Opinion
Civil Action No. 97-5799 (NHP).
July 19, 1999
Mr. Clarence F. Wright, Trenton State Prison, Trenton, N.J., Plaintiff Pro Se.
Richard W. Berg, Deputy Attorney General, JOHN J. FARMER, JR., ATTORNEY GENERAL OF NEW JERSEY, Division of Criminal Justice Appellate Bureau, Trenton, N.J., Attorneys for Defendants.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the petition of Clarence Frederick Wright to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254. The Court has decided the matter without oral argument according to Federal Rule of Civil Procedure 78. After consideration of the papers submitted by both parties to the action, the Court concludes that the petition should be DENIED.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Petitioner, Clarence Frederick Wright, is currently incarcerated in a New Jersey state prison in Trenton having been convicted of armed robbery, conspiracy, and possession of a dangerous weapon in Passaic County. Wright, a repeat offender with a criminal history dating back to 1951, asks this Court to set aside his sentence as unconstitutional.
On October 31, 1951 in Essex County, Wright pled guilty to 18 counts including armed robbery, sale of burglar's tools, and atrocious assault and battery with intent to kill. Petitioner was sentenced to an aggregate state prison term of 33 to 37 years. He was also sentenced to a concurrent state prison term of 5 to 7 years in Hudson County on January 23, 1953 for breaking and entering and larceny. On November 7, 1967, petitioner was paroled.
On February 16, 1971 petitioner was convicted and sentenced on a federal charge of bank robbery for which he received a 15 year sentence. He was paroled on November 11, 1974, but remained under the jurisdiction of the United States Board of Parole until April 7, 1984. Following his federal parole, petitioner was returned to a New Jersey state prison for having violated his parole in Essex County. Petitioner was again released from state prison on parole on September 9, 1975.
On May 13, 1976, Wright pled guilty to armed robbery, conspiracy, possession of a stolen vehicle, and possession of a dangerous weapon in Passaic County. He was sentenced to a term of 36 to 43 years on July 1, 1976. On August 19, 1976, a United States Board of Parole detainer was filed against petitioner for violation of the terms of his parole resulting from his Passaic County conviction. In compliance with this detainer, the Passaic County Sheriff turned Wright over to federal authorities on August 27, 1976, as he was under the jurisdiction of the United States Board of Parole for his previous conviction. Wright had not yet begun to serve the sentence imposed upon him for the underlying offense in Passaic County.
Wright was transferred to a federal penitentiary in Atlanta, Georgia, on October 17, 1976. At that time, the State of New Jersey canceled the parole warrant that it had filed with the Warden of Passaic County and issued a new warrant to officials in Atlanta on March 21, 1978. In May 1980 petitioner was transferred to another federal penitentiary in Pennsylvania where he remained until December 8, 1980 when he was finally transferred to a federal facility in Otisville, New York.
Upon his release from the federal correctional facility in New York, Wright was immediately arrested and detained by New York authorities pursuant to the outstanding detainer that the State of New Jersey had filed against him in 1978. On August 6, 1982, petitioner began serving his state-imposed prison sentence from his 1976 Passaic County convictions.
While awaiting extradition in the custody of New York officials, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of New York, Orange County. This petition was dismissed for failure to pursue state remedies in New Jersey. Petitioner was extradited to the State of New Jersey.
Following Wright's extradition, he again raised his constitutional claims in a petition for a writ of habeas corpus in United States District Court for the District of New Jersey. The Honorable Clarkson Fisher dismissed Wright's petition for failure to exhaust state remedies. Petitioner then waited nine years to file a petition for post conviction relief in the Superior Court of New Jersey, Law Division, Mercer County. Wright's petition was dismissed because it had been filed in the wrong county. Wright filed a Notice of Appeal on November 20, 1992. The Appellate Division granted the State's motion for summary affirmance on September 15, 1993 and the Supreme Court of New Jersey subsequently denied certification.
On April 19, 1994, petitioner filed a second habeas petition in the District of New Jersey. On December 12, 1994 the Honorable William G. Bassler denied and dismissed Wright's petition because it contained unexhausted claims. On December 27, 1994, petitioner applied for an extension of time to respond to Judge Bassler's order. Judge Bassler issued an order considering the application a motion for reconsideration and permitted petitioner to file a brief. On January 23, 1995 petitioner filed a formal motion for reconsideration returnable on February 27, 1995 at which time the matter was taken under advisement by the Court. Petitioner's motion for reconsideration was subsequently denied by Judge Bassler.
