Petition for Writ of Certiorari — Juan Thomas, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.

No

•1 R7fl91

\)'

OP I GI NAL

In the

Supreme Court of the United States

Supreme Court, U.S.

FILED

NOV 2 8 2018

QFF!CE OF THE CLERK

JUAN THOMAS,

Petitioner,

V.

ADMINISTRATOR NEW JERSEY STATE PRISON;

ATTORNEY GENERAL OF NEW JERSEY,

Respondents.

On Petiton for Writ of Certoriari

To The United States Court of Appeals,

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

Mr. Juan Thomas, Pro-Se

#489250 / 220798-B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

QUESTIONS PRESENTED

Mr. Thomas make leave to appeal the following issues:

Whether the Circuit Court erred in failing to appropriately

consider the "Equitable Tolling" in conjunction with

Ineffective Assistance of the Public Defender's Office in

Failing to Timely File a Notice of Appeal on Behalf of

Petitioner?

Whether the District Court erred in failing to apply

"Equitable Tolling" between November 2008 and June 2010 and

only applying it from June 2010 to March 2012.

Whether the "Equitable Tolling" applies when petitioner is

considered legally blind and must depend on others for

assistance, including the Public Defender's Office.

Whether. the sentence imposed violated the Eighth Amendment?

Whether the District Court's resolution of the jury charge

was in error?

Whether the District Court erred by stating that the

"prosecutor's summation did not warrant relief under federal

law."

Whether the District Court erred by stating that Petitioner

received a. fair trial and that the evidence was admissible

Whether the "admissibility of prior convictions and drug

use" so tainted the jury as to render the trial unfair

Whether the District Court erred in stating that Petitioner

received effective assistance of counsel

Whether the Petitioner's reliance on Martinez v. Ryan

established cause for default of his ineffective assistance

of trial counsel and whether the District Court erred by

stating it didn't apply because the state court reviewed the

claim and found it procedurally barred

LIST OF PARTIES

(X]

All Parties appear in the caption of the case on the cover

page

All Parties do not appear in the caption of the case on the

cover page. A list of all parties to the proceeding in the

court whose judgment is the subject of this petiton is as

follows:

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................

OPINIONS BELOW .......................

JURISDICTION .......................

CONSTITUTIONAL AND STATUTORY PROVISIONS ...........

STATEMENT OF THE CASE

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Introductory Statement ............

Procedural History and Statement of Facts

REASONS FOR GRANTING THE WRIT .................

POINT I

Certiorari Should Be Granted Since the Circuit Court erred

in failing to appropriately consider the "Equitable Tolling"

in conjunction with Ineffective •Assistance of the Public

Defender's Office in Failing to Timely File a Notice of

Appeal on Behalf of Petitioner?

POINT

II

.......................

Certiorari Should Be Granted Since the District Court erred

in failing to apply "Equitable Tolling" between November

2008 and June 2010 and only applying it from June 2010 to

March 2012.

POINT

III

.......................

Whether the "Equitable Tolling" applies when petitioner is

considered legally blind and must depend on others for

assistance, including the Public Defender's Office.

POINT

IV

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Certiorari Should Be Granted Since Petitioner's sentence

violated the Eighth Amendment?

POINT V

........................

Certiorari Should Be granted Since the District Court's

resolution of the jury charge was in error?

POINT

VI

.......................

Certiorari Should Be Granted Since Whether District Court

erred by stating that the "prosecutor's summation did not

warrant relief under federal law.

POINT

VII

.......................

Certiorari Should Be Granted Since the District Court erred

by stating that Petitioner received a fair trial and that

the evidence was admissible

POINT VIII ........................

Certiorari Should Be Granted Since the "admissibility of

prior convictions and drug use" so tainted the jury as to

render the trial unfair

POINT

IX

.......................

Certiorari Should Be Granted Since the District Court erred

in stating that Petitioner received effective assistance of

counsel

POINT X

...........................

Certiorari Should Be Granted to see Whether or not

Petitioner's reliance on Martinez v. Ryan established cause

for default of his ineffective assistance of trial counsel

and whether the District Court erred by stating it didn't

apply because the state court reviewed the claim and found

it procedurally barred

CONCLUSION

........................

CERTIFICATE OF SERVICE AND COMPLIANCE ..........

APPENDICES:

Appendix A: The Order of the United States Court of Appeals for

the Third Circuit Denying Request for a Certificate of

Appe alability filed October 26, 2018, Thomas v. Administrator New

Jersey State Prison, et. al (C.A. 18-224.0) (3d Cir.)

