GIBBS v. GOODWIN et al
Filing
18
OPINION FILED. Signed by Judge Noel L. Hillman on 11/10/11. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD GIBBS,
Petitioner,
v.
BERNARD GOODWIN, et al.,
Respondents.
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Civil Action No. 09-1046 (NLH)
OPINION
APPEARANCES:
RICHARD GIBBS, Petitioner Pro Se
# 232215C, 3W
Adult Diagnostic and Treatment Center
8 Production Way
Avenel, New Jersey 07001
JENNIFER L. BENTZEL, ASSISTANT PROSECUTOR
BURLINGTON COUNTY PROSECUTOR’S OFFICE
New Courts Facility
49 Rancocas Road
Mount Holly, New Jersey 08060
Counsel for Respondents
HILLMAN, District Judge
Petitioner Richard Gibbs, a convicted state prisoner, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging a New Jersey state court judgment of
conviction that was originally entered against him on or about
July 16, 1998.
For the reasons stated herein, the Petition will
be denied for lack of substantive merit.
I.
A.
BACKGROUND
Factual Background
The facts of this case were recounted below and this Court,
affording the state court’s factual determinations the
appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply
reproduce the recitation as set forth in the unpublished opinion
of the Superior Court of New Jersey, Appellate Division, decided
on February 6, 2001, with respect to petitioner’s direct appeal
from his judgment of conviction:
The affidavit upon which the search warrant was based was
prepared by Detective Sergeant Edwin Woods on August 28,
1996. He related that K.P., the mother of ten year old
N.R., reported that the child had been the victim of sexual
abuse committed by defendant, her soccer and football coach.
We need not recount the lurid details of the acts described
by N.R. to her mother except to say that they occurred over
a prolonged period of time at defendant’s house.
Apparently, N.R. was lured into the illicit relationship by
reason of her friendship with defendant’s daughter, K.G.
The sexual acts were often preceded by viewing naked
children on defendant’s computer screen.
Woods interviewed N.R., who corroborated her mother’s
account and described her sexual relationship with defendant
in graphic detail. N.R. described how defendant would show
sexually suggestive photographs on a computer screen, and
would ask N.R. to “rate” them. She also recounted that
defendant had taken K.G. and her to a nude beach in Sandy
Hook. Woods subsequently corroborated the existence of the
nude beach at that site, and through additional
investigation, learned that parking passes and admission
tickets were issued as a prerequisite to entry on the beach.
Woods learned that defendant had a proprietary interest in a
child care facility located in Pennsylvania, that he
assisted a local dance studio in videotaping a female dance
group, and that he was active in the elementary school that
N.R. and K.G. attended. In seeking a search warrant, Woods
noted his experience and training in the investigation of
2
pedophiles indicated that such criminals “rarely, if ever,
disposed of sexually explicit material ... used in the
seduction of victims,” that they often collect photographs
of children, that they generally maintain the names,
addresses and telephone numbers of victims, that they
sometimes record their sexual experiences by using a
computer, and that such information is often coded in order
to prevent detection by others.
The search warrant was issued on August 28, 1996. The
warrant authorized the search of defendant’s house, car and
person and the seizure of:
pornographic materials, including, but not limited to;
video tapes, movie films, pictures and magazines
depicting sexual acts; computer and computer equipment
capable of generating pictures depicting sexual
activity; any material indicating sexual activity with
juveniles, writings or pictures which tend to indicate
the identity of the victim(s) or other juveniles;
photographs to be taken of the interior of the G[]
residence, and a diagram of the interior layout; travel
records and receipts correspondence, telephone books
and records, and other documents tending to establish
involvement with traveling to and/or frequenting areas
permitting nudist activities with juveniles.
The warrant was executed on August 29, 1996. During the
course of the search of defendant’s residence, significant
evidence was found. VHS video-cassettes and 8mm videocassettes were seized. A review of the tapes revealed child
pornography, and the defendant actually committing acts of
sexual penetration and sexual contact with several child
victims. Computer equipment was seized. A review of the
computer equipment and the disks revealed 524 computer
printouts containing child pornography. Other items seized
from the residence included a receipt from the Blue Mountain
Ski Resort in the name of N.R., a beach parking permit
receipt, five receipts from Jenkinson’s South Arcade, a
business card for the Anderson Center for Young Children,
camera equipment, several rolls of film, assorted paperwork,
and ten CD-ROMS. The sole item seized from defendant’s
vehicle was a Sandy Hook beach parking permit and brochure.
The videotape evidence led to the discovery of the identity
of seven additional victims, including defendant’s daughter.
The other victims were playmates of N.R. and K.G.
3
(Ra11,1 February 6, 2001 Appellate Division Opinion at pp. 2-4).
B.
Procedural History
On February 7, 1997, the Burlington County Grand Jury
returned a 35 count indictment charging petitioner Richard A.
Gibbs (“Gibbs”) with the following offenses: (Counts 1, 4, 8, 9,
10, 20, 21, and 26) second degree sexual assault in violation of
N.J.S.A. 2C:14-2b; (Counts 2, 5, 6, 11, 12, 22-24, 28, 29, 31-35)
endangering the welfare of a child in violation of N.J.S.A.
2C:24-4a; (Counts 3, 7, 14 and 30) first degree kidnapping in
violation of N.J.S.A. 2C:13-1b(1); (Counts 13, 25, 27 ) lewdness
in violation of N.J.S.A. 2C:14-4b(1); and (Counts 15-19 ) first
degree aggravated sexual assault in violation of N.J.S.A. 2C:142a(1).
(Ra1, Indictment).
Before trial, Gibbs filed a motion to
suppress evidence, challenging the affidavit in support of the
search warrant.
The motion to suppress was denied by the
Honorable Donald B. Gaydos, J.S.C., on September 10, 1997.
(September 10, 1997 Motion Transcript, 2T).
On January 22, 1998, Gibbs entered a retraxit guilty plea
before the Honorable Patricia Richmond LeBon, J.S.C., pursuant to
a plea agreement.
He pled guilty to one count of first degree
1
“Ra” refers to the state court record exhibits provided
by the respondents. The list of exhibits comprising the state
court record is attached to the State’s answer and is docketed as
document entry no. 15, listing 31 exhibits to the record. The
record also includes nine (9) transcripts of the state court
proceedings and a transcript of a detention hearing in the United
States District Court on December 11, 1997.
4
aggravated sexual assault, two counts of second degree sexual
assault, and six counts of endangering the welfare of a child.
At the time of his plea, Gibbs had a pretrial Miranda2 motion
pending and a motion to recuse the trial judge.
On July 16, 1998, Judge LeBon sentenced Gibbs to an
aggregate term of 45 years in prison with a 15-year parole
ineligibility, pursuant to the negotiated plea agreement.
