United States District Court, D. New Jersey
MIKAL McCLAIN, Petitioner Pro Se, New Jersey State Prison, Trenton, New Jersey.
SARA A. FRIEDMAN, ESQ., ESSEX COUNTY PROSECUTOR'S OFFICE, Newark, New Jersey.
SUSAN D. WIGENTON, District Judge.
Petitioner Mikal McClain challenges his 2004 New Jersey state court conviction in this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is dismissed as time-barred under 28 U.S.C. § 2244(d).
A. Procedural History
In October 2001, Petitioner Mikal McClain was arrested and charged in an Essex County Indictment N0. XX-XX-XXXX, on charges of conspiracy, first degree robbery, unlawful possession of a handgun without a permit, possession of a weapon for an unlawful purpose, resisting arrest by flight, and hindering apprehension or prosecution. (ECF No. 10-2, Ra12,  Def. Brief on PCR Appeal at 1-2, Da1-8.)
Petitioner thereafter was tried by a jury before the Honorable Betty J. Lester, J.S.C., from October 29, 2003 to November 7, 2003. The jury returned a verdict of guilty on all counts, except the conspiracy count, which had been dismissed by State motion before trial. On February 9, 2004, Petitioner was sentenced to an aggregate term of 20 years in prison with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2a. ( Id. at 2.)
On June 23, 2004, Petitioner filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. ( Id. ) On June 26, 2006, the Appellate Division affirmed the convictions,  but remanded the matter for resentencing. State v. Mikal McClain, 2006 WL 1725570 (N.J.Super. A.D. Jun. 26, 2006). The Supreme Court of New Jersey denied certification on January 31, 2007. State v. McClain, 189 N.J. 430 (2007).
Petitioner then filed a state post-conviction relief ("PCR") petition on April 17, 2008. (ECF No. 10-1, Ra11.) The state PCR court denied the petition by Order dated March 9, 2009, with a supporting opinion letter filed on March 25, 2009. (ECF Nos. 6, 7, Ra16, Ra17.) Petitioner appealed and the Appellate Division affirmed the denial of the PCR petition in an opinion issued on April 8, 2011. State v. McClain, 2011 WL 1327314 (N.J.Super. A.D. Apr. 8, 2011). The Supreme Court of New Jersey denied certification on October 20, 2011. State v. McClain, 208 N.J. 371 (2011).
Petitioner filed this habeas petition pursuant to 28 U.S.C. § 2254 on November 18, 2011. (ECF No. 1.) The State filed a response to the petition on May 8, 2012. (ECF No. 8.) The State then provided a copy of the relevant state court record on May 11, 2012. (ECF Nos. 9, 10, 11.) On July 9, 2012 Petitioner filed his traverse. (ECF No. 15.) That same day, Petitioner also filed a motion for an Order granting leave to present two additional grounds for habeas relief. (ECF No. 16.) On February 28, 2013, this Court denied Petitioner's motion, finding the request timebarred and the claims unexhausted. (ECF Nos. 21, 22.)
B. Statement of Facts
This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the recitation as set forth in the June 26, 2006 opinion of the New Jersey Appellate Division as to Petitioner's direct appeal:
Evidence introduced by the State established that the victim, George Haley, had traveled to a bar on Lyons Avenue in Irvington with two women to purchase beer, while a friend, George Gayles, accompanied them in a separate car. Both men parked their cars at a nearby Sunoco station. Gayles remained in his vehicle while the other three made their purchase. On their return, Gayles saw that Haley was being followed, but was unable to alert him to that fact. While Gayles watched, Haley was hit over the head with a gun by the assailant, who demanded money. Eventually, the assailant hit Haley in the head four times and took Haley's wallet, as ...