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

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HENRY SMITH,

Petitioner,

V. Civil Action No. 22-4884 (GC)

ATTORNEY GENERAL OF THE STATE MEMORANDUM &

OF NEW JERSEY, ef al., ORDER TO SHOW CAUSE

Respondents.

THIS MATTER comes before the Court on the petition for a writ of habeas corpus

pursuant to 28 U.S.C, § 2254 (§ 2254) filed by pro se Petitioner Henry Smith. (ECF No. 1

(“Petition”).) For the reasons set forth below, the Court directs Petitioner to SHOW CAUSE as

to why his Petition should not be dismissed as moot and provides Petitioner the opportunity to

withdraw his request to amend the Petition to raise an unexhausted ex post facto claim, to submit

any arguments Petitioner may have to overcome the procedural default of this ex post facto claim,

or to show that the Court should stay this matter to allow him to exhaust this claim.

In its November 18, 2020 opinion affirming the New Jersey State Parole Board’s (“Board”)

2019 denial of parole, the Superior Court of New Jersey, Appellate Division (“New Jersey

Appellate Division”) provided the following factual and procedural summary:

Appellant Henry Smith is a prison inmate serving a life

sentence with a mandatory minimum of twenty-five years of parole

ineligibility. He appeals, pro se, from the August 28, 2019 final

agency decision of the New Jersey State Parole Board (Board)

denying his application for parole and imposing a one hundred-

month future eligibility term (FET). We affirm.

In 1989, appellant was found guilty of kidnapping and

aggravated assault, among other offenses, following a May 1988

incident where he grabbed a fifteen-year-old girl, held her at knife

point, and dragged her into his car. Appellant threatened to kill his

victim and punched her in the face several times before she was able

to escape, Appellant's criminal history also includes the 1975

murder of an eight-year-old girl.

In 2013, appellant first became eligible for parole for his

1988 offenses and was denied. He was eligible for parole again in

2019, but a two-member panel of the Board denied his parole

request and referred the matter to a three-member panel to establish

an FET. The two-member panel found appellant “does not seem to

have any understanding of his violent, aggressive, [and] sexual

actions. He blames the victim, alcohol [and] rejection. He expresses

limited empathy [and] remorse for his victims.”

In April 2019, a three-member panel of the Board imposed a

one-hundred-month FET, expressing its rationale in a thorough

written opinion, The panel found the factors supporting denial of

parole, collectively, were “of such a serious nature” as to warrant

the setting of a one-hundred-month FET, which the panel deemed

necessary to provide appellant with an opportunity to address the

roultiple issues identified by the panel. The panel acknowledged

appellant's participation in institutional programming, but found his

“lack of progress” in understanding his behavior and his “failure to

appreciate the severity of [his] actions [was] reflective of an

individual who requires further programming to assist [him] in

addressing these deficiencies.” Appellant appealed these decisions

to the full Board, and the Board issued a final agency decision,

affirming the panels’ parole denial and establishment of a one-

hundred-month FET.

Appellant presents the following contentions for our

consideration:

POINT I

THE BOARD PANEL FAILED TO CONSIDER

MATERIAL INFORMATION RENDERING THE

DECISION AGAINST THE WEIGHT OF THE

EVIDENCE.

POINT Hf

THE BOARD PANEL UTILIZED INCORRECT

STANDARDS IN RENDERING ITS DECISION

TO DENY PAROLE TO HENRY SMITH.

POINT TU

THE BOARD PANEL SHIFTED THE BURDEN

OF PROOF TO MR. SMITH TO PROVE THAT HE

IS READY FOR PAROLE IN CONTRAVENTION

TO ESTABLISHED POLICY AND PROCEDURE,

AS WELL AS THE FUNDAMENTAL FAIRNESS

THAT SUCH POLICY AND PROCEDURE ARE

. DESIGNED TO GUARANTEE.

POINT IV

THE PROCEEDINGS WAS NOT CONDUCTED

IN CONFORMITY WITH THE CODE OF

PROFESSIONAL CONDUCT.

POINT V

BECAUSE THE BOARD PANEL UTILIZED THE

SAME AGGRAVATING REASONS TO DENY

PAROLE AND ESTABLISH AN 100 MONTH

FUTURE ELIGIBILITY TERM A SECOND TIME

AS IT DID IN THEIR FIRST HEARINGS, THE

DECISION IS CONTRAVENE TO THE SPIRIT

OF N.JS.A. 30:4-123.5-6, THE PRINCIPLES OF

DOUBLE COUNTING AND JEOPARDY,

FUNDAMENTAL FAIRNESS, 5TH

AMENDMENT DUE PROCESS, AND 8TH

AMENDMENT UNUSUAL PUNISHMENT.

