most”
of the items recovered from the bag likely led the jury to speculate
that Ballenger had superior knowledge implicating [Petitioner] in
the crime.
(7) Trial counsel was deficient for failing to properly raise [an]
objection to the introduction to highly prejudicial inflammatory
testimony of Ballenger because there was no evidential nexus
between the firecracker and the other items. The discovery of a
cardboard tube containing black powder and a fuse in a collection
of dildos, vibrators, and other “erotica,” is not per se evidence of an
intent to destroy.
(8) Trial counsel was deficient for failing to properly raise objection
to the introduction of M.P.’s solitary 14-year-old conviction for
endangering, when the trial court did not offer any reason for its
approval of the state’s use of such a dated offense [of] a crime which
had insignificant value for impeachment purposes.
(9) Trial counsel was deficient for failing to investigate and summon
potential witnesses such as Tracy Freeman, the stepmother of the
victim, about her report to the police that the victim recanted her
accusations, Regina Howard, therapist, and others,
(10) Trial counsel was deficient for failing to object or offer a
rebuttal to the prosecutor’s false insinuation during closing
argument that the physical evidence submitted to the New Jersey
State Crime Lab would match the victim. When in fact, the results
from the items submitted to the New Jersey State Police laboratory
for DNA analysis excluded A.A. as the source of the DNA.
(ECF No. 22-8 at 11-16.} On October 28, 2014, Petitioner filed a pro se supplemental PCR petition
which listed ninety statements and claims. (ECF No. 22-10.) Of those ninety claims, the following
potentially pertain to issues raised in the instant habeas petition:
(1) Ineffective assistance of counsel for failing to hire an explosives
expert to counter the state.

(2) Ineffective assistance of counsel for failing to hire a medical
expert to counter the state.
(3) Ineffective assistance of counsel for failing to hire a
suggestibility expert to counter the state’s interview techniques and
approach.
(4) Ineffective assistance of counsel for failing to present witnesses
who would have, through their testimony, raised reasonable doubt,
even though witnesses properly subpoenaed.
(5) Ineffective assistance of counsel for failing to call the victim’s
father, Robert Dale Andrews, as a witness to support defense’s main
theory of animosity.
(6) Ineffective assistance of counsel for failing to get witnesses to
appear in court. Witness Tina Raspe was “not found” for purposes
of testifying, even though she was found previously and served with
a subpoena.
(7) Ineffective assistance of counsel for failing to subpoena Jean
Willemain, social worker and lead investigator.

On October 10, 2015, counsel filed a supplemental PCR petition. (ECF No. 22-11.)
Petitioner argued that trial counsel was ineffective for failing to adequately challenge the state’s
evidence pertaining to the explosive device charge and request lesser-included offenses. Regarding
that claim, Petitioner claimed trial counsel failed to object to hearsay testimony regarding lab
results of the alleged explosive device and failed to object to the verdict sheet. (7d. at 16-19.)
Petitioner alleged ineffective assistance of counsel due to the failure of counsel to adequately
prepare for trial. Ud. at 19-23.) Regarding this claim, Petitioner argued that trial counsel failed to
investigate the Division of Youth and Family Services investigation into allegations that A.A. was
sexually abused by M.P., in which the Division found the allegations were unfounded. (fd. at 22.)
On September 13, 2016, the PCR court denied Petitioner’s PCR petition. (ECF No. 22-13.)
The PCR court addressed Petitioner’s claims that trial counsel was ineffective for failing to

challenge the state’s evidence pertaining to the explosive device charge, request a lesser-included
offense, and object to the jury verdict sheet. (7d. at 8-12.) The PCR court also addressed Petitioner’s
claim that trial counsel was not properly prepared for trial. The PCR. court noted that Petitioner
argued that trial counsel was not able to meet with a “Division of Child Protection and Permanency
G@ormerly the Division of Youth and Family Services or DYFS) worker prior to trial,” (/d. at
12.) The PCR court addressed Petitioner’s pro se claims. (/d. at 13-16.)
On December 21, 2016, Petitioner filed a Notice of Appeal before the Superior Court,
Appellate Division. (ECF No, 22-14.) On November 30, 2017, Petitioner filed a pro se PCR appeal
brief, arguing:
(1) Trial counsel was ineffective for failing to introduce or
investigate prior inconsistent statements by A.A.
(2) Trial counsel was ineffective for failing to object, cross examine,
or investigate whether Dr. Lane was qualified to testify to an expert
opinion on ruling out causes of injuries to a hymen, denying
Petitioner’s right to present a defense.
(3) Trial counsel was ineffective for failing to object to an expert
opinion circumstantially proving an element of an offense as lacking
foundation, relevance, based on speculation, or as unreliable and
inconsistent with other expert opinions. Trial counsel failed to
investigate Dr. Lane’s opinion on the cause of the injury to A.A. and
denied Petitioner an opportunity to introduce expert evidence
showing the injury was commonly caused by tampons.
(4) Trial counsel was ineffective for failing to introduce exculpatory
evidence from the victim’s statements, from Petitioner’s work
records and email, and from dropped allegations from the victim’s
father.
(5) Trial counsel was ineffective for failing to object to or investigate
a highly prejudicial and inflammatory pornographic video shown to
the jury as inadmissible for lack of foundation, and irrelevant as the
video was not downloaded onto Petitioner’s computer until after the
time the victim alleged seeing a video.

