United States District Court, D. New Jersey
ROLAND D. LEWIS, Petitioner,
KENNETH NELSON, et al., Respondents.
RONALD D. LEWIS, Petitioner Pro Se Bridgeton, NJ
GRETCHEN ANDERSON PICKERING, Esq. Cape May County Prosecutor's Office, Cape May Court House, NJ, Attorney for Respondents.
JEROME B. SIMANDLE, Chief District Judge.
Before the Court is Respondent Kenneth Nelson's ("Respondent") motion to transfer the petition for writ of habeas corpus to the Third Circuit Court of Appeals. For the reasons set forth below, the motion shall be denied and the habeas petition shall be dismissed as this Court lacks jurisdiction over the petition.
Petitioner was convicted by a jury of first-degree armed robbery, N.J. STAT. ANN. § 2C:15-1, on March 24, 1999. Immediately following the jury verdict, the judge found Petitioner guilty of fourth-degree possession of a handgun by a convicted felon, N.J. STAT. ANN. § 2C:39-7(a). Petitioner was sentenced to an extended term of life imprisonment without the possibility of parole as a persistent offender, N.J. STAT. ANN. § 2C:43-7.1(a),  as well as a concurrent eighteen-month term on the possession charge.
Petitioner appealed to the New Jersey Superior Court Appellate Division. That court affirmed Petitioner's convictions, but remanded for resentencing after concluding the trial court had not followed the proper procedures for imposing the extended term. State v. Lewis, No. A-1878-99 (N.J.Super. Ct. A.D. Apr. 9, 2002) (unpublished), certif. denied, 803 A.2d 637 (N.J. 2002).
Petitioner appeared for resentencing on June 20, 2002. The trial court sentenced Petitioner to fifty years with a twenty-five year period of parole ineligibility pursuant to N.J. STAT. ANN. § 2C:43-7.1(b)(2). Petitioner appealed.
While Petitioner's appeal was pending before the Appellate Division, he filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 27, 2002. Lewis v. Hendricks, No. 02-4268 (JHR) (D.N.J.); (Docket Entry 10-1). Petitioner presented four claims for relief in his initial petition: (1) "the trial court erred in denying the Petitioner's motions to dismiss, suppress and discovery, in violation of the 4th and 14th Amendment of the Federal Constitution and New Jersey Constitution, Art. 1 para. 7"; (2) "Defense counsel was ineffective in withdrawing his motion to suppress at the conclusion of the suppression hearing";
(3) "The Petitioner's rights were violated when he was arrested without a warrant, in violation of the 4th and 14th Amendment of the Federal Constitution and New Jersey Constitution, Art. 1 para. 7"; and (4) "The Petitioner's rights were violated when he was denied a probable cause hearing in violation of the Due Process Clause of the 14th Amendment." Lewis v. Hendricks, No. 02-4268, Docket Entry 3 at 4-5.
In the state courts, the Appellate Division again remanded to the trial court for resentencing. State v. Lewis, No. A-6695-01 (N.J.Super. Ct. A.D. Apr. 24, 2003) (unpublished). Petitioner was sentenced to fifty years, twenty-five years parole eligibility on June 25, 2003. Petitioner again appealed, however the Appellate Division affirmed the sentence this time. State v. Lewis, No. A-0186-03 (N.J.Super. Ct. A.D. June 28, 2005). During this time, the Honorable Joseph H. Rodriguez had concluded Petitioner had not exhausted his ineffective assistance of counsel claims and stayed Petitioner's habeas petition. Lewis v. Hendricks, No. 02-4268, Docket Entry 14.
Petitioner filed a petition for post-conviction relief ("PCR") on February 17, 2006 in the state court, raising the ineffective assistance of counsel argument as well as an argument that the trial court violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court denied the PCR application, and the Appellate Division affirmed. State v. Lewis, 2008 WL 2466455 (N.J.Super. Ct. A.D. June 20, 2008). The New Jersey Supreme Court denied certification on February 4, 2009. State v. Lewis, 966 A.2d 1077 (N.J. 2009).
Having now exhausted his ineffective assistance of counsel claim, Petitioner sought to reopen the § 2254 petition pending in this Court on March 24, 2009. Lewis v. Hendricks, No. 02-4268, Docket Entry 19. In support of his motion, Petitioner included an amended petition asserting: (1) "Petitioner ...