Smith y. NJ. State Parole Bd., No, A-0369-19T1, 2020 WL 6778574, at *1 (N.J. Super. Ct. App.

Div. Nov. 18, 2020) (per curiam), On or about December 14, 2020, Petitioner filed a petition for

certification with the New Jersey Supreme Court in which he raised the following two grounds for

relief: (1) THE NEW JERSEY SUPREME COURT MUST ADDRESS THE

COSNTITUTIONAL DUE PROCESS VIOLATION THE APPELLATE COURT FAILED TO

RULE ON; and (2) THE NEW JERSEY SUPREME COURT MUST ADDRESS THE DOUBLE

JEOPARDY CONCERN THE APPELLATE COURT CONTINUE TO RECOGNIZE AND

FAILED TO ADDRESS. (ECF No. | at 5-6.) On October 21, 2021, the New Jersey Supreme

Court denied the petition for certification. See Smith v. NZ State Parole Bd., 248 N.J. 539 (2021).

On or about August 1, 2022,! Petitioner filed his Petition. (ECF No. 1.) He raises two

grounds for relief (recited herein verbatim): (1) THE NEW JERSEY STATE PAROLE HEARING

PANEL FAILED TO RESPOND AND RULE ON PEITITIONER’S REQUEST FOR

RECONSIDERATION APPEAL AND THE NJ. SATE COURTS (APPELLATE DIVISION

AND SUPREME COURT) FAILED TO RULE ON THE SAME, WHEREBY VIOLATING

PETITIONER’S DUE PROCESS RIGHT CONCERNING ANY APPEALABLE CAUSE; and

(2) BOTH N.J. STATE COURTS FAILED TO ANSWER THE CONSTITUTIONAL CONCERN

TRIGGERED BY THE CHANGE MADE IN PAROLE STANDARDS BACK IN 1996

CONCERNING THE QUESTION “HOW MANY TIMES CAN N.J, STATE PAROLE USE

THE SAME AGGRAVATING FACTORS AND SANCTIONS TO DENY N.J. STATE

PRISONERS PAROLE RELEASE.” (id. at 6, 8.)

On September 7, 2022, the Court ordered Respondents to file an answer (ECF No. 5), and,

after the Court granted a request for an extension of time (ECF No. 8), Respondents’ answer and

legal argument were filed on November 21, 2022 (ECF No. 9 (“Answer”); ECF No. 9-1 (“Legal

Argument”)). Petitioner filed a traverse on or about December 12, 2022. (ECF No. 13

(“Traverse”’).)

Petitioner has submitted several letters requesting a decision on his Petition. (ECF Nos 14-

19.) In the initial letter postmarked January 22, 2024, he states that, on January 9, 2024, he was

| See Burns y. Morton, 134 F.3d 109, 113 Gd Cir. 1998) (holding that a pro se prisoner’s

filing is deemed filed at the moment he or she delivers it to prison officials for mailing to the

district court).

contacted regarding his parole plan interview in preparation to be seen by the Board for the third

time. (ECF No. 14 at 1.)

In a letter dated May 20, 2024, Petitioner indicates that he appeared at an initial parole

hearing on May 3, 2024, where he was referred to a two-member parole panel. (ECF No. 15 at 2.)

According to Petitioner, he had his third parole release hearing on May 13, 2024, and release was

denied based on the same aggravating factors (.c¢., his prior criminal record) previously used to

deny parole. Ud.) Petitioner asserts that, because only “Old” information was used to justify the

2024 parole denial, “[t]his is Ground Two within my habeas corpus petition.” (/d. (emphasis

omitted),) Petitioner states that he must proceed with another round of appeals but he ran “into a

major problem” because he “cannot file an appeal on a legal issue when that same issue is open in

another court.” (Ud. (emphasis omitted).)