(6) Trial counsel was ineffective for failing to challenge an
objectively false, scientifically disproved, inflammatory statement
that there was proof by DNA evidence, corroborating testimony by
A.A. that a purple sex toy had been used against A.A. orally by
Petitioner,
(7) Trial counsel was ineffective for failing to challenge
prosecutorial misconduct from intentionally false, materially
misleading, and unduly prejudicial testimony that A.A. was not
sexually active with men or with woman and failed to cross-examine
A.A. about the nature of her sexual relationship with C.D.
(8) Trial counsel was ineffective for failing to object to Detective
Perry’s inadmissible hearsay testimony on a report he did not write.
(9) Trial counsel was ineffective for failing to challenge the lack of
support for Count Nine, Third Degree Possession of a Destructive
Device, N.J.S.A. § 2C:39-3(a), as the item possessed was less than
five inches and so did not meet the definition of a destructive device;
and
(10) Trial counsel was ineffective for failing to object to, investigate,
or cross-examine C.D.’s fresh complaint testimony.
(ECF No, 22-15.) PCR counsel submitted a supplemental appellate brief, arguing the trial court
erred in denying Petitioner’s PCR petition without affording him an evidentiary hearing to fully
address his contention that he failed to receive adequate legal representations, (See ECF No. 22-
16.) Counsel argued the PCR court should have held an evidentiary hearing on Petitioncr’s
contentions that trial counsel failed to adequately prepare for trial, failed to call DYFS witness
Mildred Quiles to testify to the investigation into allegations against Petitioner that DYFS
determined were unfounded, and failing to adequately challenge the admissibility of the victim’s
statement. (/d.)
On May 31, 2018, the Appellate Division affirmed the denial of Petitioner’s PCR petition.
(ECF No, 22-17, State v. MLP., No. A-1593-16T2 (N.J. Super. Ct. App. Div. May 31, 2018).) On
December 6, 2018, The New Jersey Supreme Court denied Petitioner’s petition for certification.
State v. M.P., 236 116, 198 A.3d 293 (Table) (2018),
10

On September 11, 2019, Petitioner filed his instant habeas petition and supporting brief
with this Court. (ECF Nos. 1, 1-2.) Petitioner asserts the following grounds for relief:
1. A denial of effective assistance of counsel occurred because of a
dispute regarding compensation contrary to the Sixth and Fourteenth
Amendments.
2. Ineffective assistance of trial counsel for failing to investigate
factual witnesses.
a. Trial counsel failed to investigate Robert Andrews.
b. Trial counsel failed fo investigate Jerilyn Carlson.
c. Trial counsel failed to investigate Tina Raspe.
d. Trial counsel failed to investigate Linda Heilman.
e. Trial counsel failed to investigate Brian Butts,
f. Trial counsel failed to investigate Cheryl Taylor.
g. Trial counsel failed to investigate Regina Howard.
h. Trial counsel failed to investigate Jean Willemain.
i. Trial counsel failed to investigate Monica Hart.
j. Trial counsel failed to investigate Carole Hampton.
k. Trial counsel failed to investigate Crimson Barroca.
1, Trial counsel failed to investigate Debi Borcht.
m. Trial counsel failed to investigate Miidred Quiles.
n. Trial counsel failed to investigate Crystal Jackson.
0. Trial counsel failed to investigate Karen Knauer.
3. Ineffective assistance of trial counsel for failing to investigate
potential expert witnesses,
a. Trial counsel failed to investigate potential psychological
experts.
b. Trial counsel failed to investigate potential medical
experts,
c. Trial counsel failed to investigate potential explosive
experts.
d. Trial counsel failed to investigate potential computer
experts.
e. Trial counsel failed to investigate potential amylase
experts.
4, Ineffective assistance of trial counsel for failing to investigate
legal theories applicable to the defense.

