Opinion
Civil No. 97-3603 (JBS).
November 30, 1999
Francisco Rodriguez, New Jersey State Prison, Trenton, New Jersey, Plaintiff pro se.
Lee A. Solomon, Camden County Prosecutor.
Kathleen M. Higgins, Assistant Prosecutor, Camden, County Prosecutor's Office Camden, New Jersey, Attorney for Respondents.
OPINION
Petitioner Francisco Rodriguez, an inmate at the New Jersey State Prison in Trenton, New Jersey, brings this pro se civil action for habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner asserts three grounds for habeas relief: (1) the trial court's admission of hearsay statements into evidence violated his right to a fair trial, (Pet'r's Br. at 17), (2) ineffective assistance of counsel during petitioner's sentencing hearing on remand from the appellate court deprived him of his Sixth Amendment rights, (Id. at 27), and (3) his sentence, which includes a period of parole ineligibility, is illegal under the New Jersey Constitution. (Id. at 42) In response, the respondents argue that the petition should be denied because the petitioner fails to raise any cognizable claims for habeas corpus relief. (Resp't's Br. at 16) The petitioner has presented a mixed petition, in which his first and third grounds of relief have been fully exhausted in state courts, while the second ground has not. The Court will exercise its discretion to adjudicate all grounds upon the merits as explained in Part II.B.2(a) of the opinion. For reasons outlined below, none of the claims presented by the petitioner have merit, and Rodriguez's application for habeas relief will be denied.
I. BACKGROUND
In May of 1986, petitioner was investigated by an undercover officer for allegedly running a drug trafficking network out of a bar in the City of Camden. (Resp't's Br. at 4) During his investigation, the undercover officer discovered that petitioner was involved in a multi-party drug ring, the purpose of which was to purchase drugs out-of-state at a wholesale price, and resell them within Camden. Shortly after the investigation ended on May 28, 1986, petitioner was arrested.
On August 27, 1986, the Camden County Grand Jury charged petitioner under Indictment No. 2045-08-86 with four counts of possession of cocaine contrary to N.J.S.A. 24:21-20(a)(1); four counts of distribution of cocaine contrary to N.J.S.A. 24:21-19(a)(1); and one count of conspiracy to distribute cocaine contrary to N.J.S.A. 2C:5-2; 24:21-24; 24:21-19. (Pet'r's Br. at 1) Shortly thereafter, petitioner entered a plea of not guilty to these charges. (Id.) On June 9, 1987, petitioner began his jury trial on these charges before the Honorable Isaiah Steinberg, J.S.C. (Id.)
On June 25, 1987, the jury returned guilty verdicts on all counts of the indictment. (Id.) The jury further determined that the object of the conspiracy for which they found petitioner guilty was to distribute cocaine in the quantity of one ounce or more which included at least 3.5 grams of pure freebase cocaine. (Id.) According to the trial court, pursuant to N.J.S.A. 24:21-24, such a finding by the jury meant that petitioner was subject to a sentence of life imprisonment at the discretion of the sentencing judge. (Resp't's App. Ex. 2 at 3) Upon hearing the jury's verdict, the trial court revoked petitioner's bail pending sentencing. (Id.) The Appellate Division upheld the trial court's revocation of petitioner's bail on interlocutory appeal. (Resp't's Br. at 2)
On August 7, 1987, Judge Steinberg sentenced petitioner on count nine of the indictment, the conspiracy count, to life imprisonment, 25 years of which were without parole eligibility. (Pet'r's Br. at 1) Consequently, for sentencing purposes, the judge merged counts one through eight into count nine. (Id.) Judge Steinberg denied petitioner's application for bail pending appeal because he did not find substantial issues for appellate review, and determined that the safety of the community would be threatened if petitioner was allowed out on bail. (Id.)
Petitioner then filed a notice of appeal with the Appellate Division on February 21, 1989. (Id.) On June 30, 1989, the Appellate Division affirmed the conviction, but reversed petitioner's life sentence and remanded the case to the Superior Court for re-sentencing. (Resp't's App. Ex. 8 at 4); See also State v. Rodriguez, 234 N.J. Super. 298, 311 (App.Div. 1989),cert. denied, 117 N.J. 656 (1989). The Appellate Division reversed petitioner's life sentence, holding that the indictment upon which he was convicted did not give petitioner's defense sufficient notice of the possibility of such a harsh sentence. Id.
