PHILLIPS v. HAUCK et al
Filing
14
OPINION. Signed by Judge Noel L. Hillman on 01/30/2012. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DEBORAH PHILLIPS,
Petitioner,
v.
WILLIAM HAUCK, et al.,
Respondents.
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Civil Action No. 10-2445 (NLH)
OPINION
APPEARANCES:
Petitioner pro se
Deborah Phillips
Edna Mahan Correctional Facility
Clinton, NJ 08809
Counsel for Respondents
Jennifer L. Bentzel
Ofc. of the Prosecutor
County of Burlington
Mount Holly, NJ 08060
HILLMAN, District Judge
Petitioner Deborah Phillips, a prisoner currently confined
at Edna Mahan Correctional Facility in Clinton, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The respondents are Administrator William Hauck
and the Attorney General of New Jersey.
For the reasons stated herein, the Petition will be denied.
I.
A.
BACKGROUND
Factual Background
The relevant facts are set forth in the opinion of the
Superior Court of New Jersey, Law Division, Burlington County,
denying Petitioner’s state petition for post-conviction relief.1
At approximately 12:30 a.m. on April 14, 2000,
Tesa Childs met defendant, Charlene Henley and Kimyada
Albright at the Star Boat Club in Burlington City, New
Jersey. Upon arrival she was able to smell alcohol on
the breath of all three women. At some point, the
ladies left the Star Boat Club and went to an “afterhours” club in Philadelphia. The ladies traveled
together in a silver Volvo driven by the defendant.
During the ride to the “after-hours” club, Ms. Childs
offered to drive because she had not consumed any
alcohol that evening and in her opinion defendant was
driving erratically. Defendant refused Ms. Childs
offer to drive, stating that she was fine to drive.
The women stayed at the “after-hours” club in
Philadelphia for only about fifteen minutes. At this
point in the evening Ms. Childs had only consumed onehalf of a Molson Ice beer. For this reason, as the
quartet was walking to defendant’s vehicle, Ms. Childs
renewed her offer to drive and defendant, again refused
stating that she was fine to drive. Ms. Childs
continued to plead with defendant, asking her to allow
her to drive, Ms. Henley grabbed for the keys and told
defendant to allow Ms. Childs to drive because they had
all been drinking and Ms. Childs had not. Defendant
again refused these requests.
At approximately 4:35 a.m., a single vehicle
accident was reported at Route 130 and Branch Pike in
1
Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.”
2
Cinnaminson, New Jersey. Patrolman Paul Seymour of the
Cinnaminson Township Police Department was the first to
arrive on scene. He observed that a silver Volvo had
struck a utility pole. Patrolman Seymour observed that
all the doors of the vehicle were closed, except for
the driver’s door, outside of which he observed an
injured female leaning against the car in the open
door-well.
Patrolman Seymour approached the woman; he found
her to be dazed, he also observed a visible forehead
injury and smelled a strong odor of alcohol on her
breath. Patrolman Seymour identified this woman in
Court as the defendant. The patrolman secured the
defendant in a safe position and began helping the
occupants he observed in the backseat of the car. He
first observed Ms. Henley, who was later determined to
be the rear-seat passenger-side occupant of the
vehicle. Ms. Henley was actually lying on top of the
front, passenger-side seat with her body facing the
ceiling; the front-passenger seat had been pushed and
bent forward against the dash of the vehicle. He then
observed Ms. Childs whose entire body was on the floor
behind the driver’s seat, except for her feet, which
were resting upon the seat.
At this point, additional officers began arriving
on scene. Patrolman Seymour instructed Patrolman
Siemietkoski to continue to care for Ms. Childs, while
he communicated with dispatch to update the status and
request ambulances for the injured women. As he was
doing this, he observed a fourth victim, Ms. Albright,
who had not previously been visible because she has
been covered by the rear seat passenger on top of the
seat, the seat itself and the dashboard of the vehicle.
Defendant and the driver’s side, rear seat
passenger, Ms. Childs, were transported to Cooper
University Medical Center in Camden, New Jersey. The
other two women in the car, Ms. Henley and Ms.
Albright, died as a result of the injuries sustained in
the crash. En route to the hospital Gary Ackerman, the
emergency medical technician, asked defendant if she
had been drinking, so that he could determine the
medically appropriate treatment; defendant responded
that she had drunk a few beers. Mr. Ackerman also
noticed the strong odor of alcohol permeating
throughout the ambulance.
