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Graciano Tirado v. State of New Jersey

March 28, 2011

GRACIANO TIRADO, PETITIONER,
v.
STATE OF NEW JERSEY, ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Petitioner, Graciano Tirado, a state prisoner presently confined at the New Jersey State Prison in Trenton, New Jersey, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner names the State of New Jersey and the New Jersey Department of Corrections as the party respondents in this matter.

Petitioner submitted the following motions in connection with his habeas petition: (1) motion to amend parties, defendant-respondent; (2) motion to compel joinder of third-party as necessary party; (3) motion to set aside judgment for lack of jurisdiction; and (4) motion for release of vessel or property. (Docket entry no. 1-2). Petitioner also filed, at a later time, the following motions for relief: (5) motion for default judgment (docket entry no. 5); (6) motion for preliminary injunction (docket entry no. 6); (7) motion for summary judgment (docket entry no. 8); (8) motion for a writ of habeas corpus ad testificandum (docket entry no. 9); (9) motion to compel defendants to serve answers (docket entry no. 10); and (10) motion for judicial performance and clarification on cause (docket entry no. 11). These motions are being considered on the papers pursuant to Fed.R.Civ.P. 78.

For the reasons set forth below, the habeas petition will be dismissed at this time, and Petitioners' motions will be denied as moot.

I. BACKGROUND

Petitioner filed this habeas petition on or about July 6, 2010. He paid the filing fee on July 15, 2010. Petitioner alleges that he is challenging his New Jersey state court conviction and sentence, entered on or about December 12, 2003, before the Superior Court of New Jersey, Law Division, Middlesex County. He was found guilty by jury trial on charges of murder and possession of a weapon for an unlawful purpose.

Petitioner filed a direct appeal before the Superior Court of New Jersey, Appellate Division. He asserted claims of prosecutorial misconduct in attacking the credibility of defense psychologists, and that his conviction for possession of a weapon for an unlawful purpose should have been merged into the conviction for murder. By Opinion filed on February 6, 2006, the Appellate Division affirmed the conviction but remanded the matter for amendment of the judgment of conviction to reflect the merger of count two into count one. The Supreme Court of New Jersey denied certification on April 28, 2006. Petitioner did not file a writ of certiorari with the Supreme Court of the United States.

On May 26, 2006, Petitioner filed a petition for post-conviction relief ("PCR") in state court, claiming that he was denied effective assistance of trial and appellate counsel. The PCR petition was denied on March 14, 2007, and Petitioner appealed. The Appellate Division affirmed denial of the PCR petition on July 17, 2009. The Supreme Court of New Jersey denied certification on October 28, 2009.

On or about July 6, 2010, Petitioner timely filed this habeas petition pursuant to 28 U.S.C. § 2254. Petitioner asserts the following claims in his § 2254 habeas form:

(1) There was no "in rem" remedy available in state court.

(2) There is an absence of state corrective process in that Petitioner was denied the opportunity to raise a matter of substance, namely, that his trial ...


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