On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-08-1367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Wefing and LeWinn.
Defendant appeals from the September 10, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.
Tried to a jury in March 2002, defendant was convicted of second-degree attempted theft, N.J.S.A. 2C:20-3; third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a). He was sentenced to an aggregate term of fifteen years in prison with a seven-year period of parole ineligibility.
In an unpublished opinion on May 19, 2004, we affirmed defendant's convictions and sentence. State v. Gerrard, No. A-5635-01, (App. Div. May 19, 2004) (slip op. at 6 to 11). The Supreme Court denied defendant's petition for certification, State v. Gerrard, 181 N.J. 287 (2004), and his motion for reconsideration. State v. Gerrard, 182 N.J. 145 (2004).
Defendant filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254(a), in the United States District Court for the District of New Jersey. In that petition, defendant raised ten claims of trial error, and two claims that his sentence was "grossly excessive" and "illegal." On January 17, 2007, the court issued a decision staying defendant's Petition and holding it in abeyance to afford defendant the opportunity to exhaust his claims in state court. Gerrard v. Parrish, No. 04-6056 (D.N.J. January 17, 2007) (slip op. at 24).
On January 26, 2007, defendant filed a pro se PCR petition raising the following two claims: (1) illegal sentence; and (2) prosecutorial misconduct in vouching for the credibility of the State's witnesses. Defendant stated in his petition that he was "alerting the [c]court at this juncture, that [he] shall proceed Pro-se [sic]." Within the petition itself, defendant further certified that he was "[s]eeking to appeal Pro-se [sic] in this [p]etition[.]" Defendant submitted a lengthy memorandum of law. With respect to his prosecutorial misconduct claim, defendant cited the following excerpt from the prosecutor's summation as evidence of his improper vouching for the credibility of his witnesses:
Now, with regard to some of the inconsistencies within the testimony..., remember one thing, we're dealing with an event that happened two years ago. This is May 13th, 2000[,] this is March 7th, 2002. All right.
People's recollections [are] going to be a little bit different overtime [sic]. No dispute about that.
But one thing that you have to keep in mind, and keep in the back of your head were people credible, were they truthful? And in this case from the statement, from the salesperson, Miss Calandriello, she was credible. Very credible. She pointed out where she was, she pointed out the video, she pointed out the defendant. Very credible, okay.
With regard to Mr. Sinnott, he indicated that the defendant actually banged on and looked at him like, you know, everything's all right. You can ...