The opinion of the court was delivered by: Susan D. Wigenton United States District Judge
Petitioner Craig Reid, a convicted state prisoner currently confined at the New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The named respondents are the Warden of New Jersey State Prison, Michelle Ricci, and the Attorney General of the State of New Jersey.
For the reasons stated herein, the Petition will be denied for lack of substantive merit and because petitioner fails to raise a colorable federal claim.
The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the Appellate Division's factual recitation, as set forth in its December 22, 1998, unpublished Opinion on petitioner's direct appeal from his conviction:
The facts presented to the jury are essentially undisputed. On February 23, 1995, defendant decided to commit an armed robbery at the Popular Club, a store located in East Orange. While the manager and four employees were preparing to close the store, defendant entered the premises armed with a handgun. He wore a black mask over his face and yellow gloves on his hands. One of the employees observed defendant enter the store and was able to escape and go next door for help.
Defendant pointed the gun at the remaining four employess and demanded money. He was given $50 from the cash register and told that there was no more money in the store. Defendant then asked if a safe was on the premises. When told that a safe was in the rear of the store, he marched the women to that area at gunpoint. He ordered the manager to open the safe. Defendant pointed the gun at the manager and threatened to shoot her if she did not open the safe quickly. The safe was opened and defendant took cash and placed it in a bag he was carrying.
Thereafter, defendant attempted to leave the store through the front entrance. As he tried to leave, he saw an armed constable looking in the window. The constable had been notified of the robbery by the employee who fled when defendant entered the store. Before going to the store, the constable called the police.
When the police arrived defendant grabbed the manager and pointed his gun at her. He exited the building using her as a shield. He dragged her through the store's parking lot in an effort to escape. The police demanded that defendant release the manager; however, defendant refused and continued to drag her at gun point. The manager eventually grabbed on to a fence preventing defendant from pulling her further. Defendant then released her and began to flee. He turned around and pointed his gun at the police officers. The officers, in turn, fired their weapons, injuring defendant. He was apprehended and taken to the hospital.
An Essex County investigator visited defendant while he was hospitalized. The investigator identified himself and provided defendant with Miranda*fn1 warnings. Defendant waived his rights and the investigator proceeded to question him about the circumstances surrounding the incident. Defendant told the investigator that he drove past the store and observed that it was open, so he "decided just to do it." He further revealed that he had been in prison for robberies committed in 1989, and that he committed the instant offense because his fiancee had left him and he wanted to go back to jail.
Defendant offered a diminished capacity defense. His family members and a psychiatrist, Robert Latimer, M.D., testified on his behalf. The State provided the expert testimony of Azariah Eshkenazi, M.D., a psychiatrist, to refute defendant's defense of diminished capacity. The jury found defendant guilty of [four counts of armed robbery; kidnapping; eight counts of unlawful possession of a handgun; four counts of aggravated assault; burglary; terroristic threats; and possession of a handgun by a felon]. (Exhibit N,*fn2 December 22, 1998 Appellate Division Opinion).
On May 10, 1995, an Essex County Grand Jury returned Indictment No. 1815-5-95 against petitioner, charging him with five counts of first degree armed robbery, one count of first degree kidnapping, one count of third degree receiving stolen property, one count of third degree unlawful possession of a handgun, nine counts of second degree possession of a handgun for an unlawful purpose, four counts of fourth degree aggravated assault; one count of second degree burglary, and one count of third degree terroristic threats. (Exhibit A).
From June 18, 1996 through July 1, 1996, Reid was tried before a jury and the Honorable Michael A. Petrolle, J.S.C. At the conclusion of trial, the jury returned a verdict of guilty on all counts except one count of armed robbery and one count of possession of a handgun for an unlawful purpose. Count Seven of the Indictment, receiving a stolen gun, was dismissed by the court. On August 5, 1996, Judge Petrolle sentenced Reid to an aggregate term of life imprisonment plus fifty years, and a parole disqualifier of fifty years. (Exhibit B and ST).
Reid promptly appealed his sentence and conviction to the Superior Court of New Jersey, Appellate Division. (Exhibit C). On December 22, 1998, the Appellate Division affirmed the conviction, but remanded to correct the judgment of conviction to conform to the sentence intended by the sentencing court. (Exhibit N). Reid then filed a petition for certification to the Supreme Court of New Jersey. (Exhibit O). Certification was denied on March 30, 1999. (Exhibit Q).
On or about February 13, 1999, Reid prepared a handwritten petition for post-conviction relief ("PCR") for filing in state court. (Exhibit R). It does not appear that the PCR petition actually was filed. Then, on July 25, 2001, Reid prepared a more formal PCR petition, which was filed by Reid's counsel on August 7, 2001. (Exhibit S). An amended verified PCR petition was filed by the Public Defender representing Reid on March 3, 2003. (Exhibit T). Supplemental letters raising additional issues were submitted in May 2003, February 2004 and July 2004. (Exhibits U, V, and W, respectively). An evidentiary hearing*fn3 was held by Judge Petrolle, the original trial judge, regarding Reid's claims of ineffective assistance of counsel on the issue of sentencing exposure. On January 31, 2005, the court denied Reid's PCR petition, placing the reasons on record. (13T). An Order denying the PCR petition was entered on February 2, 2005. (Exhibit X).
Reid appealed from the denial of his PCR petition. (Exhibit Y). On January 24, 2007, the Appellate Division affirmed the decision of the trial court. (Exhibit CC). The Supreme Court of New Jersey denied certification on June 7, 2007. (Exhibit FF).
Reid filed this § 2254 habeas petition on August 13, 2007. The State filed a response to the petition, including the relevant state court record, on January 30, 2008.
Reid raises the following claims for habeas relief in his petition:
Ground One: Petitioner was denied effective assistance of counsel based on counsel's failure to properly advise petitioner regarding his penal exposure at the time petitioner rejected the State's plea offer.
Ground Two: Petitioner was denied effective assistance of appellate counsel based on counsel's failure to raise on appeal the specific use of robbery evidence at trial as constitutional error.
Ground Three: The trial court failed to adequately instruct the jury on constructive possession and on the lesser-included offense charge of criminal restraint.
Ground Four: Petitioner was sentenced to an invalid consecutive sentence in violation of Blakely v. Washington, 542 U.S. 296 (2004).
The State contends that the petition should be denied for lack of substantive merit. The State does not advance the affirmative defense that the habeas petition may be time-barred, and submits that petitioner's ...