3
Upon direction of Sergeant Johnson, Patrolman
Seymour left the scene of the accident and went to
Cooper Hospital Trauma Center to secure a blood sample
from the defendant. Subsequent testing of this sample
determined that defendant’s blood alcohol content was
.211. [Fn1] Thomas Brettell, director of forensic
science with the New Jersey State Police, testified
that this level of blood alcohol content was the
equivalent of 9.6, twelve-ounce beers. He further
testified that this amount of alcohol would severely
impair the vision, reaction time, depth perception, and
alertness of an individual. It would also cause a
person to experience fatigue, drowsiness and increased
willingness to take risks. The combination of these
effects would severely impair a person’s ability to
operate a motor vehicle.
[Fn1] Several readings were actually taken,
.211 represents the lowest BAC reading.
Detective Sergeant David Benn, of the Burlington
County Prosecutor’s Office, Collision Analysis and
Reconstruction Unit, reviewed the entire file in an
effort to determine what happened in the crash,
including vehicle speed, movement of the passengers,
and other potential effects of the accident. Using an
occupant kinetic study, based on physical evidence and
information contained in the case file, Sergeant Benn
concluded within a reasonable degree of scientific
certainty, that defendant was driving the vehicle at
the time of the silver Volvo’s impact with the utility
pole. He was also able to determine within a
reasonable degree of scientific certainty the location
of the other women at the time of impact: Tesa Childs
would have been seated in the driver’s side, rear seat;
Kimyada Albright was in the passenger-side, front seat;
and Charlene Henley was the passenger-side, rear seat
occupant. He was able to determine that defendant was
the driver of the vehicle. Importantly, he was able to
determine that in this particular accident based on the
principal direction of force, lack of rotation and
particular vehicle involved, it would have been
contrary to the laws of physics for a front-seat
passenger to be thrown over the seats and end up in the
rear seat.
The silver Volvo was transported back to the
Cinnaminson Township Public Works Garage. The car was
4
further processed for evidence. Patrolman William
Johnson recovered two hair samples from the front
windshield of the vehicle, directly in front of the
driver’s seat. After some preliminary testing at the
New Jersey State Police Forensic Laboratory, these hair
samples were sent, along with two buccal swabs taken
from the left and right side of the defendant’s mouth,
to Orchid Cellmark Laboratory Forensics for DNA
analysis.
A mitochondrial DNA analysis was performed by Mr.
Bryan Sloan, from Orchid Cellmark Forensics Laboratory
in Dallas, Texas, on these samples. This analysis
revealed that the defendant could not be excluded as a
contributor to the hair in the windshield.
Furthermore, the buccal swab and hair sample did not
match any of the 4,502 mitochondrial DNA profiles
maintained in an FBI database. Finally, although
mitochondrial DNA is shared by maternally related
individuals, this is of no moment here, because no one
in the car that evening was maternally related to
defendant.
(Letter Opinion, Superior Court, Law Division, Burlington County,
at 2-7 (February 25, 2008) (record citations omitted).)
In its Opinion on direct appeal, affirming Petitioner’s
conviction and sentence, the Superior Court of New Jersey,
Appellate Division noted the following additional facts relevant
to this Petition:
We need not recount all of the facts presented by
the State at trial. Suffice it to say that on April
14, 2000, defendant drove her vehicle while intoxicated
and collided with a utility pole on Route 130 in
Cinnaminson. In defendant’s vehicle were two women,
who died as a result of the accident and a third woman,
who was injured. Defendant was also injured and
hospitalized because of the accident. During the
police investigation, defendant gave a statement to the
police. The statement was taken at defendant’s home
following her release from the hospital.
5
(Opinion, Superior Court of New Jersey, Appellate Division, at 2
(Feb. 8, 2005).)
B.
Procedural History
Following a jury trial in the Superior Court of New Jersey,
Law Division, Burlington County, Petitioner was convicted of two
counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5a,
and one count of third-degree assault by auto, N.J.S.A. 2C:121c(2).
The trial court sentenced her, on the vehicular homicide
counts, to two consecutive ten-year terms subject to the No Early
Release Act, and, on the assault count, to a consecutive
eighteen-month sentence.
Plaintiff appealed.
On February 8,
2005, the Superior Court of New Jersey affirmed and, on May 3,
2005, the Supreme Court of New Jersey denied certification.
State v. Phillips, 183 N.J. 585 (2005).
On September 6, 2005, Petitioner filed in state court a
petition for post-conviction relief.
