The opinion of the court was delivered by: Cooper, District Judge
Petitioner, Norman Reid, who is 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, challenging his New Jersey state court sentence. After the respondents filed their answer to the habeas petition on April 4, 2008, Reid moved, on or about May 21, 2008, to stay or hold the petition in abeyance so that he could exhaust his federal claims in state court. For the reasons stated herein, the motion will be denied.
Reid was indicted on charges of murder, possession of a weapon for an unlawful purpose, possession of a handgun without a permit, and possession of a firearm by a convicted felon. He was tried by a jury in January 1997, on the first three counts. The charge of possession of a firearm by a convicted felon was severed from the trial. The jury acquitted Reid on the charge of murder, but found him guilty of aggravated manslaughter, and the two weapons charges. Reid then pled guilty to the severed count of possession of a firearm by a convicted felon.
Reid was sentenced on March 21, 1997. The State moved to have Reid sentenced to an extended term, as he was a persistent offender. The State's motion was granted, and the sentencing court imposed a prison term of life with a 25-year parole ineligibility period as to Reid's conviction for aggravated manslaughter.*fn1 A consecutive term of ten years in prison with a five-year period of parole ineligibility was imposed on the conviction for possession of a firearm by a convicted felon. Consequently, the aggregated sentence was life imprisonment with a 30-year period of parole ineligibility.
Reid appealed his conviction and sentence to the New Jersey Appellate Division. On July 1, 1999, the Appellate Division affirmed the convictions, but remanded for resentencing. The New Jersey Supreme Court denied certification on October 25, 1999. On November 25, 1999, Reid petitioned for post-conviction relief ("PCR") in state court, alleging prosecutorial misconduct and ineffective assistance of counsel. The PCR petition was denied on December 8, 2000. Reid appealed from the court's decision, and the Appellate Division affirmed denial of the PCR petition on November 26, 2003.
On December 8, 2000, the trial court on remand resentenced Reid to the same sentence as earlier imposed. The court noted that at the time of the original sentencing, the court would have imposed the same sentence irrespective of any presumptive term. On June 28, 2004, the Appellate Division granted leave nunc pro tunc for Reid to appeal his resentencing of December 8, 2000. This appeal was pending when the New Jersey Supreme Court issued State v. Natale, 184 N.J. 458 (2005). Consequently, on September 22, 2005, the Appellate Division again remanded for a sentence rehearing pursuant to the Natale decision.
A resentencing hearing was held, and on November 10, 2005, and the same sentence was imposed on this second remand. Reid appealed, and the Appellate Division affirmed the resentence on June 19, 2006. The New Jersey Supreme Court denied certification on September 27, 2006. The United States Supreme Court denied Reid's petition for certiorari on April 16, 2007.
Reid filed this habeas petition on or about September 4, 2007, and the State responded on April 4, 2008. Reid filed his objections to the State's response on May 20, 2008. He then moved to stay these habeas proceedings on May 21, 2008, and filed a supplemental letter brief in support on June 20, 2008.
Reid raises the following claims for habeas relief:
Ground One: Petitioner's extended-term sentence violates the Sixth Amendment because it was based on a fact, other than a prior conviction, not found by a jury beyond a reasonable doubt.
Ground Two: Petitioner's ordinary-term sentence violates the Ex Post Facto Clause of the United States Constitution.
The State contends that the petition is without merit and should be denied for failure to show a federal constitutional deprivation.*fn2 The State, in response to Reid's motion for a stay of his habeas proceedings, confirms that he did file a state PCR petition on or about February 11, 2008, but the state court denied it on March 26, 2008, on the ground that the claims raised were procedurally barred ...