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State v. Riley

April 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE C. RILEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 86-03-00365.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2010

Before Judges Parrillo and Lihotz.

Defendant George C. Riley appeals from an order of the Law Division denying his sixth petition for post-conviction relief (PCR). We affirm.

As we stated in affirming the Law Division's order denying defendant's fifth PCR petition:

By way of background, in 1986, defendant was indicted, tried and convicted of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count one); attempted endangerment of the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count two); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count three). The court merged the attempted sexual assault and attempted endangering into the attempted aggravated sexual assault and sentenced defendant to an extended term, imposing a sentence of 20 years in prison subject to a parole ineligibility period of 10 years.

On direct appeal, we reversed defendant's conviction of attempted aggravated sexual assault on the basis of insufficiency of evidence. State v. Riley, No. A-1009-86T4 (App. Div. Dec. 11, 1987) (slip op. at 8-9). We affirmed, however, defendant's conviction of attempted sexual assault, into which lesser included offenses of which he was also convicted had been merged. Ibid. We also vacated the sentence, a twenty-year term subject to a ten-year parole ineligibility period, which had been imposed for the attempted aggravated sexual assault, and remanded for resentencing. Ibid. We pointed out, however, that since both attempted aggravated sexual assault and attempted sexual assault are second-degree crimes, the original sentence could, on reconsideration, nevertheless, be imposed. Ibid. Defendant's petition for certification to the Supreme Court was denied. State v. Riley, 110 N.J. 308 (1988).

Following our remand, defendant was resentenced on the attempted sexual assault to the term originally imposed on the attempted aggravated sexual assault. On appeal, we concluded that the Law Division had mistakenly exercised its sentencing discretion by considering inapplicable aggravating factors, and therefore again remanded for resentencing. State v. Riley, No. A-0171-88T4 (App. Div. Jan. 16, 1991). Again the Law Division imposed the same sentence, this time reciting aggravating factors consistent with our opinion and considering the mitigating factors urged by defendant. Again defendant appealed. We considered this third appeal on our Excessive Sentence Oral Argument calendar pursuant to R. 2:9-11. We affirmed. State v. Riley, No. A-0455-91T4 (App. Div. Mar. 23, 1992).

[State v. Riley, No. A-6396-06T4 (App. Div. June 12, 2008) (slip op. at 5-8.]

Apart from these direct appeals, defendant has pursued numerous collateral attacks on his 1986 conviction, practically non-stop, in both federal and state courts. On the federal side, defendant filed a habeas corpus petition in 1988 that was denied, as were all subsequent appeals and applications for reconsideration. In 1994, a second petition for a writ of habeas corpus was dismissed by the Federal District Court citing "abuse of writ" and lack of jurisdiction. Thereafter, motions for reconsideration and appeals were consistently denied, including the denial of three petitions for writ of certiorari by the United States Supreme Court in 1994, 2001 and 2006.

Riley v. New Jersey, 549 U.S. 1003, 127 S.Ct. 514, 166 L.Ed. 2d 383 (2006); Riley v. New Jersey, 534 U.S. 925, 122 S.Ct. 281, 151 L.Ed. 2d 206 (2001); Riley v. New Jersey, 513 U.S. 906, 115 S.Ct. 271, 130 L.Ed. 2d 189 (1994).

In state court, prior to the instant application, defendant filed five unsuccessful PCR petitions since he was first convicted in 1986. Apropos to the instant claims, in defendant's third PCR petition, dated January 27, 1998, ...


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