The opinion of the court was delivered by: Cooper, District Judge
Petitioner, Thomas Simms, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner also moved to have this proceeding stayed while he exhausts his state court remedies, pursuant to 28 U.S.C. § 2254(c). For the reasons stated below, this Court will deny Petitioner's motion for a stay.
Petitioner was indicted on March 21, 2001 by a Monmouth County Grand Jury which charged Petitioner with four counts of attempted murder; four counts of aggravated assault; four counts of aggravated assault with a deadly weapon; four counts of aggravated assault, pointing a firearm; possession of a weapon for an unlawful purpose; unlawful possession of a weapon; acquiring a handgun without a permit to purchase; evidence tampering; hindering apprehension; and conspiracy to commit murder. (Resp.'s Br., Ex. 14, Da1-13.)
On May 7 through May 23, 2002, Petitioner and his co-defendant, Michael Simms, were tried jointly in New Jersey Superior Court before the Honorable Ira E. Kreizman, J.S.C. and a jury. (Id. at Ex. 1-12.) On May 23, 2002, the jury found Petitioner guilty of two counts of attempted murder (Counts One and Three), two counts of attempted passion/provocation manslaughter (as lesser offenses of Counts Two and Four), and all of the remaining charges in the indictment except for acquiring a handgun without a permit to purchase and conspiracy to commit murder. (Id. at Ex. 14, Da14-27.) The jury also found that Petitioner had committed a "violent crime" by using a deadly weapon or causing serious bodily injury in the commission of the crimes charged in Counts One through Eight of the indictment. (Id. at Ex. 14, Da20.)
Petitioner moved for a new trial arguing that: (1) the charge as to attempted passion/provocation manslaughter was incomplete because it did not include instructions on "course of ill treatment" (State v. Guido, 191 A.2d 45 (N.J. 1963)) or "mutual combat" (State v. Crisantos, 508 A.2d 167, 172 (N.J. 1986)); and (2) the verdict was inconsistent. (Id. at Ex. 13 (10-11 to 16-19).)
On September 27, 2002, Judge Kreizman denied Petitioner's motion for a new trial and imposed his sentence. (Resp.'s Br., Ex. 13 (28-6 to 41-2).) Petitioner received an aggregate sentence of forty years of imprisonment subject to an 85% parole disqualifier. (Id. at Ex.13 (65-15 to 76-13); Id. at Ex. 14, Da28-30.)
On or about December 9, 2002, a Notice of Appeal was filed on Petitioner's behalf. (Id. at Ex. 14, Da31.) Petitioner's appellate counsel raised the following points in his brief:
(1) Because the instructions given to the jury were confusing and because the charges relating to the shooting were presented sequentially on the verdict sheet, the jurors were perforce directed to consider passion/provocation manslaughter only if they found the Defendant not guilty of murder, in violation of State v. Coyle;
(2) the trial judge's refusal to instruct the jurors that a continuing course of ill treatment could provide the basis for a verdict of passion/provocation manslaughter deprived Defendant of the right to due process of law and a fair trial. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARAS 1, 9, 10.;
(3) the conviction under Count Seventeen for possession of a weapon for an unlawful purpose should have been merged into the conviction for attempted passion/provocation manslaughter under either Counts One or Three;
(4) the trial court violated Defendant's federal constitutional right to due process and his right to a jury trial when it sentenced him to consecutive terms and to terms greater than the presumptive term based upon facts neither admitted by Defendant nor found by the jury. (Id. at Ex. 14, 17.)
Petitioner also filed a pro se brief appellate brief, alleging the following:
(1) the instructions given to the jury were so confusing and misleading as to cause reversible error;
(2) a significant physical confrontation and/or a continuing course of ill-treatment could constitute adequate provocation for the shootings of Parrish and Amin Suluki;
(3) the sentencing court failed to be guided by general provisions when determining whether to impose a concurrent or consecutive sentence, and the code's paramount sentencing goals that punishment fit the crime, not criminal, and that there be a predictable degree of uniformity in sentencing while sentencing defendant. (Id. at Ex.16.)
