United States District Court, D. New Jersey
petitioner, James Comer, is a state prisoner incarcerated at
New Jersey State Prison, in Trenton, New Jersey. He is
proceeding pro se with this petition for habeas relief under
28 U.S.C. § 2254. Presently before the Court is an
"Application for Emergency Relief by Mr. Comer, (ECF No.
7), and a motion by the respondents, Steven Johnson and the
Attorney General of the State of New Jersey, to dismiss the
petition as untimely, (ECF No. 9). For the following reasons,
Mr. Comer's application is denied, the respondents'
motion is granted, and the petition is dismissed as untimely.
Mr. Comer's Conviction
March 2004, Mr. Comer was convicted, following a jury trial
in New Jersey Superior Court, Law Division, Essex County, of
one count of felony murder, under New Jersey Statutes
Annotated § ("N.J.S.A.") 2C:11-3(a)(3), five
counts of third-degree unlawful possession of a weapon, under
§ 2C:39-5b, three counts of first-degree robbery, under
§ 2C:15-1, and one count of third-degree theft, under
§ 2C:20-3(a). (Certif. in Supp., Ex. 2, Am. J. (Mar. 18,
2004), ECF No. 9-5; see also Pet., ECF No. 1, ¶
5.) The convictions arose from the events of April 17, 2000,
when Mr. Comer, along with Ibn Adams and Dexter Harrison (not
parties to this proceeding), "stole a car and committed
several armed robberies, one of which resulted in the
shooting death of George Paul." See State v.
Adams, 194 N.J. 186, 191-92 (2008). The Honorable Thomas
R. Vena imposed an aggregate sentence upon Mr. Comer of
seventy-five years, with just over sixty-eight years of
parole ineligibility. (ECF No. 9-5); see also Adams,
194 N.J. at 198.
Superior Court, Appellate Division, affirmed Mr. Comer's
convictions and sentences on December 28, 2006. State v.
Adams, No. A-4915-03T4, 2006 WL 3798760 (
N.J.Super.Ct.App.Div. Dec. 28, 2006). The Supreme Court of
New Jersey affirmed the Appellate Division's affirmance
on March 26, 2008. Adams, 194 N.J. 186. Mr. Comer
indicates that he did not seek certiorari from the Supreme
Court of the United States. (ECF No. 1
Proceedings for Post-Conviction Relief
9, 2008, Mr. Comer filed a petition for post-conviction
relief ("PCR"), dated May 29, 2008, with the
Superior Court, Law Division, Essex County. (Certif. in
Supp., Ex. 6, PCR Pet., ECF No. 9-9; see also ECF
No. 1 ¶ 11(a).) Following an evidentiary hearing, the
Superior Court denied that PCR petition on September 22,
2009. (Certif. in Supp., Ex. 7, PCR Op. & Order, ECF No.
9-10; see also ECF No. 1 ¶ 11(a).) On November
23, 2010, Mr. Comer, acting by counsel, filed an appeal of
the denial of his PCR petition. (Certif. in Supp., Ex. 8,
Notice of App., ECF No. 9-11.) The Appellate Division, on
October 23, 2012, reversed the initial PCR decision and
remanded for an evidentiary hearing concerning Mr.
Comer's ineffective-assistance-of-counsel claim. State
v. Comer, No. A-1675-10T4, 2012 WL 5199606 (
N.J.Super.Ct.App.Div. Oct. 23, 2012).
Superior Court held an additional evidentiary hearing and
again denied Mr. Comer's PCR claim on November 6, 2013.
(Certif. in Supp., Ex. 13, Order, ECF No. 9-16.) Mr. Comer,
again acting by counsel, filed a notice of appeal on March 4,
2014. (Certif. in Supp., Ex. 14, Notice of App., ECF No.
9-17.) The Appellate Division subsequently affirmed that
denial on December 30, 2015. State v. Comer, No.
A-2752-13T1, 2015 WL 9487583 ( N.J.Super.Ct.App.Div. Dec. 30,
2015). The same day, Mr. Comer filed a petition for
certification with the New Jersey Supreme Court. (Certif. in
Supp., Ex. 17, Notice of Pet. for Certif, ECF No. 9-20.) The
Supreme Court denied certification on April 29, 2016.
State v. Comer, 225 N.J. 221 (2016).
The Habeas Petition
February 14, 2017, Mr. Comer, acting pro se, filed a habeas
petition with this Court, dated February 6, 2017, which
asserts three grounds as bases for relief. (See ECF
No. 1.) First, he argues that the trial court improperly
admitted eyewitness identifications, finding them to be
reliable despite acknowledging that they were impermissibly
suggestive. (Id. ¶ l2(Ground 1).) Second, Mr.
Comer contends that the trial court acted improperly when the
jury was deadlocked by telling them to continue deliberating
and by not ascertaining the circumstances of the deadlock.
(Id. ¶ l2(Ground 2).) Finally, he asserts that
his trial counsel provided ineffective assistance by failing
to seek disqualification of a juror who, having worked with
Mr. Comer's mother, admitted having extra-judicial
information about him. (Id. ¶ 12 (Ground 3).)
March 2, 2017, the Court, finding no basis to dismiss the
habeas petition upon an initial screening, ordered
Respondents to file either an answer or a motion to dismiss
on timeliness grounds within 45 days. (Mem. & Order, ECF
No. 2.) On March 27, 2017, Respondents' counsel filed a
letter requesting a stay of the habeas proceeding, as
litigation regarding Mr. Comer's resentencing motion
remained ongoing. (ECF No. 5.) On May 11, 2017, I
declined to grant a stay, finding that Mr. Comer's habeas
petition challenged the circumstances of his conviction, not
his sentencing. I reset Respondents' 45-day period to
file an answer or a motion to dismiss on timeliness grounds.
(Mem. & Order, ECF No. 6.)