Toulson v. Beyer

Decision Date12 March 1993
Docket NumberNo. 92-5310,92-5310
PartiesTroy TOULSON v. Howard L. BEYER; Robert J. Del Tufo, the Attorney General of the State of New Jersey. Howard L. Beyer, Superintendent, New Jersey State Prison, and Robert J. Del Tufo, Attorney General of New Jersey, Appellants.
CourtU.S. Court of Appeals — Third Circuit

Linda A. Rinaldi (Argued), Office of Atty. Gen. of New Jersey, Div. of Criminal Justice, Appellate Bureau, Trenton, NJ, for appellants.

Robert J. Candido (Argued), Cedar Grove, NJ, for appellee.

Before: HUTCHINSON and SCIRICA, Circuit Judges and STANDISH, District Judge *.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this habeas corpus case involving a mixed petition, 1 we must decide whether the district court properly reached and determined the merits of petitioner's claim that the state sentencing judge impermissibly based sentencing on facts not in the record. The district court ruled that although the petition's "mixed" status generally required dismissal without prejudice pending exhaustion of unexhausted claims, it nevertheless could properly reach the merits of the exhausted claims since the unexhausted claims were procedurally defaulted under state law. We believe the district court should not have found the unexhausted claims procedurally defaulted and should have dismissed the entire petition without prejudice. We will reverse and remand.

I.

On October 12, 1980, Gloria Scavullo and her three daughters were waiting at an intersection when three armed men approached their car. When the women locked the car doors, one man fired into the passenger window while another, petitioner Troy Toulson, fired repeatedly from behind the car, hitting driver Christine Vay in the face. Vay managed to speed away. Subsequently, Scavullo identified one of Toulson's cohorts in a line-up. Hours later police arrested Toulson.

Toulson was charged with five criminal counts in Atlantic County, New Jersey. Following a jury trial, Toulson was convicted of all charges and sentenced to forty-five years, with a twenty-year period of parole ineligibility. 2

On appeal, the New Jersey Superior Court, Appellate Division, affirmed Toulson's convictions and sentence. The New Jersey Supreme Court denied Toulson's petition for certification. Subsequently, the sentencing judge denied Toulson's motion to reconsider the sentence. Toulson's motion for post-conviction relief in state trial court was denied.

Toulson then sought habeas corpus relief in the United States District Court for the District of New Jersey contending: (1) the admission at trial of statements made without assistance of counsel violated the Sixth and Fourteenth Amendments; (2) the admission at trial of certain statements violated his Miranda rights; (3) the trial court's failure to give limiting instructions regarding Toulson's statements constituted plain error and prejudiced the trial's outcome; (4) the forty-five-year sentence with twenty-year parole disqualifier was "manifestly excessive"; and (5) the judge's sentence was based on facts neither in the record nor in the pre-sentence report. Toulson had advanced each of these grounds before the Appellate Division but only grounds four and five on his petition to the New Jersey Supreme Court.

The district court denied habeas relief on Toulson's conviction, but remanded to the state trial court for resentencing after finding the sentence relied on facts not in the record. 792 F.Supp. 352. The State now appeals.

II.

The district court had jurisdiction over this matter under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. The question before us is whether petitioner exhausted state remedies in accordance with 28 U.S.C. § 2254(b). Our review is plenary. Ross v. Petsock, 868 F.2d 639, 640 (3d Cir.1989).

III.
A.

The district court found Toulson failed to satisfy exhaustion requirements on grounds one, two, and three of the habeas petition because although presented to the Appellate Division, they were not presented to the New Jersey Supreme Court on the petition for certification. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Grounds four and five were exhausted since Toulson had raised them on appeal to the Appellate Division and again on his petition to the New Jersey Supreme Court. As a mixed petition, Toulson's petition required dismissal under Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).

However, the district court noted an exception to Rose 's total exhaustion rule "where the petitioner has no opportunity to obtain redress in the state court ... so ... as to render any effort to obtain relief futile." Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986) (citing Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam)). See 28 U.S.C. § 2254(b) (absence of available state corrective process constitutes exception to exhaustion requirement).