Gibbs filed a direct appeal from his conviction and sentence
before the Superior Court of New Jersey, Appellate Division.
Gibbs argued that the search warrant was constitutionally
defective and that his sentence was manifestly excessive.
In an
opinion issued on February 6, 2001, the Appellate Division
rejected Gibbs’ arguments concerning the search warrant, affirmed
the conviction, but remanded the matter for reconsideration of
the sentence.
(Ra11 at pp. 4-11).
The Supreme Court of New
Jersey denied certification on April 27, 2001.
(Ra12).
On July 24, 2002, Judge LeBon re-imposed the same sentence
after placing on the record further amplification of her reasons
for the sentence.
(Ra13, Ra14).
Gibbs appealed the sentence.
On July 10, 2003, following oral argument on the excessive
sentence oral argument calendar, the Appellate Division affirmed
the sentence.
2
(Ra16).
The Supreme Court of New Jersey denied
Miranda v. Arizona, 384 U.S. 436 (1966).
5
certification on January 21, 2004.
State v. Gibbs, 178 N.J. 454
(Ra18).3
(2004).
On June 24, 2003, Gibbs filed a petition for post-conviction
relief (“PCR”) and a motion for recusal of Judge LeBon.
recusal motion was denied on February 17, 2006.
of motion to recuse).
2006.
The
(7T, Transcript
Gibbs’ PCR petition was denied on June 27,
(Ra26, 8T PCR transcript).
Gibbs appealed from denial of his state PCR petition.
The
Appellate Division affirmed the trial court’s decision in an
opinion issued on June 27, 2008.
(Ra30).
The Supreme Court of
New Jersey denied certification on October 6, 2008.
Gibbs, 196 N.J. 597 (2008).
State v.
(Ra26).
Gibbs filed this habeas petition pursuant to 28 U.S.C. §
2254, on or about March 4, 2009.
On May 1, 2009, this Court
issued an Opinion and Order directing the petitioner to show
cause why his petition should not be dismissed as time-barred.
(Docket entry nos. 2 and 3).
(Docket entry no. 5).
Gibbs responded on May 26, 2009.
In an Opinion and Order entered on
November 13, 2009, this Court found that the petition was timely
filed and directed that respondents file an answer to the
petition.
(Docket entry nos. 6 and 7).
3
Gibbs filed a motion for reconsideration from the denial
of certification. (Ra19). The Supreme Court of New Jersey
denied reconsideration of the petition for certification.
(Ra20).
6
Respondents answered the petition on March 1, 2010,
providing the relevant state court record.
14, 15 and 16).
2010.
(Docket entry nos.
Petitioner filed a reply/traverse on April 5,
(Docket entry no. 17).
II.
STATEMENT OF CLAIMS
Gibbs asserts the following claims in his petition for
habeas relief:
A.
Ineffective assistance of trial counsel during
sentencing.
B.
Ineffective assistance of counsel in failing to advise
petitioner as to the impact of the State’s violation of
petitioner’s Fifth and Sixth Amendment rights when the police
denied petitioner access to counsel during custodial
interrogation.
C.
Plea should be withdrawn because petitioner was denied
access to counsel during custodial interrogation.
D.
Prosecutorial misconduct and vindictive prosecution in
violation of petitioner’s right to due process in violation of
his First, Fifth and Sixth Amendment rights.
The State essentially contends that the petition should be
denied for lack of substantive merit or because it fails to raise
claims of federal constitutional dimension.
7
III.
STANDARD OF REVIEW
Section 2254(a) of Title 28 of the United States Code gives
the court jurisdiction to entertain a habeas petition challenging
a state conviction or sentence only where the inmate’s custody
violates federal law.
28 U.S.C. § 2254(a).
“In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County
Probation Dep’t, 128 F.3d 152, 159 (3d Cir. 1997).
“Federal
courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of
constitutional dimension.”
(1982).
Smith v. Phillips, 455 U.S. 209, 221
Generally, “[i]f a state prisoner alleges no deprivation
of a federal right, § 2254 is simply inapplicable,” Engle v.
Isaac, 456 U.S. 107, 120 n. 19 (1982), and “a state court’s
interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court
sitting in habeas corpus.”
Bradshaw v. Richey, 546 U.S. 74, 76
(2005).
In reviewing a § 2254 petition, a federal court is not
permitted to address a federal constitutional claim pertinent to
the facts of the case unless the petitioner asserts the claim as
a ground for relief.
That is, “errors of state law cannot be
8
repackaged as federal errors simply by citing the Due Process
Clause.”
Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997).
In addition, “it is well established that a state court’s
misapplication of its own law does not generally raise a
constitutional claim.”
Smith v. Horn, 120 F.3d 400, 414 (3d Cir.
1997)(citations and internal quotation marks omitted); see also
Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).
In addition to the case law, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) limits a federal court’s authority to
grant habeas relief when a state court has adjudicated
petitioner’s federal claim on the merits.
2254(d).
See 28 U.S.C. §
Where a federal claim was “adjudicated on the merits”
in state court proceedings, the writ must be denied unless
adjudication of the claim either involved an unreasonable
application of clearly established federal law, or was based on
unreasonable determination of the facts in light of the evidence
before the state court.
See 28 U.S.C. § 2254(d).
The unreasonableness standards of § 2254(d) govern only
claims that were “adjudicated on the merits in State Court
proceedings.”
28 U.S.C. § 2254(d).
“An ‘adjudication on the
merits’ has a well settled meaning: a decision finally resolving
the parties’ claims, with res judicata effect, that is based on
the substance of the claim advanced, rather than on a procedural,
or other, ground.”
Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir.
9
2004)(citations and internal quotation marks omitted), reversed
on other grounds sub nom.
Rompilla v. Beard, 545 U.S. 374
(2005); see also Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir.
2006).
A state court may render an adjudication on the merits of
a federal claim by rejecting the claim without any discussion
whatsoever.
See Rompilla, 355 F.3d at 247.
See also Chadwick v.
Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002), cert. denied, 538
U.S. 1000 (2003)(citing Weeks v. Angelone, 528 U.S. 225, 237
(2000)(even a summary adjudication by the state court on the
merits of a claim is entitled to § 2254(d) deference)).
On the
other hand, “[i]f the petitioner’s legal claims were presented
but not addressed by the state courts, 28 U.S.C. § 2254(d) does
not apply.”
Rolan, 445 F.3d at 678.
See also Hameen v. State of
Delaware, 212 F.3d 226, 248 (3d Cir. 2000)(with respect to claims
presented to, but unadjudicated by, the state courts, however, a
federal court may exercise pre-AEDPA independent judgment), cert.
denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL
1523144, *6 n.4 (D.N.J. 2000).