Appendix B: The Order and Opinion of the United States District

Court for the District of New Jersey filed May 11, 2018, Thomas V.

Johnson, No: 15-cv--06740 (U.S.D.N.J.

Appendix C: The Order of the New Jersey Supreme Court Denying the

Petition for Certification, State v. J.S.T., 222 N.J. 311, Docket

No. 075849; decided July 14, 2015 (filed July 20, 2015)

Appendix D: The Unpublished Opinion of the New Jersey Superior

Court, Appellate Division in State v. J.S.T., App. Div. Docket No.

A-3829-11T1; decided March 26, 2015.

Appendix E: The Order of the New Jersey Supreme Court Denying the

Petition for Certification, State v. J.S.T., 188 N.J. 578, Docket

No. 60,144; decided November 13, 2006 (filed Nov. 15, 2006)

Appendix F: The Unpublished Opinion of the New Jersey Superior

Court, Appellate Division in State v. • J.S.T., App. Div. Docket No.

A-0067--04T4; decided August 21, 2006.

TABLE OF AUTHORITIES

Cases Cited

Baqqett v. Bullitt, 377 U.S. 360 (1964)

Castellanos v. U.S., 26 F.3d 717 (7th Cir. 1994)

Day v. McDonouqh, 547 U.S. 198 (2006)

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

Nara v. Frank, 264 F.3d 310 (3d Cir. 2001)

Miller v. N.J. State Dep't of Corr., 145 F.3d 616 (3d Cir. 1998)

Morales v. U.S., 143 F.3d 94 (2d Cir. 1998)

Munchinski v. Wilson, 699 F.3d 308 (3d Cir. 2012)

Pabon v. Mahanoy, 654 F.3d 385 (3d Cir. 2011)

Pace v. DiGuglielmo, 544 U.S. 408 (2005)

State v. J.S.T., App. Div. Docket No. A-0067-04T4 (App. Div.

August 21, 2006), certif den, 188 N.J. 578 (2006)

State v. J.S.T., App. Div. Docket No. A-3829-11T1 (App. Div. Mar.

26, 2015), certif. den, 222 N.J. 311 (2015)

State v. Rue, 175 N.J. 1 (2002)

Thomas v. Administrator New Jersey State Prison, et. al (C.A. 182240) (3d. Cir. Oct. 26, 2018)

Thomas v. Johnson, No: 15-cv-06740 (U.S.D.N.J. May 11, 2018)

New Jersey Statutes and Rules

N.J.S.A. 2C:14-2a

N.J.S.A. 2C:14-2b

N.J.S.A. 20:14-2c

N.J.S.A. 2C:24-4a

N.J. Court R1e 3:22-6(a)

Federal Statutes

28 U.S.C. §1254(1)

28 U.S.C. §2244(d)

U.S. Constitution

Fifth Amendment

Sixth Amendment

Eighth Amendment

Fourteenth Amendment

PETITION FOR A WRIT OF CERTIORARI

Petitioner Juan Thoma.s respectfully petitions this Court for a

Writ of Certiorari to review the judgment of the United States

Court of Appeal for the Third Circuit denying his Application for

a Certificate of Appealability.

OPINIONS BELOW

The Order of the United States Court of Appeals for the

Third Circuit Denying Request for a Certificate of Appealability

filed October 26, 2018, Thomas v. Administrator New Jersey State

Prison, et. al (C.A. 18-2240) (3d Cir.) is attached herein

(Appendix A).

.

The Order and Opinion of the. United States District. Court

for the District of New Jersey filed May 11, 2018, Thomas v.

Johnson, No: 15-cv-06740 (U.S.D.N.J.) is attached herein (Appendix

B).

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H

The Order of the New Jersey Supreme Court Denying the

Petition for Certification, State v. J.S.T., 222 N.J. 311, Docket

No. 075849; decided July 14, 2015 (filed July 20, 2015) is

attached (Appendix C)

The Unpublished Opinion of the New Jersey Superior Court,

Appellate Division in State v. J.S.T., App. Div. Docket No. A3829-liTi; decided March 26, 2015 is attached (Appendix D)

The Order of the New Jersey Supreme Court Denying the

Petition for Certification, State v. J.S.T., 188 N.J. 578, Docket

NO. 60,144; decided November 13, 2006 (filed Nov. 15, 2006) is

attached (Appendix E)

The Unpublished Opinion of the New Jersey Superior Court,

Appellate Division in State v. J.S.T., App. Div. Docket No. A0067-04T4; decided August 21, 2006 is attached (Appendix F)

JURISDICTION

The jurisdictior of this Court is invoked under 28 U.S.C.

