WILKINS v. GLOVER
Filing
18
OPINION FILED. Signed by Judge Noel L. Hillman on 7/28/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JASON WILKINS,
Civil No. 09-1754 (NLH)
Petitioner,
v.
OPINION
LARRY GLOVER, et al.,
Respondents.
APPEARANCES:
JASON WILKINS, #636088B
South Woods State Prison
215 South Burlington Rd., 1-1-Left
Bridgeton, NJ 08302
Pro Se Petitioner
JENNIFER L. BENTZEL, Assistant Prosecutor
BURLINGTON COUNTY PROSECUTOR
P.O. Box 6000
Mt. Holly, NJ 08060-6000
Attorneys for Respondents
HILLMAN, District Judge:
Jason Wilkins filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction
filed in the Superior Court of New Jersey, Burlington County, on
June 16, 2000.
The challenged judgment imposed a 20-year term
of imprisonment, with an 85% period of parole ineligibility,
after a jury found Wilkins guilty of burglary, robbery, criminal
restraint, aggravated assault, and other offenses.
The State filed
an Answer and the record and, although given an opportunity to
do so, Wilkins did not file a reply.
After carefully reviewing
the arguments of the parties and the state court record, this
Court will dismiss the Petition with prejudice and deny a
certificate of appealability.
I.
A.
BACKGROUND
The Crimes
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), state court factual findings are presumed correct unless
rebutted by clear and convincing evidence.
2254(e)(1).
See 28 U.S.C. §
As Wilkins has not rebutted the factual findings of
the Superior Court of New Jersey, the Court will rely on those
findings.
The Appellate Division found that the charges arose from
“an armed entry into the victim’s home, where three men were
responsible for beating and shooting Kevin White (“Kevin”), tying
up others in his family, including Kevin’s mother, Pauline White
(“Pauline”), and his sister, Georgette White (“Georgette”),
ransacking their house, and stealing cash and personal property
before escaping.” State v. Wilkins, Docket No. A-1739-00T4 sl.
opinion (N.J. Super. Ct., App. Div., Oct. 20, 2003) (ECF No. 1710).
2
B.
The State Court Proceedings
On February 10, 1998, a grand jury sitting in the Superior
Court of New Jersey, Law Division, Burlington County, returned a
14-count indictment charging Wilkins with armed robbery, burglary,
criminal restraint, aggravated assault and other crimes against
Kevin White and his mother at their home in Fieldsboro, New Jersey.
The indictment also brought charges against Marvin Hobbs, Steven
McNeil, and Natalie Nurse-Myers.
After two mistrials, a jury found
Wilkins guilty of second-degree burglary, two counts of firstdegree robbery, third-degree criminal restraint, third-degree
aggravated assault, fourth-degree aggravated assault, three counts
of third-degree criminal restraint, second-degree possession of a
weapon for an unlawful purpose, third-degree unlawful possession of
a weapon, third-degree theft by unlawful taking, and fourth-degree
criminal mischief.
The trial judge imposed an aggregate 20-year
term of imprisonment with an 85% period of parole ineligibility.
Wilkins appealed, and on October 20, 2003, the Appellate Division
of the Superior Court of New Jersey affirmed.
See State v.
Wilkins, Docket No. A-1739-00T4 sl. opinion (N.J. Super. Ct., App.
Div., Oct. 20, 2003) (ECF No. 17-10).
The Supreme Court of New
Jersey denied certification on January 22, 2004.
Wilkins, 178 N.J. 454 (2004) (table).
3
See State v.
Wilkins filed his first petition for post-conviction relief in
the trial court on February 17, 2004.
The trial court denied
relief on June 15, 2006, without conducting an evidentiary hearing.
On October 31, 2007, the Appellate Division affirmed, and on April
21, 2008, the Supreme Court of New Jersey denied certification.
See State v. Wilkins, 2007 WL 3170185 (N.J. Super. Ct., App. Div.,
Oct. 31, 2007), certif. denied, 195 N.J. 422 (2008) (table).