If the New Jersey courts adjudicated the petitioner’s claims
on the merits, this Court may not grant relief unless either §
2254(d)(1) or § 2254(d)(2) is satisfied.
2254(d).
See 28 U.S.C. §
Accordingly, this Court may not grant habeas relief to
the petitioner unless the adjudication of a federal claim by the
New Jersey courts involved an unreasonable application of clearly
10
established Supreme Court law, see 28 U.S.C. § 2254(d)(1), or was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding and
petitioner is in custody in violation of the Constitution or laws
or treaties of the United States.
See 28 U.S.C. § 2254(a),
(d)(2).
When the grounds raised in the petition are governed by 28
U.S.C. § 2254(d)(1), the court must begin its analysis by
determining the relevant law clearly established by the Supreme
Court.
See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
Clearly established law “refers to the holdings, as opposed to
the dicta, of [the Supreme Court’s] decisions as of the time of
the relevant state-court decision.”
362, 412 (2000).
Williams v. Taylor, 529 U.S.
A court must look for “the governing legal
principle or principles set forth by the Supreme Court at the
time the state court renders its decision.”
Lockyer v. Andrade,
538 U.S. 63, 71, 72 (2003).
A decision is “contrary to” a Supreme Court holding within
28 U.S.C. § 2254(d)(1), if the state court “contradicts the
governing law set forth in [the Supreme Court’s] cases” or if it
“confronts a set of facts that are materially indistinguishable
from a decision of th[e Supreme] Court and nevertheless arrives
at a [different] result.”
Williams, 529 U.S. at 405-06.
Under
the “‘unreasonable application’ clause of § 2254(d)(1), a federal
11
habeas court may grant the writ if the state court identifies the
correct governing legal principle from th[e Supreme] Court’s
decisions but unreasonably applies that principle to the facts of
the prisoner’s case.”
Id. at 413. Whether a state court’s
application of federal law is “unreasonable” must be judged
objectively; an application may be incorrect, but still not
unreasonable.4
See id. at 409-10. “The unreasonable application
test is an objective one-a federal court may not grant habeas
relief merely because it concludes that the state court applied
federal law erroneously or incorrectly.”
Thomas v. Varner, 428
F.3d 491, 497 (3d Cir. 2005) (quoting Jacobs v. Horn, 395 F.3d
92, 100 (3d Cir. 2005)).
Finally, federal courts are required to apply a “presumption
of correctness to factual determinations made by the state
court.”
Id.; see also 28 U.S.C. § 2254(e)(1).
The Third Circuit
has ruled that this presumption of correctness based upon state
court factual findings can only be overcome by clear and
convincing evidence.
U.S.C. § 2254(e)(1)).
See Duncan, 256 F.3d at 196 (citing 28
Consequently, a habeas petitioner “must
clear a high hurdle before a federal court will set aside any of
4
See also Marshall v. Hendricks, 307 F.3d 36, 71 n. 24 (3d
Cir. 2002)(“[D]ecisions of federal courts below the level of the
United States Supreme Court may be helpful to [a court] in
ascertaining the reasonableness of state courts’ application of
clearly established United States Supreme Court precedent, as
well as helpful amplifications of that precedent.”)(citations and
internal quotation marks omitted).
12
the state court’s factual findings.”
Mastracchio v. Vose, 274
F.3d 590, 597-98 (1st Cir. 2001).
IV.
A.
ANALYSIS
Ineffective Assistance of Trial Counsel
Gibbs asserts that his trial counsel was ineffective in
violation of his Sixth Amendment right to effective assistance of
counsel.
The “clearly established Federal law, as determined by
the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
is the standard for ineffective assistance of counsel as
enunciated in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a petitioner seeking to prove a Sixth Amendment
violation must demonstrate that his counsel’s performance fell
below an objective standard of reasonableness, assessing the
facts of the case at the time of counsel’s conduct.
See id. at
688-89; Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005); Keller
v. Larkins, 251 F.3d 408, 418 (3d Cir.), cert. denied, 534 U.S.
973 (2001).
Counsel’s errors must have been “so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.”
Strickland, 466 U.S. at 688.
“In any case presenting
an ineffectiveness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.”
Id.
If able to demonstrate deficient performance by counsel, the
petitioner must also show that counsel’s substandard performance
13
actually prejudiced his defense.
687.
See Strickland, 466 U.S. at
Prejudice is shown if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.”
Id. at 694.
The reviewing court must evaluate the
effect of any errors in light of the totality of the evidence.
See id. at 695-96.
Thus, the petitioner must establish both
deficient performance and resulting prejudice in order to state
an ineffective assistance of counsel claim.
See id. at 697; see
also Jacobs, 395 F.3d at 102; Keller, 251 F.3d at 418.
In this case, Gibbs first contends that his trial counsel
was constitutionally ineffective for failing to argue mitigating
factors at Gibbs’ sentencing hearing on July 16, 1998.
Gibbs
contends that his lack of any criminal history prior to this
matter should have been regarded as a mitigating factor.
He also
states that his counsel should have argued to the trial judge
that Gibbs was the sole supporter of his wife and daughter, that
he had voluntarily initiated psychotherapy for his pedophilia
while on bail, and that subsequent to the remand on the
sentencing, Gibbs had made progress in the sex offender treatment
program at the Adult Diagnostic and Treatment Center (“ADTC”).
These arguments were raised in petitioner’s state PCR
proceeding.
Judge LeBon made the following ruling on this issue:
14
In sentencing the defendant, this Court acknowledged that
this was his first offense and acknowledged the fact that he
was seeking treatment. Then the Court, of course, found
that there were no mitigating factors. The Court found that
there were several aggravating factors and continued to
sentence the defendant pursuant to the plea agreement.
In November of 1999, the defendant filed a notice of appeal
with the Appellate Division challenging the sentence as
excessive. The Appellate Division affirmed the defendant’s
convictions, but remanded the case for reconsideration of
the sentence in order for the Trial Court to provide a more
complete explication of the reasons for imposing consecutive
sentences. And, it should be noted that I, who am now the
PCR Judge, also was the Judge that took the plea, that did
the sentence, and that did the remand.
After that was done, the defendant filed a petition for
certification to the New Jersey Supreme Court in February of
2001, and in April of 2001 it was denied. On July 24th,
2002, this Court reimposed the same sentence on the
defendant after providing further explanation and
amplification of the reasons for imposing a consecutive
sentence.
The defendant appealed that sentence. And, in July of 2003,
the Appellate Division heard argument on the extensive
sentencing oral argument calendar. And, the Appellate
Division affirmed the defendant’s sentence and concluded
that it was not excessive. This was in July of 2003.
A second petition for certification to the New Jersey
Supreme Court was filed which was denied in January 0f 2004.
A motion for reconsideration of that denial was filed, and
the Supreme Court denied that application in April of 2004.
