The opinion of the court was delivered by: Hillman, District Judge
Petitioner Rodney Dutch, a convicted state prisoner currently confined at the South Woods State Prison in Bridgeton, 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 conviction and sentence. For the reasons stated herein, the Petition will be denied for lack of substantive merit.
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the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the factual recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on April 30, 2003, with respect to petitioner's direct appeal from his New Jersey state court conviction and sentence:
The record amply supports a finding that, on August 22, 1998, defendant, seeking money, attacked seventy-five-year-old Leslie Edwards with a hammer while Edwards was putting his car in the garage, causing two depressed skull fractures, external scalp wounds, and a fracture of the left fifth finger, and partially tearing off Edwards' left ear. Defendant then stole Edwards' wallet and, in the period between August 22 and 24, repeatedly utilized Edwards' PNC bank card for small purchases. It was the use of the bank card that led to Dutch's eventual identification and arrest. Neither the victim nor his wife could identify Dutch. However, he was identified in a photo array shown to Randy Williams, an attendant at an Exxon gas station where Dutch had stopped on three occasions on the morning after the crime. He was also identified by an employee of the Virginia Department of Motor Vehicles who had processed a change in registration of the car that he was using at the time of the crime. Following arrest, blood belonging to Edwards was found on Dutch's boot. (Respondents' Appendix ("Ra") at Ra9, April 30, 2003 Appellate Division opinion).
On October 21, 1999, the Camden County Grand Jury charged petitioner, Rodney Dutch ("Dutch"), second degree burglary, second degree aggravated assault, armed robbery, possession of a weapon for an unlawful purpose, theft, forgery, and fraudulent use of a credit card. Dutch was tried before a jury and the Honorable Norman Telsey, J.S.C., on May 15, 2001 through May 24, 2001. The jury returned a verdict of guilty on all counts on May 24, 2001.
On September 20, 2001, a sentencing hearing was scheduled before Judge Telsey. The court rejected Dutch's request that the aggravated assault charge and armed robbery charge merge, but did agree to merge Count 4 (possession of a weapon for an unlawful purpose) and Count 5 (theft) into the armed robbery charge. The court also merged the forgery charge into Count Seven (Fraudulent use if a credit card. The sentencing court further ruled that Dutch qualified as a persistent offender under N.J.S.A. 2C:44-3(a) and 2C:43-7, and granted the State's application for a mandatory extended term under the Repeat Violent Offender Statute, N.J.S.A. 2C:43-7.1. However, the court declined to apply the No Early Release Act, N.J.S.A. 2C:437.2, to the extended term. The court sentenced Dutch to an aggregate term of life imprisonment plus 15 years with a 351/2 year period of parole ineligibility.
Dutch filed a direct appeal from his conviction and sentence. In an opinion filed on April 30, 2003, the Superior Court of New Jersey, Appellate Division affirmed the conviction but vacated the sentence on the Count 2 conviction for aggravated assault, finding that it should have merged into the first-degree robbery conviction under Count 3. The Appellate Division then ordered a limited remand for resentencing in accord with its opinion. (Ra9).
On May 21, 2003, the trial court re-sentenced Dutch. Accordingly, Dutch's sentence was reduced to an aggregate term of life imprisonment plus five years with 27 years of parole ineligibility. (Ra10). Dutch promptly filed a petition for certification with the Supreme Court of New Jersey (Ra12, Ra13), which was denied by Order dated September 4, 2003 (filed September 8, 2003). (Ra16).
Immediately thereafter, on September 9, 2003, Dutch filed a pro se petition for post-conviction relief ("PCR") in state court. (Ra17). On June 30, 2006, the Honorable John T. McNeill, III, J.S.C., heard oral argument on Dutch's state PCR application. Judge McNeill denied the petition without an evidentiary hearing on July 18, 2006. (Ra20). On July 7, 2006, Dutch filed a motion for reconsideration of Judge McNeill's decision denying his PCR petition. The motion was docketed on July 19, 2006, and denied by Judge McNeill on July 27, 2006. (Ra21, Ra22).
On September 29, 2006, Dutch filed an appeal from the trial court's order denying his state PCR. (Ra23). In an opinion dated January 25, 2008, the Appellate Division affirmed the trial court's decision. (Ra28). On or about April 7, 2008, the Supreme Court of New Jersey denied Dutch's petition for certification. (Ra23)
Shortly thereafter, on or about May 19, 2008, Dutch filed the instant petition for habeas relief under 28 U.S.C. § 2254. Respondents answered the petition on January 29, 2009. The State also filed a motion to seal confidential materials, namely, the Adult Pre-Sentence Report and the Grand Jury transcript. On June 16, 2009, this Court granted the motion to seal. Dutch filed a traverse or objections to the answer on February 19, 2009, with exhibits submitted on March 5, 2009.
Dutch raises the following claims for habeas relief in his petition:
Ground One: The trial judge's finding of aggravating factors and predicate offenses to impose an extended term of life imprisonment violated petitioner's Sixth and Fourteenth Amendment rights because it should have been presented to the jury.
Ground Two: DNA evidence should have been presented to the Grand Jury.
Ground Three: Ineffective assistance of trial counsel because counsel did not challenge the trial court's finding of aggravating factors to impose an extended term, and because counsel failed to conduct any investigation.
Ground Four: Ineffective assistance of appellate counsel based on appellate counsel's failure to raise issues of trial counsel's ineffectiveness.
The State contends that the petition should be denied for lack of substantive merit. The State also argues that Dutch has procedurally defaulted on his claim regarding the failure to present DNA evidence to the grand jury. The State does not assert that petitioner's claims are unexhausted, nor does the State argue that the petition is untimely.
A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). ...