On November 26, 1997, Wright filed his third petition for a writ of habeas corpus in the District of New Jersey. Respondents moved to dismiss pursuant to 28 U.S.C. § 2244(d)(1) on the ground that it was filed beyond the one-year statute of limitations. This Court granted respondent's motion to dismiss on April 22, 1998. Petitioner filed a Notice of Appeal on May 1, 1998. For reasons that are insignificant to these proceedings, the Court of Appeals remanded the matter back to this Court to hear the case on the merits.
DISCUSSION
Wright asserts two constitutional arguments in petitioning this Court for a writ of habeas corpus. First, petitioner contends that his Fourteenth Amendment due process rights were violated when he was transferred into federal custody while in the midst of serving a state sentence, thus compelling him to serve his sentence in installments. Petitioner also contends his due process rights were violated because state officials committed perjury and fraud during his extradition proceedings from federal custody in New York to state custody in New Jersey. Second, petitioner contends that his Fifth Amendment right not to be subjected to punishment twice for the same offense was violated when he was returned to a New Jersey state prison following service of his federal sentence for parole violation. Before addressing the merits of petitioner's constitutional arguments, the Court must determine whether petitioner has exhausted his available state remedies.
Petitioner Exhausted All Available State Remedies
A state prisoner presenting a habeas corpus petition to a federal court is first required to have exhausted all available state remedies. See 28 U.S.C. § 2254(a) and (b); Rose v. Lundy, 455 U.S. 509, 515-20 (1982); Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir. 1986). Where a state corrective procedure exists, the petitioner must give the state a full and fair opportunity to hear the petitioner's claims. See Picard v. Connor, 404 U.S. 270, 278 (1971). However, the exhaustion requirement refers only to remedies still available to the petitioner at the time his petition is filed. See Gray v. Netherland, 518 U.S. 152 (1996). Therefore, the exhaustion requirement is satisfied if it is clear that petitioner's state-law remedies are procedurally barred. Id.
In this case, it has been adjudicated by the Honorable William G. Bassler that "no state procedure exists through which the petitioner may seek redress." (Pa#6 at p. 7) Deferring to the findings in Judge Bassler's October 11, 1994 Opinion, it is the opinion of this Court that circumstances exist that render the available state corrective processes ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(B)(ii). Therefore, pursuant to 28 U.S.C. § 2254(b)(2) this Court has the authority to proceed with a review of petitioner's claims on the merits.
Petitioner's Due Process Rights Were Not Violated By The Actions Of The State
Wright first argues that his Fourteenth Amendment due process rights were violated because he was forced to serve his state sentence on the Passaic County convictions in installments. Petitioner asserts that his state sentence was interrupted on August 27, 1976 so that he could serve a federal parole violation sentence following which he was returned to state prison. In support of his argument, petitioner cites Lanier v. Williams, 361 F. Supp. 944 (E.D.N.C. 1973), where the court held that a sentence being served, unless interrupted by escape or some other fault by the prisoner, cannot be stopped without implicating and violating the prisoner's due process rights. This Court finds petitioner's argument and the authority cited therein neither persuasive nor binding.
In Lanier, the petitioner had been released from county jail on September 28, 1967 despite outstanding convictions and sentences from 1964. Thereafter, Lanier met with the county sheriff who placed several telephone calls to the Department of Corrections to ascertain whether he was wanted. The sheriff was informed that no warrant had been issued for Lanier. The sheriff also called a Major at the Central Prison in Raleigh, with whom Lanier spoke directly. The Major confirmed that there was no warrant for Lanier and the sheriff subsequently told him to go home. Lanier continued to live in the State of North Carolina, obtained employment in that state, and made no attempt to conceal his identity. Surprisingly, Lanier was detained almost five years later on the basis of a pre-existing warrant and he subsequently filed a petition for a writ of habeas corpus. The court granted the petition on the ground that the state had constructively waived its right to assert jurisdiction over petitioner. The court held:
Once the state, through acts or omissions of its officials, has led a person, through no fault of his own, to believe that he is free of a prison sentence, and makes no attempt for a prolonged period of years to reacquire custody over him, that person should be able to rely on the state's action or inaction and assume that further service of the sentence will not be exacted of him.Id. at 947.
Lanier is distinguishable from the case at bar insofar as Wright does not assert that the State of New Jersey waived its jurisdiction over him. Indeed, the record shows that, since 1976, the state aggressively pursued Wright by filing a parole warrant with the Warden of Passaic County and later with authorities in Atlanta, Georgia.