And, then a post conviction relief application has been
filed.
It is clear, from that procedural record, that every single
issue, matter, concern, question, argument, or disagreement
about Mr. Gibbs’ sentence has been heard by, determined by,
and put to rest by the Superior Court Trial Division, the
Superior Court Appellate Division, and the Supreme Court of
New Jersey. There simply are no other issues with regard to
the sentence that get to be argued at this point in time.
The Appellate Division has spoken, the Supreme Court has
spoken, I have spoken twice. ...
15
... There simply is nothing more that this Court can say
about it that hasn’t already been said.
There are other arguments that are made by the defendant.
And, with regard to mitigating factor number 7, whether this
Court should have found that it existed and made a mistake
that it didn’t, that issue has already been resolved through
these appeals and remands.
(Ra26, 8T PCR transcript, 31:13-34:2).
In the first appeal challenging the sentence, the Appellate
Division stated:
We also perceive no sound basis to disturb the sentencing
judge’s specific findings that the aggravating factors
described in N.J.S.A. 2C:44-1a(1), -1a(2), 1a(3), -1a(4 and
-1a(9) were present, and that no mitigating factors existed.
These were awful crimes. Defendant took advantage of his
position as athletic coach and lured his young victim into
illicit sexual activities. There can be no excuse for
defendant’s despicable behavior.
(Ra11, February 6, 2001 Appellate Division opinion at pg. 10).
Moreover, in affirming Judge LeBon’s denial of the PCR petition,
the Appellate Division agreed that the “ineffective assistance of
counsel claim relating the his sentence was procedurally barred,
as his sentencing arguments had been previously heard and
adjudicated on appeal.”
(Ra30, June 27, 2008 Appellate Division
opinion at pg. 7).
Finally, this Court notes Judge LeBon sentencing decision on
July 16, 1998, wherein she found:
I do not find that there are any mitigating factors present.
I acknowledge that this is, indeed, your first conviction,
but I understand that you were sentenced and convicted last
Friday, but since it’s a situation arising out of it, I do
want –- I recognize that this is your first conviction, and
I recognize to some extent what Dr. Gruen has said, that you
16
have –- that through your treatment you have been able to
express a remorse and sorrow and to accept responsibility
for what you have done.
(Rta4, 4T July 16, 1998 Sentencing Transcript at 52:9-18).
Accordingly, based on the state court record as set forth
above, this Court finds Gibbs’ argument to be totally lacking in
merit.
First, to the extent a restriction was placed on counsel
at the first sentencing to argue mitigating factors, it was cured
on Gibbs’ resentencing where no such restriction was imposed on
counsel.
Second, it is clear from the transcripts that Judge
LeBon considered but rejected the existence of mitigating factors
sufficient to reduce the plea-bargained sentence.
Indeed, Judge
Lebon noted the lack of prior criminal history and Gibbs’
treatment and expression of remorse for his crimes.
Finally, it
would appear that petitioner’s trial counsel at sentencing made a
strategic decision in arguing against consecutive sentences on
the federal offense5 rather than attempt to argue for a lesser
sentence when it was plain that the aggravating factors
substantially outweighed any mitigating factors.6
“[S]trategic
5
As described infra pp. 29-37, Petitioner was the subject
of a parallel federal prosecution.
6
Petitioner’s trial counsel at that time, Robert N. Agre,
Esq., submitted a Certification, dated April 25, 2006, in
response to Gibbs’ arguments of ineffective assistance of counsel
during the state PCR proceedings. In his Certification, Mr. Agre
states:
As to the issue that I failed to present any mitigating
factors to the Court at the time of Mr. Gibbs’ sentence, Mr.
Gibbs is correct. I submitted a sentencing memorandum which
related to the defense’s contention that Mr. Gibbs should
17
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690-91.
Therefore, this Court is satisfied from its review of the
pertinent state court record that there was ample evidence to
support the state court rulings on this issue.
There is nothing
from the record to suggest that trial counsel’s performance
during sentencing proceedings was not competent.
This Court also
finds that Gibbs has not shown, as required under 28 U.S.C. §
2254(d), that the actions of the state courts resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by
the Supreme Court in Strickland, or resulted in a decision that
receive a concurrent state sentence to the federal sentence
that he was serving. Judge LeBon made it clear from the
outset of her remarks that she would not entertain an
argument that any mitigating factors applied to defendant’s
sentence. I was, however, aware of the fact that I could
still argue these facts but I thought they were without
merit. As to the argument that imprisonment would have
created an excessive hardship on his family, Mr. Gibbs’
daughter was identified as the victim in the indictment. As
a result of Mr. Gibbs’ interaction with her, he was denied
even supervised visitation. Thus, I do not believe that
mitigating fact number 11 would apply. As to mitigating
factor 12, it is true that Mr. Gibbs obtained counseling.
The counseling, however, was not required by the state. Mr.
Gibbs had an interest in proving that he was undertaking
rehabilitative efforts and that he was not a threat to his
daughter should the Court entertain his request for
supervised visitation.
(Ra25, Certification of Robert N. Agre, dated April 25, 2006, at
¶ 4).
18
was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings.
Accordingly, this ineffective assistance of trial counsel claim
for habeas relief will be denied.
Next, Gibbs argues that his counsel was ineffective for
failing to advise petitioner of the import of the State’s alleged
violations of his Fifth and Sixth Amendment rights.
Specifically, Gibbs claims that he was denied his right to
counsel during his police interrogation, even though he had
requested counsel be present, and consequently, he gave a
confession in violation of his Fifth and Sixth Amendment rights.
Gibbs appears to suggest that he would not have pled guilty had
counsel made him aware of the import of the alleged
constitutional violations.
This claim was raised in Gibbs’ state
PCR proceedings.
The PCR court found:
The defendant also argues that he has received ineffective
assistance of trial counsel because his trial counsel did
not explain the full penal consequences of guilty plea. He
contends that his attorney did not inform him that, by
pleading guilty, he was waiving his right to pursue the
motions that had been previously filed by his attorney.
...
It is also not true factually because, if you look at the
transcript of the plea, it is an issue that is clearly
discussed. ... At page 15 of the transcript, ... at page 15,
line 19. This is the Court asking the question.
“BY THE COURT:
Q
That you waive any pretrial motions and that you
waive your right to appeal?
19
A
Correct.
THE COURT: Mr. Agre, I know that there are certain
motions that are now pending. Is it your anticipation
at the time of sentencing to withdraw those motions?”
THE COURT: Then we move to page 16. Answer, “Yes, Your
Honor.” We then move forward. So, clearly Mr. Gibbs was
present when this discussion took place. And, if that was
not Mr. Gibbs’ understanding, he had the opportunity at that
point in time to say something to somebody. Hopefully it
would have been to the Trial Court, and the proceeding could
have been stopped and there could have been some further
discussion. But, in any event, he had the opportunity to
raise that issue on direct appeal, because he knew about it,
and he didn’t. And, therefore he is procedurally barred.