11

a. Trial counsel failed to conduct adequate legal research
which could have been resorted to for the exclusion of the
fresh complaint evidence of C.D, admitted as hearsay.
b. Trial counsel failed to object to the unconstitutional
admission of the victim’s fresh complaint evidence.
c. Trial counsel failed to investigate the admission of
material designated as confidential.
d. Trial counsel failed to investigate the requirements to
sustain a conviction for possession of a destructive device,
e. Trial counsel failed to investigate inconsistent statements
for impeachment.
f. Trial counsel failed to object to hearsay lab testimony.
5. Petitioner was denied due process by failure of the PCR court to
conduct an evidentiary hearing with factual and expert witnesses
who could have offered exculpatory evidence demonstrating trial
counsel was ineffective.
(See generally ECF Nos. 1, 1-2.) Respondents filed an answer asserting Petitioner’s claims are
unexhausted and meritless, (ECF No, 22.)
Il. LEGAL STANDARD
Under the Antiterrorism Effective Death Penalty Act (“(AEDPA”), this Court may not grant
a writ of habeas corpus under 28 U.S.C. § 2254 unless the petitioner has exhausted the remedies
available in the courts of the State or 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 vy. Blackwell, 134 F.3d 506, 513
(3d Cir, 1997); Toulson v. Beyer, 987 F.2d 984, 986-87 (3d Cir. 1993). 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,

12

275 (1971)). “Fair presentation means that a petitioner must present a federal claim’s factual and
legal substance to the state courts in a manner that puts them on notice that a federal claim is being
asserted.” Rainey v. Varner, 603 F.3d 189, 198 Gd Cir. 2010) (citations and internal quotation
marks omitted). In sum, 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.” Jd. (quoting Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976)); see also Gould v.
Ricci, No, 10-1399, 2011 WL 6756920, at *2 (D.N.J. Dec. 19, 2011) (explaining same). The
exhaustion doctrine thus requires a petitioner challenging a New Jersey conviction under § 2254
to have fairly presented each federal ground that is raised in the petition to all three levels of the
New Jersey courts: the Law Division, the Appellate Division, and the New Jersey Supreme Court.
See O'Sullivan, 526 U.S. 838; Rose v. Lundy, 455 U.S, 509 (1982),
il, ANALYSIS
Here, it appears from the record submitted by Respondents that Petitioner did not raise
each ground for relief in his habeas Petition to every level of the state court. It appears that
Petitioner has failed to present several of the instant claims before any state court. The Court has
extensively reviewed the lengthy record provided by Petitioner and Respondents here. The Court
has reviewed all of Petitioner’s pro se and counseled submissions on appeal in New Jersey state
court, as well as the state court opinions in this matter. The Court finds Petitioner has failed to
exhaust Ground One, Ground Two, subclaims b, d, e, f, i, j, k, 1, n, and o, and Ground Three,
subclaims a, d, and e. .
It appears that Petitioner never raised Ground One- ineffective assistance of counsel due to
a dispute regarding compensation before any state court. In Ground Two Petitioner argues trial
counsel was ineffective for failing to investigate fifteen factual witnesses, (ECF No. 1-2 at 84-91.)

13

After an exhaustive review of the state court record, the Court finds that on appeal in state court,
Petitioner only raised this claim regarding five potential witnesses- Regina Howard, Robert
Andrews, Tina Raspe, Jean Willemain, and Mildred Quiles. On collateral appeal to the PCR court,
Petitioner argued in his pro se PCR petition that trial counsel was ineffective for failing to
investigate and summon potential witnesses such as Tracy Freeman, the stepmother of the victim,
and Regina Howard, a therapist, and “others”. (ECF No, 22-8 at 15.) In Petitioner’s pro se
supplemental PCR petition, Petitioner argued ineffective assistance of counsel for failing to call
Robert Andrews, Tina Raspe, and Jean Willemain as witnesses. (ECF No. 22-10 at 4.) Counsel
submitted a supplemental PCR brief, arguing trial counsel failed to adequately prepare for trial and
failed to investigate the Division of Youth and Family Services investigation into allegations that
the victim was sexually abused by Petitioner. (ECF No, 22-11 at 19-23.) The PCR court noted that
Petitioner argued trial counsel was not properly prepared for trial and failed to interview “Division
of Protection and Permanency [] (formally the Division of Youth and Family Services or DYFS)
worker prior to trial.” (ECF No. 22-13 at 12.) That worker was Mildred Quiles. (See ECF No. 22-
16 at 25-26; see also ECF No. 22-36, at 110:10 to 112:1.) Petitioner has only exhausted his instant
Ground Two regarding Regina Howard, Robert Andrews, Tina Raspe, Jean Willemain, and
Mildred Quiles. It is insufficient that Petitioner argued in state court that trial counsel was
ineffective for failing to investigate and summon potential witnesses. To exhaust a claim, the claim
must be “fairly presented” to the state courts, which means the petitioner must “present a federal
claim’s factual and legal substance to the state courts in a manner that puts them on notice that a
federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (d Cir.1999). The
“mere similarity of claims is insufficient to exhaust.” Keller v. Larkins, 251 F.3d 408, 413-414
(3d Cir.2001) (quoting Duncan v. Henry, 513 U.S. 364, 366 (1995)). Petitioner failed to present