N.J.S.A. 24:21-19, 24:21-20, and 24:21-24 were subsequently repealed by the Comprehensive Drug Reform Act of 1987, now codified at N.J.S.A. 2C:35-1 through 2C:35-23. Although this new drug law does not explicitly contemplate the sentence of life imprisonment, sentencing is left to the discretion of the trial court.
Following remand to the Camden County Superior Court on March 20, 1990, a re-sentencing hearing was held before Judge Steinberg. (Pet'r's Br. at 2) Petitioner was sentenced on all counts of the indictment for an aggregate term of 36 years, at least 15 years of which were to be served without parole. (Id.)
On October 26, 1990, Rodriguez appealed his new sentence to the Appellate Division on the grounds that it was excessive because it included a period of parole ineligibility. (Resp't's App. Ex. 12) The Appellate Division ruled that the sentence imposed by the trial judge did not constitute an abuse of discretion, and affirmed petitioner's sentence. (Id.) Thereafter, petitioner filed a Petition for Certification with the New Jersey Supreme Court which was denied on March 19, 1991. (Id. Ex. 13)
On or about September 13, 1993, petitioner filed a Petition for Post-conviction Relief, again on the grounds that his sentence was excessive because it included a period of parole ineligibility. (Id. Ex. 14) Rodriguez's petition for Post-conviction Relief was denied by Judge Steinberg on November 28, 1994. (Id. Ex. 18) On March 12, 1996, petitioner filed an appeal on this decision with the Appellate Division. (Id. Ex. 20) On this appeal, petitioner not only alleged that his sentence was excessive because of the period of parole ineligibility, but he also argued that he was deprived of his right to effective assistance of counsel at sentencing. (Id.) The Appellate Division denied petitioner's appeal on September 27, 1996. (Id.) In a very short opinion, the Appellate Division ruled that petitioner's argument on ineffective assistance of counsel had no merit, and that a period of parole ineligibility was not illegal under New Jersey law. (Id. at 2-3) On October 17, 1996, asserting the same grounds for appeal as those denied by the Appellate Division, petitioner filed a Petition for Certification with the New Jersey Supreme Court. (Resp't's App. Ex. 23) That petition was denied on January 22, 1997. (Id. Ex. 25)
On July 15, 1997, petitioner filed the present petition for writ of habeas corpus relief with this Court. Also on that date, this Court granted petitioner in forma pauperis status, and directed respondents to answer the petition. Respondents filed their answer and brief on September 29, 1997.
II. DISCUSSION
A. Standard of Review
As stated above, petitioner brings this pro se civil action for habeas corpus relief pursuant to 28 U.S.C. § 2254. In the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, Congress amended 28 U.S.C. § 2254 to more limit habeas relief to a very narrow class of claims:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; OR
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Also, amended 28 U.S.C. § 2254(b) now states:
(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State . . .
Thus, this Court should not consider a petition unless the petitioner has completely exhausted available state remedies, and should provide relief only if the state court's adjudication resulted in a decision contrary to federal law or resulted in a decision that was based on an unreasonable determination of the facts. It is with these narrow grounds for relief in mind that the court now discusses each of petitioner's claims in turn.
B. Analysis
1. Petitioner's Evidentiary Claim
The petitioner first claims that the trial court's admission of hearsay statements into evidence violated his right to a fair trial. (Pet'r's Br. at 17) Specifically, the petitioner contends that the trial court should not have admitted out-of-court statements into evidence under New Jersey's co-conspirator exception, because the existence of a conspiracy involving the petitioner and the declarant was not proven by a preponderance of the evidence as required by the state's rules of evidence. (Id.)
See generally, N.J.R.E. 803(b)(5); State v. Phelps, 96 N.J. 500 (1984).
