Gibson v. Scheidemantel

• Decision Date: 17 November 1986
• Docket Number: C-535,A,No. 85-5750,85-5750
• Citation: 805 F.2d 135
• Parties: Frederick GIBSON,ppellant, v. Sally S. SCHEIDEMANTEL, Superintendent of Avenel Diagnostic Center, and Irwin I. Kimmelman, Attorney General of the State of New Jersey, and William H. Fauver.
• Court: U.S. Court of Appeals — Third Circuit

Page 135

805 F.2d 135

Frederick GIBSON, C-535, Appellant, v. Sally S. SCHEIDEMANTEL, Superintendent of Avenel Diagnostic Center, and Irwin I. Kimmelman, Attorney General of the State of New Jersey, and William H. Fauver.

No. 85-5750.

United States Court of Appeals Third Circuit.

Argued Nov. 3, 1986.

Decided Nov. 17, 1986.

Richard Couglin (argued), Asst. Federal Public Defender, Camden, N.J., for appellant.

W. Cary Edwards, Atty. Gen. of N.J., Catherine A. Foddai (argued), Deputy Atty. Gen., Div. of Criminal Justice, Appellate Section, Trenton, N.J., for appellees.

Before SLOVITER and STAPLETON, Circuit Judges, and GREEN, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Facts

Petitioner, Frederick Gibson, appeals from the order of the District Court for the District of New Jersey denying his petition for a writ of habeas corpus. The procedural history of the case is complex, and we set forth briefly only the portions relevant to this appeal.

Gibson, pursuant to a plea bargain, entered pleas of guilty to certain charges contained in three New Jersey state indictments arising out of three unrelated incidents. He pleaded guilty to one count each of rape, armed rape, assault with intent to rape, impairing the morals of a minor, breaking and entering with intent to carnally abuse, and assault with intent to carnally abuse, and two counts each of private lewdness and breaking and entering with intent to commit rape. Gibson was ultimately sentenced to consecutive indeterminate terms at the Diagnostic Unit, New Jersey State Prison at Rahway under the New Jersey Sex Offender Act, N.J.S.A. 2A:164-3 to 164-13 (repealed 1979), and to two consecutive terms and one concurrent term of five to seven years to be served at the New Jersey State Prison.

On Gibson's appeal from the convictions and sentences, the New Jersey Superior Court, Appellate Division, affirmed all but one of the convictions, vacated the conviction for breaking and entering with intent to carnally abuse, required the prison terms on the other two breaking and entering convictions to be served concurrently with the indeterminate term sentences, held that the private lewdness count merged for sentencing with the counts charging impairing the morals of a minor and assault with intent to commit carnal abuse, and modified the length of the indeterminate terms. State v. Gibson, 150 N.J.Super. 351, 375 A.2d 1191 (App.Div.1977). The New Jersey Supreme Court denied certification on July 12, 1977. State v. Gibson, 75 N.J. 20, 379 A.2d 251 (1977).

Gibson filed a petition for post-conviction relief seeking to withdraw his guilty pleas on the ground that he was not guilty of one of the crimes to which he pled guilty but had entered the plea on counsel's instructions. He also claimed that the consecutive sentences imposed were improper. The Law Division held that the sentencing contention had been resolved on direct appeal and interpreted Gibson's remaining claim to constitute a claim of ineffective assistance of counsel, which it denied. The New Jersey Superior Court, Appellate Division, affirmed the denial of post-conviction relief.

Gibson then filed his first petition for a writ of habeas corpus in federal court, asserting four claims. The district court denied Gibson's petition on the ground that he had failed to exhaust available state remedies both because he had not presented three of the claims in his request for post-conviction relief to any state court and because he did not appeal the Appellate Division's adverse decision to the state Supreme Court.

Gibson then filed a second state court petition for post-conviction relief, this time alleging the same four claims he had raised in his federal habeas petition. The petition was denied by the Superior Court, Law Division. Gibson's request for appointment of counsel in order to appeal the denial of post-conviction relief was denied by that court, and he did not file an appeal.

