JONES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LARRY JONES,

Petitioner, Civil Action No. 24-11459 (JXN)

v.

OPINION

ROBERT CHETIRKIN and THE

ATTORNEY GENERAL OF THE STATE

OF NEW JERSEY,

Respondents.

NEALS, District Judge

Before the Court is Respondents’ motion to dismiss (“Motion”) pro se Petitioner Larry

Jones’ (“Petitioner”) petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254

as second or successive.1 (ECF No. 9.) Petitioner, an individual confined at East Jersey State Prison

in Rahway, New Jersey, filed a “motion for stay of the filing of his reply” to seek Third Circuit

approval before filing a second successive petition. (ECF No. 14.) The Court has considered the

parties’ submissions and decides this matter without oral argument pursuant to Federal Rule of

Civil Procedure 78 and Local Civil Rule 78.1. For the reasons expressed below, Respondents’

Motion is GRANTED, Petitioner’s motion for stay is DENIED, and the Petition is dismissed

with prejudice, and no certificate of appealability shall issue.

I. BACKGROUND

In 1986, Petitioner was convicted of “murder, N.J.S.A. 2C:11-3(a)(1) and/or 2C:11-

3(a)(2); felony murder, N.J.S.A. 2C:11-3(a); four counts of first-degree robbery, N.J.S.A. 2C:15-

1 In addition to the Petition being second or successive, Respondents argue that the grounds for relief in the Petition

are time-barred. (See generally ECF No. 9.)

1; four counts of kidnapping, N.J.S.A. 2C:13-1(b)(1); unlawful possession of a handgun for

unlawful purposes, N.J.S.A. 2C:39-4; and possession of a handgun without a permit, N.J.S.A.

2C:39-5(b).” State v. Jones, A-2714-17T4, 2019 WL 2305169 at *1 (N.J. App. Div. May 30,

2019). On November 14, 1986, Petitioner was sentenced to an aggregate term of life in prison,

with 30 years of parole ineligibility. (Jones v. Ortiz, Civ. No. 05-5088, ECF No. 16 at 7.) The

Appellate Division stated that Petitioner’s sentence was as follows:

[Petitioner] was sentenced to a thirty-year term of incarceration without parole

eligibility for the murder conviction; four concurrent twenty-year sentences on the

robbery convictions, with a ten-year parole ineligibility period, to run consecutively

to the murder sentence; four concurrent thirty-year sentences on the kidnapping

convictions, with a fifteen-year parole ineligibility, to run consecutively to the

murder conviction; and a four-year concurrent term for possession of a weapon

without a permit. The sentences were consecutive to the prison time defendant was

already serving in another state.

Jones, A-2714-17T4, 2019 WL 2305169 at *1.

Petitioner filed a notice of appeal, and on May 19, 1989, the Appellate Division affirmed

Petitioner’s conviction and sentence. (Jones, Civ. No. 05-5088, ECF No. 16 at 7.) On a recent

appeal, the Appellate Division summarized Petitioner’s direct appeal as follows:

[Petitioner] appealed his convictions and sentence, presenting numerous

arguments, including a contention that the imposed sentence was “manifestly

excessive.” [State v. Jones, No. A-1776-86 at 3 (App. Div. May 19, 1989)] In

addressing that argument, [the court] held: “Our review of the record satisfies us

that the sentence was within the guidelines of State v. Yarbough, 100 N.J. 627, 644

(1985) . . . and did not constitute a mistaken exercise of sentencing discretion.” Id.

at 13.

Jones, A-2714-17T4, 2019 WL 2305169 at *1. On October 31, 1989, the New Jersey Supreme

Court denied Petitioner’s petition for certification. State v. Jones, 118 N.J. 210 (1989). The New

Jersey Supreme Court denied reconsideration on December 7, 1989. (Jones, Civ. No. 05-5088,

ECF No. 16 at 7.)

Following the denial of his direct appeal, Petitioner filed five petitions for post-conviction

relief (“PCR”) before filing his first petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254 in October 2005. On February 28, 2007, the Honorable Dennis M. Cavanaugh, United States

District Judge (ret) (“Judge Cavanaugh”) denied Petitioner’s first habeas petition, summarizing

Petitioner’s PCR history at that time as follows:

Petitioner embarked on a series of collateral challenges to the conviction in state

court. Petitioner filed his first state-court petition for post-conviction relief (PCR)

on or about March 12, 1990. The trial court denied relief on April 18, 1990. The

Appellate Division affirmed the denial of relief on March 26, 1992. The Supreme

Court of New Jersey denied certification on June 25, 1992. State v. Jones, 130 N.J.

