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Joseph Abbott v. State of New Jersey

July 27, 2011

JOSEPH ABBOTT, PETITIONER,
v.
STATE OF NEW JERSEY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, District Judge:

Joseph Abbott filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a judgment of conviction entered in the Superior Court of New Jersey, Cape May County, on December 14, 2000.*fn1 For the reasons expressed below, and because the Petition, as drafted and read in light of the state court decisions attached to the Petition, shows that the claims are time barred, this Court will dismiss the Petition as untimely and deny a certificate of appealability.

However, because this Court cannot rule out the possibility that Petitioner might have valid grounds for statutory and/or equitable tolling of the instant Petition (which are not set forth in Petitioner's submissions), and he might wish to raise these grounds to show timeliness of his Petition, this Court will grant Petitioner 30 days to file a written statement which sets forth detailed tolling arguments not considered in this Opinion, or otherwise presents an argument that the Petition is not untimely. This Court will administratively terminate the case at this time for statistical purposes, but will retain jurisdiction over the Petition during this 30-day period and reopen the file to consider Petitioner's arguments in the event that he raises them within this period.

I. BACKGROUND

Petitioner challenges a judgment of conviction entered in the Superior Court of New Jersey, Law Division, Cape May County, on December 14, 2000, after a jury found him guilty of attempted aggravated sexual assault, attempted burglary, possession of a razor knife with the purpose to use it unlawfully, and unlawful possession of a knife. The Law Division imposed an aggregate sentence of 20 years, with a parole ineligibility period of 10 years. See State v. Abbott, Docket No. A-3331-00T4 opinion (N.J. Super., App. Div., Nov. 21, 2002) (Dkt. 1 at 18.). Petitioner appealed, and on November 21, 2002, the New Jersey Superior Court, Appellate Division, affirmed the conviction and sentence. Id. The New Jersey Supreme Court denied certification on March 28, 2003. State v. Abbott, 176 N.J. 74 (2003) (table).

Petitioner filed his first state petition for post-conviction relief on December 1, 2003. (Dkt. 1 at 4.) By order filed March 23, 2004, the Law Division denied the petition without prejudice. (Dkt. 1 at 39.) Petitioner filed his second petition for post-conviction relief in June 2006. (Dkt. 1 at 45.)*fn2 On February 23, 2010, the Appellate Division affirmed the order denying post-conviction relief but remanded to correct the judgment of conviction to show that attempt is a second-degree, rather than a first-degree, crime.*fn3 See State v. Abbott, Docket No. A-5370-07T4 sl. opinion (N.J. Super. Ct., App. Div., Feb. 23, 2010) (Dkt. 1 at 48.) The New Jersey Supreme Court denied certification on July 12, 2010. See State v. Abbott, 203 N.J. 95 (2010) (table).

Petitioner executed the § 2254 Petition, which is presently before this Court, on April 15, 2011. The Petition raises five grounds:

Ground One: THE VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE.

Ground Two: THE EVIDENCE OF OTHER CRIMES WAS IMPROPERLY ADMITTED.

Ground Three: THE JUDGE[']S CHARGE TO THE JURY WAS IMPROPER.

Ground Four: UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT, WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

Ground Five: THE SENTENCE WAS MANIFESTLY EXCESSIVE. (Dkt. 1 at ...


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