(Rta8, 8T PCR Transcript at 35:21-37:10).
Gibbs also waived these motions on the plea form he signed.
Specifically, at paragraph 20, the plea form reads: “Defendant
agrees to waive any pretrial motions (or appeals therefrom)... .”
The plea form was signed by Gibbs on January 22, 1998 on the very
page where he waived his pretrial motions.
(Ra3).
At his plea,
the trial court addressed the plea form, asking Gibbs:
A
A
A
A
Q
Yes,
Q
Yes,
Q
Did you read the plea form?
I did.
And did you go over it with your attorneys?
I did.
Did you provide information to your attorneys so
that these questions could be answered?
Yes.
Q
And are your answers truthful?
Yes, they are.
(Rta3, 3T Plea Transcript at 23:8-16).
The court also asked
Gibbs if he was satisfied with his attorneys and their
representation:
Q
Mr. Gibbs, you’re represented by Mr. Agre in this
matter and by Mr. Call. Are you satisfied with
the representation that they have provided you?
20
A
A
Yes, I am.
Q
You think they’ve done a good job on your behalf
so far?
Yes.
(Id., 31:19-25).
Moreover, in a certification of Gibbs’ trial counsel, Robert
N. Agre, Esq., which was presented in the state PCR proceedings,
Mr. Agre states:
As to the argument alleging that I failed to inform Mr.
Gibbs of the likelihood of success that he would have had in
challenging his confession, my recollection is to the
contrary. Mr. Gibbs and I had lengthy discussions about the
viability of a motion to suppress his confession.
Furthermore, a conditional plea was not an option in the
case. The [S]tate insisted on the withdrawal of all motions
as a predicate to the plea agreement. This was also
repeatedly discussed with Mr. Gibbs. It should be noted
that, even absent Mr. Gibbs’ confession, the tape of his
activity with the victims was so overwhelmingly probative of
guilt that a suppressed confession would have had virtually
no impact on the [S]tate’s ability to prove its case. We
certainly discussed the consequences of his plea and the
impending motions.
(Ra25, Certification of Robert N. Agre, Esq., dated April 25,
2006, at ¶ 5).
In rejecting Gibbs’ claim on his appeal from denial of his
PCR petition, the Appellate Division found:
The [PCR] judge next rejected defendant’s argument that he
received ineffective assistance because counsel did not
explain that, by pleading guilty, he was waiving his right
to pursue previously filed motions, including his Miranda
motion. The judge read into the record excerpts from the
transcript of defendant’s plea hearing on January 22, 1998,
wherein defendant stated that he understood he was waiving
his then-pending motions, and his attorney affirmed his
intention to dismiss those motions at sentencing. The judge
concluded on this point:
21
[C]learly [defendant] was present when this discussion
took place. And, if that was not [defendant’s]
understanding, he had the opportunity at that point in
time to say something to somebody. ... [A]nd the
proceedings could have been stopped and there could
have been some further discussion. But, in any event,
he had the opportunity to raise that issue on direct
appeal, because he knew about it, and he didn’t [a]nd,
therefore he is procedurally barred.
(Ra30, June 27, 2008 Appellate Division Opinion at pg. 7).
After thorough review of the state court record on this
issue, this Court finds that Gibbs absolutely fails to show that
his trial counsel was deficient in his representation of Gibbs in
the manner suggested by Gibbs concerning the pretrial motion to
suppress his confession.
As set forth above, counsel had filed
such motion and waiver of the motion was a condition of the plea
agreement.
Gibbs acknowledged this fact during his plea hearing
and on the plea form, and affirmatively agreed to waive any
pretrial motions.
Moreover, Gibbs cannot show the prejudice prong under
Strickland because it is unlikely that the motion to suppress his
confession would have been successful so as to effect the outcome
of his trial.
Gibbs’ trial counsel remarked that there was such
overwhelming evidence of petitioner’s guilt without Gibbs’
confession that suppression of the confession would have had no
real impact on the State’s ability to prove its case at trial.
(Ra25).
22
Thus, this Court is satisfied from its review of the
pertinent state court record that there was ample evidence to
support the state court rulings on this issue.
Gibbs has not
shown, as required under 28 U.S.C. § 2254(d), that the actions of
the state courts resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court in Strickland, or
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
Therefore, this ineffective
assistance of trial counsel claim for habeas relief will be
denied.
B.
Guilty Plea Should Be Withdrawn as Uninformed
Gibbs also contends that his guilty plea should be withdrawn
because he was denied access to counsel during his custodial
interrogation, which resulted in his confession, in violation of
his Fifth and Sixth Amendment rights.
He argues that his trial
counsel should have informed him that these constitutional
violations would have barred his confession at trial, as well as
any evidence obtained as a result of said confession, and thus,
his guilty plea was not made knowingly, voluntarily or
intelligently.
As set forth above, it is clear that Gibbs’ guilty plea was
informed and was made knowingly, voluntarily and intelligently.
23
The plea transcript and plea form shows that Gibbs waived his
pretrial motions, which included a pending motion to suppress his
confession.
Further, the Appellate Division noted the record as
follows:
The court questioned defense counsel about defendant’s
pending motions: “Is it your anticipation at the time of
sentencing to withdraw those motions?” Counsel answered:
“Yes, Your Honor.” The court asked defendant if he
understood that he was waiving his pre-trial motions as part
of the plea agreement. Defendant responded: “Correct.”
Defendant acknowledged that he had read and understood his
plea form and signed it voluntarily. Defendant then gave
the court a factual basis for his plea. Defendant stated
that he was satisfied with the services of both his
attorneys and thought that they had “done a good job on
[his] behalf so far[.]”
. . .
The [PCR] judge next rejected defendant’s argument that he
received ineffective assistance because counsel did not
explain that, by pleading guilty, he was waiving his right
to pursue previously filed motions, including his Miranda
motion. The judge read into the record excerpts from the
transcript of defendant’s plea hearing on January 22, 1998,
wherein defendant stated that he understood he was waiving
his then-pending motions, and his attorney affirmed his
intention to dismiss those motions at sentencing. The judge
concluded on this point:
[C]learly [defendant] was present when this discussion
took place. And, if that was not [defendant’s]
understanding, he had the opportunity at that point in
time to say something to somebody. ... [A]nd the
proceedings could have been stopped and there could
have been some further discussion. But, in any event,
he had the opportunity to raise that issue on direct
appeal, because he knew about it, and he didn’t [a]nd,
therefore he is procedurally barred.
(Ra30, June 27, 2008 Appellate Division Opinion at pp. 4-5, 7).