Wilkins thereafter filed a motion to correct an illegal
sentence in the trial court.1
(ECF No. 17-22.)
denied the motion on September 16, 2009.
The trial court
(ECF No. 17-24.)
Wilkins
appealed, and on June 24, 2013, the Appellate Division affirmed the
order denying the motion.
See State v. Wilkins, 2013 WL 3155354
(N.J. Super. Ct., App. Div., June 24, 2013).
The Supreme Court of
New Jersey denied certification on January 17, 2014.
See State v.
Wilkins, 217 N.J. 52 (2014) (table).
C.
Procedural History of § 2254 Petition
On April 8, 2009, Wilkins handed his § 2254 Petition to prison
officials for mailing to the Clerk of this Court. (ECF No. 1 at
15.)
The Clerk received the § 2254 Petition on April 14, 2009.
1
The record does not reveal the date on which Wilkins filed the
motion.
4
This Court dismissed the Petition without prejudice as unexhausted
by Order and accompanying Opinion entered on April 27, 2009.
(ECF
Nos. 2, 3.)
On April 16, 2014, after he had exhausted state court
remedies, Wilkins filed a motion to reopen this case and to relate
the filing date back to the date of the filing of the Petition.
(ECF No. 4.)
On November 13, 2014, the Court reopened the case and
notified Wilkins of his rights under Mason v. Meyers, 208 F.3d 414
(3d Cir. 2000).
(ECF No. 7.)
In response, Wilkins asked the Court
to rule on the § 2254 Petition as is.
The Petition raises the
following grounds, which are set forth below verbatim:
Ground One: PROSECUTOR’S BAD FAITH OR INEXCUSABLE
NEGLECT BARS DEFENDANT’S RETRIAL ON GROUNDS OF DOUBLE
JEOPARDY.
Supporting Facts: The Prosecutor severely prejudiced the
defense by introducing during the defense presentation
that Defendant was incarcerated. Thus[, the prosecutor]
violated fundamental restraints against prosecutorial
excess. It was obviously intentional and severely
damaging to Defendant’s right to a fair trial. As a
result of this statement, the defense was forced to move
for a mistrial, barring Defendant’s retrial on grounds of
Double Jeopardy.
Ground Two: DEFENDANT’S DUE PROCESS WAS MARRED WHEN
TRIAL COURT ERRED IN ALLOWING THE STATE TO USE A
PHOTOGRAPH FROM AN OUT OF COURT IDENTIFICATION BY
GEORGETTE WHITE.
Supporting Facts: Ms. White[‘s] opportunity to view the
criminal at the time of the crime was limited to 30-45
seconds. She also testified that the gunman’s face was
visible only from the nose to the forehead, the remainder
being covered by a hat and a scarf. The limited degree
5
of certainty of Ms. White’s identification was directly
attributed to being awaken[ed] by a gunman in a darkened
room, as testified. Less than a month after the
identification, after having seen Jason Wilkins in
person, Ms. White filed a statement that she had made a
mistake in her identification.
Ground Three: INEFFECTIVE ASSISTANCE OF TRIAL AND
APPELLATE COUNSEL – TRIAL COUNSEL FAILED TO OBJECT TO THE
OUT OF COURT IDENTIFICATION BY MICHAEL WHITE AS
INADMISSIBLE HEARSAY.
Supporting Facts: Det. Anthony McFarland testified
before the jury that Michael White identified Jason
Wilkins as the gunman because he was told so by his
mother, Pauline White. Trial counsel never object[ed],
[nor did] Appellate counsel attack[] it. Therefore[,]
the defense never had the opportunity to exercise it[]s
constitutional right of confronting or cross-examining
such information for it[]s suggestive of truthfulness.
Ground Four: THE STATE FAILED TO DISCLOSE DOCUMENTATION
SUPPORTING THE IDENTIFICATION OF STEVEN MCNEIL, BY
MICHAEL WHITE, ON DECEMBER 24, 1997.
