The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
ORDER DENYING APPLICATION FOR HABEAS CORPUS RELIEF PURSUANT TO 28 U.S.C. § 2254
1. David Ray, the petitioner in an application for Habeas Corpus under 28 U.S.C. § 2254, is presently incarcerated at FCI Raybrook pursuant to a 151 month sentence imposed by Judge Rendell of the Eastern District of Pennsylvania on May 15, 1995, on guilty pleas to four counts of an indictment charging petitioner with various charges relating to the possession and distribution of cocaine. The presentence investigation report indicates that his offense level, after all adjustments, was 32, and that his criminal history category was III based on 6 criminal history points. Ray received the minimum sentence within a guideline range of 151 months to 188 months. Since his guilty plea was not entered until the day fixed for trial and because Ray did not provide a statement concerning his offense conduct, he did not receive a reduction of an additional offense level pursuant to U.S.S.G. 3E1.1(b). (See ¶ 15 of presentence report dated April 10, 1995).
2. Five of his six criminal history points resulted from three convictions in 1985 in the New Jersey Superior Court, two for possession of a handgun (Indictment #s 676-03-85 and 0572-03-85) and one for possession of cocaine (Indictment # 1366-06-85). On June 17, 1985, Ray pled guilty to illegal possession of a handgun (Indictment # 0572-03- 85), and on August 2, 1985 was sentenced to three years probation and a fine. He received one criminal history point for this conviction. Less than two months later, on October 1, 1985, Ray pled guilty to the Seventh Count of Indictment 1366-06-85 charging possession of cocaine and to the First Count of Indictment# 676-03-85 charging illegal possession of a handgun. On January 2, 1986, Ray was sentenced on both charges to five years probation with a condition that he serve 270 days in the Camden County Jail. As part of the plea bargain, a more serious charge of possession with intent to distribute cocaine (Eighth Count of indictment 1366-85) was dismissed. He received two criminal history points for each of these two convictions. His attorney for both charges and on the earlier gun charge was Aaron Denker, Esq. His sixth criminal history point resulted from a municipal court conviction on November 7, 1985, which does not appear to be implicated in the instant petition.
3. The impact of the three Superior Court convictions in 1985 on his federal sentence in 1995 was substantial. Not only did they operate to elevate his criminal history category to III, but they also deprived him of the possibility of getting "safety valve" relief under U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6). *fn1
4. There appears to have been a violation of probation charge lodged against Ray in all three of his 1985 Superior Court convictions based on his 1995 federal conviction. At a hearing on May 3, 1996, the trial court terminated his probation on all three 1985 convictions and sentenced Ray to a four year custodial term on indictment 1366-85, to run concurrently with his federal sentence.
5. Up to this point petitioner had never filed a direct appeal or collateral attack on his three 1985 Superior Court convictions. However, on August 25, 1996, Ray filed a pro se petition for post- conviction relief pursuant to New Jersey Rule 3:22-1, five years and seven months beyond the five year filing limit provided in Rule 3:22-12.
6. In his petition he asserted actual innocence of the 1985 drug charge (Indictment # 1366-06-85), claiming that he pled guilty only on the advice of counsel to get a low sentence. He asserts that his counsel never advised him that his guilty plea could lead to an enhanced sentence in the future should he be convicted of a subsequent crime. There is some confusion as to whether Ray's arguments applied just to the narcotics charge or to the two 1985 gun convictions. In any case Judge Isaiah Steinberg, J.S.C., denied the petition as being out of time. His order of September 30, 1997, was captioned under Indictment # 676-03-85. The transcript of the hearing held before Judge Steinberg on September 10, 1997, is captioned under Indictments #s 0572-03-85 and 1366-06-85. However, a review of the Public Defender's brief to Judge Steinberg and the decision of the Appellate Division opinion make it clear that the only conviction being attacked was the cocaine charge in Indictment # 1366-06-85. Moreover, there is no doubt that the State of New Jersey considers Ray's claims with respect to that conviction to be procedurally defaulted. See Wainwright v. Sykes, 433 U.S. 72 (1977) and Coleman v. Thompson, 501 U.S. 722 (1991).
7. Counsel was appointed to represent petitioner before Judge Steinberg and on appeal to the Appellate Division and the New Jersey Supreme Court. The New Jersey courts rejected Ray's argument that warnings by certain unidentified Camden Police officers to stay out of Camden justified the more than five year delay in filing his petition under Rule 3:22-12. Ray's Petition for Certification to the Supreme Court of New Jersey was denied on July 6, 1999. The instant petition in this court followed on September 22, 1999.
8. Although his current petition makes clear that Ray is challenging all three 1985 convictions, his factual assertions focus primarily on the two pleas entered on October 1, 1985, with respect to Indictments #s 1366-06-85 (drugs) and 676-03-85 (weapon possession). He lists as his grounds for relief, police corruption, prosecutorial misconduct, ineffectiveness of counsel and miscarriage of justice. He repudiates the admissions made during the plea colloquy and argues that the Camden police were engaged in extorting money from drug dealers, that the prosecutor fabricated evidence, that he is innocent of the charges, and that he pled guilty on the advice of counsel who did not advise him that these convictions might later be used to enhance a sentence should he commit another crime.
9. Under New Jersey Rule 3:22-12 a petition for post conviction relief must be filed within five years of "rendition of the judgment or sentence sought to be attacked." The only exceptions are "petitions to correct an illegal sentence" and delay "due to defendant's excusable neglect." With respect to Ray's state petition attacking his cocaine conviction (Indictment # 1366-06-85), Judge Steinberg ruled:
Accordingly, I do feel that the time bar does apply. This petition was filed more that five years after the expiration of the time bar. And there has not been a showing of excusable neglect or an illegal sentence. (Transcript, 9/10/97, p.21)
Judge Steinberg rejected Ray's argument that his delay was "excusable neglect" because one of the officers who arrested him allegedly threatened him and told him to stay out of Camden. Given the population of Camden and the availability of the U.S. mail, Judge Steinberg felt that the ten year old ...