24
Due process requires that guilty pleas be entered knowingly
and voluntarily.
(1969).
See, Boykin v. Alabama, 395 U.S. 238, 242
It is crucial that the record show not only that a
defendant was aware of his rights, but also that he
“intelligently and understandingly” waived them.
Id.
See also
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)(“[waiver must be] an
intentional relinquishment or abandonment of a known right or
privilege”).
A guilty plea entered by one fully aware of the
direct consequences of the plea is voluntary “‘unless induced by
threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the prosecutor’s
business (e.g. bribes).’”
Brady v. United States, 397 U.S. 742,
755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572
n.2 (5th Cir. 1956) (en banc), rev’d on confession of error on
other grounds, 356 U.S. 26 (1958)).
The Court of Appeals for the
Third Circuit has held that the only direct consequences relevant
to evaluating the voluntariness of a guilty plea are the maximum
prison term and fine for the offense charged.
See Parry v.
Rosemeyer, 64 F.3d 110, 114 (3d Cir. 1995), cert. denied, 516
U.S. 1058 (1996), superseded by statute on other grounds as
stated in Dickerson v. Vaughn, 90 F.3d 87 (3d Cir. 1996).
A
guilty plea is made intelligently only if a criminal defendant
25
receives “‘real notice of the true nature of the charge against
him ... .’”
Bousley v. United States, 523 U.S. 614, 618 (1998)
(quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)).
The Third Circuit further has held that:
no criminal defendant should plead guilty to a crime unless,
and until, he has had explained to him and understands all
of his constitutional rights and protections, including the
privilege against compulsory self-incrimination guaranteed
by the Fifth Amendment, the right to a trial by jury, and
the right to confront one’s accusers.
Hill v. Beyer, 62 F.3d 474, 480 (3d Cir. 1995)(citing Boykin, 395
U.S. at 243); see also United States v. Peppers, 302 F.3d 120,
135 (3d Cir. 2002)(stating that “to be valid [a defendant’s]
waiver must be made with apprehension of the nature of the
charges, the statutory offenses included within them, the range
of allowable punishments thereunder, possible defenses to the
charges and circumstances in mitigation thereof, and all other
facts essential to a broad understanding of the whole matter”),
cert. denied, 537 U.S. 1062 (2002); but see United States v.
Thomas, 357 F.3d 357, 364 (3d Cir. 2004)(describing these same
factors as “illustrative examples of factors that courts might
discuss, not a mandatory checklist of required topics”).
Further, the Supreme Court has explained that the level of
detail in the plea colloquy is not dispositive:
[T]he law ordinarily considers a waiver knowing,
intelligent, and sufficiently aware if the defendant fully
understands the nature of the right and how it would likely
apply in general in the circumstances-even though the
defendant may not know the specific detailed consequences of
invoking it. ... If [the defendant] ... lacked a full and
complete appreciation of all of the consequences flowing
26
from his waiver, it does not defeat the State’s showing that
the information it provided to him satisfied the
constitutional minimum.
Iowa v. Turner, 541 U.S. 77, 92 (2004)(emphasis, internal
quotation marks, and citation omitted).
The above standards govern the validity of a guilty plea
even when a criminal defendant protests his innocence despite his
entry of a guilty plea.
[W]hile most pleas of guilty consist of both a waiver
of trial and an express admission of guilt, the latter
element is not a constitutional requisite to the
imposition of criminal penalty [when, as in the instant
case,] a defendant intelligently concludes that his
interests require entry of a guilty plea and the record
before the judge contains strong evidence of actual
guilt.
North Carolina v. Alford, 400 U.S. 25, 37 (1970).
The Supreme
Court noted further that “[b]ecause of the importance of
protecting the innocent and of insuring that guilty pleas are a
product of free and intelligent choice, various state and federal
court decisions properly caution that pleas coupled with claims
of innocence should not be accepted unless there is a factual
basis for the plea and until the judge taking the plea has
inquired into and sought to resolve the conflict between the
waiver of trial and the claim of innocence.”
(citations omitted).
Id. at 38 n.10
Applying Alford, the Court of Appeals for
the Third Circuit has held that “there must always exist some
factual basis for a conclusion of guilt before a court can accept
an Alford plea.”
United States v. Mackins, 218 F.3d 263, 268 (3d
Cir. 2000), cert. denied, 531 U.S. 1098 (2001).
27
Here, upon careful review of the record, this Court finds
nothing substantive to support Gibbs’ claim that his guilty plea
was not knowing, voluntary or intelligently made.
The plea
transcript and plea form show that Gibbs affirmatively waived his
pending pretrial motions.
Certification from his trial counsel
demonstrates that Gibbs was repeatedly told and understood the
full weight of the evidence against him (without the confession),
the possible sentence he faced if convicted, and the likelihood
of conviction.
Gibbs also knew that his plea deal was predicated
on his withdrawal of pending pretrial motions.
In exchange for
his guilty plea, Gibbs would be sentenced to an aggregate term of
45 years in prison with 15 years of parole ineligibility, on only
five counts of a 35 count indictment, instead of the total
exposure of 100 years if convicted.
The State agreed to dismiss
26 counts for which Gibbs was indicted.
Thus, Gibbs was armed
with the full knowledge of his options and knowingly chose to
enter a plea of guilty as agreed to in what clearly appears to be
a very beneficial plea deal for petitioner.
Consequently, this Court cannot conclude that the
determination of the state trial and appellate courts in finding
Gibbs’ guilty plea to be knowing and voluntary, resulted in a
decision that was contrary to, or involved an unreasonable
application of clearly established federal law, or resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
28
proceeding.
Williams v. Taylor, supra.
Petitioner has failed to
demonstrate that the state court opinions, when evaluated
objectively and on the merits, resulted in an outcome that cannot
be reasonably justified.
Matteo, 171 F.3d at 891.
Therefore,
the Court will deny federal habeas relief on this claim because
petitioner’s claim is substantively meritless.
C.
Prosecutorial Vindictiveness Claim
Finally, Gibbs asserts a claim of prosecutorial
vindictiveness in violation of his right to due process.
Gibbs
alleges that the State prosecutor initially had offered a plea
deal of 60 years after which the federal prosecutor threatened to
bring federal charges against Gibbs if he did not take the plea
deal with the State.
Gibbs refused the first plea offer and the
federal prosecutor subsequently indicted Gibbs on federal
charges.
Moreover, the federal prosecutor reneged on his promise
not to seek a bail revocation (although Gibbs had been free on
bail for 15 months without incident), and made a motion to hold
Gibbs without bail, which the federal court granted.
The State
then offered a new plea deal of 45 years to run consecutive to
Gibb’s federal sentence.