Supporting Facts: On December 24, 1997, Pauline White
and inmate Michael White, in the visiting area of
Burlington County Jail, identified Defendant as having
been the perpetrator of the subject crime. However, the
Defendant was not present in the visiting area when such
identification allegedly occurred. The visitor’s log for
December 24, 1997 is devoid of the Defendant having any
visitors that day. Mr. White actually identified Stephen
McNeil as the perpetrator. Significantly, the State
failed to provide the visiting log showing Mr. McNeil
having a visitor. Withholding material evidence in
violation of Brady deprived the factfinders of learning
of the error of Michael White in identifying Jason
Wilkins as the perpetrator, thereby changing the trial’s
outcome.
(ECF No. 1 at 5, 7, 8, 10.)
6
The State filed an Answer (and the record), arguing that
Wilkins is not entitled to habeas relief.
Wilkins did not file a
reply.
II.
STANDARD OF REVIEW FOR RELIEF UNDER § 2254
Section 2254 of title 28 of the United States Code sets
several limits on the power of a federal court to grant a habeas
petition to a state prisoner.
U.S. 170, 181 (2011).
See Cullen v. Pinholster, 563
Section 2254(a) permits a court to
entertain only claims alleging that a person is in state custody
“in violation of the Constitution or laws or treaties of the
United States.”
28 U.S.C. § 2254(a).
Where a state court
adjudicated petitioner’s federal claim on the merits,2 as in this
case, a court “has no authority to issue the writ of habeas
corpus unless the [state c]ourt’s decision ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal Law, as determined by the Supreme Court of the United
States’, or ‘was based on an unreasonable determination of the
2
“For the purposes of Section 2254(d), a claim has been
‘adjudicated on the merits in State court proceedings’ when a
state court has made a decision that 1) finally resolves the
claim, and 2) resolves th[at] claim on the basis of its
substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and
internal quotation marks omitted).
7
facts in light of the evidence presented in the State court
proceeding.’”
Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012)
(quoting 28 U.S.C. § 2254(d)).
“When reviewing state criminal
convictions on collateral review, federal judges are required to
afford state courts due respect by overturning their decisions
only when there could be no reasonable dispute that they were
wrong.”
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).
The
petitioner carries the burden of proof, and review under §
2254(d) is limited to the record that was before the state court
that adjudicated the claim on the merits.
See Pinholster, 563
U.S. at 181.
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
Court.
See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
“[C]learly established law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of t[he Supreme
Court’s] decisions,” as of the time of the relevant state-court
decision.
Woods, 135 S.Ct. at 1376 (quoting White v. Woodall,
134 S.Ct. 1697, 1702 (2014), and Williams v. Taylor, 529 U.S.
362, 412 (2000)).
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
8
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 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.”
Williams, 529 U.S. at 413.
Where a petitioner seeks habeas relief pursuant to §
2254(d)(2) on the basis of an erroneous factual determination of
the state court, two provisions of the AEDPA necessarily apply.
First, the AEDPA provides that “a determination of a factual
issue made by a State court shall be presumed to be correct
[and] [t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231,
240 (2005).
Second, the AEDPA precludes habeas relief unless
the adjudication of the claim “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.”
U.S.C. § 2254(d)(2).
9
28
III.
A.
DISCUSSION
Double Jeopardy
In Ground One, Wilkins asserts that his retrial violated
the Double Jeopardy Clause because the prosecutor intentionally
and in bad faith provoked a mistrial by introducing evidence
during trial indicating that Wilkins was incarcerated.
The
State argues that the trial judge’s finding that the
prosecutor’s mistake was unintentional was not an unreasonable
determination of the facts in light of the evidence presented
and that the New Jersey courts reasonably applied governing
Supreme Court precedent.
The Double Jeopardy Clause forbids that "any person be
subject for the same offence to be twice put in jeopardy of life
or limb."
U.S. Const. amend. V.
The Double Jeopardy Clause
"protects a criminal defendant from repeated prosecutions for
the same offense." Oregon v. Kennedy, 456 U.S. 667, 671 (1982).