§1254 (1)

.

The decision of the United States Court of Appeal for

the Third Circuit denying the application for a certificate of

appealability was denied on October 26, 2018.

CONSTITUTIONAL PROVISIONS

The relevant parts of the Fifth Amendmnt provides, in

pertinent part, that: "No person shall be

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compelled in any

criminal case to be a witness against himself, nor deprived of

life, liberty, Or property, without due process of law."

The releant parts of the Sixth Amendment is: "In all

criminal prosecutions, the accused shall enjoy the right to •a

speedy and public trial, by an impartial jury

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and to have

the Assistance of Counsel for his defence."

The relevant part of the Eighth Amendment is: "Excessive

bail shall not be required,

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nor cruel and unusual

punishments inflicted."

The relevant part of the Fourteenth Amendment (Section 1)

is: "No State shall

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deprive any person of life, liberty,,

or property, without due process of law."

STATEMENT OF THE CASE

Introductory Statement

It cannot be overemphasized that the United States Court of

Appeals for the Third Circuit found that "jurists of reason could

not debate the District Court's determination, that Appellant's

habeas corpus petition was untimely filed under 28 U.S.C.

§2244(d), and that Appellant failed to show reasonable diligence."

The Court of Appeals decision was erroneous.

The •United States District Court for the District of New

Jersey denial of Petitioner's habeas corpus petition as untimely

filed was also erroneous.

Additionally, the United States District Court for the

Distict of New Jersey denying Petitioner's Claims raised on Habeas

Corpus were also erroneous.

Procedural History and Statement of Facts

This Appeal stems from the Ocober 26, 2018 Order of the

United States •Court of Appeals for the Third Circuit denying an

application for a Certificate of Appealability and from the May

11, 2018 Order of the United States District Court for the

District of New Jersey, denying Petitioner's Habeas Corpus

Petition as Time-Barred and on its Merits. Petitioner argues that

the Court of Appeals was in error when it agreed with the District

Court that the Petiton was Untimely filed and the District Court

was in error when denying said Petition on both grounds.

The Petitioner was, charged with numerous offenses relating

to and including aggravated sexual assaults upon (N.), the son of

petitioner's live-in girlfriend and later wife. The indictment

charged that the sexual assaults took place between October 1990

and October 1999 when (N.) was between the age of eight and

seventeen years old.

As a result of the accusations by (N.), the Grand Jury in

Camden County, New Jersey Indictedthe Petitioner in a 19-Count

Indictment, Number 771-02-01, with violating the following New

Jersey offenses: Six Counts of First-Degre Aggravated Sexual

Assault. contrary to N.J.S.A. 20:14-2a (Counts II, III, IV, X, XI,

XII); Ten Counts of Second-Degree Sexual Assault, contrary to

N.J.S.A. 2C:14-2b and 2C:14-2c (counts V, VI, VII, VIII, XIII,

XIV, XV, XVI, XVII, XVIII), and Three Counts of Second-degree

Endangering the Welfare of a Child, contrary to N.J.S.A. 2C:24-4a

(Counts I, IX, XIX)

On April 23, 2001, Petitioner entered an original plea of

not guilty to the above listed offenses.

Prior to trial, the Court granted the State's motion to

dismiss.three counts: Counts Twelve, Fifteen, and Eighteen

--

and

the court renumbered the remaining counts, accordingly.

On February 17, 2004, trial commenced before the Honorable

Samuel D. Natal, J.S.C. and a petit jury.

At trial, (N.) testified about numerous incidents of both

physical and sexual assault. (N.) stated that petitioner

•

frequently penetrated him anally, forced (N.) to perform fellatio

upon petitioner, that petitioner performed fellatio on him (N.),

and provided him (N.) alcohol and marijuana.

On February 27, 2004, the petit jury returned a guilty

verdict on all the counts tried.

On May 28, 2004, Judge Natal sentenced Petitioner on all

•

sixteen remaining counts, under Indeictment No: 771-02-01, to an

aggregate term of sixty-years of imprisonment, with forty-three

years, six days, to be served without parole under NERA, and five

years •of parole supervision.