When Gibbs did not immediately accept
the State’s plea offer, the federal prosecutor threatened to
bring another federal indictment against Gibbs adding 10 years of
federal prison time.
Gibbs alleges that the threatened charges
were not based on new evidence or allegations.
He further
alleges that the federal and state prosecutors acted in tandem to
29
coerce a plea from Gibbs.
When the threat of adding four
kidnapping charges was made (each carrying 25 years to life),
Gibbs felt compelled to accept the State’s plea deal of 45 years
in prison, even though he contends that the kidnapping charges
were not substantiated because he had the permission of his
victim’s mother to accompany Gibbs and his daughter on several
days trips.
Gibbs raised this claim in his state PCR proceedings.
In
denying the claim, Judge LeBon stated:
My recollection of what happened was very similar to what
Ms. Piccioni said. There were negotiations going on between
the State and Mr. Gibbs when the fed –- when he was arrested
and charged in those proceedings in federal court. I don’t
know what happened in any of those proceedings in federal
court. It was not necessary for me to. The negotiations
then went on. And, the offer, which was originally 60 years
do 20, eventually was accepted by Mr. Gibbs at a 45 do 15.
So, whether there were threats going on or not, Mr. Gibbs
had an opportunity to participate in this.
And, further, if you look at the colloquy that the Court
engaged in with Mr. Gibbs during the plea, there was no
reference made to any of this. And, certainly Mr. Gibbs had
the opportunity at that point to bring it to the Court’s
attention. And, if he thought that it was really an issue,
it could have been brought up on a direct appeal.
(Rta8, 8T PCR Transcript at 39:10-40:2).
On appeal from denial of the PCR petition, the Appellate
Division found that Gibbs’ “‘vindictive prosecution’ claim [was]
‘without sufficient merit to warrant discussion in a written
opinion[.]’” (Ra30, June 27, 2008 Appellate Division Opinion at
pg. 9).
30
The government is deemed engaged in prosecutorial
vindictiveness if it is established that the prosecution engaged
in a conduct that would not have occurred but for the
prosecution’s desire to punish the defendant for exercising a
specific legal right.
See United States v. Contreras, 108 F.3d
1255, 1262 (10th Cir.), cert. denied, 522 U.S. 839 (1997).
The Supreme Court has established two distinct approaches to
the question of prosecutorial vindictiveness: a presumption of
vindictiveness and actual vindictiveness.
Whether to apply a
presumption of vindictiveness or to require proof of actual
vindictiveness depends on the factual situation and the stage of
the proceedings.
In North Carolina v. Pearce, 395 U.S. 711, 713
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S.
794 (1989), the Court examined the situation in which a
defendant’s criminal conviction has been set aside and a harsher
sentence has been imposed following a retrial.
The Court held
that “the imposition of a penalty upon the defendant for having
successfully pursued a statutory right of appeal or collateral
remedy would be ... a violation of due process of law.”
724 (citation omitted).
Id. at
The Court was concerned not only with
actual vindictiveness on the part of the sentencing judge but
also that “a defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge.”
at 725 (citation omitted).
To address the latter concern, the
Id.
Court applied a presumption of vindictiveness: “[W]henever a
31
judge imposes a more severe sentence upon a defendant after a new
trial, the reasons for his doing so must affirmatively appear.
Those reasons must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding.”
Id. at 726.7
The Court applied a similar presumption in a case in which,
after a defendant was convicted of a misdemeanor and exercised
his right to appeal de novo, the prosecutor indicted him for a
felony charge covering the same conduct.
417 U.S. 21, 23, 27-28 (1974).
Blackledge v. Perry,
Explaining the appropriateness of
a presumption, the Court held that “the Due Process Clause is not
offended by all possibilities of increased punishment upon
retrial after appeal, but only by those that pose a realistic
likelihood of ‘vindictiveness.’”8
Id. at 27.
In a second series of cases, the Supreme Court held that as
the factual and procedural situations presented no “realistic
7
In Alabama v. Smith, 490 U.S. 794, 802 (1989), the Court
overruled the companion case to North Carolina v. Pearce, Simpson
v. Rice, holding that “there is no basis for a presumption of
vindictiveness where a second sentence imposed after a trial is
heavier than a first sentence imposed after a guilty plea....”
8
This presumption, however, may be rebutted. In Wasman v.
United States, 468 U.S. 559, 569 (1984), the Court initially
applied the presumption of Pearce when the defendant was given a
greater sentence after retrial following a successful appeal than
he had been given after his original conviction. In imposing a
harsher sentence, the sentencing judge relied on the fact that
the defendant had been convicted of an additional offense in the
time between the two sentencing proceedings. Id. at 569. The
Court concluded that “[c]onsideration of a criminal conviction
obtained in the interim between an original sentencing and a
sentencing after retrial is manifestly legitimate. This amply
rebuts any presumption of vindictiveness.” Id. at 569-70.
32
likelihood of vindictiveness,” the defendant could prevail only
by demonstrating the existence of actual vindictiveness.
In
Bordenkircher v. Hayes, 434 U.S. 357, 358, 365 (1978), the Court
held that the Due Process Clause is not violated when a
prosecutor carries out a threat made during plea negotiations to
re-indict the defendant on more serious charges if he does not
plead guilty to the original charges.
Emphasizing the context of
the “give-and-take” of plea bargaining, the Court held that there
is no “element of punishment or retaliation [for declining to
plead guilty] so long as the accused is free to accept or reject
the prosecution’s offer.”
Id. at 363.
While acknowledging that
the negotiation of a plea may discourage a defendant from
exercising his trial rights, “the imposition of these difficult
choices [is] an inevitable-and permissible-attribute of any
legitimate system which tolerates and encourages the negotiation
of pleas.”
omitted).
Id. at 364 (internal quotation marks & citation
The Court also stressed that “so long as the
prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.”
Id.
In United States v. Goodwin, 457 U.S. 368, 370 (1982), the
Court examined a different pretrial scenario-when, after a
defendant demanded a jury trial on pending misdemeanor charges,
the prosecutor indicted and convicted him on a felony charge.
33
The court below had applied a presumption of vindictiveness, but
the Supreme Court cautioned that “[g]iven the severity of such a
presumption, however-which may operate in the absence of any
proof of an improper motive and thus may block a legitimate
response to criminal conduct-the Court has done so only in cases
in which a reasonable likelihood of vindictiveness exists.”
at 373.
Id.
In the pretrial setting, the Court held that there is
much less need for a presumption of vindictiveness as charging
decisions are much less likely to be improperly motivated.
at 381.
Id.
“A prosecutor should remain free before trial to
exercise the broad discretion entrusted to him to determine the
extent of the societal interest in prosecution.... [T]he initial
charges filed by a prosecutor may not reflect the extent to which
an individual is legitimately subject to prosecution.”