16 (1992).

Petitioner filed his second state PCR petition on or about January 7, 1994. The trial

court denied relief on June 20, 1994. The Appellate Division affirmed the denial of

relief on May 19, 1997, holding that the petition was clearly barred by New Jersey

Court Rules 3:22-5 and 3:22-12. [] The Supreme Court of New Jersey denied

certification on June 30, 1998.

Petitioner filed his third state PCR petition on June 7, 1999. The trial court denied

relief on June 17, 1999. On October 29, 2001, the Appellate Division affirmed the

denial of relief, finding the petition barred by Rules 3:22-4, 3:22-5, and 3:22-12. []

On March 8, 2002, the Supreme Court of New Jersey denied certification. See State

v. Jones, 171 N.J. 443 (2002).

Petitioner filed his fourth state PCR petition on April 11, 2002. The trial court

denied relief on October 2, 2002, and denied reconsideration on December 13,

2002. The Appellate Division affirmed the denial of relief on May 2, 2003, finding

the petition barred by Rules 3:22-4 and 3:22-12. [] Petitioner apparently did not

petition for certification.

. . .

Petitioner filed his fifth state PCR petition. On May 28, 2003, the trial court denied

relief. On November 19, 2004, the Appellate Division affirmed the denial of relief,

finding the petition barred by Rule 3:22-12. [] On March 1, 2005, the Supreme

Court of New Jersey denied certification. See State v. Jones, 183 N.J. 213 (2005).

(Jones, Civ. No. 05-5088, ECF No. 16 at 7-10 (citations omitted).)

In October 2005, Petitioner filed his first petition for writ of habeas corpus. (Jones, Civ.

No. 05-5088, ECF No. 1.) Petitioner raised the following ten claims:

1. The state courts erred in denying Petitioner’s first and second PCR petitions as

untimely.

2. The Chicago police improperly interrogated Petitioner, after indictment, without

counsel and under improper conditions including no Miranda2 warnings, being

handcuffed, and being denied food and water, phone calls, and bathroom privileges.

3. Chicago and New Jersey law enforcement officers withheld Chicago police reports

stating the Petitioner did not confess to the New Jersey murder, which Petitioner

obtained in 1999.

4. The Chicago police falsely testified that Petitioner had confessed to them or,

alternatively, they beat a confession out of him, as evidenced by the fact that the

Governor of Illinois found that these same officers had “poisoned” capital murder

cases in Illinois by torturing suspects to obtain confessions.

5. The state procured the perjured testimony of several witnesses.

6. The pre-trial identification procedures were unduly prejudicial.

7. Ineffective assistance of trial counsel, withholding of evidence, and due process

violations at trial as evidenced by the fact that a juror removed by a defense

peremptory challenge remained on the jury.

8. Sentencing error in the weighing of aggravating and mitigating factors by the judge.

9. A manifestly excessive sentence.

10. Chicago police improperly made him stand in lineups related to 33 Chicago

robberies without counsel.

(See Jones, Civ. No. 05-5088, ECF No. 16 at 7-10 (citations omitted); see also generally ECF Nos.

1, 1-2, 1-3.) On February 28, 2008, Judge Cavanaugh dismissed Petitioner’s first § 2254 petition

as untimely. (Id., ECF No. 16 at 22.) The Third Circuit Court of Appeals denied Petitioner’s

request for a certificate of appealability on August 17, 2007. (Id., ECF No. 19.)

According to the Appellate Division, Petitioner subsequently filed a sixth PCR petition.

See Jones, A-2714-17T4, 2019 WL 2305169 at * 1. The Appellate Division noted that Petitioner

“assert[ed] errors in the jury instructions and polling procedure of the jury, and present[ed] a

2 Miranda v. Arizona, 384 U.S. 436, 444 (1966).

‘[m]otion [t]o [c]orrect [a]n [i]llegal [s]entence [c]onviction.’” Id. The Appellate Division

summarized the trial judge’s denial of Petitioner’s sixth PCR petition as follows:

The trial judge found [Petitioner’s] claims, other than the illegal sentence assertion,

were time barred as he did “not assert any claim that ha[d] occurred within one

year,” and procedurally barred. See R. 3:22-12; R. 3:22-4. Although Petitioner’s

illegal sentence argument was not time barred, the judge concluded it was

procedurally barred because it had been previously considered, and rejected, in his

direct appeal. Because the illegal sentence claim was already adjudicated, the judge

determined defendant was estopped from raising it again.

