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