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MURAD v. HENDRICKS

September 21, 2005.

TARIQ MURAD, a/k/a DERRICK CALLOWAY, Petitioner,
v.
ROY HENDRICKS, ET AL., Respondents.



The opinion of the court was delivered by: WILLIAM BASSLER, District Judge

OPINION

Petitioner, Tariq Murad ("Petitioner"), a/k/a Derrick Calloway, a state prisoner proceeding pro se, files this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. For the reasons set forth in this Opinion, Petitioner's request for habeas corpus relief is denied.

  I. BACKGROUND

  At approximately 11:10 p.m. on the evening of April 18, 1985, Eva Brown picked up her fiancé, Darius Williams, as he was leaving work. Eva, driving the vehicle, told Williams that she wanted to buy some marijuana and pulled the vehicle to the side of the road at the intersection of Prince and Spruce Streets in Newark. Williams exited from the automobile, crossed Prince Street and approached a group of people sitting outside of 234 Prince Street. He asked for marijuana, but was told by a member of the group, Angela Dortch, that they had none. Someone then told him to try further down the street.

  Williams crossed over Spruce Street and proceeded to walk down Prince Street when a group of at least three men approached him. An argument ensued and one of the men pulled out a gun and shot Williams apparently because he refused to surrender the money Eva had given him. Kenneth Dortch identified the Petitioner, Derrick Calloway, as the individual with the weapon, while his sister, Angela Dortch, identified Arthur King as the man who fired the shot.

  Although wounded, Williams ran back to his automobile and asked Eva for his gun. After Eva informed Williams that she did not have the gun, he tried to enter the vehicle from the passenger side. The Petitioner and his two co-defendants grabbed and pulled at Williams as he attempted to enter the vehicle. Eva eventually pulled Williams into the car, shut the door and locked it. Petitioner Murad then took his gun, reached into the vehicle, and fired at Williams.

  Eva drove Williams to the hospital where he died from his injuries. The medical examiner testified that the cause of death was internal hemorrhaging caused by three gunshot wounds.

  II. DISCUSSION

  A. Procedural History

  Tried to a jury, Petitioner was found guilty of felony murder under N.J.S.A. 2C:11-3a(3), first degree armed robbery, N.J.S.A. 2C:15-1, possession of handgun without the requisite permit, N.J.S.A. 2C:39-5b, and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. State v. Calloway, Indictment No. 4027-11-85. On his conviction for felony murder Petitioner was sentenced to forty years in New Jersey State Prison, with a thirty-year period of parole ineligibility. A five-year concurrent sentence was imposed on his conviction for the unlawful possession of a weapon. The trial court vacated the jury's verdict on the first-degree robbery and possession of a weapon for an unlawful purpose based upon the doctrine of merger.

  A second indictment charged Petitioner with second degree robbery. Petitioner entered a retraxit plea of guilty to that charge and was sentenced to a custodial term of five years. The trial court ordered that the sentence on the robbery conviction run concurrently with the custodial terms imposed on the felony murder and weapons offenses.

  Petitioner directly appealed the judgment of conviction, on grounds that the trial court improperly denied his motion for a severance and erroneously admitted autopsy photographs into evidence. State v. Calloway, A-3297-86T4 (App. Div. 1988). Petitioner also claimed that his guilty plea for second degree robbery was not supported by an adequate factual basis. The Superior Court of New Jersey, Appellate Division, finding that all of Petitioner's arguments were "clearly without merit," affirmed on June 7, 1988. State v. Calloway, supra, (App. Div. 1988). The Supreme Court of New Jersey denied certification of Petitioner's direct appeal on September 28, 1988. State v. Calloway, 113 N.J. 351, 550 A.2d 462 (1988).

  Petitioner then sought post-conviction relief ("PCR") alleging ineffective assistance of appellate counsel. The Petitioner's PCR was denied by the Honorable Michael J. Degnan, J.S.C., on March 26, 1993. After a remand ordered by the Superior Court of New Jersey, Appellate Division, the trial court again denied Petitioner's PCR on December 7, 1994. See State v. Calloway, 275 N.J. Super. 13, 645 A.2d 150 (App. Div. 1994). The Appellate Division affirmed the trial court in denying the petition for post-conviction relief on June 19, 1997. The Supreme Court of New Jersey denied Petitioner's motion to file a petition for certification as within time, and ...


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