This claim was reviewed by the Appellate Division on direct appeal. (Pet'r's App. at 11-38) The appellate court reviewed the proofs at trial, and agreed that the prosecution submitted sufficient independent evidence to establish that there was a conspiracy to sell cocaine, and that petitioner was a participant. (Id. at 21) The Appellate Division noted that the trial judge had convened a pretrial hearing to determine whether the state's proofs established by a fair preponderance of the evidence that the charged conspiracy existed, and that petitioner was a member. (Id. at 7) In addition, the Appellate Division found that there was ample evidence to prove that each declarant was a co-conspirator with the petitioner. (Id. at 26) Therefore, the appellate court affirmed the trial court's admission of the out-of-court statements made during the course of and in furtherance of this conspiracy under New Jersey's co-conspirator exception. (Id. at 38) The petitioner filed a Petition for Certification on this issue with the New Jersey Supreme Court, but the petition was denied. (Pet. Br. at 2);see also State v. Rodriguez, 117 N.J. 656 (1989).
The trial judge was held as acting well within his discretion to decide only these aspects of the co-conspirator hearsay issues before trial, while avoiding factual developments at trial before determining ultimate admissibility. (Id. at 7) Such a procedure is also well within the constitutional requirements of the U.S. Supreme Court in Bourjaily v. United States, 483 U.S. 171, 176 (1987), which permits the trial judge to make the evidentiary rulings before trial or during trial. Whether there is sufficient evidence that the conspiracy existed, and that the defendant was a member, are questions of fact. See United States v. Cruz, 910 F.2d 1072 (3d Cir. 1990), cert. denied, 489 U.S. 1039 (1991). In the context of review under 28 U.S.C. § 2254, such factual findings of the state court are set aside only if based on an "unreasonable determination of the facts in light of the evidence presented at the state court proceeding." 28 U.S.C. § 2254(d)(2).
After a review of the record in this matter, the Court will deny petitioner relief on this claim. The state court's determinations do not involve an unreasonable application of federal law, or result from an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The Appellate Division thoroughly reviewed the evidence, and cogently explained why the evidence of the existence of the drug conspiracy centered in petitioner's LaBrisa del Caribe bar, and of petitioner's ongoing participation in that conspiracy, was sufficient to use the out-of-court statements as evidence under the state's co-conspirator exception.
In addition, petitioner's first claim merely attacks evidence rulings made during his trial in state court. Petitioner is essentially asking this court to re-adjudicate his evidentiary claims on the merits as though the appellate court's decision never occurred. This is clearly precluded by § 2254(d).
Evidentiary rulings resting on state rules of evidence are not generally cognizable in a federal habeas corpus proceeding absent a showing that the petitioner was denied fundamental fairness.Bisaccia v. Attorney General, 623 F.2d 307, 312 (3d Cir. 1980),cert. denied, 449 U.S. 1042 (1980). Evidentiary determinations lie within the discretion of the trial court under the state rules of evidence, and will not give rise to habeas corpus relief even if the state rule was incorrectly applied. See Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974).
Moreover, the state court's evidentiary determination to admit co-conspirator statements into evidence does not offend the confrontation clause of the Constitution. In Bourjaily, supra, the Supreme Court recognized that co-conspirators' statements, when made in the course and in furtherance of the conspiracy, "have a long tradition of being outside the compass of the general hearsay exclusion" in criminal cases, 483 U.S. at 183, and that the confrontation clause does not require the prosecution to prove that the witness is unavailable, id. at 182, citing United States v. Inadi, 475 U.S. 387 (1986), nor that the co-conspirator statements have independent indicia of reliability. Id. at 182. The confrontation clause is satisfied where, as in the present case, there is found to be a preponderance of evidence that the charged conspiracy existed, that the defendant (here the petitioner) was a member of it, and that the out-of-court statements of other members were made in the course and in furtherance of that conspiracy. The state court, in finding these statements admissible, has not acted unreasonably or contrary to these constitutional principles. Thus, with respect to claim one, petitioner has failed to state a federal claim upon which relief can be granted under § 2254(d). Therefore, claim one of the petition will be denied.
