PARISI v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

PIETRO J. PARISI, JR., :

:

Petitioner, : Civ. No. 21-14332 (NLH)

:

v. : OPINION

:

THE ATTORNEY GENERAL :

OF THE STATE OF NEW JERSEY, :

et al., :

:

Respondents. :

______________________________:

APPEARANCES:

Pietro J. Parisi, Jr.

147556C 705

Special Treatment Unit

8 Production Way

P.O. Box 905

Avenel, NJ 07001

Petitioner Pro se

Christine A. Hoffman, Acting Gloucester County Prosecutor

Dana R. Anton, Acting Sr. Assistant Prosecutor

Michael C. Mellon, Acting Assistant Prosecutor

Gloucester County Prosecutor’s Office

Hunter & Euclid Street

P.O. Box 623

Woodbury, NJ 08096

Counsel for Respondents

HILLMAN, District Judge

Petitioner Pietro J. Parisi, Jr., presently committed in

the Special Treatment Unit in Avenel, New Jersey is proceeding

on a petition for a writ of habeas corpus under 28 U.S.C. § 2254

alleging that he was denied the effective assistance of counsel

in connection with guilty pleas entered on August 9, 2010. ECF

No. 1. Respondents oppose the petition. ECF No. 4.

For the reasons stated below, the petition will be

dismissed as procedurally defaulted. No certificate of

appealability shall issue.

I. BACKGROUND

The facts of this case were recounted below and this Court,

affording the state court’s factual determinations the

appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the

recitation of the facts as set forth by the New Jersey Superior

Court, Appellate Division (“Appellate Division”) in its opinion

affirming the dismissal of Petitioner’s post-conviction relief

(“PCR”) petition:

Defendant’s criminal history dates back to 1996 with

convictions related to the sexual abuse of minors. He

has pled guilty on three separate occasions, all

involving sexual abuse of minor girls. He challenged

each of these guilty pleas through motions to withdraw

and PCR petitions. All of these challenges have been

rejected by the trial court and upheld on appeal. The

third and most recent PCR petition is the subject of

this appeal.

On February 2, 2015, when defendant was about to be

discharged from a term of imprisonment imposed in 2010

for his conviction of second degree endangering the

welfare of a child-distribution of pornography, N.J.S.A.

2C:24-4b(5)(a), the Attorney General filed a petition

for civil commitment under the SVPA,1 and the trial court

1 The New Jersey Sexually Violent Predator Act, N.J.S.A. § 30:4-

27.24 to -27.38.

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simultaneously granted the State’s request for a

Temporary Civil Commitment Order pursuant to N.J.S.A.

30:4-27.24.

On April 27, 2015, the court held a hearing to determine

defendant’s commitment under the SVPA. The State’s

experts testified that defendant’s “sexual offending

history” included: (1) a guilty plea in 1996 to engaging

in sexual activity with a twelve year old girl on three

separate occasions; (2) a guilty plea in 2003 to having

sexual intercourse with three minor girls between the

ages of thirteen and fourteen years old, and

impregnating one of them; and (3) a guilty plea in 2010

to possession of child pornography after law enforcement

agents found a large file of pornographic images of

children on his computer.

The court found the State proved, by clear and convincing

evidence, that defendant had been convicted of a number

of predicate acts under the SVPA; and that he continues

to suffer from a psychiatric disorder that makes him a

danger to the community, especially to prepubescent and

pubescent girls. The judge entered a final civil

commitment order.

On April 10, 2017, defendant filed a pro se PCR petition

challenging his 2010 convictions. On February 2, 2018,

an attorney assigned by the Office of the Public Defender

to represent defendant in this matter filed an amended

verified PCR petition. PCR counsel argued the attorney

who represented defendant at the 2010 plea hearing

provided him with ineffective assistance when the

attorney “advised [defendant] could not be civilly

committed after his sentence.”