On August 27, 1976, Wright was turned over to federal authorities pursuant to a warrant filed on August 16, 1976 by the United States Board of Parole. (Ra#79) Petitioner contends that he had begun serving his sentence on July 1, 1976 when he was placed in Passaic County Jail awaiting transportation to the State Prison Reception Center at Yardville. In support of this contention, petitioner relies on the findings of the New Jersey Superior Court, Appellate Division, in State v. Middleton, No. A-2791-78, slip op. at 2-3 (N.J.App. Div. Aug. 18, 1980) (per curiam), which found that Middleton, a co-felon in the Passaic County crime of which Wright was convicted, had begun his sentence on July 1, 1976. (Pa#11 at pp. 2-3) As an initial matter, Wright was not a party to those proceedings. Furthermore, petitioner, unlike Middleton, was under federal jurisdiction at the time he was sentenced on the Passaic County convictions. He had not yet begun to serve his state sentence on those convictions because he was first required to serve his sentence for federal parole violation.
In addition, the sentences imposed on petitioner for the Passaic County convictions were to be served separate from and not concurrent with any sentences or action which was imposed as a result of his federal parole violation. (Ra#5-14) To the extent that petitioner remained under federal jurisdiction at the time of sentencing, it is settled law that "the sovereignty which first arrests the individual acquires the right to prior and exclusive jurisdiction over him." In Re Liberatore, 574 F.2d 78, 89 (2d Cir. 1978). See also Ponzi v. Fossenden, 258 U.S. 254, 260-261 (1922); Zerbst v. McPike, 97 F.2d 253, 254 (5th Cir. 1938); Gillman v. Saxby, 392 F. Supp. 1070, 1072-73 (D.Haw. 1975). "[T]his plenary jurisdiction is not exhausted until there has been complete compliance with the terms of, and service of any sentence imposed by, the judgment of conviction entered against the individual by the Courts of that sovereignty." In Re Liberatore, 574 F.2d at 89.
In any event, this Court is not persuaded by petitioner's contention that he was forced to serve his state sentence on the Passaic County convictions in installments. Pursuant to 18 U.S.C. § 3585, "[a] sentence to a term of imprisonment commences on the date the defendant is received into custody awaiting transportation to . . . the official detention facility at which the sentence is to be served." In the present case, petitioner was held in Passaic County jail following his sentencing on July 1, 1976, but remained under the jurisdiction of the United States Board of Parole for prior federal charges. Petitioner was not received into the custody of New Jersey state officials until he completed his sentence for federal parole violation in 1982. Based on these facts, petitioner's Fourteenth Amendment due process argument that he was forced to serve his state sentence in installments, and his Fifth Amendment double jeopardy argument, must fail.
Petitioner alternatively argues that he was subjected to punishment twice for the Passaic County convictions because he began serving his state sentence on July 1, 1976, and was forced to again serve a sentence on those convictions when he was returned to a New Jersey state prison on August 6, 1982. Insofar as this Court has found that petitioner did not begin to serve his sentence on the Passaic County convictions until August 6, 1982, petitioner's Fifth Amendment argument is also without merit.
Wright also argues that his due process rights were violated by officials during his extradition proceedings from New York to New Jersey. Specifically, petitioner asserts that officials committed perjury and fraud by characterizing him as a "fugitive" from justice as a result of his failure to appear for service of his state-imposed sentence. Petitioner contends that he never failed to appear for service of his sentence, nor was he a "fugitive" within the meaning of Article IV, Section 2 of the Federal Constitution. In support of his argument, petitioner refers to a warrant from the Governor of New York to the Sheriff of Orange County. (Pa#9) The warrant is little more than a replicated form applying standard language for a document of its nature. In addition, the phrase "failed to appear for sentencing" is clearly stricken from the document and replaced with "is wanted for service of sentence." To the extent that this phrase is accurate, petitioner's claim is clearly contradicted by the very document that he cites in support of his argument. Moreover, even assuming that the warrant contained errors, petitioner has adduced no evidence that the errors were made in bad faith or that they resulted in actual prejudice. For these reasons, this Court finds that petitioner's claims of perjury and fraud in violation of his Fourteenth Amendment due process rights are without merit.
CONCLUSION
For the aforementioned reasons, the petition to vacate, set aside, or correct the petitioner's sentence pursuant to 28 U.S.C. § 2254 is DENIED.
A certificate of appealability shall not issue since the petitioner has not made a showing of the denial of a constitutional right.
An appropriate Order accompanies this Opinion.