2. Petitioner's Claim that Ineffective Assistance of Counsel Violated his Sixth Amendment Rights
a. Exhaustion of Remedies Requirement
A prisoner pursuing a habeas petition in federal court must first exhaust the remedies available in the courts of the State, unless there is "an absence of available State corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). State courts must have had an opportunity to pass upon and correct alleged constitutional violations. Evans v. Court of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1230 (3d Cir. 1992). A claim must have been presented not only to the trial court, but also to the state's intermediate court and to its supreme court. Id. Section 2254(c) states that a petitioner will "not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The Third Circuit has interpreted that provision narrowly, however, so that a petitioner who has raised an issue to the state's intermediate and highest courts on direct appeal is not required to raise it again in a state post-conviction proceeding. Evans, 959 F.2d at 1230.
Untangling which claims are exhausted in this case is complicated by the fact that petitioner had two sentencing hearings for the same conviction. Upon review of this case's long and confusing record, it is evident to this Court that the petitioner has not exhausted his state remedies with respect to his ineffective assistance of counsel claim. In the instant petition, the petitioner contends that he received ineffective assistance of counsel during his second sentencing hearing after remand from the appellate court, and that this ineffective assistance deprived him of his Sixth Amendment rights. (Pet'r's Br. at 27) Petitioner argues, inter alia, that his counsel failed in his role as a competent advocate when he did not object to extraneous evidence used by the court in support of aggravating factors during his second sentencing hearing. (Id.)
A review of the record in this case shows, however, that petitioner never raised the issue of ineffective assistance of counsel on direct appeal of his second sentence. Petitioner did assert several arguments on appeal, including evidentiary and excessive sentence claims, to both the Appellate Division and the New Jersey Supreme Court. In contrast, there is nothing to indicate that petitioner ever raised his present claim of ineffective counsel at that point in his case.
Nor did petitioner bring a claim for ineffective assistance of counsel in his petition for post-conviction relief following his re-sentencing on March 20, 1990. (Resp't's App. Ex. 14) Rather than assert an ineffective assistance claim, petitioner's sole claim in his post-conviction relief petition was that his sentence was illegal under the New Jersey Constitution because the sentence included a period of parole ineligibility. Id. After ruling that petitioner's sentence was indeed legal under the State's constitution, Judge Steinberg denied petitioner's motion for post-conviction relief. (Id. Ex. 18)
Thus, petitioner never raised the issue of ineffective assistance until he filed his appeal from the denial of post-conviction relief. (Id. Ex. 20) In fact, respondents noted this, and argued in their brief to the Appellate Division that the petitioner's claim of ineffective assistance of counsel was improperly before the court. (Id. Ex. 21 at 25) In the end, the Appellate Division affirmed Judge Steinberg's decision to deny petitioner post-conviction relief, (Id. Ex. 22), but did not discuss the issue of ineffective assistance of counsel. (Id. at 2) The Appellate Division merely stated,
We find no merit to Rodriguez's [ineffective assistance of counsel] contention. That contention was reviewed and affirmed by the sentence review panel of this court on November 13, 1990. Pursuant to R. 3:22-5 such adjudication is conclusive.
(Id. at 2)
Upon this court's review of the Appellate Division's decision on petitioner's direct appeal dated November 13, 1990, however, it finds that the only issue on appeal at that time was the petitioner's claim that his sentence was excessive under the New Jersey constitution. (Resp't's App. Ex. 12) Therefore, this Court finds that the petitioner's claim that he received ineffective assistance of counsel at re-sentencing was never properly before the courts in the State of New Jersey. Neither the Appellate Division, nor the New Jersey Supreme Court, had the opportunity to pass judgment on this issue. Consequently, petitioner did not fully exhaust the remedies available to him in state court. As discussed more fully below, however, this finding does not end the inquiry.
b. A Review of the Merits
Under the recent amendments to 28 U.S.C. § 2254, this court does have the authority to reach the merits of an unexhausted claim in a petition in order to deny the petition. 28 U.S.C. § 2254 (b)(2). The court has this authority despite the petitioner's failure to exhaust his state remedies. Id. The Third Circuit has stated that the standard for deciding whether to deny a petition on the merits under § 2254(b)(2), or instead require exhaustion, is whether it is "perfectly clear" that the petition does not raise even a colorable federal claim. Lambert v. Blackwell, 134 F.3d 506, 515-16 (3d Cir. 1997). Thus, when a petitioner's claim facially lacks merit, the court may reach the merits of the claim in a petition in order to deny it. Lambert, 134 F.3d at 515-16.