382 (internal citations omitted).
Id. at
While vindictiveness in this
context is not likely enough to support a presumption, the Court
recognized that there is an opportunity for vindictiveness and
left the opportunity open for a defendant to present evidence
that could give rise to a claim of actual vindictiveness.
Id. at
380-81 & 380 n. 12.
The Third Circuit and every other circuit court faced with
the issue of vindictiveness have applied these two approaches:
first, the court asks whether the situation warrants a
presumption of vindictiveness; if not, the court then analyzes
whether the defendant has provided sufficient proof of actual
34
vindictiveness.
steps.
Some courts have reversed the order of these two
See, e.g., United States v. Esposito, 968 F.2d 300, 302-
04 (3d Cir. 1992)(analyzing whether a presumption of
vindictiveness was appropriate after the defendant conceded that
there was no actual vindictiveness motivating the decision to reindict him).
The Third Circuit has also addressed the factual situation
where a defendant alleges vindictive prosecution stemming from
the defendant’s pretrial refusal to cooperate with the
government.
Such cases are governed by Bordenkircher - as a
defendant makes a free, informed decision not to cooperate, there
is no presumption of vindictiveness in the decision to prosecute
if it is “based upon the usual determinative factors.”
United
States v. Oliver, 787 F.2d 124, 126 (3d Cir. 1986)(citations
omitted); accord United States v. DuFresne, 58 Fed. Appx. 890,
895-96 (3d Cir. 2003)(non-precedential), cert. denied, 538 U.S.
1064 (2003); United States v. Arakelyan, No. 06-CR-226-04, 2008
WL 1849126, at *2-3 (E.D.Pa. Apr. 25, 2008).
As there is no
presumption of vindictiveness, a defendant may only establish a
violation of due process if he presents evidence of actual
vindictiveness.
Arakelyan, 2008 WL 1849126, at *3; see also
United States v. Paramo, 998 F.2d 1212, 1220-21 (3d Cir. 1993),
cert. denied, 510 U.S. 1121 (1994).
“Such proof ... is
exceedingly difficult to make.... [A] charging decision generally
is not impermissible unless it results solely from the
35
defendant’s exercise of a guaranteed legal right, rather than the
prosecutor’s ordinary assessment of the societal interest in
prosecution.”
Paramo, 998 F.3d at 1221 (internal quotation marks
& citations omitted). Moreover, “the defendant must affirmatively
establish vindictiveness, as the fact of multiple prosecutions,
standing alone, does not prove an abuse of prosecutorial
discretion.” United States v. Pungitore, 910 F.2d 1084, 1112 (3d
Cir. 1990), cert. denied, 500 U.S. 915 (1991).
more, does suspicious timing.
Neither, without
See United States v. Falcon, 347
F.3d 1000, 1005 (7th Cir.2003).
The aforementioned authority makes clear that a presumption
of vindictiveness is not be applicable in the instant case.
The
circumstances here involve pretrial plea negotiations between the
prosecutors and petitioner, and there was ample evidence to
support the prosecutors’ discretion to indict Gibbs on the
“threatened” charges.
Thus, Gibbs can establish a violation of
his due process rights only by demonstrating actual
vindictiveness.
See, e.g., Esposito, 968 F.2d at 306-07 (“Where
a prosecutor’s conduct is equally attributable to legitimate
reasons, a defendant must show actual vindictiveness for a
presumption will not apply.”).
The state court record and
petitioner’s bald allegations, however, do not support this
theory and do not satisfy petitioner’s “exceedingly difficult”
burden to prove actual vindictiveness.
36
Paramo, 998 F.3d at 1221.
Indeed, any allegations concerning the federal prosecutor’s
threats to Gibbs are not relevant because the federal
prosecutor’s actions pertain to Gibbs’ federal conviction which
is not challenged in this action.
Moreover, even assuming that the federal prosecutor and the
state prosecutor were working in “tandem” as alleged by Gibbs,
the federal prosecutor’s conduct in threatening to indict Gibbs
on further charges was plainly within the acceptable parameters
of both state and federal law.
The record shows that Gibbs and
his counsel were actively engaged in plea negotiations with both
state and federal prosecutors.
Significantly, at the time Gibbs
was threatened with federal prosecution, the State offered a 60
year term with a 20 year parole disqualifier that Gibbs rejected.
Then, after Gibbs was indicted on federal charges of child
pornography, which were amply supported by probable cause and
evidence seized on a valid state search warrant, and to which
Gibbs pled guilty, the State offered a lower 45 year term with a
15 year parole disqualifier.
These circumstances illustrate, not
prosecutorial vindictiveness, but vigorous and beneficial plea
bargaining by both petitioner and prosecutors.
There is simply
no evidence to support the bald claim that the threat of federal
prosecution coerced a state plea, especially when the eventual
state plea was substantially reduced after these ongoing
“threats” and negotiations.
37
In other words, as in Bordenkircher, Gibbs actively engaged
in a “give and take” plea deal with both prosecutors.
Thus,
Gibbs has failed to present evidence of actual vindictiveness by
either state or federal prosecutor.
Accordingly, as the state
record shows, the prosecutors’ conduct in plea bargaining with
Gibbs in the manner as set forth above, did not constitute a
denial of due process.
There was sufficient evidence to support
the convictions obtained by guilty plea on both the federal and
state charges.
Finally, this Court observes that, based on an
initial total exposure of 100 years in prison on the state
charges and a first plea offer of 60 years rejected by Gibbs, the
final plea offer of 45 years with 15 years parole ineligibility
was an appreciably beneficial offer that plainly belies
prosecutorial vindictiveness.
Consequently, the Court finds no error of constitutional
dimension with respect to Gibbs’ claim of prosecutorial
vindictiveness.
Moreover, where the Appellate Division found
that this claim was without merit to warrant discussion in a
written opinion, (Ra30), and petitioner being unable to show that
the state court’s ruling was not contrary to, and did not involve
an unreasonable application of, clearly established federal law,
or that it was based on an unreasonable determination of the
facts presented in the state court proceedings, the Court will
deny this claim for lack of merit, pursuant to 28 U.S.C.
§ 2254(d).
38
V.
CERTIFICATE OF APPEALABILITY
This Court next must determine whether a certificate of
appealability should issue.
Rule 22.2.
See Third Circuit Local Appellate
The Court may issue a certificate of appealability
only if the petitioner “has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
For
the reasons discussed above, this Court’s review of the claims
advanced by petitioner demonstrates that he has failed to make a
substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue.
Thus,
this Court declines to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
CONCLUSION
For the above reasons, this Court finds that the § 2254
habeas petition must be denied, and a certificate of
appealability will not issue.
An appropriate Order follows.
/s/Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
DATED: November 10, 2011
At Camden, New Jersey
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