Petitioner states in a January 16, 2025 letter that he will “soon” be “appealing [his] recent

3 parole release denial of May 13, 2024 to the District Court and [he is] wondering how that will

play out when [his] habeas corpus petition appealing [his] 2" parole release denial of March 15,

2019 has not been ruled on yet.” (ECF No. 17 at 2 (emphasis omitted).) Petitioner asks for the

Court’s “assistance to proceeding with filing an habeas corpus or 1983 petition with the same

grounds as [his] HC Petition of 2022.” □□□ (emphasis omitted).) Attached to his February 20,

2025 letter is a similar letter purportedly dated January 16, 2025 noting Petitioner’s intention to

appeal his third parole denial “soon,” asking how his appeal will “play out” when his habeas

petition appealing his second parole denial has not yet been decided, and requesting the Court’s

assistance with filing a habeas or 42 U.S.C. § 1983 petition raising the same grounds in his 2022

Petition. (ECF No, 18 at 2-3 (emphasis omitted).)

In response to Petitioner’s most recent letter (dated June 16, 2025) (ECF No. 19), the Court

entered a text order on June 25, 2025, stating that it is in receipt of Plaintiff's pending habeas

petition, which will be decided in due course. (ECF No. 20.)

Federal courts do not have jurisdiction to decide an issue unless it presents a live case or

controversy as required by Article HI of the United States Constitution. See Spencer v. Kemna,

523 U.S. 1, 7 (1998). “To invoke the jurisdiction of a federal court, a litigant must have suffered,

or be threatened with, an actual injury traceable to the defendant and [ikely to be redressed by a

Favorable judicial decision.” Burkey v. Marberry, 556 F.3d 142, 147 Gd Cir, 2009) (emphasis

(quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). “The case or

controversy requirement continues through all stages of federal judicial proceedings, trial and

appellate, and requires that parties have a personal stake in the outcome.” /d. (citing Lewis, 494

U.S. at 477-78). Thus, if developments occur that eliminate a petitioner's personal stake in the

outcome of a suit or prevent a court from being able to grant effective relief, the case must be

dismissed as moot. See Keitel v. Mazurkiewicz, 729 F.3d 278, 280 (3d Cir. 2013).

Although a challenge to a denial of parole is cognizable under § 2254, a federal court

cannot grant parole or determine parole eligibility; instead, the only remedy which the court can

provide is to order the state parole board to correct the abuses or wrongful conduct within a fixed

period of time, after which, if the board does not comply, the court can grant the writ and order the

prisoner discharged from custody. See Mathis v. Rivello, No, 23-255, 2025 WL 524301, at *5

(M.D. Pa. Feb. 18, 2025), appeal filed, No. 25-1529 (3d Cir. Mar. 24, 2025). “In the context of

habeas challenges to parole refusals, a subsequent parole hearing generally moots claims where

the proper relief is a new parole hearing.” Hebden v. N.J. State Parole Bd., No. 14-4568, 2017

WL 3602052, at *1 (D.N.J. Aug. 22, 2017) (quoting Thompson v. D’Tlio, No. 13-6282, 2016 WL

6306953, at *5 (D.NJ. Oct. 27, 2016)}; see also Mathis, 2025 WL 524301, at *6 (“Due to the

Parole Board’s August 20, 2024 denial of parole, Mathis’s challenges to his denials of parole from

2014 through 2023 are moot.” (citations omitted)); Pullium v. Pa. Bd. of Probation & Parole, No.

23-1140, 2024 WL 3445462, at *2 (W.D. Pa. June 26, 2024) (“[B]ecause the only relief that a

court can grant in such circumstances is a new parole hearing, a subsequent hearing held by the

Parole Board renders an inmate's challenge to the prior parole decision moot.” (citations omitted)),

R&R adopted by 2024 WL 344366 (W.D. Pa. Jul. 17, 2024).

According to Petitioner, “on May 13, 2024, [he] had [his] 3 parole release hearing and

release was denied.” (ECF No. 15 at 2.) Given this apparent subsequent parole hearing □□□□

denial],” Hebden, 2017 WL 3602052, at *1 (citation omitted), the Court orders Petitioner to show

cause why this Petition should not be dismissed as moot.

Even if Petitioner shows that his Petition should not be dismissed on mootness grounds,

the parties’ filings raise several issues that apparently hinder the resolution of Petitioner’s

purported claims for relief on the merits.