Id.

On May 30, 2019, the Appellate Division affirmed the denial of his sixth PRC petition,

finding Petitioner’s claims of errors in the jury instruction and polling procedure and ineffective

assistance of all prior counsel because they “failed to prevent the imposition of his ‘death

sentence’” were all untimely and barred under Rule 3:22-4. Id. at * 2. The Appellate Division

found Petitioner’s claim that he was “illegally and incorrectly subject to the penalty-phrase

proceeding of N.J.S.A. 2C:11-3(c) and . . . was given a ‘life sentence through that process from a

death qualified jury” was meritless, as his sentence was in the “authorized range” and not “illegal.”

Id. at * 2-3. Finally, the court found that “to the extent [Petitioner] [was] arguing the excessiveness

of his sentence, [the court] found that contention meritless on direct appeal.” Id. at *3, fn.3. On

June 5, 2020, the New Jersey Supreme Court denied Petitioner’s motion for leave to file a petition

for certification “as within time” and dismissed the petition. (ECF No. 9-4 at 6.)

According to the Appellate Division, Petitioner then filed a motion to change his sentence.

State of New Jersey v. Jones, A-1400-21, 2023 WL 6153670 at *1 (N.J. App. Div. Sept. 21, 2023).

On September 21, 2023, the Appellate Division affirmed the trial court’s denial of Petitioner’s

motion, ruling as follows:

We affirm for the reasons stated in the trial court’s opinion, adding only the

following comments. “[A]n illegal sentence is one that ‘exceeds the maximum

penalty provided in [the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to

2C:104-9] for a particular offense’ or a sentence ‘not imposed in accordance with

law.’” State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J.

240, 247 (2000)).

[Petitioner] was sentenced on the murder conviction to prison for life, with a

mandatory parole ineligibility period of thirty years. Because this sentence was in

the authorized range for the crime of which [Petitioner] was convicted, his sentence

was not illegal.

Nor is there any merit to [Petitioner’s] argument that his sentence was disparate to

others. [Petitioner] urges this court to overturn his sentence as the Supreme Court

did in State v. Torres, 246 N.J. 246 (2021). However, the Court’s decision in Torres,

issued decades after [Petitioner’s] convictions and sentence, bears no relationship

to the sentence imposed on defendant. Torres was not a co-defendant, and he was

convicted of different and less serious crimes.

Jones, A-1400-21, 2023 WL 6153670 at *1-2. Petitioner submits that the New Jersey Supreme

Court denied Petitioner’s petition for certification on January 23, 2024. (ECF No. 1 at 7.)

In December 2024, Petitioner filed the instant Petition, his second § 2254 Petition. (ECF

No. 1.) In the Petition, Petitioner raised the following claims: (1) the trial court erred by failing to

merge Petitioner’s convictions for kidnapping and robbery into his murder conviction; (2)

sentencing disparity between Petitioner, State v. Torres, 246 N.J. 246 (2021), and State v.

Yarbough, 100 N.J. 627 (1985), which denied Petitioner his due process and equal protection

rights, and violates the goal of uniformity and fundamental fairness; and (3) the trial judge and

prosecutor changed Petitioner’s second degree kidnapping charge to a first degree kidnapping

charge after the jury’s verdict. (See id. at 5-8; see also ECF No. 1-1 at 7-30.)

Respondents subsequently filed the instant Motion, arguing that the Petition is untimely

and is a second or successive petition. (ECF No. 9.) On July 16, 2025, the Court granted Petitioner

a thirty-day extension of time to file a reply to the Motion. (ECF No. 13.) Rather than file a reply,

Petitioner filed a “motion for a stay of the filing of his reply,” to allow Petitioner time to seek

approval from the Third Circuit before filing a second or successive petition. (ECF No. 14.) The

matter is now ripe for decision.

