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August 23, 2005.

TERRANCE MOORE, et al., Respondents.

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

  A. Procedural History

  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 Opinion.

  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.

  B. Factual Background

  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 falling object.

  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.


  Abdullah raises the following claims in his federal habeas petition:*fn6

  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 jury charge.

  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 illegal.

  Ground Seven (labeled 9 in Petition): Ineffective assistance of appellate counsel.

  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, ...

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