The opinion of the court was delivered by: Pisano, District Judge:
This matter is before the Court pursuant to a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 filed by petitioner Lawrence Philson. Petitioner challenges his 2002 conviction in New Jersey Superior Court, alleging ineffective assistance of counsel, insufficiency of the evidence, prosecutorial misconduct, and the imposition of a sentence in violation of the due process and equal protection clauses of the Fourteenth Amendment. On April 18, 2012, Petitioner filed a Motion to Stay. For the reasons set forth below, the Motion to Stay will be denied, and the Court will proceed to decide the Petition. The Court finds that Philson's Petition is both untimely and without merit, and will therefore be denied.
Petitioner Lawrence Philson was charged in multiple counts in Essex County Indictment No. 2000-1-228, for offenses committed on September 28, 1999. Following a jury trial, Petitioner was convicted of second-degree conspiracy to commit robbery and kidnapping, N.J.S.A. 2C:15-1, 2C:13-1b(1) (count one); first-degree kidnapping, N.J.S.A. 2C:13-1b(1) (count three); first-degree carjacking, N.J.S.A. 2C:15-2 (count four); first-degree armed robbery, N.J.S.A. 2C:15-1 (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count seven); first-degree armed robbery, N.J.S.A. 2C:15-1 (count eight); third-degree aggravated assault of a police officer, N.J.S.A. 2C:12-1b(5)(a) (count fifteen); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count sixteen); second-degree eluding, N.J.S.A. 2C:29-2b (count seventeen); third-degree possession of controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count eighteen); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5b(3) (count nineteen); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count twenty); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (counts twenty-one and twenty-two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count twenty-six); and fourth-degree possession of defaced firearm, N.J.S.A. 2C:39-3d (county twenty-seven). On May 28, 2002, Philson was sentenced to sixty years, with a fifty-one year parole disqualifier.
On November 10, 2004, the State of New Jersey Appellate Division affirmed the conviction. The court rejected Philson's claim that his sentence was excessive compared to that of his co-defendant, Clinton Martin, without prejudice to Philson's right to raise the issue in the context of a post conviction relief ("PCR") petition. On February 2, 2005, the New Jersey Supreme Court denied certification on direct appeal. On May 18, 2007, Philson filed a PCR petition alleging prosecutorial misconduct and an unfair disparity in sentencing, which was denied by order dated May 1, 2008. On August 5, 2009, the Appellate Division affirmed the order denying the PCR petition. On November 20, 2009, The New Jersey Supreme Court denied the petition for certification. Philson filed this Habeas Petition on April 4, 2011.
Pursuant to 28 U.S.C. § 2254(e)(1), the Court will defer to the factual determinations of the state court as set forth in the Appellate Division Opinion on Nov. 10, 2004. The Petitioner has the "burden of rebutting the presumption of correctness by clear and convincing evidence." Id. Petitioner does not challenge these facts.They are reproduced below:
Rajul Thomas was a drug dealer. When he arrived home in the evening of September 28, 1999, two men with guns confronted him. The men were later identified as defendant and his co-defendant, Clinton Martin. One man struck him in the head with the gun and removed his jewelry: a chain, a ring and a bracelet. The intruders took Thomas into the living room where they demanded money.
Thomas told the men where to find between $7000 and $8000 he kept in his closet. After they took it, they wanted more. They tied Thomas up, and told him to call someone to get more money. Thomas called two people, his friend "Ricky," and his sister, Shearon Hollaway.
With the men still in his house, Thomas's fiancee, Teisha Evans, returned home with their children. While pointing a gun at her, defendant grabbed Evans by her throat, took her chain, and threw her to the floor. One of the intruders told her to "shut the F up" and tell where the money was. After informing the men that it was in the closet, the intruder told her they already knew where that money was, but they wanted the rest. Evans told the intruder to call Thomas's sister. After Evans begged defendant and Martin not to kill her and her children, she was taken into the living room with the children; they were placed on their stomachs, and covered with coats and clothing. Evans remained on the floor until the police arrived.
Meanwhile, defendant and Martin continued to demand money from Thomas, striking him with the gun. They threatened him with his, Evans's and the children's death unless he came up with more money.
The first person that Thomas called, "Ricky," arrived. He approached the house, but did not enter, and left without bringing money. Thomas's brother-inlaw, Joseph Hollaway, arrived with $7500. At the behest of the intruders, he placed the money in a black bag and passed it though the door. Then Hollaway left. Still not satisfied, the intruders directed Thomas to call his sister and tell her they were going to her house to get more money.
The men then forcibly took Thomas from his house; he was made to lie down in the back seat of a black Lexus. They drove to Thomas's sister's house.
When the men arrived, Hollaway went outside; he saw the black Lexus. At about that time, East Orange Police Officer Felix Torres drove by in a marked police cruiser. As he did, defendant, who had been driving the Lexus, changed places with Martin, who had been in the back of the car. As another police car approached, Martin, now driving, "gunned" the car, driving in reverse ...