II. STANDARD OF REVIEW

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is

“required to accept as true all factual allegations in the complaint and draw all inferences in the

facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cty. of Allegheny, 515 F.3d

224, 228 (3d Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does not need detailed

factual allegations.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s

“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the

factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. “Determining whether the allegations in a complaint are

plausible is a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

III. DISCUSSION

Respondents argue in their Motion that this matter presents a second or successive habeas

petition filed without leave of the Court of Appeals, and that Petitioner’s habeas petition must be

dismissed as a result. (See ECF No. 9 at 4, fn. 1.) The Court agrees.

The Antiterrorism and Effective Death Penalty Act limits a district court’s jurisdiction over

second or successive § 2254 petitions. “Before a second or successive application permitted by

this section is filed in the district court, the applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

Rule 9 of the Rules Governing Section 2254 Cases similarly provides that, “[b]efore presenting a

second or successive petition, the petitioner must obtain an order from the appropriate court of

appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3)

and (4).” Absent this authorization, the Court lacks jurisdiction over any second or successive §

2254 petition. Burton v. Stewart, 549 U.S. 147, 152 (2007) (“[B]ecause the 2002 petition is a

‘second or successive’ petition that Burton did not seek or obtain authorization to file in the District

Court, the District Court never had jurisdiction to consider it in the first place”).

However, a habeas petition is not a “second or successive” petition merely because it is the

second or later in time petition that the petitioner has filed after his initial conviction. See, e.g.,

Magwood v. Patterson, 561 U.S. 320, 332 (2010). Rather, a habeas petition is classified as second

or successive within the meaning of 28 U.S.C. § 2244 if a (1) prior petition has been decided on

the merits, (2) the prior and new petitions challenge the same conviction, and (3) the new petition

asserts a claim that was, or could have been, raised in a prior habeas petition. See Benchoff v.

Colleran, 404 F.3d 812, 817 (3d Cir. 2005).

Here, Judge Cavanaugh denied Petitioner’s first § 2254 petition on the merits when he

dismissed the claims as time-barred. See Rohn v. Horton, 508 F. App’x 170, 171 (3d Cir. 2013)

(unpublished) (explaining that a prior dismissal of a Section 2254 petition as untimely “counts as

a ruling on the merits for purposes of 28 U.S.C. § 2244(b)” (citing Villaneuva v. United States,

346 F.3d 55, 61 (2d Cir. 2003) and Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003))); Stokes v.

Gehr, 399 F. App’x 697, 699 n.2 (3d Cir. 2010) (unpublished) (“A motion under § 2254 would be

‘second or successive’ because Stokes’ first such petition was dismissed as untimely . . . .”)

Additionally, both Petitioner’s prior petition and the instant Petition challenge the same

convictions. (Compare ECF No. 1 with Civ. No. 05-5088, ECF No. 1.) Finally, the Petition raises

claims that could have been raised in his first § 2254 petition.

At claim one, Petitioner argues the trial court erred by failing to merge Petitioner’s

convictions for kidnapping and robbery into his murder conviction. (ECF No. 1 at 5; ECF No. 1-

1 at 7-11.) Petitioner would have been aware that his convictions for kidnapping and robbery were

not merged when he was sentenced in 1986, well before he filed his first § 2254 petition in 2005.

Claim two raises a sentencing disparity argument. (ECF No. 1 at 7; ECF No. 1-1 at 12-23.)

Petitioner argues that the sentencing disparity between himself and the defendants in Torres, 246

N.J. 246, and Yarbough, 100 N.J. 627, denied Petitioner his due process and equal protection

rights. (Id.) Although State v. Torres is a more recent 2021 New Jersey state court decision, that

case addressed the application of the factors laid out in Yarbough. See generally Torres, 246 N.J.

246. In Torres, the New Jersey Supreme Court explained:

[S]entencing is a holistic endeavor. A court performing the Yarbough fairness

assessment must be mindful that aggravating and mitigating factors and Yarbough

factors, as well as the stated purposes of sentencing in N.J.S.A. 2C:1-2(b), in their

totality, inform the sentence’s fairness. All are relevant to the overall fairness of the

aggregate sentence imposed on the sole defendant before the court.

246 N.J. at 272. Here, Petitioner raised a claim on direct appeal challenging his sentences based

on Yarbough, and the trial court found “his sentence was within the guidelines of State v.

