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Green v. D'Ilio

United States District Court, D. New Jersey

January 23, 2019

TYRIUS GREEN, Petitioner,
v.
STEVEN M. D'ILIO, et al, Respondents.

          OPINION

          PETER G. SHERIDAN, U.S.D.J.

         I. INTRODUCTION

         Petitioner Tyrius Green ("Petitioner"), a convicted criminal in the State of New Jersey, files the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a conviction and sentence imposed by the State for murder, possession of a firearm for an unlawful purpose, and unlawful possession of a weapon. Respondents have filed a Response. (ECF No. 10.) Petitioner filed a Traverse to that Response. (ECF No. 14.) The Court has considered the parties' submissions, as well as the relevant records of this case. For the reasons set forth below, the Court finds that Petitioner has failed to exhaust his state court remedies and directs him to act in accordance with the accompanying Order.

         II. BACKGROUND

         The Court recites only those facts relevant to this Opinion. On May 11, 2005, Petitioner was convicted in the New Jersey Superior Court, Law Division, after a jury trial, on charges of (1) first-degree murder, (2) second-degree possession of a weapon for an unlawful purpose, and (3) third-degree unlawful possession of a weapon. (ECF No. 10-2.) Petitioner was sentenced on July 5, 2005. (ECF No. 10-25.)

         Following trial and sentencing, Petitioner filed an appeal in the New Jersey Superior Court Appellate Division, which raised the following grounds for relief: (1) that the trial court erred in denying his motion for a judgment of acquittal; (2) that the trial court committed reversible error in its instruction to the jury on identification; (3) that Petitioner was unduly prejudiced by the prosecutor's reference to the warrant for his arrest at trial; (4) that the trial court erred in admitting the written statements of two witnesses who testified at trial; and (5) that the trial court erred in instructing the jury on flight. (ECF No. 18.) The Appellate Division affirmed Petitioner's conviction and remanded for resentencing on June 17, 2008. (ECF No. 10-3.) Petitioner thereafter filed a petition for certification to the New Jersey Supreme Court, in which he challenged only the trial court's jury charge on identification. (ECF No. 3, at 1-2.) The New Jersey Supreme Court denied certification on October 6, 2008. (ECF No. 10-6.)

         Petitioner then filed a petition for post-conviction relief (the "PCR Petition") on January 20, 2011. (ECF Nos. 10-7, 10-8.) In a brief authored by counsel, Petitioner raised five ineffective assistance of counsel claims: (1) failure to move for a new trial; (2) failure to object to the trial court's identification charge; (3) failure to object to certain witness testimony identifying Petitioner as the shooter; (4) failure to object to the trial court's instruction to the jury that it could not consider evidence of premeditation or lack thereof in considering the murder charge; and (5) failure to object to the prosecutor's references to the warrant for Petitioner's arrest. (ECF Nos. 10-7, 10-8.) Petitioner also submitted a pro se brief in which he brought four additional ineffective assistance of counsel claims for (1) failure to object to "other-conduct evidence"; (2) failure to request a juror be removed for potential bias; (3) ineffective assistance of appellate counsel; and (4) cumulative ineffective assistance of counsel. (ECF No. 10-9.) His PCR Petition was denied by the Superior Court of New Jersey, Law Division in a written opinion issued on April 26, 2012. (ECF No. 17-4, at Dal 8.)

         Petitioner appealed, and on April 30, 2014, the Appellate Division affirmed the denial of his PCR petition. State v. Green, A-1277-12T1, 2014 WL 1686530 (N.J. Sup. Ct. App. Div. Apr. 30, 2014). The only issues raised by Petitioner in his appeal were: (1) that the trial court erred in denying his PCR Petition without an evidentiary hearing; (2) that he was denied ineffective assistance of counsel as a result of counsel's failure to object to the court's jury instruction on identification; (3) that he was denied ineffective assistance of counsel as a result of counsel's failure to object to the prosecutor's examination of the eyewitnesses; and (4) that his PCR claims were not barred by New Jersey Court Rule 3:22-5. (ECF No. 3, at 3-4.)

         Petitioner filed a petition for certification with the New Jersey Supreme Court, in which he argued that the trial court erred in denying his PCR Petition without an evidentiary hearing and that New Jersey Court Rule 3:22-5 did not bar his claims. (ECF No. 3, at 20.) The New Jersey Supreme Court denied certification on October 24, 2014. State v. Green, 101 A.3d 1083 (N.J. 2014).

         Petitioner filed his habeas petition with this Court on March 6, 2015. (ECF No. 1.) This Court administratively terminated his petition for failure to use a proper habeas form. (ECF No. 2.) Petitioner executed an amended petition on April 22, 2015 (the "Amended Petition"). (ECF No. 3.) In his Amended Petition, Petitioner raises the following grounds for relief:

1. Counsel was ineffective by failing to move for a new trial.
2. Counsel was ineffective by failing to object to the jury charge on identification.
3. Counsel was ineffective by failing to make objections to testimony identifying him as the shooter.
4. Counsel was ineffective by failing to object to the trial court's instruction to the jury that it could not consider evidence of premeditation or the lack thereof as part the charge against ...

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