The opinion of the court was delivered by: Freda L. Wolfson United States District Judge
Petitioner Paul Chisolm, a prisoner currently confined at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Michelle Ricci and the Attorney General of New Jersey. For the reasons stated below, the Petition must be denied.
The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)*fn1 , will simply reproduce the recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on April 7, 2009, with respect to Petitioner's appeal from the trial court's denial of his petition for post-conviction relief:
In brief, defendant and his co-defendant [Beth Smallwood] (collectively, defendants) were charged with the kidnapping and murders of two fellow drug dealers, Peter Sizemore and Cathy Brown. Because the victims allegedly had stolen drugs from defendants, they forced the victims into a room in a boarding house where defendants had been selling drugs. Witnesses heard thumping sounds and muffled squeals from Brown. While Smallwood struck Brown, defendant beat Sizemore unconscious. When Brown became loud and hysterical, defendant threw her into a closet.
Then, Smallwood gave defendant a knife with which he repeatedly stabbed Sizemore. Later, defendants moved the bodies of Sizemore and Brown to the basement of the boarding house, and then removed them to a park where they burned them.
State v. Chisolm, 2009 WL 910414, at *2 (N.J.Super.App.Div. Apr. 7, 2009).
Petitioner was convicted of two counts of felony murder and one count of kidnapping. On February 19, 2001, Petitioner was sentenced to an aggregate sentence of life imprisonment with a 30-year period of parole ineligibility. The Superior Court of New Jersey, Appellate Division, affirmed the conviction and sentence and, on May 21, 2004, the New Jersey Supreme Court denied certification. State v. Chisolm, 180 N.J. 358, 851 A.2d 651 (2004).*fn2
In August 2004, Petitioner filed his first state petition for post-conviction relief. The trial court denied relief and the Appellate Division affirmed the denial of relief. On June 18, 2009, the Supreme Court of New Jersey denied certification. State v. Chisolm, 199 N.J. 542, 973 A.2d 945 (2009).*fn3
This Petition followed. Here, Petitioner asserts the following grounds for relief:
GROUND ONE: The State Court Misapplied Strickland and Cumulative Errors.... Trial Counsel failed to object and move for mistrial, and cumulative-error issues concerning record, suppressed confrontation violations, excessive other-crimes evidence, and a complete lack of curative and limited-use instructions.
GROUND TWO: Cumulative Error: The combination of the various confrontation violations and uncured/unlimited other crimes resulted in a denial of a fair trial as a result of ineffective counsel and denial of appellate consideration due to post-trial ineffectiveness. (Pet., ¶ 12.)
Petitioner asserted that both of these grounds for relief were raised in his state petition for post-conviction relief. He also alleged that he has pending in state court a motion to file a second state petition for post-conviction relief. Petitioner did not assert the grounds he raised, or intends to raise, in the second state petition.
In response to this Court's Notice and Order advising Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), Petitioner filed a Motion for Stay and Abeyance. (Docket Entry No. 3.) In the Memorandum of Law in support of the Motion, Petitioner asserted that "he recently realized that his ineffective-assistance-of-counsel claims contain both exhausted and unexhausted claims, and that some of his claims had not been presented in state-court proceedings." (Mem. of Law at 5.) Petitioner asserted that he is "nearly prepared" to file papers in state court raising these un exhausted claims. Petitioner did not, however, describe the allegedly unexhausted claims, nor did he provide any explanation for the delay in asserting those claims in state court.
In an Opinion and Order dated July 20, 2010, this Court denied Petitioner's request for a stay. (Docket Entry Nos. 5&6.) The Court advised Petitioner that "within 30 days after entry of this Order, Petitioner shall advise the Court whether he wishes to withdraw his unexhausted claims and proceed with his exhausted claims...failure to so advise the Court may result in dismissal without prejudice of the Petition, as a mixed petition, without further notice from the Court." (Docket Entry No. 6.) In response, Petitioner filed a letter stating that he wished to proceed only with his exhausted claims. (Docket Entry No. 7.) The Court entered an order to answer and Respondents filed an answer. (Docket Entry Nos. 8&17.) On December 29, 2010, Petitioner filed a motion for an extension of time to file his reply. (Docket Entry No. 18.) The Court granted his request and he was given until March 7, 2011 to file his reply. (Docket Entry No. 19.) The Court did not receive any reply from Petitioner, but thereafter, he sent a letter to this Court stating that he had sent a reply but had not received confirmation that the Court received it. (Docket Entry No. 20.) On May 18, 2011, the Court entered an order giving Petitioner an additional thirty days to submit his reply. (Docket Entry No. 21.) To date, the Court has not received any reply or other further filings from Petitioner.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the ...