Yarbough, 100 N.J. 627, 644 (1985) . . . and did not constitute a mistaken exercise of sentencing

discretion.” Jones, A-2714-17T4, 2019 WL 2305169 at *1 (quoting State v. Jones, No. A-1776-

86 at 13 (App. Div. May 19, 1989)). Additionally, in his first habeas petition, Petitioner raised a

sentencing claim, arguing that the sentencing court erred in weighing aggravating and mitigating

factors and that his sentence was manifestly excessive. (Jones, Civ. No. 05-5088, ECF No. 1-3 at

20-29.) Petitioner raised his excessive sentencing claim in his first habeas petition.

Finally, in claim three, Petitioner argues that the trial judge and prosecutor changed

Petitioner’s second-degree kidnapping charge to a first-degree kidnapping charge after the jury’s

verdict. (ECF No. 1 at 8; ECF No. 1-1 at 24-31.) Again, Petitioner would have been aware of any

alleged change to his kidnapping charge at the time of his sentencing and at the time of the filing

of his first habeas petition. Therefore, Petitioner could have raised this claim previously.

Accordingly, the instant Petition is second or successive.

Petitioner’s motion to stay the time for him to file a reply to Respondents’ motion to dismiss

makes it clear that he has not received permission from the Third Circuit to file this second or

successive petition. (See ECF No. 14.) Because Petitioner has not received permission from the

Third Circuit to file his second or successive petition, this Court lacks jurisdiction. Whenever a

civil action is filed in a court that lacks jurisdiction, “the court shall, if it is in the interests of

justice, transfer such action . . . to any other such court in which the action . . . could have been

brought at the time it was filed.” 28 U.S.C. § 1631. The interests of justice will generally support

a transfer of a successive habeas petition to the Court of Appeals only where the petitioner has

alleged facts which would be sufficient to bring him within the gatekeeping requirements for the

authorization of a successive petition under the habeas statute. See Hatches v. Schultz, 381 F.

App’x 134, 137 (3d Cir. May 21, 2010). The habeas statute provides that a district court shall

dismiss a second or successive habeas corpus petition unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously

through the exercise of due diligence; and

(ii) the facts underlying the claim . . . would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).

Here, Petitioner does not allege facts indicating that the claims presented in his Petition

satisfy the gatekeeping requirements of § 2244(b)(2). Petitioner does identify a new rule of

constitutional law. Although Petitioner cites Torres, decided in 2021, New Jersey courts have held

that Torres did not create a new rule of law and is therefore not retroactively applied. See State v.

Sharrieff, 2025 WL 1638229 at * 3 (N.J. App. Div. June 10, 2025) (“the Court in Torres did not

create a new rule of law, and therefore retroactivity is not applicable . . . [i]nstead, our Court in

Torres reviewed fundamental sentencing principles and ‘reiterate[d] the repeated instruction that

a sentencing court’s decision whether to impose consecutive sentences should retain focus on ‘the

fairness of the overall sentence.’’” (citations omitted)); see also State v. Manso, 2025 WL 444206

at * 3 (N.J. App. Div. February 10, 2025) (“the Torres rule is not retroactive and does not entitle

defendant to a resentencing hearing because it does not represent a departure from the existing

law.”) Petitioner also does not present facts that could not have been discovered previously through

the exercise of due diligence. Therefore, the Court finds that it would not be in the interest of

justice to transfer the Petition to the Third Circuit as an application for authorization to file a second

or successive petition. See Hatches, 381 F. App’x at 137. As such, Petitioner’s motion for a stay

of the time to file his reply brief is denied, and Petitioner’s Petition shall be dismissed for lack of

jurisdiction.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas

proceeding where that petitioner’s detention arises out of a state court proceeding unless he has

“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s resolution

of his constitutional claims or that jurists could conclude that the issues presented here are adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In

Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court further held:

“[w]hen the district court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least,

that jurists of reason would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.”

Here, jurists of reason would agree with this Court’s conclusion that it lacks jurisdiction

over Petitioner’s second or successive § 2254 Petition. Consequently, the Court will not issue a

certificate of appealability.

V. CONCLUSION

For the reasons stated above, Respondents’ Motion (ECF No. 9) is GRANTED.

Petitioner’s “motion for stay of the filing of his reply” (ECF No. 14) is DENIED. Petitioner’s

habeas petition is DISMISSED with prejudice for lack of jurisdiction. A certificate of

appealability shall not issue. An appropriate order follows.

DATED: January 6, 2026 ________________________

JULIEN XAVIER NEALS

United States District Judge