"The Double Jeopardy Clause, however, does not offer a guarantee
to the defendant that the State will vindicate its societal
interest in the enforcement of the criminal laws in one
proceeding." Id. at 672.
In Kennedy, the Oregon Court of Appeals found that the
Double Jeopardy Clause barred a retrial because the prosecutor’s
10
misconduct in asking an expert witness if the reason that the
witness had never done business with the defendant was “because
he is a crook” amounted to “overreaching,” even though the trial
court had determined that it was not the prosecutor’s intention
to cause a mistrial. Kennedy, 456 U.S. at 669.
The Supreme
Court held that, where the defendant moves for a mistrial, the
Double Jeopardy Clause bars retrial only where the prosecutor
intended to provoke the defendant into seeking a mistrial:
Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient to
justify a mistrial on defendant’s motion, therefore,
does not bar retrial absent intent on the part of the
prosecutor to subvert the protections afforded by the
Double Jeopardy Clause . . . Only where the
governmental conduct in question is intended to “goad”
the defendant into moving for a mistrial may a
defendant raise the bar of double jeopardy to a second
trial after having succeeded in aborting the first on
his own motion.
Kennedy, 456 U.S. at 675-76.
The Supreme Court held in Kennedy that where the Oregon
courts found that “the prosecutorial conduct culminating in the
termination of the first trial . . . was not so intended by the
prosecutor, that [was] the end of the matter for purposes of the
Double Jeopardy Clause[.]” Id. at 679.
In rejecting the double jeopardy claim in this case, the
Appellate Division found that
11
the prosecutor made an inadvertent error by asking a
question that allowed the jury to learn that defendant
had served time in jail and had a criminal record.
Defendant’s request for a mistrial was granted over
the State’s objection. As the trial judge expressly
found, there is no evidence that the prosecutor
intentionally provoked the second mistrial.
(State v. Wilkins, ECF No. 17-10 at 7.)
The AEDPA requires this Court to presume the correctness of
the Appellate Division’s factual finding that the prosecutor did
not intend to provoke Wilkins into seeking a mistrial; Wilkins
has not rebutted this presumption with clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545
U.S. at 240 (a district court must "presume the [state] court’s
factual findings to be sound unless [petitioner] rebuts the
‘presumption of correctness by clear and convincing
evidence.’").
Wilkins has not shown that this finding was based
on an unreasonable determination of the facts in light of the
evidence presented and he is not entitled to habeas relief under
28 U.S.C. § 2254(d)(2).
Nor is Wilkins entitled to habeas relief under 28 U.S.C. §
2254(d)(1) because the Appellate Division did not unreasonably
apply Kennedy or other Supreme Court precedent when it held that
the Double Jeopardy Clause did not bar his mistrial. See 28
U.S.C. § 2254(d)(1) and (d)(2); cf. United States v. Williams,
12
472 F.3d 81, 88 (3d Cir. 2007) (“ Because the applicable standard
for a double jeopardy bar as a result of prosecutorial
misconduct requires a showing that the Government had in fact
intended to goad the defendant into requesting a mistrial, and
there was no such showing in this case, it was error to dismiss
the indictment.”)
B.
Due Process:
Admission of Out-of-Court Identification
In Ground Two, Wilkins asserts that the admission of an
out-of-court identification of Wilkins by Georgette White
violated due process because White later recanted the
identification in writing and because her opportunity to see the
perpetrator’s face was limited.
Wilkins raised this claim on direct appeal.
Relying on
Manson v. Brathwaite, 432 U.S. 98 (1977), he argued that “the
November 25, 1997 photographic identification represented a
pretrial identification procedure so unnecessarily suggestive
and conducive to irreparable mistaken identification as to
result in a denial of Mr. Wilkins’ right to due process.” (ECF
No. 17-8 at 33.)
The Appellate Division rejected the claim:
Georgette identified defendant in a photo lineup three
days after the crimes, as well as in court. The jury
heard that Georgette recanted her photo identification
and gave the police a written recantation statement
after being confronted by defendant at the jail.