14

the state courts with the instant Ground Two regarding potential witnesses Jerilyn Carlson, Linda
Heilman, Brian Butts, Chery! Taylor, Monica Hart, Carole Hampton, Crimson Barroca, Debi
Borcht, Crystal Jackson, and Karen Knauer.
In Ground Three, Petitioner argues trial counsel was ineffective for failing to call five
potential expert witnesses, On collateral appeal to the PCR court, Petitioner argued trial counsel
was ineffective for failing to hire an explosives expert and a medical expert. (ECF No. 22-10 at 3.)
The Court has reviewed the state court records and finds Petitioner failed to raise Ground Three,
subclaims a, d, and e- that trial counsel was ineffective for failing to investigate a potential
psychological expert, computer expert, and amylase expert, on collateral appeal.
Thus, Ground One, Ground Two, subclaims b, d, e, f, i, j, k, 1, n, and 0, Ground Three,
subclaims a, d, and e have not been exhausted in state court,
The Petition is therefore mixed (i.e., it contains both exhausted and unexhausted claims),
and federal district courts may not adjudicate mixed petitions. See Rhines, 544 U.S. at 273.
Normally, the Court is directed to dismiss a mixed petition without prejudice, id. at 274, but a stay
and abeyance may be appropriate when a dismissal without prejudice would cause Petitioner to
run afoul of the habeas statute of limitations and lose his opportunity to seek federal habeas review.
See id, at 275-76. As the Supreme Court instructed, “stay and abeyance is , . . appropriate when
the district court determines there was good cause for the petitioner’s failure to exhaust his claims
first in state court.” Jd. at 277. District courts should grant a stay instead of dismissing 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 litigation tactics.” /d. at 278. “[I]f a stay is not warranted, then the petitioner may elect
to deiete the unexhausted claims.” See Gould, 2011 WL 6756920, at *3. “[I]f he does not delete

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the unexhausted claims, then the Court must either (a) dismiss the entire § 2254 petition as
unexhausted, or (b) deny all grounds raised in the § 2254 petition on the merits, pursuant to 28
ULS.C. § 2254(b)(2).” fd. Gnternal citations omitted).
Petitioner’s Ground One, Ground Two, subclaims b, d, e, f, i,j, k, 1, n, and 0, Ground Three,
subclaims a, d, and ¢ are unexhausted and this is a mixed petition. Therefore, Petitioner shall be
given thirty (30) days from the date of this Memorandum Opinion to inform the Court whether he
wishes to withdraw his unexhausted claims, Ground One, Ground Two, subclaims b, d, ¢, f, i, j, k,
ln, and o, Ground Three, subclaims a, d, and e or to request a stay pursuant to Rhines and return
to state court to litigate these claims. If Petitioner chooses to request a stay, he must address the
requirements of Rhines as they pertain to every unexhausted claim, Petitioner must specify how
he meets the Khines standard for each alleged potential factual and expert witness listed by
Plaintiff.

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IV. CONCLUSION
For the reasons above, the Court will permit Petitioner within 30 days to submit a signed
writing in which he either (i) elects to withdraw his unexhausted claims and have the Court rule
on his remaining claims; or (ii) request a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005),
to return to state court to exhaust his unexhausted claims.’ Any request by Petitioner for a stay
pursuant to Rhines must include facts showing that he had good cause for his failure to exhaust;
his unexhausted claims are potentially meritorious; and he did not engage in dilatory tactics.
Failure to submit the signed writing within 30 days may result in a dismissal without prejudice of
all of Petitioner’s claim.
An appropriate Order accompanies this Memorandum Opinion.

United States District Judge

' The Court makes no determination whether Petitioner will meet the requirements for a stay.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274776. Public record. Not legal advice.