The opinion of the court was delivered by: Linares, District Judge
Petitioner Gilbert Thomas Greenfield, Jr., a civilly committed person under the New Jersey Sexually Violent Predators Act ("SVPA"), N.J.S.A. 30:4-21.1 et seq., brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a New Jersey state court judgment and order of commitment issued against him on or about August 22, 2005. For the reasons stated herein, the Petition will be denied for lack of substantive merit.
A. Factual Background*fn1
A portion of the state court's recitation of the facts in this matter is excerpted below:
On July 26, 1985, a twenty-one-year-old woman who we identify as D.W. was at a shopping mall in South Plainfield, New Jersey. G.T.G. approached her and inquired about a "for sale" sign in the window of her car. G.T.G. asked if he could take a test drive and D.W. agreed. D.W. drove the car and G.T.G. was in the passenger seat. He pulled a knife and demanded that D.W. continue driving. G.T.G. then stabbed D.W. in the right chest area.
D.W. indicated that, because of the stab wounds, she could not drive. G.T.G. instructed D.W. to move to the passenger seat and he drove the vehicle. G.T.G. told D.W. that she and her family would be physically harmed if she resisted. G.T.G. then directed D.W. to perform oral sex upon him while he was driving. She complied, in fear of further injury.
G.T.G. eventually drove to a baseball field in Bernards Township. He forced D.W. to exit the vehicle and took her to a nearby wooded area, where he removed her shoes, pants and underwear, and vaginally raped her. Thereafter, G.T.G. tied D.W. to a tree with her belt and told her he would kill her if she reported the incident to the police. G.T.G. drove off in D.W.'s car, which contained her purse and $45 in cash. D.W. untied herself and stopped a passing motorist for help.
D.W. informed police of the incident. Later that evening, the police stopped G.T.G. while he was driving in D.W.'s car. He admitted the alleged offenses. He stated that he had the day off, drank "a lot" of whiskey, and took three "hits" of LSD prior to the assault. G.T.G. asserted that he believed his behavior was getting worse and he would kill someone in the future if he did not get help.
G.T.G. was arrested, taken into custody, and charged accordingly. On January 24, 1986, G.T.G. pled guilty to aggravated assault; possession of a weapon for an unlawful purpose; kidnapping; aggravated sexual assault; and robbery. Defendant was sentenced to twenty years in a State correctional facility for kidnapping, with a ten-year period of parole ineligibility; a concurrent fifteen-year term for robbery; a concurrent ten-year term for aggravated assault; and a concurrent five-year term for possession of a weapon for an unlawful purpose. Defendant also was sentenced to a consecutive ten-year term for aggravated sexual assault, with a five-year period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel.
Defendant appealed his sentence, and the appeal was heard on our Excess Sentence Oral Argument calendar. We entered an order on April 29, 1987, which affirmed the sentences but ordered that the judgment be modified to provide that the sentence at the ADTC be served before the State prison sentence. However, due to an apparent administrative error, G.T.G. served his State prison term first, and then was transferred to the ADTC. Thereafter, the New Jersey State Parole Board granted parole, effective as of November 17, 2004.
On November 10, 2004, the Attorney General filed a petition in the Law Division seeking G.T.G.'s civil commitment pursuant to the SVPA. The court entered an order on November 17, 2004, finding that there was probable cause to believe that G.T.G. is a sexually violent predator requiring civil commitment. G.T.G. was temporarily committed at the Special Treatment Unit (STU) pending a final hearing in the matter.
Judge Serena Peretti conducted the commitment hearing on six dates beginning on June 6, 2005. The State presented testimony from Dr. Michael McAllister, Dr. Robert Carlson, Dr. Merrill Main, and Thomas Calabrese. G.T.G. presented testimony from Dr. Barbara Schwartz and Cynthia Holshue. Judge Peretti placed her decision on the record on August 22, 2005, in which she concluded that the State had proven by clear and convincing evidence that G.T.G. was a sexually violent predator in need of civil commitment at the STU pursuant to the SVPA. The judge entered an order on August 22, 2005, which memorialized her findings. ...
(Respondents' Exhibit A,*fn2 March 19, 2008 Appellate Division Opinion at pp. 2-4).
On November 10, 2004, the Attorney General for the State of New Jersey filed a petition in the Superior Court of New Jersey, Law Division, Essex County, seeking to commit petitioner Gilbert Thomas Greenfield, Jr. ("Greenfield") pursuant to the SVPA. On November 17, 2004, the Honorable Phillip Lewis Paley, J.S.C., entered an Order for Temporary Civil Commitment, directing that Greenfield remain in custody at the Special Treatment Unit ("STU") pending a final commitment hearing in the matter.
Greenfield waived his right to a hearing within twenty days of his temporary commitment, and his initial commitment hearing was scheduled to be held on June 6, 2005. The Honorable Serena Perretti, J.S.C. adjourned the commitment hearing until July 6, 2005, and the hearings were held on that date as well as on July 7, 2005, July 15, 2005, August 15, 2005, and August 22, 2005. In a decision and order dated August 22, 2005, Judge Perretti granted the State's petition for Greenfield's commitment pursuant to the SVPA and set a one-year review date.
On September 30, 2005, Greenfield filed a Notice of Appeal from the order of commitment before the Superior Court of New Jersey, Appellate Division. On appeal, Greenfield raised the following issues:
1. The Attorney General does not have jurisdiction to seek SVPA commitment of an offender who has been granted parole.
2. Principles of administrative comity and res judicata bar the Attorney General from attempting to circumvent the Parole Board's decision in this matter.
3. The State failed to prove by clear and convincing evidence that G.T.G. is subject to civil commitment under the SVPA.
4. The trial court erred in admitting hearsay materials into evidence over the objection of G.T.G.
On March 19, 2008, the Appellate Division denied Greenfield's appeal and affirmed the order of civil commitment in an unpublished opinion. Greenfield did not file a petition for certification to the Supreme Court of New Jersey.
Prior to the Appellate Division's ruling on Greenfield's appeal from the commitment order, on April 26, 2006 and June 28, 2006, Greenfield signed a "Waiver of Right to Hearing" form in which he waived his right to his one-year commitment review hearing while his state appeal is pending.
On or about April 22, 2009, Greenfield filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State filed an answer to the petition, together with the relevant state court record, on January 6, 2010. Greenfield filed a reply/traverse on March 29, 2010.
Greenfield asserts the following claims in his petition for habeas relief:
A. Ineffective assistance of appellate counsel during appeal of commitment order. Namely, counsel failed to file a petition for certification to the Supreme Court of New Jersey, and failed to brief three issues raised in petitioner's Notice of Appeal.
B. Petitioner was denied his constitutionally protected right of appeal.
C. Petitioner was denied his right to due process when state correctional officials refused to transport ...