The PCR judge heard oral argument from counsel on April

20, 2018. The prosecutor characterized defendant’s

allegations impugning the effectiveness of the attorney

who represented him 2010 were disingenuous. The

prosecutor argued defendant was a shrewd individual who

was well-experienced with the criminal justice system at

the time he pled guilty in 2010. The prosecutor noted:

[Defendant] has been on notice [of the

potential for civil commitment] and that’s why

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he said that at the hearing, [j]udge. He

didn’t say that because he truly wouldn’t have

pled guilty. He said that because he knew he

was going to make this argument. This is a

very savvy defendant who is very smart – I

will give him that – and he set up his PCR at

that plea.

The PCR judge found defendant was procedurally barred

from seeking PCR pursuant to Rule 3:22-12 because: (1)

he filed this petition more than five years after the

court entered the judgment of conviction; (2) did not

present any basis from which to find excusable neglect;

and (3) there is a no basis from which to find that

enforcement of the time bar would result in a fundamental

injustice. The PCR judge attached a memorandum of

opinion to his order.

State v. Parisi, No. A-0544-18T4, 2020 WL 3481504, at *1–2 (N.J.

Super. Ct. App. Div. June 26, 2020) (alterations in original).

The Appellate Division affirmed the PCR court, concluding that

“the PCR judge correctly found defendant’s petition was

procedurally barred pursuant to Rule 3:22-12(a).” Id. at *2.

The New Jersey Supreme Court denied certification on October 8,

2020. State v. Parisi, 239 A.3d 1033 (N.J. 2020) (Table).

Petitioner filed this § 2254 petition on July 29, 2021. ECF No.

1.

After Respondent filed their answer and Petitioner

submitted a reply, the Court concluded that supplemental

briefing on procedural default was necessary. ECF No. 11

(citing Long v. Wilson, 393 F.3d 390, 403 (3d Cir. 2004) (“It is

now widely recognized that judges have discretion to raise

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procedural issues in habeas cases.”); Sweger v. Chesney, 294

F.3d 506, 520–21 (3d Cir. 2002) (whether claim is barred due to

procedural default may be considered sua sponte), cert. denied,

538 U.S. 1002 (2003)). Respondents submitted their supplement

on February 23, 2023. ECF No. 12. Petitioner was permitted to

submit a response, including any arguments in favor of excusing

any procedural default, by March 20, 2023. Id. The Court has

not received any response from Petitioner.

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 permits a federal court to entertain

a petition for writ of habeas corpus on behalf of a person in

state 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.” 28

U.S.C. § 2254(a).

Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), the writ shall not issue with respect to any

claim that was adjudicated on the merits by a state court 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

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an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding . . . .

28 U.S.C. § 2254(d). A state court decision is “contrary to”

Supreme Court precedent “if the state court applies a rule that

contradicts the governing law set forth in [Supreme Court]

cases,” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of th[e] Court and

nevertheless arrives at a result different from [the Court’s]

precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

“[A] state-court decision is an unreasonable application of

clearly established [Supreme Court] precedent if it correctly

identifies the governing legal rule but applies that rule

unreasonably to the facts of a particular prisoner’s case.”

White v. Woodall, 572 U.S. 415, 426 (2014). “[A]n unreasonable

application of federal law,” however, “is different from an

incorrect application of federal law.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).

The Court must presume that the state court’s factual findings

are correct unless Petitioner has rebutted the presumption by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

The PCR court denied the Petitioner’s PCR petition on

procedural grounds without an evidentiary hearing on April 20,

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2018. ECF No. 12-2 at 2. The Appellate Division agreed the PCR

petition was procedurally barred and “affirm[ed] substantially

for the reasons expressed by Judge Robert P. Becker, Jr. in his

April 20, 2018 memorandum of opinion.” Parisi, 2020 WL 3481504,

at *2. The state courts never reached the merits of

Petitioner’s federal claims.

A federal court conducting § 2254 proceedings “will not

review a question of federal law decided by a state court if the

decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the

judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991).

“Because this Court has no power to review a state law

determination that is sufficient to support the judgment,

resolution of any independent federal ground for the decision

could not affect the judgment and would therefore be advisory.”

