The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter is before the Court on petitioner Basim W.
Abdullah's application for habeas corpus relief under
28 U.S.C. § 2254. For the reasons stated below, the petition for habeas
relief will be denied for failure to make a substantial showing
of a federal statutory or constitutional deprivation. I. BACKGROUND
Petitioner, Basim W. Abdullah, a/k/a Harold Lee Green,
("Abdullah"), is presently confined at the East Jersey State
Prison in Rahway, New Jersey, serving a life sentence with a 25
year parole disqualifier. (A-6).*fn1
On September 29, 1981, a Salem County Grand Jury returned a
three count indictment against Harold Lee Green (Abdullah),
charging him with aggravated assault, in violation of N.J.S.A.
2C:12-1b(2); first degree robbery, in violation of N.J.S.A.
2C:15-1; and first degree attempted murder, in violation of
N.J.S.A. 2C:11-2 and 2C:11-3. (A-1).
Before trial, Abdullah's counsel made a motion to dismiss the
indictment on the grounds of insufficient evidence and
prosecutorial misconduct at the grand jury proceeding. The court
denied the motion on May 24, 1982. (A-3). The case proceeded to
trial by jury before the Honorable Norman Telsey, J.S.C.,
Superior Court of New Jersey, Salem County, on June 30, 1982, and
concluded on July 2, 1982. Abdullah was found guilty as charged
on counts one and two, but was acquitted on the attempted murder
charge. On July 7, 1982, the State made a motion for an extended sentence pursuant to N.J.S.A. 2C:44-3. Abdullah was sentenced on
August 13, 1982.*fn2
Abdullah filed a direct appeal of his conviction and sentence
to the New Jersey Superior Court, Appellate Division, on or about
September 27, 1982. He claimed that the verdict was against the
weight of the evidence, that the grand jury indictment was
defective and tainted, and that the prosecutor violated a
sequestration order depriving Abdullah of a fair trial. In a
per curiam opinion dated June 24, 1985, the Appellate
Division affirmed the conviction and sentence. (A-10). The
Supreme Court of New Jersey denied Abdullah's petition for
certification on June 5, 1986. (A-20).
Abdullah then filed an application for post-conviction relief
("PCR") before the trial judge. The state PCR application was
summarily denied on September 19, 1986, and Abdullah appealed.
The Appellate Division reversed and remanded the matter on July
12, 1989, on the grounds that petitioner should have been
appointed counsel. (A-22). On remand, counsel was appointed and
the PCR application was amended and supplemented by counsel and
by Abdullah, pro se. Abdullah again raised the same claims
concerning the violation of a sequestration order during trial
and prosecutorial misconduct at the grand jury proceeding. He also raised new claims that both his trial and appellate
counsel were ineffective. Specifically, petitioner alleged that
appellate counsel was ineffective in failing to raise as a ground
for appeal the absence of a specific charge on identification by
the trial court. The trial court denied the PCR application by
letter opinion dated March 13, 1990. (A-24). An Order was entered
on May 3, 1990. (A-26).
Before the May 3, 1990 Order was entered, Abdullah appealed the
PCR denial to the Appellate Division. On July 24, 1992, the
Appellate Division affirmed the denial of Abdullah's PCR
application. The appellate court found that petitioner's first
two claims were never raised in prior proceedings and are not
cognizable on appeal.*fn3 Moreover, the claims lacked merit.
Petitioner's ineffective assistance of counsel claims were
likewise devoid of merit. (A-27, A-28). The Supreme Court of New
Jersey denied Abdullah's petition for certification on November
5, 1992. (A-29).
On April 19, 1993, Abdullah filed a state habeas corpus
petition before the Superior Court of New Jersey, Middlesex
County. The writ was denied on September 16, 1993, pursuant to N.J.S.A. 2A:67-14(b). (A-30). Abdullah then filed a motion for a
prerogative writ, which was denied on April 6, 1994. (A-31).