It is well established that an application for habeas corpus “shall not be granted unless it

appears that the applicant has exhausted the remedies available in the courts of the State.” 28

§ 2254(b)(1)(A). To satisfy the exhaustion requirement, a petitioner must “fairly present”

the claim by presenting its “factual and legal substance to the state courts in a manner that puts

them on notice that a federal claim is being asserted.” A¢cCandless v. Vaughn, 172 F.3d 255, 261

(3d Cir. 1999) (citations omitted); see also Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir. 2000).

The federal claim must also be fairly presented at each available level of the state courts. See

Lines, 208 F.3d at 159-161; Evans v. Ct. of Com. Pleas, Del. Cnty., Pa., 959 F.2d 1227, 1230 Gd

Cir. 1992) (“A claim must be presented not only to the trial court but also to the state's intermediate

court as well as to its supreme court”). Ifa petitioner has the right under state law to raise, by any

available procedure, the question presented, then he will not be deemed to have exhausted his

available state court remedies. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (citing 28

§ 2254(c)), Petitioner has the burden of demonstrating that he has exhausted available state

remedies. See Lambert v. Blackwell, 134 F.3d 506, 513 (Gd Cir, 1997), as amended (1998).

New Jersey law provides an absolute right to appeal any action or decision of a state

administrative agency to the New Jersey Appellate Division. See N.J. Ct. R. 2:2-3(a)(2); Trantino

v. NS. State Parole Bd., 166 N.J.113, 172 (2001), modified on other grounds, 167 N.J. 619 (2001).

The right to appeal extends to decisions by the New Jersey State Parole Board. See Trantino □□□

NJ. State Parole Bd., 296 NJ. Super. 437, 459-60 (App. Div. 1997), modified on other grounds,

N.J. 190 (1998).

Petitioner exhausted his state remedies as to Grounds One and Two in his Petition. As to

Ground One, in the appellate brief he submitted to the New Jersey Appellate Division, Petitioner

argued that “the conduct of the Board Panel was not according to the Code when they specifically

failed to respond [under] N.JLA.C, 10A:4.1(a)(2) on April 10, 2019” and that, “[njot answering

demonstrated their professional [mis[conduct [and] is contrary to procedural due process and the

principles of fundamental fairness.” (ECF No. 1-1 at A-132 (citation omitted).} In the

unsuccessful petition for certification he filed with the New Jersey Supreme Court, Petitioner

reiterated his due process arguments regarding his motion for reconsideration, claiming that the

New Jersey Appellate Division fatled to rule on the issue. Ud. at A-164.}

As to Ground Two, Petitioner argued at some length in his New Jersey Appellate Division

brief that the same aggravating reasons or facts that were used to deny him parole and establish a

FET in his second parole proceeding were previously used to deny him parole in the first parole

proceeding, and that this approach violated, inter alia, his rights under the Double Jeopardy, Due

Process, and the Cruel and Unusual Punishment Clauses. (ECF No. 1-1 at A-135 — A145.)

Petitioner raised the same issue in his petition for certification, claiming that the New Jersey

Supreme Court “must address the Double Jeopardy issue the Appeliate Court continue[s] to

recognize[] and fail[s] to address” and questioning “[h]ow many times can Parole use the same

Ageravating Factors to deny New Jersey State Prisoners parole release at a 2nd or subsequent 31rd

or 4th Parole Release Hearings.” Ud. at A-163, A-166.)

According to Respondents, “{w]hile Smith characterizes his claim as a Double Jeopardy

claim, he is, in fact, alleging an Ex Post Facto violation.” (ECF No. 9-1 at 12-13.) As

Respondents note, the 1979 version of the New Jersey parole statute (in effect when Petitioner was

convicted and sentenced) provided that “an inmate shall be released on parole on the new parole

eligibility date unless new information ... mdicates by a preponderance of the evidence that there

is a substantial likelihood that the inmate will commit a crime under the laws of this State if

released on parole.” Cd. at 13 (emphasis added) (quoting N.J. Stat. Ann. § 3:4-123.56(c)). In

August 1997, the New Jersey Legislature removed the qualifier “new.” (Ud. at 13-14.) The

amendinents thereby authorized the Board to consider an inmate’s entire record (ie., “all

information”) as opposed to merely considering “new information.” (/d. at 14.)

Citing to Holmes vy. Christie, 14 F.4th 250 (3d Cir. 2021), Respondents state that “[t]he

Third Circuit held that the prisoner-plaintiff could mount an as-applied challenge to the denial of

parole on ex post facto grounds if discovery showed that ‘that the Board implemented the all-

information provision in a way that created a significant risk of prolonging his incarceration,’

which is a ‘fact-sensitive inquiry.” (ECF No. 9-1 at 14 (quoting Holmes, 14 F.4th at 260).)