Id. The procedural default doctrine “applies to bar federal

habeas when a state court declined to address a prisoner’s

federal claims because the prisoner had failed to meet a state

procedural requirement. In these cases, the state judgment

rests on independent and adequate state procedural grounds.”

Id. at 729-30.

The Appellate Division concluded that the PCR petition was

barred by New Jersey Court Rule 3:22-12, which states in

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relevant part that

no petition shall be filed pursuant to this rule more

than 5 years after the date of entry . . . of the judgment

of conviction that is being challenged unless: it

alleges facts showing that the delay beyond said time

was due to defendant’s excusable neglect and that there

is a reasonable probability that if the defendant’s

factual assertions were found to be true enforcement of

the time bar would result in a fundamental injustice.

N.J. Ct. R. 3:22-12(a)(1)(A). “Defendant filed his PCR petition

six years after the trial court’s entry of the judgment of

conviction. Defendant did not produce any competent evidence to

warrant the relaxation of this procedural impediment.” Parisi,

2020 WL 3481504, at *2. This is a clear statement that the

state courts denied Petitioner’s PCR petition on state

procedural grounds rather than federal law.

“‘Out of respect for finality, comity, and the orderly

administration of justice,’ federal courts may excuse procedural

default only if a prisoner ‘can demonstrate cause for the

default and actual prejudice as a result of the alleged

violation of federal law.’” Shinn v. Ramirez, 142 S. Ct. 1718,

1733 (2022) (quoting Dretke v. Haley, 541 U.S. 386, 388 (2004);

Coleman, 501 U.S. at 750). “To establish cause, the prisoner

must ‘show that some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural

rule.’” Id. (quoting Murray v. Carrier, 477 U.S. 478, 488

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(1986)). To establish prejudice, “[t]he habeas petitioner must

show ‘not merely that the errors at . . . trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.’” Murray, 477 U.S. at 494

(quoting United States v. Frady, 456 U.S. 152, 170 (1982))

(emphasis and omission in original).

Petitioner declined to submit a response to the Court’s

Order regarding procedural default, but Petitioner argued before

the Appellate Division that “[t]he date of the relevant judgment

of conviction was January 31, 2011. However, the order for

temporary civil commitment pursuant to N.J.S.A. 30:4-27.24 was

not granted until January 13, 2015. Moreover, the order for

Final Commitment was granted on or about April 27, 2015.” ECF

No. 4-20 at 46. The Appellate Division agreed with the PCR

court’s determination that “Defense’s argument that he did not

discover the factual predicate for his PCR until years after his

judgment of conviction fails. . . . Defendant has been aware he

was subject to civil commitment since his previous convictions

in 2003.” ECF No. 12-5 at 25. “[T]he 2010 convictions are not

predicate offenses triggering the SVPA, [but] Defendant’s

incarceration triggered a re-evaluation of his risk to the

community. Because Defendant previously pled to an offense that

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DID qualify him to [sic] civil commitment, he is subject to re-

evaluation any time he is incarcerated and approaching release

into the community.” Id. at 12. “Defendant’s 2010 plea did not

subject him to civil commitment. Defendant’s prior convictions

were the reason he is subject to civil commitment. Defendant

acknowledged he was aware that he was subject to civil

commitment.” Id. at 25(emphasis in original). Nothing in the

record before the Court suggests this conclusion is

unreasonable. Petitioner procedurally defaulted before the

state courts, and the Court will dismiss his habeas petition

accordingly.

IV. CERTIFICATE OF APPEALABILITY

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). The Supreme

Court held in Slack v. McDaniel that “[w]hen the district court

denies a habeas petition on procedural grounds without reaching

the prisoner's underlying constitutional claim, a COA 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

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of reason would find it debatable whether the district court was

correct in its procedural ruling.” 529 U.S. 473, 484 (2000).

This Court denies a certificate of appealability because

jurists of reason would not find it debatable that dismissal of

the petition as procedurally defaulted is correct.

V. CONCLUSION

For the above reasons, the Court will dismiss the habeas

corpus petition as procedurally defaulted. A certificate of

appealability shall not issue.

An appropriate Order follows.

Dated: April 6, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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