The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
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. § 2254. For the
reasons set forth in this Opinion, Petitioner's request for
habeas corpus relief is denied.
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.
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 ...