The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on petitioner James R. Smith's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he is challenging his 2002 New Jersey state court conviction and sentence. For reasons discussed below, it appears from review of the petition papers provided by petitioner that his § 2254 habeas petition is subject to dismissal as time-barred under 28 U.S.C. § 2244(d).*fn1
Petitioner, James R. Smith ("Smith"), filed a petition for habeas corpus relief on or about March 10, 2010.*fn2 According to the allegations contained in his petition, Smith was convicted by jury trial on or about August 13, 2002, in the Superior Court of New Jersey, Law Division, Cape May County on multiple counts of kidnapping, aggravated sexual assault and weapons offenses. On August 22, 2002, Smith was sentenced to an aggregate term of 105 years in prison with 891/2 years of parole ineligibility, pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
Smith filed a direct appeal from his conviction and sentence to the Superior Court of New Jersey, Appellate Division. On October 5, 2004, the Appellate Division affirmed the conviction, but remanded the matter for clarification of the sentence with respect to the periods of parole ineligibility. The Supreme Court of New Jersey denied certification on January 26, 2005. See State v. Smith, 182 N.J. 429 (2005). Smith did not file a petition for a writ of certiorari with the Supreme Court of the United States.
On March 7, 2005, Smith filed a petition for post-conviction relief ("PCR"), pro se, in the Superior Court of New Jersey, Law Division, Cape May County. Smith withdrew his PCR petition on April 24, 2006. See State v. Smith, 2009 WL 2409307, * (N.J. Super. A.D. Aug. 7, 2009), cert. denied, 200 N.J. 505 (Nov. 20, 2009), certiorari denied, __ U.S. __, 130 S.Ct. 1695 (Mar. 1, 2010). However, Smith states in his petition that the PCR judge signed an Order dismissing the PCR with prejudice. (Petition at p. 8).
On May 1, 2008, Smith submitted a pro se motion to compel the State to reproduce copies of Smith's entire state court record. The motion was filed on June 4, 2008, and assigned to the Honorable Raymond A. Batten, J.S.C. in the Superior Court of New Jersey, Law Division, Cape May County. After a hearing on the motion on June 27, 2008, Judge Batten denied Smith's motion by Order filed July 9, 2008. Smith appealed the court's decision on July 27, 2008, before the Superior Court of New Jersey, Appellate Division. (Petition at pp. 8-9).
On August 7, 2009, the Appellate Division affirmed Judge Batten's Order, finding as follows:
In July 2008, defendant applied for copies of various portions of the record in this criminal matter. The judge*fn3 denied that motion, for reasons then given, as well as for the reasons set forth in his thorough supplemental opinion of October 1, 2008, which was filed after defendant filed this appeal. . . .
In his supplemental opinion, the motion judge determined that defendant had once been provided with all the materials he now seeks. Defendant nevertheless claimed that his copies "were destroyed by the Prison Officials during several cell searches which resulted from several lockdowns," and seeks to be provided again with the same materials previously provided by the State. The judge determined that, although N.J.S.A. 2A:152-17 requires that a person convicted of a crime may apply for such materials when it is shown that "a copy of the transcript of the record, testimony and proceedings at the trial is necessary for the filing of any application with the trial court," it does not require that a second set be provided.
In addition, the judge determined from defendant's description of the application he intended to file --regarding a change of custody from a drug or alcohol abuse rehabilitation facility to the Adult Diagnostic and Treatment Center -- that the records sought were not necessary for that purpose and that, in fact, such an application would have no merit. Moreover, the judge found determinative the fact that defendant had not requested additional copies of the record from either the Office of the Public Defender or his assigned counsel. The judge also cited other reasons for denying relief, which we need not explore in light of our disposition of the appeal.
In his appeal brief, defendant indicates that following the entry of the order under review, he made additional requests and began receiving portions of the record. These facts were not before the trial court; indeed, the motion judge found critical defendant's failure to seek reproduction of the record through other sources, such as his counsel in the earlier proceedings.
We agree with the motion judge's determination, in light of the fact that defendant had previously been provided with the materials in question at taxpayer expense, that defendant was not entitled to relief until at least such time as he exhausted other potential sources for the recovery of these materials. The fact that defendant has apparently obtained some of these materials since the motion judge ruled demonstrates not only the soundness of the judge's decision on that precise point but also that it would be inadvisable for this court to either monitor or examine what has occurred since the entry of the order in question, or examine the other reasons expressed by the motion judge in his supplemental opinion.
In short, it may be that defendant now has, or will soon receive, all that is necessary for the trial court application he has not yet filed -- a circumstance that would moot our consideration of any of the issues raised. Or, it may be that the materials not yet secured are so limited as to alter the State's opposition to the relief. In any event, it appears that circumstances have changed with regard to defendant's attempt to obtain ...