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RIDER v. ORTIZ

October 3, 2005.

MILTON RIDER, Petitioner,
v.
ALFARO ORTIZ, et al., Respondents.



The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge

OPINION

This matter is before the Court on petitioner Milton Rider'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, Milton Rider ("Rider"), is presently confined at the Riverfront State Prison in Camden, New Jersey, serving a prison term of 50 years with a 25-year parole disqualifier.

  On February 13, 1986, Rider and another defendant, James Williams, were indicted by a Bergen County grand jury for (1) robbery, in violation of N.J. STAT. ANN. 2C:15-1(a)(2); (2) possession of a weapon for unlawful purposes, in violation of N.J. STAT. ANN. 2C:39-4; (3) possession of a prohibited weapon or device, specifically, a sawed-off shotgun, in violation of N.J. STAT. ANN. 2C:39-3(a); and (4) possession of a handgun without a permit, in violation of N.J. STAT. ANN. 2C:39-5.

  A twelve-day jury trial commenced on December 2, 1986 and lasted through December 19, 1986. The jury found Rider guilty on all charges. On July 31, 1987, the judge sentenced Rider to 50 years with a 25-year parole disqualifier on the robbery count. On the count for possessing a handgun without a permit, Rider was sentenced to four years in prison to be served concurrently. The other two counts were dismissed for sentencing purposes.

  B. Factual Background

  The pertinent factual background is taken from the respondents' answer and the relevant state court record provided. On February 13, 1986, a Bergen County grand jury was convened to consider charges against petitioner in this case. The assistant prosecutor, who presented the case to the grand jury, listed all the witnesses expected to testify and asked the jurors if they knew any of the listed witnesses. One juror stated that he had been a close personal friend of one witness since 1977, but insisted that he could remain impartial on the grand jury.*fn1 The assistant prosecutor allowed the juror to remain on the panel to hear the testimony, but directed that the juror was to abstain from any participation, deliberations and voting. The juror agreed to follow the prosecutor's admonitions.

  Before trial, defense counsel moved to dismiss the indictment based upon the prosecutor's disqualification of the grand juror. It was argued that allowing the juror to remain on the panel violated the requirement of grand jury secrecy during the presentation, deliberation, and voting stages of the proceedings. In response to the motion, the State argued that the juror was qualified to sit and that the presenting prosecutor had been overcautious in his admonitions to the juror. The State also noted that no evidence had been adduced that the juror deliberated and voted on the indictment, but he could have done so without violating the rules. The trial judge denied the motion, finding no prosecutorial misconduct and no evidence of prejudice from the grand juror's presence in the grand jury room. (Respondents' Exhibit 3 at 26-27). On appeal, the Superior Court of New Jersey, Appellate Division, found Rider's claim to be "clearly without merit." State v. Milton Rider, Docket No. A-626-87T4 (App. Div. 1989) (Rider I) (Resp. Ex. 4 at 9). This claim was not raised by Rider's appellate counsel on his petition for certification to the Supreme Court of New Jersey.

  Rider raised the claim of prosecutorial misconduct and ineffective assistance of appellate counsel in an earlier federal habeas petition filed before this Court. The petition was dismissed without prejudice for failure to exhaust state court remedies. Rider v. Hendrix, et al., Civil No. 98-5852 (JAG) (Resp. Ex. 32). Accordingly, Rider attempted to file a petition for certification nunc pro tunc to the New Jersey Supreme Court, raising these claims for state court review. The New Jersey Supreme Court denied the application by Order filed October 17, 2002. State v. Milton Rider, Docket No. 53, 633. (Resp. Ex. 33).

  Rider then filed a petition for a writ of mandamus before the United States Court of Appeals for the Third Circuit, seeking to compel this Court to "file" his federal habeas petition. In the interim, Rider also filed this habeas petition. On September 2, 2003, the Third Circuit denied mandamus relief. In re Rider, C.A. No. 03-2354 (Resp. Ex. 34) (Docket Entry No. 9, 10).

  Rider filed this habeas petition on or about March 21, 2003. He was granted leave to file an amended petition, by this Court's Order dated April 15, 2003. Rider filed the amended petition on or about May 14, 2003. He also wrote to the Court several times seeking a statutory exception to the exhaustion requirement under 28 U.S.C. § 2254(b). (Docket Entry Nos. 6, 8, and 15). Rider filed a motion on December 27, 2004, seeking interpretation and application of the "fundamental fairness exception" with respect to the issue of exhaustion.*fn2 (Docket Entry No. 16).

  Respondents filed their answer to the petition on June 1, 2004.

  II. CLAIMS FOR HABEAS RELIEF

  Rider asserts claims of prosecutorial misconduct and ineffective assistance of appellate counsel with respect to the grand juror disqualification issue. In his amended petition, he also asserts "illegal actions by the state courts" with respect to the denial of the motion to dismiss the indictment. Rider argues that the state courts' decisions are contrary to, or an unreasonable application of, clearly established Supreme Court precedent. In particular, Rider contends that the state courts failed to apply and adhere to a New Jersey Supreme Court case, State v. Murphy, 110 N.J. 20 (1988), in which he argues that the court dismissed an indictment under circumstances similar to this matter.

  In their answer, respondents assert that petitioner's claims are procedurally defaulted, and are not cognizable on federal review. The State also contends that the ineffective assistance of appellate counsel claim is without merit.

  III. EXHAUSTION REQUIREMENT AND PROCEDURAL DEFAULT

  Respondents argue that Rider's claims are procedurally defaulted because the New Jersey Supreme Court denied Rider's petition for certification as out of time, ...


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