There was evidence that defendant attempted
13
unsuccessfully to persuade Pauline to recant her
identification as well.
The record supports the trial judge’s determination
after a Wade hearing that defendant failed to meet his
burden of proving that the photo lineup procedure was
impermissibly suggestive and that there was a
substantial likelihood of misidentification. There
was no error in allowing evidence of Georgette’s outof-court photo identification. Despite Kevin’s initial
failure to name the attackers and Georgette’s
recantation, there was ample evidence from which the
jury could conclude beyond a reasonable doubt that
defendant was guilty on all charges.
(ECF No. 17-10 at 6)(footnote omitted).
This Court is required to presume the correctness of the
Appellate Division’s factual findings that (1) Georgette
identified Wilkins three days after the incident in a photo
lineup; (2) Georgette recanted her identification in writing
after being confronted by Wilkins at the jail; (3) Georgette
identified Wilkins as a perpetrator at his trial; and (4) the
photo identification procedure was not suggestive.
Wilkins has
not rebutted these findings by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1).
Nor has he shown that the Appellate
Division’s factual findings were unreasonable in light of the
evidence presented.
Therefore, Wilkins is not entitled to
habeas relief on this claim under 28 U.S.C. § 2254(d)(2).
This Court must also consider whether the New Jersey
courts’ adjudication of this claim was contrary to, or an
14
unreasonable application of, Supreme Court precedent. See 28
U.S.C. § 2254(d)(2).
The Supreme Court considered the claim
that a defendant’s pretrial identification by means of
photographs was so unnecessarily suggestive as to deny him due
process in Simmons v. United States, 390 U.S. 377, 383 (1968).
In that case, two men robbed a bank.
The next day, the FBI
separately showed five bank employees six group photographs
which included defendants Simmons and Andrews; each of the five
employees identified Simmons but not Andrews.
The government
relied on the in-court identification of Simmons but did not
introduce the photographs or the pretrial identifications.
The
Supreme Court held “that convictions based on eyewitness
identification at trial following a pretrial identification by
photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.” Id. at 384.
Applying the
standard, the Court concluded that the pretrial identification
procedure used by the FBI did not violate due process where it
was not suggested that the photo identification was unnecessary,
there was “little chance that the procedure utilized led to
misidentification of Simmons,” and the evidence did not show
15
that the FBI agents suggested which persons in the photos were
under suspicion. Id. at 385.
In Manson v. Brathwaite, 432 U.S. 98 (1977), a § 2254
petitioner challenged his Connecticut conviction for possession
and sale of heroin, arguing that the admission of identification
testimony by Glover, an undercover police officer, deprived him
of due process.
Two days after Glover purchased heroin from a
black man out of an apartment in Hartford, another police
officer who suspected Brathwaite (based on Glover’s
description), obtained his photo from the Records Division and
left the photo on Glover’s desk.
Glover identified the person
in this photo as the person who had sold him heroin.
Brathwaite
challenged the identification on due process grounds in the
state court and then in his § 2254 petition.
The District Court
dismissed the § 2254 petition but the Second Circuit reversed
with instructions to issue the writ unless the State retried
Brathwaite, finding that the examination of the single
photograph was suggestive.
The Supreme Court reversed because
“[t]he admission of evidence of a showup without more does not
violate due process,” id. at 106 (citation omitted), and “[t]he
admission of testimony concerning a suggestive and unnecessary
identification procedure does not violate due process so long as
16
the identification possesses sufficient aspects of reliability.”
Id.
The Supreme Court held that admissibility of the
unnecessarily suggestive one-photo identification testimony
turned on balancing “the opportunity of the witness to view the
criminal at the time of the crime, the witness’s degree of
attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation,” against “the corrupting effect of the suggestive
identification itself.” Id. at 114.
Applying this test, the
Court concluded that the “indicators of Glover’s ability to make
an accurate identification [were] hardly outweighed by the
corrupting effect of the challenged identification itself[, even
though] identifications arising from single-photograph displays
may be viewed in general with suspicion.” Id. at 116.
