BIUNNO, Senior District Judge
James Gregory Jones has filed a petition under 28 USC § 2254 challenging the judgment of conviction entered in Superior Court of New Jersey on November 24, 1976, under authority of which he is now in custody in Rahway State Prison.
The petition sets out two grounds. One ground is that there was no probable cause for his arrest, as a consequence of which he claims that no evidence obtained as a result of the arrest was admissible against him.
The second ground is that by reason of the refusal of a resentencing panel to reduce his life sentence for murder, in light of the sentence of 28 to 30 years for murder imposed on his co-defendant, he has been denied due process and equal protection under the Fourteenth Amendment.
The claim on the first ground, assuming it to be of a federal nature, is an unexhausted claim and so the petition must be dismissed without considering the merits. Rose v. Lundy, 455 U.S. 509, 71 L Ed 2d 379, 102 S. Ct. 1198 (1982). The lack of exhaustion is due to the fact that, after modification and affirmance of the conviction as modified, on the direct appeal to the Superior Court, Appellate Division, Jones sought direct review in the Supreme Court of New Jersey by petition for certification, allowance of which is discretionary, without taking an appeal of right on the alleged federal constitutional ground. See Herring v. Fenton, 531 F. Supp. 937 (D.N.J., 1981).
The claim on the second ground, despite the reference to due process and equal protection, is a State law claim, not a federal claim. Jones refers to State v. Hubbard, 176 N.J. Super. 174, 422 A.2d 471 (Res.Pan., 1980), but ignores State v. Maguire, 176 N.J. Super. 164, 422 A.2d 466 (Res. Pan. 1980), which was reversed by the Supreme Court of New Jersey, 84 N.J. 508, 423 A.2d 294 (1980). As those decisions make clear, the question was one of legislative intention in the enactment of NJSA 2C:1-1 d(2), as part of the New Jersey Code of Criminal Justice (1979), which provides for resentencing consideration in specified cases for persons sentenced under pre-existing law. The Supreme Court decision in Maguire is that a defendant convicted of first-degree murder and sentenced to mandatory life imprisonment is not entitled to reconsideration for possible reduction of sentence. This ground is one not coming within § 2254. In addition, the petition fails to indicate that any appeal was taken from the May 6, 1981 denial of Jones' motion by the Resentencing Panel.
A separate order of dismissal is entered.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 576 F. Supp.]
ORDER DENYING CERTIFICATE OF PROBABLE CAUSE
It appearing that on September 21, 1982, this court signed an order denying application for writ of habeas corpus arising out of process issued by a State court; and
It further appearing that petitioner has taken an appeal therefrom, thereby requiring this court to either issue a certificate of probable cause or state the reasons why such a certificate should not issue, pursuant to F.R.App. P. 22 (b); and
It appearing that the said petition was a "mixed petition" which must be dismissed without considering the merits, all as set forth in the Memorandum dated September 21, 1982 (copy of which is attached); and
It appearing that there is no substantial question raised which is worthy of further consideration.
It is on this 29th day of October, 1982
ORDERED, for the foregoing reasons, that a certificate of probable cause be and the same hereby is denied.
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