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Sharrieff v. Cathel

July 30, 2009

JIHAD ABDULLAH SHARRIEFF, APPELLANT
v.
RONALD H. CATHEL, ADMINISTRATOR; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY PETER C. HARVEY



On Appeal from the United States District Court for the District Court of New Jersey, District Court No.05-cv-04525, District Judge: The Honorable Jose L. Linares.

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 24, 2009

Before: BARRY, SMITH, Circuit Judges and RESTANI, Judge.*fn1

OPINION

Appellant Jihad Abdullah Sharrieff unsuccessfully petitioned the District Court for habeas relief based on an alleged violation of his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296 (2004). Because the State*fn2 admits that a Blakely violation occurred, this appeal turns on the resolution of one issue: whether the State expressly waived the exhaustion requirement under 28 U.S.C. § 2254(b)(3) when it conceded exhaustion before the District Court. We hold that it did. Accordingly, we will reverse the District Court's decision in part, and remand with instructions to grant Sharrieff's petition for habeas relief so that he may be resentenced in state court on his two robbery convictions.

I.

Sharrieff was convicted in the Superior Court of New Jersey of charges stemming from the armed robbery of two individuals and the murder of a third. He was sentenced to a total term of imprisonment of life plus forty years with a sixty-four-year parole bar. On April 8, 2004, the Superior Court of New Jersey, Appellate Division, denied Sharrieff's appeal of his convictions and sentences for committing the robberies and the murder.*fn3

On June 24, 2004, the United States Supreme Court issued its decision in Blakely v. Washington. On January 5, 2005, Sharrieff filed two documents with the Supreme Court of New Jersey: 1) a motion for leave to file a notice of petition for certification nunc pro tunc, and 2) a letter-petition for certification that argued, for the first time, that his sentences were imposed in violation of Blakely. The Supreme Court of New Jersey granted Sharrieff's motion for leave to file a notice of petition for certification as within time, but denied his petition for certification.

Following the Supreme Court of New Jersey's denial, Sharrieff petitioned the District Court for habeas relief without first seeking post-conviction relief in state court. In his federal habeas petition, Sharrieff raised, inter alia, a claim that his sentences were imposed in violation of Blakely. In its answer, the State "emphasize[d] that petitioner has received a full, fair and adequate hearing by the New Jersey State Courts with respect to all of the issues raised." Specifically addressing Sharrieff's Blakely claim, the State noted that Sharrieff did not raise it prior to his petition for certification, but concluded that it "appears that [Sharrieff] has exhausted his state court remedy as to this issue, since he presented it to the state's highest court in his petition for certification."

The District Court denied Sharrieff's habeas petition on its merits and refused to issue a certificate of appealability. We issued a certificate of appealability to determine whether the sentences for Sharrieff's two robbery convictions were imposed in violation of Blakely. We denied Sharrieff's request for a certificate of appealability as to all other issues.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Since the District Court ruled on Sharrieff's habeas petition without an evidentiary hearing, our review of its decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). "Thus, we will review the state courts' decisions applying the same standard as the District Court." Id. Here, since no state court has adjudicated the merits of Sharrieff's Blakely claim, we will review pure legal questions and mixed questions of law and fact de ...


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