2 Article I, Section 10 of the United States Constitution provides that “|njo State shall...

pass...any...ex post facto law.”

Respondents asserts that: (1) Holmes did not limit the Board’s consideration in any pre-1997 case

to solely “new information” and instead found that the amended statute was facially valid under

the Ex Post Facto Clause; (2) Holmes is distinguishable because this case presents the Court with

completed fact-finding (while Holmes was a civil rights action decided on a motion to dismiss);

(3) the New Jersey Appellate Division found in 7rantino v. New Jersey, 331 NJ, Super. 577 (App.

Div. 2000), aff'd in part, modified in part, & remanded on other grounds by 166 N.J, 113 (N.S.

2001), that consideration of all information at subsequent parole hearings does not constitute an

ex post facto violation because the 1997 amendments were procedural modifications; (4) the

Holmes court, although it did not adopt the New Jersey Appellate Division’s approach, chose not

to “overrulfe]” Trantino; and (5) in the present case, the Board’s rulings made it clear that the most

significant factor in denying parole was Petitioner’s current (and “new’) lack of insight and

insufficient problem resolution, (ECF No, 9-1 at 14-17.)

However, in his Petition, Petitioner does not raise a challenge under the Ex Post Facto

Clause to the “retroactive application of the 1997 Amendments,” Holmes, 14 F.4th at 259. Instead,

Petitioner indicates that his constitutional rights, specifically, his rights under the Double Jeopardy

Clause, were violated because, under the 1997 standard, the Board used “these same aggravating

factors to punish again and again.” (ECF No. 1 at 8 (emphasis omitted).) In other words, the

Board allegedly violated the Double Jeopardy Clause by imposing successive punishments in the

form of multiple parole denials and FET terms for the same “old” information, specifically his past

criminal conduct. (Ud. at 8, 20-21); see also Torres vy. Brittain, No. 22-5162, 2025 WL 1680188,

at *6 (ED. Pa. Jan. 14, 2025) (“The Double Jeopardy Clause provides that no person shall ‘be

subject for the same offense to be twice put in jeopardy of life or limb.’ U.S. Const. amend. V.

Courts have held that this clause protects against . .. multiple punishments for the same offense.”

10

(citing Saver v. Meko, 130 F.3d 574, 578 Gd Cir. 1997)), R&R adopted by 2025 WL 1680004,

(E.D. Pa. June 13, 2025). According to Petitioner, “[e]very time we visit these aggravating factors

that deals with my past criminal behavior, we will always conclude that [he is] guilty because [his]

past criminal record WILL NEVER CHANGE.”? (ECF No. 1 at 21.)

In Petitioner’s Traverse and subsequent correspondence, Petitioner does appear to raise an

ex post facto claim for relief. (See ECF No. 13 at 11-12 (“The important question is whether the

change in the parole Standards of 1997 . . . realistically produced a sufficient risk of increasing

prisoners punishment as to offend the Constitutional prohibition[.| Now, when reviewing

[Holmes] the fact finding truth reveals it violates the Ex Post Facto Clause.”).) Accordingly, the

Court construes Petitioner’s filings as requesting leave to amend his Petition to raise a claim for

relief under the Ex Post Facto Clause.

4 Petitioner does assert in his Petition that “[t]he Constitutional vioiation was triggered in

the 2nd and 3rd Parole Release Hearings because the principles of Double Jeopardy enters in when

Parole applies the new Standard retroactively.” (ECF No. 1 at 20 (emphasis added),) According

to him, the state courts “continue to avoid answering this Constitutional concern and failing to do

so continues to allow unjust Parole Release denials and punishments when the new Parole Standard

is applied re/roactively upon the Petitioner and many other New Jersey State prisoners.” (Ud. at 21

(emphasis added).) However, although the Court must construe the pro se Petition liberally, see

Rainey v. Varner, 603 F.3d 189, 198 Gd Cir. 2010), such passing references to the “retroactive”

application of a “new” standard do not show that Petitioner raises a claim under the Ex Post Facto

Clause, especially given Plaintiffs emphasis on the Double Jeopardy Clause and being

successively punished for the same conduct at two parole hearings. GSee ECF No. 1 at 8, 20-21.)