On February 18, 2005, the New Jersey Appellate Division affirmed Petitioner's convictions and the imposition of consecutive terms on the attempted murder convictions, but vacated Petitioner's sentences and remanded for re-sentencing in accordance with Blakely v. Washington, 542 U.S. 296 (2004), as interpreted and applied in State v. Natale, 861 A.2d 148 (N.J. App. Div. 2004), aff'd in part & rev'd in part, 878 A.2d 724 (N.J. 2005). On February 28, 2005, the State filed a Notice of Petition for Certification to the New Jersey Supreme Court, seeking review of the portion of the Appellate Division's holding vacating Petitioner's sentences and remanded for re-sentencing. (Id. at Ex. 20.) On March 11, 2005, Petitioner's counsel filed a letter in opposition to the State's petition for certification and a Notice of Cross-Petition for Certification and a letter cross-petition in support thereof. (Id. at Ex. 21, 22.) On March 17, 2005, the State filed a brief in support of its petition for certification and a letter in opposition to Petitioner's cross-petition for certification. (Id. at Ex. 24-25.)
On September 23, 2005, the New Jersey Supreme Court granted the State's petition for certification, but summarily remanded the matter to the trial court for re-sentencing in accordance with State v. Natale, 878 A.2d 724 (N.J. 2005). (Id. at Ex. 34.) Also on that same day, the New Jersey Supreme Court denied Petitioner's cross-petition for certification. (Id.)
On November 29, 2005, pursuant to Natale, Judge Kreizman re-sentenced Petitioner and imposed the original sentence. (Id. at Ex. 27 (18-1 to 20-18); Ex. 34, Da70-72.) Petitioner appealed and on February 6, 2007, the Appellate Division's Excessive Sentencing Panel affirmed Petitioner's sentence. (Id. at Ex.29 (72-21 to 73-2). On April 20, 2007, Petitioner filed a pro se petition for post-conviction relief ("PCR") alleging that:
(1) Petitioner's federal and state 6th Amendment constitutional right to due process was violated, and thus deprived defendant of a fair trial;
(2) Trial counsel deprived defendant of his federal and state constitutional right to effective assistance of counsel;
(3) The ineffective assistance of appellate counsel deprived defendant of his federal and state constitutional right to effective assistance of counsel; and
(4) The defendant's excessive sentence is cruel and unusual in violation of his Eighth Amendment rights. (Id. at Ex. 34.)
Petitioner was subsequently appointed counsel to represent him in the PCR proceedings, and, on August 19, 2008, counsel filed a brief in support of Petitioner's PCR petition arguing:
(1) Defendant was denied the effective assistance of trial counsel in that counsel failed to adequately prepare for trial;
(2) Defendant was denied effective assistance of appellate counsel;
(3) The accumulation of errors made by defense counsel and trial judge so prejudiced the defendant as to undermine the right to receive a fair trial by jury;
(4) Unjust elements used in constructing the defendant's sentence resulted in the trial court abusing it's [sic] sentencing discretion requiring a reversal of the defendant's sentencing phase due to an illegal sentence. (Id. at Ex. 31.) On October 10, 2007, the State filed a brief in opposition to Petitioner's PCR application.
On November 13, 2008, Judge Kreizman denied Petitioner's PCR petition. (Id. at Ex. 33.) On April 22, 2009, Petitioner filed a Notice of Appeal. Appellate counsel filed a brief in support of Petitioner's appeal from the trial court's denial of PCR, alleging that "Defendant's attempted murder convictions must be reversed due to ineffectiveness of counsel and this matter must be remanded for an evidentiary hearing because a prima facie case of ineffectiveness of counsel was established." (Id. at Ex. 34, pp. 30-51.) Petitioner also filed a pro se supplemental brief in support of his appeal, again arguing that the jury instructions on attempted murder and attempted passion/provocation manslaughter were erroneous. (Id. at Ex. 35.) On May 14, 2010, the Appellate Division affirmed the order denying PCR for substantially the reasons expressed by Judge Kreizman in his November 13, 2008 opinion. (Petition for Writ of Habeas Corpus, Ex. A, 3-7.) On October 7, 2010, the New Jersey Supreme Court denied Petitioner's petition for certification.
On or about November 22, 2010, Petitioner filed a petition for a writ of habeas corpus here, raising these claims:
Ground One: Confusing jury instructions, sequential verdict sheet, on charges of passion, forced jury to consider passion only after finding defendant not guilty of attempted murder in violation of defendant's ...