This Court finds that it clear that petitioner's claim of ineffective assistance of counsel is not a colorable claim. The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 377 (1986). Counsel's competence is presumed, and the petitioner must rebut this presumption. Id. at 384. The Supreme Court established the benchmarks for determining ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim for ineffective assistance of counsel, the petitioner must demonstrate that, 1) his or her counsel's performance was deficient, and 2) counsel's deficient performance so prejudiced the defense as to deprive the defendant of a fair trial. Id. at 687. In discussing this standard, the Court stated:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687. See also United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). Stated another way, a court must decide whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. The Supreme Court's decision in Strickland applies to claims of ineffective assistance of counsel at both trial and sentencing. Id. at 671.
The deficiency of counsel's performance is measured by an "objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The petitioner must prove that counsel's representation was unreasonable under prevailing professional norms, and "that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 384. Again, there is a strong presumption that the assistance of counsel falls within the range of reasonable professional representation. Id.
After analyzing petitioner's arguments under the first prong of the Strickland test, this Court finds that petitioner has failed to show that his counsel's performance was deficient. Petitioner asserts that his counsel at the sentencing hearing erroneously argued that petitioner should not be sentenced as a "Drug Kingpin," a matter which petitioner contends was not at issue during his sentencing. (Pet'r's Br. at 28) Additionally, petitioner asserts that his counsel mistakenly argued that the judge should sentence petitioner on each individual count of the indictment, instead of just the conspiracy count. (Id. at 29) Moreover, petitioner argues that his counsel failed to object when the prosecution entered allegedly extraneous and prejudicial matters into evidence during the sentencing hearing. (Id. at 31) Finally, petitioner contends that defense counsel should have moved for recusal of the sentencing judge because that judge presided over the trial and sentence of another drug dealer, where the same undercover investigator testified. (Id. at 35)
Even if the Court accepts these assertions as true, none of the errors complained of by petitioner are so serious that his counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. The object of an ineffectiveness claim is not to grade counsel's performance. Id. at 697. When examining the performance of counsel, courts must endeavor to "eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. At petitioner's re-sentencing hearing, defense counsel argued cogently on petitioner's behalf. The colloquy between defense counsel and the court lasted sixteen pages in transcript length. (Pet. App. at 48-65) During his argument to the sentencing judge, defense counsel attempted to distinguish petitioner's case from other cases ending in long sentences of imprisonment, tried to diminish the seriousness of petitioner's wrongdoings, and argued to the court that petitioner should be sentenced in proportion to his crimes, and not on the basis of the judge's personal feelings. In sum, this court finds that counsel's representation at the sentencing hearing was reasonable under the prevailing professional norms, nor does the Court find that counsel's conduct so undermined the proper functioning of the adversarial process that the outcome of petitioner's sentencing was unjust. Therefore, petitioner has failed to demonstrate that his counsel at the second sentencing hearing was deficient under the standard articulated in Strickland.
Because this Court finds that petitioner failed to prove that defense counsel's performance was deficient, this court need not discuss whether defense counsel's performance prejudiced the outcome of petitioner's case. In announcing the standard inStrickland, the Supreme Court stated that a court need not address both components of the inquiry if the petitioner makes an insufficient showing on one. 466 U.S. at 697. Consequently, this Court will follow this guidance, and will rest on prong one of the Strickland test.
Lastly, petitioner contends that he also received ineffective assistance of counsel during his hearing for post-conviction relief. (Pet'r's Br. at 42) Although petitioner did not fully argue this contention in his papers, this Court is inclined to rule on the assertion. Initially, 28 U.S.C. § 2254(i) states that the ineffectiveness of counsel during "State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." Further, in Coleman v. Thompson, 501 U.S. 722 (1991), the Court ruled that "there is no constitutional right to an attorney in state post-conviction proceedings. Id. at 752. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Id. In sum, petitioner's claim of ineffective assistance of counsel during his post-conviction relief proceeding is not a cognizable claim under federal habeas corpus jurisprudence or under § 2254 itself. Therefore, claim two of the petition must be denied.
