On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 85-3660.
Before: SLOVITER and STAPLETON, Circuit Judges, and GREEN , District Judge*fn*
SLOVITER , Circuit Judge.
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Diagnostic Unit, New Jersey State Prison at Rahway under the New Jersey Sex Offender Act, N.J.S.A. 2A:164-3 to 164-13 (repealed 1979), and to two consecutive terms and one concurrent term of five to seven years to be served at the New Jersey State Prison.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 count 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 concluded 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.
A state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. §§ 2254(b) and (c); Rose v. Lundy, 455 U.S. 509, 515-20, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982), cert. denied, 459 U.S. 1115, 74 L. Ed. 2d 968, 103 S. Ct. 750 (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, 30 L. Ed. 2d 438, 92 S. Ct. 509 (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, 70 L. Ed. 2d 1, ...