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Ianacce v. Rogers

December 21, 2005

THOMAS A. IANACCE, PLAINTIFF
v.
GRACE ROGERS,ET AL. DEFENDANTS



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

OPINION

Plaintiff Thomas A. Iannace ("Ianacce"), a prisoner who is confined at the Adult Diagnostic and Treatment Center in Avenel, New Jersey ("ADTC"), filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a New Jersey state court conviction. Respondents answered, arguing, inter alia, that the Petition should be dismissed as untimely. For the reasons expressed in this Opinion, the Court will dismiss the Petition as untimely and decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c), 2254(a),(b),(c).

I. BACKGROUND

Petitioner challenges a judgment of conviction filed on November 10, 1997, and amended on November 21, 1997, in the Superior Court of New Jersey, Law Division, Camden County, after a jury convicted him of multiple counts of aggravated sexual assault, endangering the welfare of a child, and sexual assault on a child less than 13 years of age. Petitioner was sentenced as a repetitive and compulsive sex offender to a term of 50 years in prison, with a 19-year period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center. Petitioner appealed, and in an opinion filed on April 1, 1999, the Appellate Division of the Superior Court of New Jersey affirmed. State v. Iannace, No. A-1416-97T3 (App. Div. April 1, 1999). On July 8, 1999, the Supreme Court of New Jersey denied certification. State v. Iannace, 161 N.J. 331 (1999) (table).

On April 6, 2000, Petitioner executed a pro se petition for post conviction relief and presumably handed it to prison officials for mailing to the New Jersey Superior Court, Law Division. The Law Division denied relief by an order entered May 4, 2001. Petitioner appealed, and in an opinion filed December 6, 2002, the Appellate Division affirmed. State v. Iannace, No. A-5738-00T4 slip op. (App. Div. Dec. 6, 2002). On June 5, 2003, the Supreme Court of New Jersey denied certification. State v. Iannace, 177 N.J. 221 (2003)(table).

Petitioner executed the Petition now before the Court on December 14, 2003.*fn1 The Court notified Petitioner of the consequences of filing such a Petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and gave him an opportunity to withdraw the Petition and file one all-inclusive Petition, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). In response to the Mason Order, Petitioner elected to withdraw the Petition and file one all-inclusive petition. By Order entered April 23, 2004, the Court granted the request to withdraw the Petition and directed the Clerk to close the file. In response to Petitioner's subsequent letter, this Court reopened the file and directed the Clerk to serve and Respondents to answer the Petition.

The Petition presents four grounds, none of which raises a right newly recognized by the United States Supreme Court:

Ground One: Failure to cross examine Det. D'Ascentis on his many inconsistencies in testimony throughout the trial.

Ground Two: Failure to apply for pretrial hearings to insure that all of my "evidence" would be heard.

Ground Three: Ineffective assistance of counsel's at both sentencing & PCR's to call an expert witness for my defense.

Ground Four: Failure to question both victim & mother on the many inconsistencies in their testimony. They just assumed that everything was true.

(Pet. ¶¶ 12.A. - 12.C.)

The State filed an Answer, arguing that the Petition is untimely and that the grounds raised do not warrant habeas relief. Petitioner filed a Traverse, several letters, and exhibits, arguing that the Petition was ...


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