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Ivey v. Balicki

March 17, 2010

DERRICK IVEY, PETITIONER,
v.
KAREN BALICKI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Wigenton, District Judge

OPINION

Derrick Ivey filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a conviction entered in the Superior Court of New Jersey, Hudson County, on June 18, 2001. For the reasons expressed below, and because the Petition, as drafted, shows that the claims are time barred, this Court will dismiss the Petition and deny a certificate of appealability.

I. BACKGROUND

Petitioner challenges a judgment of conviction entered in the Superior Court of New Jersey, Law Division, Hudson County, on June 18, 2001, after a jury found him guilty of first-degree aggravated sexual assault, second-degree endangering the welfare of a child, and fourth-degree child abuse. (Pet. ¶¶ 1-6.) The Law Division imposed an aggregate 20-year term of imprisonment, with 10 years of parole ineligibility. (Id. at ¶ 3.) Petitioner appealed, and on April 10, 2003, the New Jersey Superior Court, Appellate Division, affirmed. (Id. at ¶ 9.) On July 21, 2003, the New Jersey Supreme Court denied certification. (Id.) See State v. Ivey, 177 N.J. 495 (2003) (table).

Petitioner asserts that he filed a state petition for post-conviction relief on November 26, 2007. (Pet. ¶ 11(a)(3)) (Docket entry #1 at p. 3.) The Law Division denied relief and the Appellate Division affirmed on August 20, 2009. (Docket entry #1 at p. 11.) Petitioner does not indicate whether he sought review by the New Jersey Supreme Court.*fn1

The cover letter for Petitioner's § 2254 Petition, which is presently before this Court, is dated February 10, 2010. The Clerk received and filed the Petition on February 22, 2010. The Petition raises eight grounds:

Ground One: IT WAS ERROR TO DENY THE PETITIONER'S DEFENSE COUNSEL MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT.

Ground Two: UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

Ground Three: THE SENTENCE PETITIONER RECEIVED WAS MANIFESTLY EXCESSIVE.

Ground Four: THE LOWER COURT ORDER MUST BE REVERSED SINCE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

Ground Five: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE COURT ERRED IN DENYING PETITIONER'S MOTION FOR THE PRODUCTION OF MEDICAL RECORDS.

Ground Six: THE LOWER COURT ERRED IN NOT GRANTING PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING AND THE COURT ORDER MUST BE REVERSED.

Ground Seven: THE PETITIONER'S SIXTH AMENDMENT RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

Ground Eight: THE PETITIONER'S RIGHT TO DUE PROCESS OF LAW UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION WAS VIOLATED BECAUSE PCR COUNSEL FAILED TO OFFER ANY ...


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