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Durham v. Sherer

July 26, 2006

MILTON PAUL DURHAM, HONORABLE JEROME B. SIMANDLE PETITIONER,
v.
LYDELL SHERER, ADMINISTRATOR, NEW JERSEY STATE PRISON, AND THE ATTORNEY GENERAL OF NEW JERSEY, RESPONDENTS.



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

OPINION

Petitioner, Milton Paul Durham, filed a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Docket Item 1]. For the reasons set forth below, the Petition will be denied.

I. FACTUAL BACKGROUND

On November 8, 1985, Petitioner was sentenced to a prison term of 20 years; 10 years without parole for first degree aggravated assault, and four ten year terms with five years of parole ineligibility for four counts of second degree sexual assault. (Judg. of Conviction, Resp. Ex. Ra 37-38.) Upon the same indictment, Petitioner was charged with several other crimes,*fn1 but these charges were dropped as part of a plea agreement. (Ans. ¶ 5, Pet. ¶ 5.)

II. PROCEDURAL HISTORY

Petitioner appealed from the judgment of conviction to the Superior Court of New Jersey, Appellate Division. (Pet. ¶ 9.) Petitioner argued that 1) the trial court erred by refusing to grant then Defendant's motion to withdraw guilty pleas, 2) the Defendant was denied effective counsel, and 3) he received an excessive sentence. (Id.) The Appellate Division affirmed the judgment of conviction on November 4, 1987. Id. Petitioner petitioned for certification to the Supreme Court of New Jersey, which was denied on February 16, 1988. (Pet. ¶ 9(e).)

Subsequently, Petitioner moved for Post-Conviction Relief in the Superior Court of New Jersey, Law Division, Atlantic County, alleging that 1) the grand jury was unconstitutionally selected and impaneled, 2) there were inaccuracies in the pre-sentence report, 3) ineffectiveness of counsel, and 4) involuntariness of his plea. (Pet. ¶ 11.) On February 15, 1991, the Superior Court found Petitioner's claims procedurally barred pursuant to N.J. Ct. R. 3:21-1. (Ans. ¶ 11.)

Petitioner appealed the denial of Post-Conviction Relief, which was denied. (Resp. Ex. Ra at 52-53.) The Supreme Court of New Jersey denied certification of the appellate decision on October 22, 1992. State v. Durham, 130 N.J. 597, (1992). (Resp. Ex. Ra at 54.)

On August 6, 2000, Petitioner filed a Second Motion for Post-Conviction Relief in the Superior Court of New Jersey, Law Division, Atlantic County. (Pet. ¶ 11.) There, Petitioner argued 1) that the sentence was illegal, 2) illegal grand jury selection, and 3) lack of notice of the right to a timely appeal. (Pet. ¶ 11.)

On July 25, 2002, the Superior Court denied the Second Motion for Post-Conviction Relief, holding 1) the petition was procedurally barred because it was outside the five year time limit of N.J. Ct. R. 3:22-12, 2) there was no excusable neglect in the ten year delay, 3) the guilty plea acted as a waiver of all challenges to the grand jury selection process, 4) the excessive sentencing claim was barred because it had previously been adjudicated on direct appeal in accordance with N.J. Ct. R. 3:22-5, and 5) since Petitioner had filed a direct appeal, there was no merit to his claim that he was unaware that he could appeal. (Resp. Ex. Ra at 55-59.) Petitioner did not appeal this ruling. (Id. at 59.)

In this Petition, filed July 25, 2003, Petitioner identifies the following grounds for relief:

1) Ineffectiveness of counsel;

2) Invalidity of guilty pleas;

3) The grand jury or petit jury was unconstitutionally ...


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