                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2007

Ellison v. Rogers
Precedential or Non-Precedential: Precedential

Docket No. 04-2314




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Recommended Citation
"Ellison v. Rogers" (2007). 2007 Decisions. Paper 1045.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1045


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PRECEDENTIAL

      IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                     Case No: 04-2314

                     LARRY ELLISON,

                             Appellant

                               v.

                  GRACE ROGERS;
             ATTORNEY GENERAL OF THE
               STATE OF NEW JERSEY

                 ______________________

       On Appeal from the United States District Court
                 for the District of New Jersey
                District Court No.: 03-cv-4136
        District Judge: The Honorable Joel A. Pisano
                  _______________________

      Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                      April 12, 2007

 Before: SMITH and COWEN, Circuit Judges, and YOHN,
                    District Judge*


  *
    The Honorable William H. Yohn, Senior District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                     (Filed: May 4, 2007)

Mary Gibbons
600 Mule Road, #16
Holiday Plaza III
Toms River, NJ 08757
      Counsel for Appellant

Bruce J. Kaplan
Simon L. Rosenbach
25 Kirkpatrick Street, 3d Floor
New Brunswick, NJ 08901
      Counsel for Appellee
                _______________________

                 OPINION OF THE COURT
                 _______________________

SMITH, Circuit Judge.

        Larry Ellison was convicted of sexual assault and child
endangerment and sentenced to 10 years of incarceration. He
pursued a direct appeal with the aid of counsel through the entire
New Jersey state court system but alleged claims of ineffective
assistance of counsel at each stage in supplemental pro se briefs.
The Appellate Division of the Superior Court of New Jersey
denied Ellison’s ineffective assistance and due process claims,
noting that the denial was “without prejudice to defendant to
raise ineffective assistance of counsel or other due process or
constitutional claims on an application for post-conviction
relief.” Certification was denied by the New Jersey Supreme

                                2
Court on July 3, 2003. He did not pursue any actions under state
law for post-conviction relief.

        On September 2, 2003, Ellison filed a petition for relief
under 28 U.S.C. § 2254 in the U.S. District Court for the District
of New Jersey. In a decision issued April 21, 2004, the District
Court denied him relief on the ground that he had failed to
exhaust his state remedies. The writ of habeas corpus is not
available unless “the applicant has exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
The Court determined that it was unnecessary to stay the federal
proceedings pending state exhaustion because the one-year
limitations period of § 2244(d) would not expire immediately.
The Court “alert[ed] Petitioner to the fact that he must file a new
federal habeas petition by September 29, 2004.” The questions
presented by his appeal are whether the District Court erred in
finding the ineffective assistance and due process claims Ellison
submitted pro se to be unexhausted, and whether the Court
should have stayed the petition rather than dismiss it without
prejudice.

      The District Court had jurisdiction under 28 U.S.C. §
2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

        We have plenary review over the District Court’s
exhaustion determination. Holloway v. Horn, 355 F.3d 707, 713
(3d Cir. 2004). We review the District Court’s decision to
dismiss a mixed petition, rather than to stay and hold it in
abeyance while a petitioner returns to state court to exhaust his
state remedies, under an abuse of discretion standard. Rhines v.

                                3
Weber, 544 U.S. 269, 276 (2005).

                               I.

       In his petition for habeas relief, Ellison alleged
ineffective assistance of counsel and due process claims. He
now claims that the District Court’s dismissal of his
constitutional claims pending exhaustion at the state level was
error. We disagree.

       In State v. Preciose, 609 A.2d 1280 (N.J. 1992), the New
Jersey Supreme Court explained that “[i]neffective-assistance-
of-counsel claims are particularly suited for post-conviction
review because they often cannot reasonably be raised in a prior
proceeding.” Id. at 1285. Although the procedural posture of
Preciose differed from the one here, in that Preciose sought
post-conviction relief, the Court emphasized its “general policy
against entertaining ineffective-assistance-of-counsel claims on
direct appeal because such claims involve allegations and
evidence that lie outside the trial record.” Id.; see also id. at
1286. “Thus, trial courts ordinarily should grant evidentiary
hearings to resolve ineffective-assistance-of-counsel claims if a
defendant has presented a prima facie claim in support of post-
conviction relief.” Id. (emphasis added).

       There is no explicit statement in Preciose or the New
Jersey Rules of Court that requires a defendant to pursue his
ineffective assistance claims in the post-conviction setting.
N.J.R. § 3:22-1 (“Any person convicted of a crime may,
pursuant to this rule, file ... a petition for post-conviction

                               4
relief....”). However, the expected procedure is clear: Where
evidence outside the record is required to prove ineffective
assistance claims, such claims are to be pursued post conviction.
See State v. Castagna, 901 A.2d 363, 376 (N.J. 2006) (“[W]e
cannot determine whether D’Amico had agreed in advance with
defense counsel’s trial strategy.... If D’Amico had agreed in
advance with defense counsel’s trial strategy, then defense
counsel’s conduct was not plainly ineffective. The answers to
these questions lie outside the record and must await a post-
conviction relief petition.”); but see id. at 374 (“However, when
the trial itself provides an adequately developed record upon
which to evaluate defendant’s claims, appellate courts may
consider the issue on direct appeal.”); Gov’t of Virgin Islands v.
Zepp, 748 F.2d 125, 134 (3d Cir. 1984) (“[W]here the record
clearly shows actual conflict of interest and objections made at
trial did or should have put the trial court on notice that potential
conflict of interest existed, this court’s ‘preference’ for
developing such issues on collateral attack need not be
followed.”).

