Section 2254 - Constitutional Claims Not Exhausted by Direct Appeal in State Court

In Ellison v. Rogers, No. 04-2314, the Third Circuit held that a §2254 petitioner’s allegations of ineffective assistance should have been raised in state post-conviction proceedings rather than on direct appeal, where the trial record was not sufficient to establish petitioner’s allegations, and therefore his federal petition was properly dismissed for failure to exhaust state remedies. The petition was also properly dismissed, rather than stayed, by the district court.

Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.

The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.