Wilkins has not cited Supreme Court precedent holding that
an out-of-court photographic identification procedure, which is
not suggestive, is inadmissible on due process grounds because
the person recants after being confronted by the defendant and
then identifies the defendant at trial.
In any event, Simmons
and Brathwaite establish that even where the police use an
unduly suggestive pretrial identification procedure, the
17
identification is admissible so long as the reliability factors
outweigh the corrupting effect of the suggestive procedures.
In this case, after conducting a hearing under United
States v. Wade, 388 U.S. 218 (1967), the trial court assessed
suggestiveness and reliability and rejected the challenge to the
admissibility of the identification. (ECF No. 17-31 at 41-43.)
The Appellate Division affirmed the trial court’s findings.
The
New Jersey courts did not unreasonably apply Supreme Court
precedent in determining that the out-of-court identification by
Georgette White was admissible. See 28 U.S.C. § 2254(d)(1);
Coleman v. Alabama, 399 U.S. 1, 7 (1970) (holding that where
“identifications were entirely based upon observations at the
time of the [incident] and not at all induced by the conduct” of
the pretrial identification procedures, the identification does
not violate due process).
Because Wilkins has not shown that
this adjudication was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent, or
based on an unreasonable determination of the facts in light of
the evidence presented, he is not entitled to habeas relief on
Ground Two.
18
C.
Ineffective Assistance of Counsel
Wilkins asserts in Ground Three that counsel was
constitutionally ineffective in failing to object to the hearsay
testimony of Detective McFarland indicating that Michael White
had identified Wilkins as the gunman.
Wilkins raised this ground in his first petition for postconviction relief.
The Appellate Division affirmed without
discussion the trial court’s findings and conclusions.
State v. Wilkins, 2007 WL 3170185 at *2.
See
The trial court
rejected the claim as follows:
[T]he Defendant is correct in classifying the
detective’s testimony regarding Mr. White’s statement
as hearsay within hearsay which does not meet an
exception. Nevertheless, the Defendant’s argument
that this amounted to ineffective assistance of
counsel still fails because he does not show that
there is a reasonable probability that the outcome
would have been different had counsel objected to the
testimony. Furthermore, in the event that the
objection was made and sustained, there was sufficient
evidence to find Defendant guilty. Ms. White
identified Defendant at the trial, as did Georgette
and Kevin White. Moreover, co-defendant, Hobbs,
testified that Defendant shot the victim.
(ECF No. 17-19 at 171-72.)
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.
U.S. Const.
A claim that counsel’s assistance was so defective
as to require reversal of a conviction has two components, both
19
of which must be satisfied.
U.S. 668, 687 (1984).
See Strickland v. Washington, 466
First, the defendant must “identify the
acts or omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.” Id. at 690.
The court must then determine whether, in light of all the
circumstances at the time, the identified errors fell “below an
objective standard of reasonableness[.]” Hinton v. Alabama, 134
S.Ct. 1081, 1083 (2014) (per curiam).
To establish prejudice,
the defendant must show that “there is a reasonable probability
that the result of the trial would have been different absent
the deficient act or omission.” Id., 134 S.Ct. at 1083.
“When a
defendant challenges a conviction, the question is whether there
is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
Id. at 1089 (quoting Strickland, 466 U.S. at 695).
In this case, as explained above, the New Jersey courts
rejected the ineffective assistance claim on the ground that
Wilkins did not show that there was a reasonable probability
that, if counsel had objected to the hearsay identification and
the objection had been sustained, the outcome of the proceeding
would have been different, given that four other witnesses
identified Wilkins as the shooter.
20
This determination was
consistent with, if not demanded by, Strickland.
See, e.g.,
Saranchak v. Secretary, Pa. Dept. of Corrections, 802 F.3d 579,
592 (3d Cir. 2015) (noting that a court “must consider the
strength of the evidence in deciding whether the Strickland
prejudice prong has been satisfied,” the Third Circuit held
that, “[e]ven reconsidering the impact of trial counsel’s errors
in the aggregate, those errors did not contribute to a
reasonable probability of a different outcome given the strength
of the Commonwealth’s case.”) (citations and internal quotation
marks omitted).
