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May 13, 1992

TROY TOULSON, Petitioner,
HOWARD L. BEYER, Superintendent New Jersey State Prison and ROBERT J. DEL TUFO, Attorney General of New Jersey, Respondents.

The opinion of the court was delivered by: WILLIAM G. BASSLER

 BASSLER, District Judge:

 Petitioner, Troy Toulson, an inmate at Trenton State Prison, Trenton, New Jersey, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. In support of his petition, he challenges both the fact and duration of his incarceration on the following grounds: (1) the admission of evidence at trial of statements petitioner made without the assistance of counsel violated petitioner's federal constitutional right to counsel under the Sixth and Fourteenth Amendments; (2) the admission into evidence at trial of certain statements made by petitioner violated petitioner's Fifth Amendment right against self-incrimination as articulated in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); (3) the trial judge's failure to give a limiting instruction regarding petitioner's statements was in plain error which prejudiced the trial's outcome; (4) petitioner's sentence totaling forty-five years in New Jersey state prison with a twenty-year parole disqualifier was "manifestly excessive"; (5) the judge based petitioner's sentence on facts that are neither in the trial record nor in the presentence report.

 For the reasons discussed below, petitioner's request for habeas corpus relief will be granted with respect to his sentencing; his request for relief with respect to his conviction is denied.

 I. Facts and Procedural History

 On December 30, 1980, petitioner was charged on five counts involving an attempted armed robbery on October 12, 1980. The counts included: (1) conspiracy to commit armed robbery, in violation of N.J. Stat. Ann. 2C:5-2; (2) possession of a handgun without a permit, in violation of N.J. Stat. Ann. 2C:39-5(b); (3) possession of a handgun with a purpose to use it unlawfully, contrary to N.J. Stat. Ann. 2C:39-4; (4) committing aggravated assault by knowingly causing serious bodily injury to victim, Christine Vay, in violation of N.J. Stat. Ann. 2C:12-1(b)(1); and (5) attempt to commit armed robbery with a deadly weapon, in violation of N.J. Stat. Ann. 2C:15-1. Da-1-6.

 Petitioner was convicted of all five counts and the trial judge committed him to the custody of the Commissioner of the Department of Corrections for consecutive terms of ten years, with a minimum parole ineligibility of five years on the first count; five years on the second count; ten years, with five years of parole ineligibility on the fourth count; and twenty years, with ten years of parole ineligibility on the fifth count. The third count conviction was deemed to merge into the fifth count conviction. Thus, petitioner's total sentence amounted to forty-five years, with twenty years of parole ineligibility. See Unpublished Opinion of Superior Court of New Jersey Appellate Division, at Da-23-24.

 Petitioner appealed both the fact of his conviction and the duration of his sentence to the Appellate Division; on October 4, 1982, the trial court's decisions were affirmed without opinion by the Appellate Division, as permitted by N.J. Rule 2:11-3(e)(2). Id. at Da-25.

 Petitioner challenged the Appellate Division's affirmance by petitioning for certification to the New Jersey Supreme Court, Da-27, however, in an order dated December 6, 1982, and filed December 8, 1982, the state supreme court denied certification.

 Petitioner then moved in the Appellate Division for reconsideration of his sentence on March 3, 1983, Da-45-47. This motion also was denied. Da-48 (Date of order illegible).

 Petitioner petitioned the Superior Court of New Jersey Law Division for post-conviction relief ("PCR") on the grounds that his sentencing exceeded the state statutory guidelines pursuant to N.J. Stat. Ann. 2C:44, and that the "sentencing judge based his sentence upon 'information' without giving notice to the defendant that such 'information' would be used and without giving the defendant the opportunity to answer the same." Petition for Post-Conviction Relief at Da-49. Petitioner's petition was denied on January 30, 1987. Habeas Corpus Petition P 11(a)(5) & (6).


 II. Exhaustion Requirement

 A state prisoner must exhaust state remedies before a federal court will entertain an application for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c). The United States Supreme Court explained that "the exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (citation omitted). As such, the exhaustion doctrine is applied to promote comity -- and minimize friction -- between the state and federal judicial systems "'by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' ...

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