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Comer v. Johnson

United States District Court, D. New Jersey

March 26, 2018

JAMES COMER, Petitioner,
STEVEN JOHNSON et al., Respondents.


          KEVIN MCNULTY. U.S.D.J.


         The 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.


         1. Mr. Comer's Conviction

         In 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.

         The 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 ¶ 9(h).)

         2. Proceedings for Post-Conviction Relief

         On July 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.[1] State v. Comer, No. A-1675-10T4, 2012 WL 5199606 ( N.J.Super.Ct.App.Div. Oct. 23, 2012).

         The 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).[2]

         3. The Habeas Petition

         On 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).)

         On 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.[3] (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.)

         III. THE ...

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