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May 12, 2005.

Ralph Zara, Jr., Petitioner,
Alfaro Ortiz, Jr., Respondent.

The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge


Petitioner, Ralph Zara, Jr., currently confined in the Riverfront State Prison in Camden, petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). In support of this application petitioner asserts the state violated his right to due process of law and right to be free from double jeopardy when it rejected a plea agreement that had previously been approved, and claims the trial court gave erroneous and prejudicial jury instructions that also violated his right to due process. For the reasons set forth below, petitioner's application for writ of habeas corpus is denied.

I. Background

  A. Facts

  Petitioner was employed at the Waterford Wedgewood warehouse in Wall Township. Products are shipped to the warehouse from overseas and then delivered to stores for sale. The warehouse was experiencing a shortage in inventory and after an internal investigation, the police were notified. On March 30, 2000, Officer John Brockreide and Detective Texter of the Wall Township Police Department spoke to petitioner at the warehouse. The officers asked petitioner if he knew why they were there and petitioner responded that he had been involved in shipping items from the warehouse to his home. Subsequent to that conversation, petitioner agreed to accompany the officers to the police station. When they arrived at the station, petitioner was advised of his Miranda rights. Petitioner then provided a voluntary statement admitting his involvement. Petitioner also told the officers he had been recruited by his brother-in-law, Pat D'Anna, who had a supervisory position in the warehouse. D'Anna, who had no prior criminal record, was arrested and, after agreeing to make restitution of $52,070.50, was allowed to enter pre-trial intervention. After resolution of D'Anna's case, petitioner and the state negotiated the plea agreement discussed below.

  B. Procedural History

  On August 28, 2000, a Monmouth County Grand Jury indicted petitioner, charging him with: (1) theft of moveable property greater than $75,000, a second degree crime and (2) conspiracy, a second degree crime. Petitioner's Brief ("PBr") at 4. The matter was assigned to the Honorable Michael D. Farren, J.S.C., before whom petitioner was arraigned on October 2, 2000. Respondent's Brief ("RBr") at 2. On November 13, 2000, a status conference was held before Judge Farren, where petitioner rejected an offer by the state to recommend a flat five-year sentence. Id. Judge Farren established a plea cutoff date of December 4, 2000, and scheduled the trial for January 16, 2001. Id. In the interim, petitioner's counsel was transferred; First Assistant Deputy Public Defender Jeffery Coghlan assumed representation of petitioner and trial was rescheduled to February 26, 2001. Id.

  On that date, the matter was conferenced before the Honorable Theodore J. Labrecque, P.J.Cr., while Judge Farren was engaged in another trial. Id. at 2-3. Judge Labrecque was advised of the negotiated plea agreement, pursuant to which petitioner would plead guilty to theft, amended to a third degree crime, and the state would recommend a flat, four-year custodial sentence and "symbolic restitution" to Waterford Wedgewood. 2T at 3:15-22. The agreement dismissed the conspiracy charge and under the terms the state would not seek an extended term of confinement or parole ineligibility. Id. After colloquy, during which Judge Labrecque verified petitioner's understanding of the plea agreement and elicited a factual basis, the judge accepted the guilty plea from petitioner. 1T at 4:14-8:6. Judge Labreque then scheduled sentencing for April 6, 2001 before Judge Farren, who subsequently granted petitioner's request for an adjournment and rescheduled sentencing for May 25, 2001.

  At the sentencing hearing, Judge Farren expressed dissatisfaction with respect to the symbolic restitution. Judge Farren initially indicated confusion as to the meaning of "symbolic restitution." The term was defined by petitioner's counsel as an amount left for the court to determine based upon petitioner's immediate ability to pay. Judge Farren indicated a nominal amount was insufficient and petitioner should be responsible to pay greater restitution if ever petitioner's circumstances provided. Thereafter, Judge Farren provided petitioner opportunity to enter into consent judgment on behalf of Waterford Wedgewood in the amount of $52,070.50, Without such agreement, Judge Farren would not agree to impose a sentence in accordance with the defense and prosecutor's agreement. Petitioner refused to enter consent judgment and retracted his guilty plea. On July 24-July 27, 2001, petitioner stood trial on charges of second degree theft and second degree conspiracy. On July 27, 2001, the jury convicted petitioner of theft under $75,000, a third degree crime, and conspiracy to commit theft, a second degree crime. On September 28, 2001, pursuant to the jury finding, Judge Farren imposed concurrent custodial terms of five years for the theft and ten years for the conspiracy. The court further imposed a five-year period of parole ineligibility and ordered civil judgment in favor of Waterford Wedgewood in the amount of $52,070.50, to be paid at the rate of $100 per month commencing upon petitioner's release. Finally, the court imposed a $100 Violent Crimes Compensation Board penalty, a $150 Safe Neighborhood Service Assessment Fund, and a $30 Law Enforcement Officers Training and Equipment Fund penalty.

  Petitioner subsequently filed a motion for leave to file a notice of appeal nunc pro tunc. The New Jersey Appellate Division granted the motion, and on January 4, 2002, the petitioner filed a notice of appeal. On April 23, 2003, the New Jersey Appellate Division affirmed the conviction and sentence. On June 30, 2003, petitioner filed a petition for certification to the Supreme Court of New Jersey. On September 8, 2003, petitioner's certification was denied. On May 17, 2004, petitioner filed a writ of habeas corpus with this court.

  II. Discussion

  Petitioner argues his application for writ of habeas corpus should be granted because: (1) the state violated his right to due process of law and protection from double jeopardy when the sentencing judge refused to accept the plea agreement that had been previously approved, and (2) the trail court gave erroneous and prejudicial instructions to the jury that violated petitioner's right to due process of law. Respondents contend petitioner failed to exhaust available state remedies and petitioner's constitutional rights were not violated by the rejection of the plea agreement or the trial court's jury instructions.

  A. Standard of Review

  Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a petitioner for writ of habeas corpus must demonstrate he has exhausted available state court remedies (28 U.S.C. § 2254(b)(1)) and the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1). "Federal courts have no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982) (citations omitted). Accordingly, habeas corpus proceedings are limited to review of the state ...

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