Abdullah appealed both denials, and on October 18, 1996, the
Appellate Division affirmed. Abdullah thereafter filed his third
state PCR petition, on July 10, 1997. In support of his petition,
Abdullah argued that the verdict was against the weight of the
evidence, the jury instructions were erroneous, and that the
sentence was illegal and excessive. The trial court denied the
third PCR petition on October 29, 1998, with a final order
entered on November 19, 1998. (A-33). An appeal was filed and the
Appellate Division affirmed on January 30, 2001. (A-34).
Certification was denied by the New Jersey Supreme Court on
February 10, 2002. (A-36).
Abdullah filed this § 2254 habeas petition on or about May 6,
2002. The petition was deficient because it failed to specify
petitioner's grounds for habeas relief. It also appeared that the
petition was time-barred under 28 U.S.C. § 2244(d)(1). The Court
issued an Order, filed June 14, 2002, granting petitioner 30 days
to resubmit an amended petition that specifies the grounds for
habeas relief, and directing petitioner to provide information
relating to the statute of limitations issue. (Docket Entry No.
3). Petitioner filed an amended petition on July 17, 2002.*fn4 Abdullah then sought to amend or
supplement his petition by motion filed on August 21, 2002.
Respondents answered the petition on November 1, 2002. Abdullah
filed another motion with a supporting certification on December
16, 2002. (Docket Entry Nos. 10, 11). In his second motion,
Abdullah asked the Court to dismiss only the unexhausted claims
raised in his petition, namely, his claims alleging a denial of
his right to testify at trial and present an alibi defense.
Abdullah filed a reply or traverse to the respondents' answer on
January 6, 2003. The motion to amend or supplement the petition
was denied by the Court by Order dated January 29, 2003. (Docket
Entry No. 13). By Order dated September 30, 2003, the Court
granted petitioner's motion to dismiss only the unexhausted
claims in the petition.*fn5 (Docket Entry No. 19).
Accordingly, those claims are not before the Court in this
On March 11, 2005, Abdullah filed another request for
appointment of counsel. He filed an amended petition, without
leave of this Court, on June 2, 2005. The request to amend the petition is granted because Abdullah seeks only to correct
typographical or pagination errors in his petition. He does not
attempt to add new claims. However, the motion to appoint counsel
will be denied as moot, since the Court finds no merit to
Abdullah's habeas petition, as set forth below.
The following rendition of facts are taken from the state court
record and the state appellate court opinions.
On August 21, 1981, Abdullah and his victim, Wallace Hahl, were
co-employees at the Anchor Hocking Glass Co. in Salem, New
Jersey. Testimony at trial confirmed that Hahl was generally
known to carry large sums of cash on him at work, and that on
August 21, 1981, he had been carrying two $100 bills, which he
called his "lucky pieces."
Abdullah had been seen "punching out" at the end of his shift
at 3:00 p.m. and reentering the plant where he worked. He was
then observed leaving the area and going through a back storage
area carrying a bundle of clothing with a jacket wrapped around
it under his arm. At the same time, a tow motor operator in the
warehouse saw a black man of the same height and weight as
Abdullah come out from behind a load in the warehouse, stop, look
and run across an alley. This person was wearing a blue shirt,
blue jeans and a blue or red bandana on his head. The tow
operator drove down the alley to see who the person was, but he found no one there. He then continued to where Hahl worked and
asked if Hahl had seen anyone. Hahl responded no. At about 3:15
p.m., another worker saw someone running from an adjacent alley
who was about the same height and weight as petitioner, and
wearing a red bandana. The worker called out, but the person did
not answer and ran between a load of wares. The worker went
searching for the person and came upon the tow operator. A few
minutes later, the worker saw petitioner come from the alley
holding a jacket which covered his hands. The petitioner was
wearing a plaid shirt and tan pants. At about 3:25 p.m., another
employee found Hahl sitting in his tow motor in an alley. Hahl
was bleeding profusely from the back of his head and stated he
thought something hit him.
