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Barry Grant Conn v. Karen Balicki

January 28, 2011

BARRY GRANT CONN, PETITIONER,
v.
KAREN BALICKI, RESPONDENT.



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

NOT FOR PUBLICATION

OPINION

Petitioner Barry Grant Conn, a prisoner currently confined at the Southwoods State Prison, Bridgeton, New Jersey, has submitted a petition, and an amended petition, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent is Karen Balicki, the Administrator of the Southwoods State Prison.

For the reasons stated herein, the petition must be denied.

BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division ("Appellate Division").*fn1

All of the offenses for which defendant was sentenced involved robberies of commercial establishments. In Atlantic County on September 2, 2002, defendant entered a Radio Shack in Hamilton Township and demanded money after pointing what he said was a "real looking" plastic gun at a female employee. About two weeks later defendant entered a video store in Hammonton, Atlantic County, and committed another robbery using what appeared to a "real gun." The Salem County convictions involved a robbery on September 16, 2002, at a Holiday Inn in Carneys Point Township, again with what defendant said was a plastic imitation firearm.

On November 21, 2003, in Atlantic County, defendant was sentenced in accordance with the negotiated agreement to a prison term of seventeen years with an eighty-five-percent parole disqualifier and credit of 431 days jail time. On January 12, 2004, in Salem County, he received a prison term of sixteen years with an eighty-five-percent parole disqualifier under NERA concurrent with the Atlantic County sentences and any Michigan sentences.[*fn2 ]

State v. Conn, 2007 WL 1425491 (D.N.J. App. Div. May 16, 2007) at * 1.

B. Procedural Background

Petitioner was charged with two indictments in Atlantic County. Both indictments charged the same five offenses: first-degree robbery; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; fourth-degree aggravated assault; and possession of a weapon by a convicted felon.

On October 30, 2003, Petitioner entered guilty pleas to two counts of armed robbery (count one of each Atlantic County indictment). In exchange for the guilty pleas, the State recommended an aggregate sentence of seventeen years, with an 85% period of parole ineligibility pursuant to the No Early Release Act ("NERA"). The plea agreement stipulated that the sentence would run concurrent to whatever sentence Petitioner received from the Salem County pending indictment. Petitioner also pled guilty to one count of robbery in Salem County charged in the Salem County indictment.

Petitioner was sentenced in Atlantic County on November 21, 2003, in accordance with the plea agreement. At the time of sentencing, the court found that because the crime was committed with a pellet gun, the Graves Act applied. N.J.S.A. 2C:43-6c.

On January 12, 2004, in Salem County, Petitioner received a prison term of sixteen years, with an 85% parole disqualifier under NERA, to run concurrently to the Atlantic County sentences and any Michigan sentences.

Petitioner appealed. Although counsel's motion to have the appeals of all three indictments consolidated was denied, the Appellate Division directed that the appeals be calendared back to back. On May 16, 2007, the Appellate Division rejected Petitioner's arguments on appeal, but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005), Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), which hold that a judge may not sentence a defendant beyond the "statutory maximum" based on non-stipulated findings of aggravating factors other than past criminal convictions. The New Jersey Supreme Court denied certification on December 6, 2007, and the United States Supreme Court denied certiorari on October 6, 2008.

On June 2, 2007, Petitioner was resentenced in Atlantic County to the same terms as he was previously sentenced. On June 14, 2007, Petitioner was resentenced on the Salem County indictment to the same terms as previously sentenced. Petitioner appealed the resentence, and on November 12, 2008, the Appellate Division affirmed the resentences.

Petitioner filed this habeas petition on December 2, 2008. Petitioner was advised of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). On June 29, 2009, this matter was consolidated with a second habeas petition filed by Petitioner. On August 13, 2009, Petitioner filed an amended petition. Respondent was ordered to answer, and on March 11, 2010, filed ...


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