The district court found Toulson's failure to raise the first three grounds before the New Jersey Supreme Court--despite the fair opportunity to do so--barred them from further consideration in New Jersey courts. See N.J.Ct.R. 3:22-4 (barring consideration of grounds not raised on appeal or in prior proceedings). Accordingly, the district court reasoned that "it would be futile to require that [Toulson] now attempt to exhaust these claims." The district court proceeded to the merits of Toulson's exhausted claims in grounds four and five. 3

B.

The doctrine of "exhaustion of state remedies," 4 requires that federal habeas corpus petitioners present their claims to state courts before seeking relief from federal courts. 28 U.S.C. § 2254. The exhaustion requirement does not foreclose, but only postpones, federal relief. 5 A state prisoner may initiate a federal habeas petition only after state courts have had the first opportunity to hear the claim sought to be vindicated. The requirement addresses federalism and comity concerns by "afford[ing] the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary." Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986); see also Keeney v. Tamayo-Reyes, --- U.S. ----, ----, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). To satisfy the exhaustion requirement, the claims included in a federal petition must be fairly presented to the state courts. Picard, 404 U.S. at 275, 92 S.Ct. at 512. The habeas petitioner bears the burden of proving that he has exhausted available state remedies. Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990); Santana v. Felton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). If a habeas corpus petition contains exhausted and unexhausted claims, the petition must be dismissed. Rose, 455 U.S. at 510, 522, 102 S.Ct. at 1199, 1205.

A petition containing unexhausted but procedurally barred claims in addition to exhausted claims, is not a mixed petition requiring dismissal under Rose. Although the unexhausted claims may not have been presented to the highest state court, exhaustion is not possible because the state court would find the claims procedurally defaulted. See Coleman v. Thompson, --- U.S. ----, ---- & n. 1, 111 S.Ct. 2546, 2555, 2557 & n. 1, 115 L.Ed.2d 640 (1991); Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989) ("requisite exhaustion may nonetheless exist ... if it is clear that [petitioner's] claims are now procedurally barred under [state] law"); Peoples v. Fulcomer, 882 F.2d 828, 830 (3d Cir.1989). The district court may not go to the merits of the barred claims, but must decide the merits of the claims that are exhausted and not barred. See, e.g., Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Before exhaustion will be excused, state law must clearly foreclose state court review of unexhausted claims. Gibson, 805 F.2d at 139. Here the professed procedural bar is N.J.Ct.R. 3:22-4. 6 It is undisputed that grounds one, two, and three were not presented to the highest state court on the petition for certification. Normally, a New Jersey court would conclude these grounds were not raised in prior proceedings and would apply Rule 3:22-4, which bars grounds not raised in prior proceedings. See Santana, 685 F.2d at 75. However, Rule 3:22-4 incorporates three exceptions that permit state court review of otherwise procedurally barred claims. Therefore we must determine whether any of the exceptions to Rule 3:22-4 applies.

C.

Rule 3:22-4(a) lifts the procedural bar where "the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding." That all three grounds were raised at the Appellate Division strongly suggests they "could reasonably have been raised" subsequently before the state supreme court. This exception appears inapplicable. See State v. Mitchell, 126 N.J. 565, 584-85, 601 A.2d 198, 208 (1992) (exception inapplicable where all information necessary to raise claim was available to defendant on direct appeal and no new law changing nature of legal principles applicable to defendant's case was articulated between time of defendant's direct appeal and his petition for postconviction relief).

Rule 3:22-4(b) removes the procedural bar where "enforcement of the bar would result in fundamental injustice." The New Jersey Supreme Court has "construed the 'fundamental injustice' exception to apply only when a petitioner's guilt or innocence is involved." State v. Preciose, 129 N.J. 451, 476, 609 A.2d 1280, 1293 (1992) (citing State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979)). Rule 3:22-4(c) dissolves the procedural bar where "denial of relief would be contrary to the Constitutions of the United States or New Jersey."...

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