Wilkins is not entitled to habeas relief on
Ground Three.
D.
Claim Under Brady v. Maryland
In Ground Four, Wilkins asserts that the prosecutor
unconstitutionally withheld from the defense the December 24,
1997, visitors log from Burlington County Jail which would have
shown that Pauline White could not have identified Wilkins as
the shooter in the visiting area of the jail because Wilkins had
no visitors on the date Pauline visited her son.
Wilkins raised this as an ineffective assistance of counsel
ground on post-conviction relief.
The Appellate Division
affirmed the trial court’s findings without discussion. See
State v. Wilkins, 2007 WL 3170185 (N.J. Super. Ct., App. Div.,
21
Oct. 31, 2007).
The trial court rejected the claim on the
ground that the jail log was not exculpatory under Brady v.
Maryland, 373 U.S. 83 (1963):
Defendant claims that Pauline White identified Stephen
McNeil as the shooter while visiting her son at
Burlington County Jail. However, Defendant has not
provided any proof that his allegation has any merit.
The State is correct in stating that even if Stephen
McNeil had a visitor that day, not the Defendant, that
information does not exculpate the Defendant.
Moreover, Ms. White testified at the trial that
Defendant was the shooter.
(ECF No. 17-19 at 173.)
In Brady v. Maryland, the Supreme Court held “that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady, 373 U.S. at
87; see also Kyles v. Whitley, 514 U.S. 419, 433 (1995); Giglio
v. United States, 405 U.S. 150 (1972).
components of a true Brady violation:
“There are three
The evidence at issue
must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
22
“The evidence is material
only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.
A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.”
United States v. Bagley, 473 U.S. 667, 682 (1985).
Under § 2254(e)(1), this Court must presume the correctness
of the New Jersey courts’ factual findings that (1) Wilkins
presented no evidence indicating that Pauline White identified
Stephen McNeil as the shooter while visiting her son at
Burlington County Jail, and (2) she identified Wilkins at trial.
Wilkins has not rebutted this presumption of correctness by
clear and convincing evidence, and he has not established that
the New Jersey courts unreasonably determined the facts in light
of the evidence presented in the State court proceeding under §
2254(d)(1).
In addition, the New Jersey courts did not unreasonably
apply Brady or other Supreme Court precedent in determining that
the Brady claim failed because the complete visitation log for
the jail was not exculpatory or impeaching. See, e.g., Moore-El
v. Luebbers, 446 F. 3d 890, 900 (8th Cir. 2006) (state court’s
finding that there was no credible evidence that there was an
agreement for leniency between prosecutor and prosecution
23
witness was entitled to presumption of correctness, and
petitioner’s Brady claim based on state’s failure to disclose
purported agreement did not rebut presumption); Shabazz v.
Artuz, 336 F.3d 154 (2nd Cir. 2003) (habeas petitioner did not
present evidence sufficient to rebut presumption of correctness
afforded state court factual findings in rejecting Brady claim
regarding undisclosed promises of leniency to prosecution
witness); cf. Wetzel v. Lambert, 132 S. Ct. 1195, 1198 (2012)
(vacating the granting of a writ and remanding because “[t]he
Third Circuit overlooked the determination of the state courts
that the notations were, as the District Court put it, ‘not
exculpatory or impeaching’ but instead ‘entirely ambiguous.”).
Because the New Jersey courts did not unreasonably apply Brady,
Wilkins is not entitled to habeas relief on Ground Four.
IV.
CERTIFICATE OF APPEALABILITY
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding
unless a judge issues a certificate of appealability on the
ground that “the applicant has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
This Court denies a certificate of appealability because jurists
24
of reason would not find it debatable that dismissal of the
Petition is correct.
V.
CONCLUSION
This Court will dismiss the Petition with prejudice and
deny a certificate of appealability.
An Order consistent with
this Opinion will be filed.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
July 28, 2016
At Camden, New Jersey
25
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