Hahl was taken to the hospital and it was discovered that his
wallet was missing. He slipped into a coma and remained comatose
at the beginning of trial. The examining physician stated that
Hahl's injury was inflicted by a hard instrument, but nothing was
found at the warehouse to indicate that he had been hit by a
Abdullah was detained by the police after he was observed at
the hospital the day of Hahl's injury. Petitioner's clothing and
sneakers were taken from him as well as $560.00, which included
two $100.00 bills and lesser bills. At the warehouse, the police
found sneaker prints on two pieces of cardboard. However, the prints could not be positively matched to
petitioner's sneakers. Nevertheless, it was established that
wearing sneakers at the warehouse was a discouraged practice. The
police searched the storage area where Abdullah kept his work
clothes and found a paper bag with Abdullah's trousers, a joggin
jacket and a pair of his work shoes. A plant security officer
found a sledgehammer behind the sprinkler hose. The plant janitor
found the victim's wallet in the bay area. Police found a
bludgeon and a piece of red cloth from other places in the
general area. Half of the bludgeon was wrapped in tape found in
the area where petitioner worked. Hair taken from the red cloth
matched a hair sample taken from petitioner.
II. CLAIMS FOR HABEAS RELIEF
Abdullah raises the following claims in his federal habeas
Ground One (labeled 2-A in Petition): Ineffective assistance of
counsel based on trial counsel's failure to request a jury charge
on the crucial issue of identification. Ground Two (labeled 3 in Petition): Ineffective assistance of
trial counsel in failing to object to a deficient jury charge.
Ground Three (labeled 4 in Petition): The trial court abused
its discretion in hindering petitioner's right to a fair trial by
ruling that res judicata precluded review of an erroneous
Ground Four (labeled 5 in Petition): The indictment was
defective in that it contained charges involving murder and a
weapon, when no weapon or murder was involved.
Ground Five (labeled 6 in Petition): Prosecutor failed to
inform grand jury that a laboratory report excluded petitioner
from the crime, in violation of his Fourteenth Amendment rights.
Ground Six (labeled 7 in Petition): The extended sentence is
Ground Seven (labeled 9 in Petition): Ineffective assistance of
Ground Eight (labeled 10 in Petition): Petitioner was denied
his constitutional right to testify at trial and present alibi
defense. This last claim was dismissed at the request of
petitioner, by Order of this Court dated September 30, 2003, on
the grounds that the claim was unexhausted.*fn7 III. EXHAUSTION REQUIREMENT AND PROCEDURAL DEFAULT
Respondents argue that several of petitioner's claims are
procedurally defaulted. In particular, respondents note that
Abdullah's claims regarding the identification issue, the general
jury charge, his illegal and excessive sentence, and ineffective
assistance of trial and appellate counsel, were all held to be
procedurally barred under N.J.Ct.R. 3:22-12, by the New Jersey
Law and Appellate Divisions on state court review.
It is well established that a state prisoner applying for a
writ of habeas corpus in federal court must first "exhaust? the
remedies available in the courts of the State," unless "there is
an absence of available State corrective process? or . . .
circumstances exist that render such process ineffective. . . ."
28 U.S.C. § 2254(b)(1); see also 28 U.S.C. § 2254(c); Rose
v. Lundy, 455 U.S. 509, 510 (1982); Johnson v. Pinchak,
392 F.3d 551, 556 (3d Cir. 2004). A petitioner exhausts state
remedies by presenting his federal constitutional claims to each
level of the state courts empowered to hear those claims, either on direct
appeal or in collateral post-conviction proceedings. See,
e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)
("requiring state prisoners [in order to fully exhaust their
claims] to file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the
State"); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)
(collateral attack in state court is not required if the
petitioner's claim has been considered on direct appeal), cert.
denied, 532 U.S. 919 (2001); 28 U.S.C. § 2254(c) ("An applicant
shall not be deemed to have exhausted the remedies available in
the courts of the State, within the meaning of this section, ...