The opinion of the court was delivered by: Hon. Susan D. Wigenton
Irone Watford filed a "MOTION UNDER 28 U.S.C. 2241 TO CONSIDER SECOND OR SUCCESSIVE APPLICATION TO VACATE/CORRECT SENTENCE UNDER 28 U.S.C. 2254 OR 2255," together with a brief and appendix. Petitioner, who is incarcerated at New Jersey State Prison, challenges a judgment of conviction in the Superior Court of New Jersey, Hudson County, on September 22, 1997. Having thoroughly reviewed Petitioner's submissions and this Court's docket, see Watford v. Hendricks, Civil Action No. 04-1388 (SDW) slip op. (D.N.J. April 27, 2007), certificate of appealability denied, C.A. No. 07-3203 (3d Cir. Mar. 10, 2008), and, for the following reasons, this Court will dismiss the Petition for lack of jurisdiction as a successive petition, and deny a certificate of appealability.
Petitioner challenges a judgment of conviction filed on September 22, 1997, in the Superior Court of New Jersey, Law Division, Hudson County, after a jury convicted him of armed robbery, second-degree robbery, first-degree carjacking, first-degree kidnapping, first-degree aggravated sexual assault during a robber and/or a kidnapping, first-degree aggravated sexual assault while armed, second-degree sexual assault, fourth-degree criminal sexual contact, possession of a knife for an unlawful purpose, and unlawful possession of a knife. The Law Division imposed an aggregate sentence of life imprisonment plus 80 years, with 60 years of parole ineligibility. On March 31, 2000, the Appellate Division of the Superior Court of New Jersey affirmed the conviction and sentence, and on July 7, 2000, the New Jersey Supreme Court denied Petitioner's petition for certification. See State v. Watford, 165 N.J. 487 (2000) (table). On October 19, 2000, Petitioner filed his first state petition for post-conviction relief, which the Law Division denied on January 17, 2002. On June 16, 2003, the Appellate Division affirmed, and on October 29, 2003, the New Jersey Supreme Court again denied certification. See State v. Watford, 178 N.J. 34 (2003) (table.)
On about March 24, 2004, Petitioner filed his first § 2254 petition
challenging the 1997 conviction in this Court. See Watford v.
Hendricks, Civil Action No. 04-1388 (SDW) (D.N.J. docketed Mar. 24,
2004, 2004). The Petition raised five claims,*fn1 and
Petitioner raised three
additional claims in his supplemental memorandum of law.*fn2
After ordering an answer and reply, on April 27, 2007, this
Court dismissed the petition (and the three additional claims) on the
merits and denied a certificate of appealability. On March 10, 2008,
the United States Court of Appeals for the Third Circuit dismissed the
appeal for lack of jurisdiction and denied a certificate of
appealability as moot.
Petitioner executed the papers presently before this Court on January 7, 2011. The Petition raises three grounds for relief from the judgment of conviction:
Ground One: PETITIONER'S FOURTEENTH AND SIXTH AMENDMENT RIGHTS AS GUARANTEED BY THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S IMPERMISSIBLE FINDING OF A "NEED TO PROTECT THE PUBLIC" WHICH IS A FACT OTHER THAN A PRIOR CONVICTION, AND SHOULD HAVE BEEN DETERMINED BY A JURY.
Ground Two: PETITIONER'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WAS VIOLATED BY THE TRIAL COURT'S RELIANCE OF TWO OF THE THREE AGGRAVATING FACTORS IT FOUND APPLICABLE DURING SENTENCING SINCE THOSE SAME AGGRAVATING FACTORS ALSO FORMED THE BASIS UPON WHICH THE JUDGE DECIDED TO IMPOSE AN EXTENDED TERM SENTENCE.
Ground Three: THE SENTENCE IMPOSED CONSTITUTE[S] CRUEL AND UNUSUAL PUNISHMENT AND VIOLATES PETITIONER'S EIGHTH AMENDMENT RIGHTS. (Docket Entry #1, pp. 6, 7, 9.)
On April 24, 1996, Congress enacted the AEDPA, which governs a
adjudication of a second or successive § 2254 petition.*fn3
Specifically, § 2244(b)(3)(A) provides: "Before a second or
successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the
application." 28 U.S.C. § 2244(b)(3)(A).*fn4 Rule 9 of
the Rules Governing Section 2254 Proceedings, entitled "Second or
Successive Petitions," similarly provides: "Before presenting a second
or successive petition, the petitioner must obtain an order from ...