The opinion of the court was delivered by: Hochberg, District Judge
Jose Camilo 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, Passaic County, accompanied by several exhibits from the state court record.*fn1 Having screened the Petition for dismissal pursuant to Habeas Rule 4, see 28 U.S.C. § 2254 Rule 4, on December 12, 2007, this Court ordered Petitioner to show cause why the Petition should not be summarily dismissed as untimely. See 28 U.S.C. § 2244(d). Petitioner filed a response seeking tolling of the statute of limitations. For the reasons expressed below, this Court will dismiss the Petition with prejudice as untimely and deny a certificate of appealability.
Petitioner challenges a judgment of conviction entered in the Superior Court of New Jersey, Law Division, Passaic County, on September 15, 1982, after a jury found him guilty of murder, terroristic threats, attempted murder, aggravated assault, possession of a handgun for an unlawful purpose, and unlawful possession of a handgun. "The charges were in connection with a series of threats to defendant's ex-girlfriend and ultimately an argument on February 9, 1980, between defendant and his ex-girlfriend's mother and sister, during which the mother was killed and the sister was severely wounded." State v. Camilo, Docket No. A-5164-05T1 supplemental order (N.J. Super., App. Div., Jan. 8, 2007). The Law Division sentenced Petitioner to an aggregate term of life imprisonment plus 20 years, with 35 years of parole ineligibility. Id. at p. 2. Petitioner appealed, and on January 31, 1986, the Superior Court of New Jersey, Appellate Division, affirmed. (Pet. ¶ 9.d.) On May 20, 1986, the New Jersey Supreme Court denied certification. See State v. Camilo, 104 N.J. 397 (1986) (table).
Petitioner filed his first state petition for post-conviction relief in the Law Division in May 1992. (Pet. ¶ 11.a.3.) On September 25, 1993, the Law Division corrected the sentence and denied Petitioner's other requests for relief. (Id. ¶ 11.a.7.) On January 27, 1994, the New Jersey Supreme Court denied certification. State v. Camilo, 135 N.J. 304 (1994) (table).
Petitioner did not file his second state petition for post-conviction relief in the Law Division until 2003. (Pet. ¶ 11.b.3; Response at p. 1.) On July 30, 2003, the Law Division denied relief. (Pet. ¶ 11.b.8.) The Appellate Division affirmed the order denying relief, and on June 23, 2003, the New Jersey Supreme Court denied certification. See State v. Camilo, 177 N.J. 224 (2003) (table).
Petitioner filed a third petition for post-conviction relief in May 2005. (Pet. ¶ 11.c.3; Response, p. 1.) The Law Division again denied post-conviction relief on April 20, 2006. (Pet. ¶ 11.c.8.) Petitioner appealed, and the Appellate Division summarily affirmed by order filed January 8, 2007. See State v. Camilo, Docket No. A-5164-05T1 order (N.J. Super., App. Div., Jan. 8, 2007) (attached to Pet.). On June 1, 2007, the New Jersey Supreme Court denied certification. See State v. Camilo, 192 N.J. 69 (2007) (table).
Petitioner initially executed the § 2254 Petition, which is now before this Court, on August 28, 2007, and handed it to prison officials for mailing to the Clerk of the Court on September 1, 2007. See n. 1. (Pet. p. 16.) The Clerk initially received it on September 7, 2007. See Camilo v. Powers, Civil No. 07-4307 (DMC) (D. N.J. filed Sept. 7, 2007). In response to this Court's Mason Order, Petitioner notified the Clerk that he desired to withdraw the Petition and file one all-inclusive § 2254 petition, and this Court dismissed the Petition without prejudice on October 23, 2007. By letter to the Clerk dated November 10, 2007, Petitioner re-submitted the identical Petition to the Court as his one all-inclusive Petition, and the Clerk docketed it as a new matter. See Camilo v. Powers, Civil No. 07-5479 (FSH) (D. N.J. filed Nov. 14, 2007). The Petition raises three grounds:
Ground One: THE PETITIONER WAS DENIED A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS REPRESENTED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THAT IS WHEN COUNSEL FAILED TO EFFECTIVELY REPRESENT DURING SEPARATE BUT CRUCIAL STAGES OF TRIAL. AND COUNSEL WAS FURTHERMORE INEFFECTIVE, BY FAILING TO DISCLOSE, THROUGH TRANSLATOR THAT A TENTATIVE PLEA OFFER PROPOSED BY THE STATE WOULD ESSENTIALLY ELIMINATE THE POSSIBILITY FOR A CONSECUTIVE APPLICATION AT TIME OF SENTENCE.
Ground Two: THE PETITIONER COMPLAINS THAT (HIS) DUE PROCESS RIGHTS, AS PROTECTED BY THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION, WERE VIOLATED WHEN TRIAL COURT PERMITTED AN INVOLUNTARY STATEMENT TO BE ENTERED IN THE RECORD FOR JURY CONSIDERATION.
Ground Three: THE PETITIONER WAS DENIED DUE PROCESS PROTECTION AS GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND WAS SUBJECTED TO 5TH AMENDMENT DOUBLE JEOPARDY, WHEN TRIAL COURT [FAILED] TO MERGE AGGRAVATED ASSAULT WITH MURDER FOR SENTENCING PURPOSE.
(Pet. ¶ 12, Grounds One, Two and Three, pp. 6, 8, 9.)
In an Opinion filed December 12, 2007, this Court explained that the face of the Petition, together with the attached order/opinion of the Superior Court of New Jersey, Appellate Division, affirming the Law Division's order denying Petitioner's third petition for post-conviction relief, see State v. Camillo, Docket No. A-5164-05T1 order (N.J. Super., App. Div., Jan. 8, 2007), show that, in the absence of equitable tolling, the statute of limitations expired on April 23, 1997, five years before Petitioner filed his second petition for post-conviction relief in 2003. This Court directed Petitioner to show cause why the § 2254 Petition should not be summarily dismissed as time barred. On January 10, 2008, Petitioner filed a three page Response to the Order to Show Cause, arguing that the statute of limitations should be tolled.