A timely appeal was filed and on August 21, 2006, the New

Jersey Superior Court, Appellate Division, affirmed Petitioner's

convictions in an unpublished opinion, and remanded for resentencing. (State v. J.S.T., A-0067-04T4 (App. Div. Aug. 21,

2006))

.

Certification was denied on November 15, 2006.

On December 8, .2006, Judge Natal re-sentenced Petitioner by

merging several counts and imposing an aggregate term of sixtyfive years' incarceration with forty-three years and six months

without parole.

•

On February 6, 2008, the Appellate Division affirmed the

sentence, ruling that Judge Natal's findings of fact regarding the

sentencing factors "were based on competent and credible evidence

in the record" and "appropriately addressed the merger issue."

(State v. J.S.T., A-5318-06T4 (App. Div. Feb. 11, 2008)).

Petitioner never challenged this ruling to the N.J. Supreme Court.

On or about July 13, 2007, Petitioner filed a pro-se

Petition for Post-Conviction Relief with the trial court.

On or about June 27, 2008, appointed counsel filed a

supplemental brief in support of the Petition, as well as an

amended verified petition for PCR.

On November 7, 2008, following argument, Judge Natal denied

the Petition.

On or about April 27, 2012, Petitoner's Notice of Appeal was

finally filed by the Public Defender's Office. On or about

September 14, 2013, the Public Defender's Office filed its brief.

On March 26, 2015, the Appellate Division affirmed the

denial of Petitoner's Petiton for Post-Conviction Relief. (State

v. J.S.T, A-3829-11T1 (App. Div. Mar. 26, 2015)). Certification

was denied on July 20, 2015.

On August 30, 2015, the Petitioner filed ,a Petition for a

Writ of Habeas Corpus with the United States District Court. Prior

to filing their Answer, the State made a motion to seal the case,

because the State Court record had previously been impounded for

the protection of the victim, who was a minor at the time the

offenses were committed. The District Court, after hearing from

both sides, granted the States' motion and sealed the record. The

State then filed its Answer in which they argued that the Petition

was Untimely and the claims were meritless.

The Petitioner then filed a Reply.

On May 11, 2018, the Honorable Renee Bumb denied the

Petition as Time-Barred and in the alternative, on its merits.

(Thomas v. Johnson, No: 15-cv-6740)

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On May 31, 2018, the Petitioner filed a Timely Notice of

Appeal with the District Court.

On October 26, 2018, the United States Court of Appeals for

the Third Circuit denied to issue a Certificate of Appealability.

This Application now follows and presents Constitutional

issues that should be resolved by this Honorable High Court.

REASONS FOR GRANTING THE WRIT

POINT I

Certiorari Should Be Granted Since the Circuit Court

and District Court both erred in failing to

appropriately consider the "Equitable Tolling" in

conjunction with Ineffective Assistance of the Public

Defender's Office in Failing to Timely File a Notice

of Appeal on Behalf of Petitioner?

On May 11, 2018, the District Court had ruled that

Petitioner's Habeas Petition was Time-Barred, •even though the

Court still ruled on the merits of the Petition.

Mr. Thomas' status as a legally blind prison inmate with

limited resources placed structural obstacles in his path when he

attempted to pursue state court appellate proceedings.

The Public Defenders' Office and the Attorney assigned to

Mr. Thomas had completely abandoned him by their failure to file a

timely Notice of Appeal from a Denial of a Petition for PostConviction Relief. Even after Mr. Thomas repeatedly sent them

correspondence to get the status of his appeal, they still failed

to act accordingly. Eventually, only after 3 years, did someone

finally filed a Notice of Appeal on his behalf, but yet, the

District Court held this failure to the Petitioner.

This Honorable Court cannot expect Herculean efforts on the

part of a lay person who is a convicted and incarcerated prisoner

who is legally blind and whose every attempt to pursue his postPCR denial appeal has been thwarted by the very peopole who were

supposed to protect his constitutional rights.

On July 13, 2007, the Petitioner , filed his first Petition

for Post-Conviction Relief. Petitioner was then assigned an

attorney under N.J. Rule 3:22-6(a); see also State v. Rue, 1.75

N.J. 1, 16-17 (20.02)

On November 7, 2008, the Petition was denied. On this same

date, the Petitioner told his attorney that he wanted to appeal

the decision. Therefore, attorney was obligated to notify the

Public Defender's Office

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Appellate Section, that Petitioner

wished to appeal the negative decision of the PCR Court. The duty

of the Office of the Public Defender to provide representation to

any indigent defendant includes any direct appeal from conviction

and post conviction proceedings "as would warrant the assignment

of counsel pursuant to Court Rules."