3. Petitioner's Claim that his Sentence Violates the New Jersey Constitution
Petitioner next contends that the imposition of a parole bar as part of his sentence violates the New Jersey Constitution. (Pet'r's Br. at 43) Although, for reasons explained below, the Court now denies this claim, some background is helpful in understanding petitioner's interesting argument.
Petitioner was arrested and sentenced under Title 24 of the New Jersey Code. (Id. at 1) Title 24, known as the New Jersey Controlled Dangerous Substances Act ("CDSA"), was enacted in 1970. At the time of its enactment, and at the time petitioner was arrested, a Title 24 offender could not be sentenced to a period of parole ineligibility. In 1987, however, the New Jersey legislature enacted the Comprehensive Drug Reform Act ("CDRA"). The CDRA was enacted prior to petitioner's sentencing. Under the CDRA, a person convicted of a crime involving controlled substances could be sentenced to a period of parole ineligibility if the sentencing court was clearly convinced that the aggravating factors substantially outweighed the mitigating factors. See N.J.S.A. 2C:43-6b (1998). In addition, the CDRA included a clause that allowed the sentencing provisions of the new statute (including parole ineligibility) to be applied to offenders of older statutes, including those convicted under Title 24.
It is at this point in the background that petitioner's contention comes to light. When extending the CDRA sentencing provisions to those convicted under Title 24, the petitioner alleges that the legislature did so via incorporation by reference, which violates the New Jersey constitution. (Pet'r's Br. at 43) Petitioner claims that the legislature cannot amend a statute by merely referring to the statute's title, but must insert the entire statute into the new law to properly enact it under the New Jersey constitution. (Id.) In support of his argument, petitioner cites Article 4, Section 7, paragraph 5 of the New Jersey constitution:
No law shall be revived or amended by reference to its title only, but the act revived, or the section or sections amended, shall be inserted at length.N.J.S.A. Const. Art. 4, § 7, par. 5. Petitioner then points to the enactment language of the CDRA, which does not set out Title 24 at length. (Pet'r's Br. at 44) Therefore, the petitioner contends, because the sentencing provision under which he was sentenced was illegally enacted under the New Jersey constitution, his sentence is illegal. (Id.)
Respondents assert two arguments in response to petitioner's contention. First, they point to an Appellate Division opinion dealing with petitioner's exact claim. (Resp. App. Ex. 22) InState v. Martin, 222 N.J. Super. 66, 70 (App.Div. 1982), the court held that the CDRA did not amend the CDSA, but merely extended the sentencing provisions of the code to offenders under other statutes. The court stated, "we hold that there was no constitutional infringement in the application of parole ineligibility provisions of the Code to CDSA offenders, without re-enactment of CDSA as part of the Code." Id. Second, respondents assert that petitioner's argument is without merit because it is not a cognizable claim for federal habeas corpus relief.
This Court agrees with the respondent's second assertion. Petitioner's argument that his sentence is in violation of New Jersey's constitution is not a cognizable claim under 28 U.S.C. § 2254(d). Even if petitioner was correct in his assertions, such a claim rests on New Jersey Constitutional grounds, not the U.S. Constitution, and thus this claim does not challenge a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). As the claim is a matter of law, not fact, it does not contest "a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). It is only in circumstances where federal, not state rights are implicated that this Court has the power to grant relief under § 2254. Therefore, petitioner's third claim must be denied.
IV. CONCLUSION
For the reasons stated in this Opinion, the Court finds that the instant petition fails under U.S.C. § 2254(d). Accordingly, the accompanying Order is entered.
ORDER
This matter having come before the Court upon the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the court having reviewed the submissions of the parties, and for the reasons stated in the Opinion of today's date;
IT IS, this day of November, 1999, hereby ORDERED that petitioner's application for a writ of habeas corpus is DENIED.