        A number of New Jersey courts have followed the
presumption in Preciose that where the factual record as to
ineffective assistance is insufficient on direct appeal, the
defendant has the right to raise that claim again in post-
conviction proceedings where the necessary facts can be
explored. See, e.g., State v. Delgado, 327 N.J. Super. 137, 149
(App. Div. 2000) (“If ... details of counsel’s ineffective assistance
lie outside the record we consider on appeal, defendant may raise
them in a motion for post-conviction review.”); State v. Hackett,
323 N.J. Super. 460, 484 (App. Div. 1999); State v. Cordero, 293

                                  5
N.J. Super. 438, 441 (App. Div. 1996). This approach is not
unique to New Jersey. We also have a “firmly establish[ed] ...
general policy against entertaining ineffective assistance of
counsel claims on direct appeal.” United States v. Gambino, 788
F.2d 938, 950 (3d Cir. 1986); see also Massaro v. United States,
538 U.S. 500, 504-06 (2003); United States v. Thornton, 327
F.3d 268, 271-72 (3d Cir. 2003); but see Clinkscale v. Carter,
375 F.3d 430, 436-40 (6th Cir. 2004). The rationale for this
policy is that “oft-times such claims involve allegations and
evidence that are either absent from or not readily apparent on
the record.” Gambino, 788 F.2d at 950.

        Ellison’s petition makes clear that his trial did not provide
an adequately developed record to support his claims. Ellison
claimed that his attorneys had a conflict of interest and that they
conspired with the prosecutor to use perjured testimony at his
trial. He also raised due process claims, alleging inter alia that
perjured testimony was used against him, he was selectively
prosecuted, and that exculpatory evidence was not disclosed.
Proof of these claims lies outside of the trial record and would
require an evidentiary hearing. Such a hearing would have
properly been conducted following a petition for post-conviction
relief. Ellison did not exhaust his remedies under state law, and
the District Court properly dismissed his claim.1

  1
   Because proof of Ellison’s claims required evidence outside
of the trial record, this case is distinguishable from State v.
Allah, 787 A.2d 887 (N.J. 2002), in which the New Jersey
Supreme Court held that “[i]n this case ... defendant should not
be required to wait until post-conviction relief to raise the issue
                                 6
                               II.

        Ellison’s argument that his federal petition should have
been stayed and held in abeyance until he was able to complete
the state post-conviction process likewise fails. In Crews v. Horn,
360 F.3d 146 (3d Cir. 2004), a panel of this Court noted that
“[s]taying a habeas petition pending exhaustion of state remedies
is a permissible and effective way to avoid barring from federal
court a petitioner who timely files a mixed petition.” Id. at 151.
However, the panel also explained that “we now adopt an abuse
of discretion standard” for “a district court’s decision to dismiss
a mixed petition rather than to grant a stay.” Id. at 149. The
Supreme Court ruled on the propriety of the stay and abeyance
procedure in Rhines v. Weber, 544 U.S. 269 (2005), holding that,
although the procedure is proper, it “should be available only in
limited circumstances.” Id. at 277. Specifically, “stay and
abeyance is only appropriate when the district court determines
there was good cause for the petitioner’s failure to exhaust his
claims first in state court.” Id. The District Court ruled on
Ellison’s petition prior to the Supreme Court’s issuance of
Rhines, and therefore did not determine whether his failure to
exhaust was based on good cause.

       We are mindful of Justice Stevens’ concurrence, which


because the trial record discloses the facts essential to his
ineffective assistance claim.” Id. at 896; see also Thornton, 327
F.3d at 271 (“[W]e have held that we may address the claim of
ineffective assistance of counsel on direct appeal when the
record is sufficient to allow determination of the issue.”).
                                7
cautions that “‘good cause’ for failing to exhaust state remedies
more promptly ... is not intended to impose the sort of strict and
inflexible requirement that would ‘trap the unwary pro se
prisoner.’” Id. at 279 (Stevens, J., concurring) (quoting Rose v.
Lundy, 455 U.S. 509, 520 (1982)). However, Ellison is not an
unwary petitioner. The Appellate Division told him explicitly
that the dismissal of his pro se claims was without prejudice, and
that he could pursue his constitutional claims in an application
for post-conviction relief. He cannot, therefore, demonstrate that
he had good cause for failing to pursue those claims through the
state post-conviction process. Accordingly, we find that the
District Court did not abuse its discretion in rejecting Ellison’s
request for a stay and abeyance while he exhausted his state court
remedies.

                               III.

       For the foregoing reasons, we affirm the judgment of the
District Court. Ellison failed to exhaust his remedies under state
law, and is therefore precluded from pursuing his constitutional
claims here. The District Court did not abuse its discretion by not
granting Ellison a stay and abeyance because he did not have
good cause for his failure to exhaust.




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