In short, the retroactive application of the 1997 “All Information” approach resulted in the Board

allegedly relying on “old” information to deny parole to prisoners convicted and sentenced before

1997. But, according to the Petition, it is not the application of a new parole rule to previously

convicted and sentenced prisoners that violates the Constitution; instead, itis use of the same “old”

information to deny parole “again and again” that allegedly violates the Constitution’s double

jeopardy principles because the Board is repeatedly punishing the prisoner for the same conduct.

In fact, Petitioner’s “Double Jeopardy” theory also applies to prisoners convicted and sentenced

after the 1997 amendments came into force if their parole requests are repeatedly denied based on

the same “old” information under the “All-Information” standard. In any event, as the Court

explains below, Petitioner failed to exhaust an ex post facto claim in the state courts.

11

Nonetheless, the proposed claim was not exhausted m the state courts, On the contrary, as

the Court has explained, Petitioner raised the same double jeopardy claim before the New Jersey

Appellate Division and the New Jersey Supreme Court that he presents in Ground Two of the

Petition. (See No, 1-1 at A-135 — A145, A-163, A-166.) Instead of fairly presenting the “factual

and legal substance” of an ex post facto claim, see McCandless, 172 F.3d at 261, Petitioner

admitted that, in 7rantino, the New Jersey Appellate Division “held that elimination of the ‘new

evidence’ standard of the 1997 amendments to N.J.S.A. 30:4-123.56c did not violate the ex post

facto clause of the Constitution, ‘[. . .] since this change in the law is a procedural modification

that does not constitute a substantive change in the parole release criteria.”” (No. 1-1 at A-137 —

A-138, A-167 — A-168 (alteration in original) (quoting Trentino, 331 Super. at 610).)

Petitioner did not dispute 7rantino’s holding in either the briefing he submitted to the New Jersey

Appellate Division or in his petition for certification.’

As a general rule, federal courts should “dismiss without prejudice claims that have not

been properly presented to the state courts, allowing petitioners to exhaust their claims.” Lines,

208 F.3d at 159-60; see also Mathis vy. Att'y Gen. of N.J., 732 F. App’x 138, 140-42 (3d Cir. 2018)

(remanding with direction to dismiss mixed petition without prejudice where it was unclear

whether further review was barred by New Jersey courts), On the other hand, if a petitioner has

4 In their Answer and Legal Argument, Respondents fail to raise exhaustion as an affirmative

defense, Respondents also admit that Petitioner raised Ground Two in his administrative appeal

to the Board, his appeal to the New Jersey Appellate Division, and his petition for certification

filed with the New Jersey Supreme Court. (ECF No. 9 at 2.) However, as the Court has discussed,

Ground Two consists of a double jeopardy claim (and not a claim under the Ex Post Facto Clause).

Because Respondents do not expressly concede that the ex post facto claim is exhausted, the Court

does not find that exhaustion is waived. See Sharrieff v. Cathel, 574 F.3d 225, 227-28 (3d Cir.

2009) “Under Section 2254(b)(3), an express waiver requires more than just the failure to raise

exhaustion as a defense.” (citing Lambert, 134 F.3d at 514)).

12

not fairly presented the claim and review on the merits is “so ‘clearly foreclosed’ by state law that

we can ‘conclude with certainty’ that state courts afford no recourse for the claim,” Roman □□□

DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (quoting Lines, 208 F.3d at 165, 163), “the claim

is ‘procedurally defaulted,” Wilkerson vy. Superintendent Fayette SCE, 871 F.3d 221, 228 (3d Cir.

2017) (quoting Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001)). Unless the petitioner can

“demonstrate cause and prejudice for the default [or] . .. a fundamental miscarriage of justice,

[the] petition should [be] dismissed with prejudice.” Lines, 208 F.3d at 160; see also Slutzker v.

Johnson, 393 F.3d 373, 381 Gd Cir, 2004),

Upon being presented with a “mixed petition” raising both exhausted and unexhausted

claims, the district court must either dismiss the unexhausted claims and proceed with the

exhausted claims, or stay the habeas proceedings to permit the petitioner to exhaust the

unexhausted claims while suspending the limitations period on the exhausted claims. See Rhines

vy. Weber, 544 U.S. 269, 275-78 (2005). Before granting such a stay, the Court must examine

whether good cause exists for the petitioner's failure to exhaust all claims in state court, whether

the unexhausted claims are potentially meritorious, and whether the petitioner is employing the

litigation simply as means of delay. See id. at 277; Gerber v. Varano, 512 F. App’x 131, 135 Gd

Cir. 2013) (per curiam).

