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Michael Keith Capers v. State of New Jersey

March 10, 2011

MICHAEL KEITH CAPERS, PETITIONER,
v.
STATE OF NEW JERSEY, ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner Michael Keith Capers,*fn1 a prisoner currently confined at the Adult Diagnostic and Treatment Center at Avenel, New Jersey, ("A.D.T.C"), has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Capers names as respondents State of New Jersey and Craig Conway.

For the reasons stated herein, the Petition must be dismissed for lack of jurisdiction because it is a second or successive petition which petitioner has not been granted leave to file by the Court of Appeals as required under 28 U.S.C. § 2244(b).

I. BACKGROUND

Petitioner was convicted in the Superior Court of New Jersey, Law Division, Camden County, of sexual assault, aggravated assault, and attempted murder on December 5, 2000. On February 16, 2001, the trial court imposed an aggregate term of 38 years of imprisonment, with 32 years, 3 months and 19 days of parole ineligibility.

Petitioner appealed to the New Jersey Superior Court, Appellate Division and his conviction was affirmed on May 1, 2003. The New Jersey Supreme Court denied his petition for certification on July 17, 2003. Trial court post conviction relief was denied on December 16, 2005.

On March 15, 2005, Petitioner filed his first § 2254 habeas petition related to the 2001 sentence in this Court and filed his amended petition on January 11, 2006. See Keith M. Capers v. Grace Rogers, et al., Civil Action No. 05-1567 (D.N.J.). On September 28, 2006, United States District Judge Noel L. Hillman denied that matter on the merits and ordered that no certificate of appealability would issue. Petitioner then applied to the United States Court of Appeals for the Third Circuit, which denied the application on September 24, 2007. Petitioner's petition for writ of certiorari to the United States Supreme Court was denied on October 14, 2008. Petitioner also made an application for rehearing that was denied on January 12, 2009.

Petitioner then filed his pending, second petition for writ of habeas corpus pursuant to § 2254 in this Court on March 31, 2010 and his amended petition on May 13, 2010.

II. 28 U.S.C. § 2254

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

With respect to any claim adjudicated on the merits in state court proceedings, the writ shall not issue unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determinated by the ...


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