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King v. Ortiz

December 14, 2006

BRUCE KING, PETITIONER,
v.
ALFARO ORTIZ, ET AL., RESPONDENTS.



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

OPINION

Bruce King filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254(a) challenging a conviction in New Jersey Superior Court, Mercer County. On March 24, 2006, this Court granted Petitioner's motion to amend the Petition to clarify the one claim presented, and directed Petitioner to show cause why the Petition should not be dismissed as time-barred. Petitioner filed a memorandum of law, two affidavits, and an appendix in response. Petitioner also moved again to amend the Petition to add four additional claims. Pursuant to Rule 4 of the Rules Governing Section 2254 Petitions, the Court will dismiss the Petition as untimely and deny a certificate of appealability.

I. BACKGROUND

Petitioner challenges a judgment of conviction entered on May 1, 1992, upon a jury finding him guilty of knowing or purposeful murder, two counts of robbery, two counts of aggravated assault, and weapons offenses. (Pet. ¶¶ 1-4.) He was sentenced to an aggregate 30-year term of imprisonment, with a 30-year period of parole ineligibility. (Id.) Petitioner appealed. The New Jersey Appellate Division affirmed in January 1995. (Id. ¶¶ 8-9.) On July 13, 1995, the New Jersey Supreme Court denied certification. State v. King, 142 N.J. 1363 (1995).

On an unspecified date, Petitioner filed in New Jersey Superior Court a pro se petition for post-conviction relief, which was amended by counsel in November 1996. Petitioner appealed the order denying relief, and the Appellate Division affirmed on March 4, 1999. The New Jersey Supreme Court denied certification on July 16, 1999. See State v. King, 161 N.J. 334 (1999).

On July 13, 2000, the Clerk received and filed Petitioner's first § 2254 Petition. See King v. Hendricks, Civil No. 00-3370 (MLC) (D.N.J. filed July 13, 2000). After issuing an order to show cause, this Court found some of the claims presented therein had not been exhausted and dismissed the petition without prejudice on January 4, 2002.

On an unspecified date, Petitioner filed a second petition for post-conviction relief in the Superior Court, which denied relief on March 26, 2003. (Pet. ¶ 11.) Petitioner appealed, and the Appellate Division affirmed the order denying post-conviction relief in November 2003. (Id.) According to the Petition, the New Jersey Supreme Court denied certification in May 2004. (Id.)

On October 30, 2005, Petitioner executed the Petition now before this Court. The Clerk received it on November 9, 2005. The Petition raises one ground: denial of commutation and work credits pursuant to statutory amendments enacted in 1996 and 2000, after Petitioner's sentence was imposed, violates due process, equal protection and the Ex Post Facto Clause. (Pet. ¶ 12.)

On February 14, 2006, the Clerk received Petitioner's motion to amend the Petition and a "Petition in Support of Motion for an Amendment of Petitioner's Petition for Writ of Habeas Corpus." This Court granted the motion on March 24, 2006. The amendment clarifies the ground raised in the Petition as follows: "THE IMPOSITION OF THE SENTENCE UPON PETITIONER/KING, IS EXCESSIVE OF OR OTHERWISE NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY NEW JERSEY LAW." As factual support, Petitioner asserts that he had earned 3,712 days of commutation credits and 1,201 days of work credits before New Jersey amended the law in 1996, and again in 2000. He alleges that, pursuant to the amendments, prison officials deprived him of work and commutation credits.

This Court ordered Petitioner to show cause why the Petition should not be dismissed as untimely under 28 U.S.C. § 2244(d)(1), on March 24, 2006.*fn1

In the Opinion accompanying the Order to Show Cause, this Court noted that the applicable limitations period (as to the one claim raised in the Petition) appeared to be 28 U.S.C. § 2244(d)(1)(D), "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." The statutory amendments challenged by Petitioner were enacted in 1996 and 2000. This Court explained that the Petition appeared to be untimely because Petitioner did not sign the Petition until October 30, 2005, which is at least 516 days after the New Jersey Supreme Court denied Petitioner's third petition for certification in May 2004.

Petitioner filed a six-page letter "Seeking Permission to Address the Court in Reference to a Clear Understanding of the Court's Orders and Instructions" on April 19, 2006. On April 23, 2006, Petitioner executed and mailed to the Clerk a motion to amend the Petition, together with a document entitled "Merit Brief" and a 32-page appendix. The "Merit Brief" appears to include the proposed second amended petition, which sets forth five additional grounds for habeas relief.*fn2 Petitioner also filed a letter in response to the Order to Show Cause, his own affidavit, the affidavit of an inmate paralegal, and an appendix.

II. DISCUSSION

A. Statute of ...


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