Gibson then filed his second petition for a writ of habeas corpus in federal court. Gibson asserted the same four grounds for relief he raised in his earlier petition: (1) he was subject to a suggestive lineup; (2) his two remaining convictions for breaking and entering should have been merged with his sex crime convictions; (3) he did not receive adequate Miranda warnings; and (4) ineffective assistance of counsel. He also included a previously unarticulated claim that counsel failed to protect his juvenile status. The district court denied the petition on the ground that Gibson had failed to exhaust his state remedies because he had not appealed the denial of his second motion for post-conviction relief and because he had never raised in a state court the ineffective assistance of counsel claim with respect to his juvenile status. Gibson appeals from the district court's order.

Discussion

A state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. Secs. 2254(b) and (c); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The requirement is not a mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir.1982). An exception is made to the exhaustion requirement only where the petitioner has no opportunity to obtain redress in the state court or where the state corrective process is so deficient as to render any effort to obtain relief futile. 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. Sec. 2254(b). Further, a "mixed petition" which includes both exhausted and unexhausted claims does not satisfy the exhaustion requirement. Rose v. Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Santana v. Fenton, 685 F.2d at 73.

We address first Gibson's claim that his counsel failed to protect his juvenile status, which the district court held was an unexhausted claim. Gibson argues that this claim is "merely an element of Petitioner's overall assertion of ineffective assistance of counsel," that it was subsumed in his overall claim, and that therefore it has been litigated in the state courts to the same extent as his earlier ineffective assistance of counsel claim. ¹

In order to satisfy the exhaustion requirement, the claims included in a federal petition must be fairly presented to the state courts. Picard v. Connor, 404 U.S. at 275, 92 S.Ct. at 512. This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Id. at 278, 92 S.Ct. at 513-14; Santana v. Fenton, 685 F.2d at 74. Mere reliance of state and federal claims on the same constitutional provision does not render the two claims substantially equivalent. See Brown v. Cuyler, 669 F.2d 155 (3d Cir.1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir.1976). Both the legal theory and the facts on which a federal claim rests must have been presented to the state courts. See Picard v. Connor, 404 U.S. at 277, 92 S.Ct. at 513; Brown v. Cuyler, 669 F.2d at 158-61.

The transcripts of the hearings in state court show that Gibson's ineffective assistance of counsel claim presented to the state courts asserted that counsel instructed him to plead guilty to offenses which he claims not to have committed, that he did not receive the sentences which his counsel led him to believe he would receive if he pled guilty, and that, in light of his mental capacity, the plea bargain was inadequately explained by counsel.

The New Jersey courts could not have been expected, sua sponte, to consider Gibson's ineffective assistance of counsel claim to include a claim that counsel failed to protect his juvenile status, and it was therefore not fairly presented to the state courts. See Picard v. Connor, 404 U.S. at 277, 92 S.Ct. at 513. Because the state courts were never given an opportunity to consider this claim, it has not been exhausted.

Gibson argues that even if his juvenile status claim has not been previously adjudicated, he is precluded from an examination of the merits of his claim in New Jersey courts because of his failure to raise the issue on either direct appeal, N.J.Ct.R. 3:22-4, or within five years of entry of his conviction, N.J.Ct.R. 3:22-12.

New Jersey Rule 3:22-4 provides that relief from its bar of grounds not raised in prior proceedings may be granted where the court finds: "(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey."

Gibson argues that a motion for relief under 3:22-4 would be futile, relying on several New Jersey cases. However, in Santana v. Fenton, 685 F.2d at 71, we declined to hold that the New Jersey courts would not grant relief under Rule 3:22-4. Id. at 74-75 (discussing 3:22-4(c)). We stated that "[a]t least where a fair reading of the state post-conviction relief statute indicates that a state court might well entertain ... claims not raised in prior proceedings, and in the absence of a state court decision clearly foreclosing such a result, we cannot conclude that petitioner has demonstrated compliance with the exhaustion requirement." Id. at 75. In view of the comity interests underlying the exhaustion requirement, we likewise decline to find that the New Jersey courts would not allow relief, if warranted, in this case.

With respect to the five-year limitation imposed by New Jersey Rule 3:22-12, we note...