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Ross v. Ortiz

March 13, 2007

ROBERT ROSS, PETITIONER,
v.
ALFARO ORTIZ, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Renee' Marie Bumb

OPINION

Robert Ross filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a conviction in the Superior Court of New Jersey, Mercer County. Petitioner thereafter filed a motion to amend the Petition to clarify the one claim presented. Having screened the Petition for dismissal pursuant to Habeas Rule 4, see 28 U.S.C. § 2254 Rule 4, the Court orders Petitioner to show why the Petition should not be dismissed as untimely. See 28 U.S.C. § 2244(d)(1)(A) & (d)(2).

I. BACKGROUND

Petitioner challenges a judgment of conviction entered in the Superior Court of New Jersey, Mercer County, on November 20, 1998, after a jury found him guilty of causing bodily injury to a parole officer performing his duties, contrary to N.J. STAT. ANN. § 2C:12-1b(5)(a). See State v. Ross, 2006 WL 1520670 (N.J. Super., App. Div., June 5, 2006). After denying a motion for a new trial, the Law Division sentenced Petitioner to an extended 10-year term of incarceration, with a five-year period of parole ineligibility. (Id.) Petitioner appealed. In an opinion filed May 12, 2000, the Superior Court of New Jersey, Appellate Division, affirmed. (Id.) On September 8, 2000, the New Jersey Supreme Court denied certification. See State v. Ross, 165 N.J. 529 (2000) (table).

By letter dated June 30, 2003, Petitioner filed a pro se petition for post-conviction relief in the Superior Court of New Jersey, Law Division, which was amended by counsel in November 2004. See State v. Ross, 2006 WL 1520679 *1 (N.J. Super., App. Div., June 5, 2006). Petitioner appealed the Law Division's order denying relief, and the Appellate Division affirmed on June 5, 2006. Id. The New Jersey Supreme Court denied certification on September 8, 2006. See State v. Ross, 188 N.J. 354 (Sept. 8, 2006) (table)

Petitioner executed the § 2254 Petition, which is now before this Court, on December 11, 2006. The Clerk of the Court received it on December 14, 2006. The Petition raises two grounds:

Ground One: PETITIONER WAS DENIED DUE PROCESS OF A FAIR TRIAL BY THE STATE'S SUPPRESSION OF EXCULPATORY EVIDENCE.

Ground Two: PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

(Pet. ¶ 12.A.)

II. DISCUSSION

A. Standard of Review

"In conducting habeas review, a federal court is limited to deciding whether a conviction violate[s] the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); accord Engle v. Isaac, 456 U.S. 107, 119-120 (1982).

"Habeas corpus petitions must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). To this end, Habeas Rule 4 requires the Court to examine a petition prior to ordering an answer and to summarily dismiss the petition if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." 28 U.S.C. § 2254 Rule 4. As the Supreme Court explained,

Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in district court," the court must summarily dismiss the ...


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