However, after not hearing nothing, the petitioner became

panic, therefore, he started a letter writing campaign to find out

what was going on with his appeal. Eventually, in 2012, the Notice

of Appeal was finally filed, all to no fault of the Petitioner.

There are no rule (either State or Federal) that states that

Petitioner/Defendant's must file their own Notice of Appeals), but

yet, the District court faulted the Petitioner for not doing so on

his own.

.

Despite showing that equitable tolling existed in this case,

the District Court still deemed the Petition Time-barred, although

the Court went on to rule on the merits of the petition in case

the Petitioner is able to win on equitable tolling grounds.

For Petitioner to obtain relief, there must be a causal

connection, or nexus, between the extraordinary circumstances he

faced and the failure to file a timely federal petition. See,Nara

V. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (The alleged

extraordinary circumstances "must somehow have affected the

petitioner's ability to file a timely habeas petition"), see also

Holland v. Florida, 130 S.Ct. 2549, 2563 (2010) (A Petitioner must

show that "some extraordinary circumstances stood in his way and

prevented timely filing")

The nexus test is met because the extraordinary

circumstances that Thomas' faced directly prevented him from

timely pursuing his state court remedies and filing a statutorily

timely habeas petition. Therefore, it is appropriate in this case

to equitably toll the running of the AEDPA's one-year statutory

limitation period and to reverse the District Court's order.

Petitioner contends that he has proffered evidence that the

attorneys were ineffective for failing to file a timely Notice of

Appeal on his behalf. Constructive denials of counsel include

counsel's total or near-total derelictions in representation. See,

e.g., Castellanos v. U.S., 26 F.3d 717, 720 (7th Cir. 1994)

(failing to honor defendant's instruction to file a notice of

appeal)

.

Or "if the defendant told his lawyer to appeal" from the

conviction, "and the lawyer dropped the ball, then the defendant

has been deprived, not of effective assistance of counsel, but of

any assistance of counsel on appeal. Abandonment is a per se

violation of the Sixth Amendment." Id. at 718; id at 720 ("a

lawyer's abandonment of his client is ineffective per Se");

Morales v. U.S., 143 F.3d 94, 97 (2d Cir. 1998) (observing obiter

that "ignoring a client's request to file an appeal is ineffective

assistance without regard to the probability of the appeal's

success")

.

A petitioner is entitled to tolling if he shows: (1) "that

some extraordinary circumstance stood in his way" and prevented

timely filing; and (2) that. "he has been pursuing his rights

diligently." Holland v. Florida, 130 S.Ct.

.

2549, 2562 (2010)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also,

Munchinski v. Wilson, 699 F.3d 308, 329 (3d Cir. 2012)

The decision to equitably toll 2244(s) "must be made on a

case-by-case basis." Holland, supra 130 S.Ct. at 2563 (quoting

Baggett v. Bullitt, 377 U.S. 360, 375 (1964)). "In each case,

there is a need for 'flexibility, ' avoiding mechanical rules, and

'awareness'

...

that specific circumstances, often hard to predict

in advance, could warrant special treatment in an appropriate

case." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011) (quoting

Holland, supra 130 S.Ct. at 2563). There are "no bright lines in

determining whether equitable tolling is warranted in a given

case." Id. Rather, equitable tolling is appropriate when

"principles of equity would make the rigid application of a

limitation period, unfair." Miller v. N.J. State Dep't of Corr.,

145 F.3d 616, 618 (3d Cir. 1998)

.

The Supreme Court has held that 2244(d) "is not

'jurisdictional'" and does not set forth "an inflexible rule

requiring dismissal

...

[whenever the] clock has run." Day v.

McDonough, 547 U.S. 198, 205 (2006). Rather, "2244(d) is subject

to equitable tolling in appropriate cases." Holland, supra 130

S.Ct. at 2560. Such is a case here.

The Petitioner has shown that he was entitled to "equitable

tolling" and should not have been held at fault for the failure of

the Public Defender's Office timely filing a Notice of Appeal.

CONCLUSION

For the foregoing reasons, the Petitioner Juan Thomas respectfully

requests this Court grant the Petition for a Writ of Certiorari.

Respectfully submitted,

Dated:,4

\\22V5

Juan Thomas, Pro-Se