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Miller v. Glover

September 29, 2010

RICKY MILLER, PETITIONER,
v.
LARRY GLOVER, ET AL., RESPONDENTS.



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

OPINION

THIS MATTER comes before the Court by motion filed by petitioner, Ricky Miller, to amend his petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Docket entry no. 8). On February 19, 2010, respondents filed an opposition to petitioner's motion to amend the petition on the ground that it was time-barred. (Docket entry no. 10). This motion is being determined on the papers, pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, petitioner's motion to amend the petition is granted.

I. PROCEDURAL BACKGROUND

Petitioner, Ricky Miller ("Miller"), was arrested on November 24, 2004, by the New Jersey State Police, on charges of first degree robbery, second degree aggravated assault, third degree possession of a weapon for an unlawful purpose, fourth degree unlawful possession of a weapon, and third degree theft. These charges were the result of an armed robbery that occurred on November 22, 2004 at Smitty's Liquor Store in Knowlton Township, New Jersey.

On February 17, 2005, an Early Disposition Conference ("EDP") was held at which the State offered that Miller plead guilty to one count of first degree robbery and be exposed to a twelve (12) year sentence at the New Jersey State Prison. The sentence also would include a mandatory minimum period of confinement equal to 85% of the maximum sentence, pursuant to New Jersey's No Early Release Act ("NERA"). Miller rejected the plea offer and the matter was then held for Grand Jury.

On March 2, 2005, the Warren County Grand Jury returned an indictment on all the above charges except the theft charge. An arraignment conference was held on April 3, 2005. On or about April 20, 2005, petitioner's application to represent himself was heard, and the state court granted the application, allowing Miller to represent himself with the assistance of stand-by counsel to be appointed by the Public Defender's Office.

Numerous pre-trial motions were filed and heard from April 26, 2005 through November 16, 2005, including Miller's motion to suppress, which was denied on November 16, 2005.

On November 18, 2005, a pre-trial conference was held. The pre-trial memorandum indicated that a Wade hearing and a motion to dismiss would be heard immediately before trial. Trial was scheduled to commence on November 29, 2005. Jury selection commenced on November 29, 2005. The Wade hearing was conducted on December 5, 2005, after which the trial court ruled that the in-court and out-of-court identification of Miller by the victim could be used at trial. The trial started on December 6, 2005, with opening statements.

On December 20, 2005, the jury returned a verdict of guilty against Miller on all counts. Miller filed a motion for a new trial which was denied on January 23, 2006, after a hearing was held on the motion on January 20, 2006. On April 3, 2006, the trial court sentenced Miller to an aggregate term of twenty (20) years in prison with an 85% parole disqualifier pursuant to NERA.

Miller filed a direct appeal from his conviction and sentence before the State of New Jersey Appellate Division. On February 5, 2008, the Appellate Division affirmed the conviction, but remanded the matter for an amendment of the judgment of conviction to reflect that the conviction for third degree possession of a weapon for an unlawful purpose should have merged for sentencing purposes with the conviction for first degree robbery. Miller filed a petition for certification before the Supreme Court of New Jersey. The New Jersey Supreme Court denied certification on April 2, 2009.

Miller filed his initial habeas petition pursuant to 28 U.S.C. § 2254, on or about June 2, 2009.*fn1 Miller filed a motion to amend his petition on February 8, 2010, which included the amended petition with supporting declaration. (Docket entry no. 8).

On February 19, 20010, respondents objected to the amended petition on the ground that it is time-barred, pursuant to 28 U.S.C. § 2244.

II. ANALYSIS

A. Pro Se ...


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