5 Where unexhausted or procedurally defaulted claims are patently meritless, the Court may .

also deny petitioner's unexhausted claim on the merits. See 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.”); Taylor v. Horn, 504

F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of [petitioner's] claims on the merits,

we need not address exhaustion.” (citation omitted)); Bronshtein v. Horn, 404 F.3d 700, 728 (3d

Cir. 2005) (considering procedurally defaulted claim, and stating that “[u]nder 28 U.S.C, 8

2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and

we take that approach here”),

13

Habeas petitions “may be amended .. . as provided in the rules of procedure applicable to

civil actions.” Mayle v. Felix, 545 U.S. 644, 654 (2005) (quoting 28 U.S.C. § 2242). Federal Rule

of Civil Procedure 15 is “made applicable to habeas proceedings by § 2242, Federal Rules of Civil

Procedure 81(a)(2), and Habeas Corpus Rule 11.” Afayle, 545 U.S. at 655, Leave to amend under

Rule 15 is appropriately denied when the proposed amendment would be futile. See Forman v.

Davis, 371 U.S. 178, 182 (1962); Russell vy. Martinez, 325 F. App’x 45, 46 (3d Cir. 2009) (per

curiam). “Examples of futility in the habeas context include ... procedurally barred amendments.”

Mitchell v. May, No. 16-907, 2020 WL 1234950, at *10 (D. Del. Mar, 13, 2020) (citations

omitted); see also Weary v. Mason, No. 19-2302, 2022 WL 22767765, at *2 n.2 (E.D. Pa. Jan. 25,

2022) (denying motion to amend to raise an unexhausted claim where petitioner failed to establish

grounds for a stay under Rhines).

At this time, Petitioner has three options regarding the ex post facto claim. Petitioner may

withdraw his request to amend his Petition to raise the unexhausted ex post facto claim.

Alternatively, he may attempt to show that the Court should grant a stay to permit him to exhaust

the ex post facto claim. Finally, to the extent his ex post facto claim is procedurally defaulted,

Petitioner may attempt to establish cause and prejudice or a fundamental miscarriage of justice to

excuse his procedural default.

IT IS, therefore, on this th, of July, 2025, ORDERED as follows:

1, For the reasons stated in this Memorandum and Order to Show Cause, Petitioner

shall SHOW CAUSE within 45 days of the date of entry of this Memorandum and Order to Show

Cause as to why his Petition (ECF No. 1) shall not be dismissed as moot.

2. Within 45 days of the date of entry of this Memorandum and Order, Petitioner must

either withdraw his request to amend his Petition to raise the unexhausted ex post facto claim,

14

submit arguments showing that the Court should grant a stay to permit him to exhaust the ex post

facto claim, or, if the ex post facto claim is procedurally defaulted, establish cause and prejudice

or a fundamental miscarriage of justice to excuse his procedural default.

3. If Petitioner answers this Memorandum and Order, Respondents shall file a

response to Petitioner’s submission within 45 days of the date of filing of Petitioner’s answer.

4, Petitioner may file a reply to Respondents’ response within 30 days of the date of

filing of Respondents’ response.

5. If Petitioner fails to establish why the Petition shall not be dismissed as moot, the

Court will dismiss the Petition as moot; if Petitioner establishes that the Petition should not be

dismissed as moot, but fails to either (a) withdraw his request to amend his Petition to raise the

unexhausted ex post facto claim, (b) submit arguments showing that the Court should grant a stay

to permit him to exhaust the ex post facto claim, or (c) if the ex post facto claim is procedurally

defaulted, establish cause and prejudice or a fundamental miscarriage of justice to excuse his

procedural default, the Court will deny the request to amend and rule on the two claims raised in

the Petition; if the Petition is dismissed, Petitioner may lose his opportunity for federal habeas

review.

6, For docket management purposes only, the Clerk of the Court is directed to

ADMINISTRATIVELY TERMINATE this matter pending the parties’ submissions and the

disposition of the issues raised in this Memorandum and Order to Show Cause.

7. The Clerk of the Court shall serve a copy of this Memorandum and Order to Show

Cause upon Petitioner by regular U.S. mail.

ted States District Judge

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