Following a non-evidentiary
hearing on February 8, 2008, the trial court denied the petition
in an opinion and order dated February 25, 2008.
The Appellate
Division affirmed the denial of relief on October 7, 2009, and
the Supreme Court of New Jersey denied certification on February
11, 2010.
State v. Phillips, 201 N.J. 273 (2010).
On February 16, 2010, Petitioner filed in state court a
motion for reconsideration of sentence, which the trial court
6
denied on March 10, 2010.
Petitioner did not appeal this
decision.
This Petition, dated April 28, 2010, followed.
Petitioner asserts the following claims:
Here,
(1) the trial court
erred in not suppressing her statement to police, because she did
not give a knowing and valid waiver of her Fifth Amendment right
to remain silent; (2) Petitioner’s trial counsel provided
constitutionally ineffective assistance by (a) failing to
communicate plea offers accurately and failing to explain the
benefits of accepting the plea offers, (b) failing to retain an
accident reconstruction expert and a forensic scientific expert,
and (c) failing to present medical proofs that Petitioner was so
incapacitated that she could not have left the vehicle and that
she did not have a facial laceration as the police officer at the
scene testified; and (3) judicial factfinding in connection with
the sentencing violated her Sixth Amendment right to trial by
jury.
claims.
Respondents have answered as to the merits of these
Petitioner did not reply.
This matter is now ready for decision.
II.
28 U.S.C. § 2254
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
7
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.
With respect to any claim adjudicated on the merits in state
court proceedings, the writ shall not issue unless the
adjudication of the claim
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determinated by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases,” or “if the
state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [the Court’s] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O’Connor, J.,
for the Court, Part II).
A state court decision “involve[s] an
unreasonable application” of federal law “if the state court
identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case,” and may involve an
“unreasonable application” of federal law “if the state court
8
either unreasonably extends a legal principle from [the Supreme
Court’s] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply,” (although the Supreme Court expressly
declined to decide the latter).
Id. at 407-09.
To be an
“unreasonable application” of clearly established federal law,
the state court’s application must be objectively unreasonable.
Id. at 409.
In determining whether the state court’s application
of Supreme Court precedent was objectively unreasonable, a habeas
court may consider the decisions of inferior federal courts.
Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).
Even a summary adjudication by the state court on the merits
of a claim is entitled to § 2254(d) deference.
Chadwick v.
Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v.
Angelone, 528 U.S. 225, 237 (2000)).
With respect to claims
presented to, but unadjudicated by, the state courts, however, a
federal court may exercise pre-AEDPA independent judgment.
See
Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000),
cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL
1523144, *6 n.4 (D.N.J. 2000).
See also Schoenberger v. Russell,
290 F.3d 831, 842 (6th Cir. 2002) (Moore, J., concurring) (and
cases discussed therein).
In such instances, “the federal habeas
court must conduct a de novo review over pure legal questions and
mixed questions of law and fact, as a court would have done prior
9
to the enactment of AEDPA.”
Appel v. Horn, 250 F.3d 203, 210 (3d
Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d
Cir. 1999)).
“However, § 2254(e)(1) still mandates that the
state court’s factual determinations are presumed correct unless
rebutted by clear and convincing evidence.”
Simmons v. Beard,
581 F.3d q158, 165 (3d Cir. 2009).
The deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal caselaw, “as long as the reasoning of the state court
does not contradict relevant Supreme Court precedent.”
Priester
v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19
(2002)).
Although a petition for writ of habeas corpus may not be
granted if the Petitioner has failed to exhaust his remedies in
state court, a petition may be denied on the merits
notwithstanding the petitioner’s failure to exhaust his state
court remedies.
See 28 U.S.C. § 2254(b)(2); Lambert v.
Blackwell, 387 F.3d 210, 260 n.42 (3d Cir. 2004); Lewis v.
Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).
Finally, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers.
Estelle
v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972).
A pro se habeas petition and any supporting
10
submissions must be construed liberally and with a measure of
tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);
Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
III.
A.
ANALYSIS
The Suppression Claim
Petitioner asserts that the trial court should have
suppressed the taped statement she gave to police on June 6,
2000, the day after her release from the hospital, because she
did not give a knowing and valid waiver of her right to remain
silent.
The Appellate Division rejected this claim on direct
appeal.
We conclude that the judge did not err in
admitting defendant’s statement into evidence. Here,
defendant gave her statement at home, following her
release from the hospital. The judge’s finding that
the statement was not given during custodial
interrogation is amply supported by the record. State
v. Locurto, 157 N.J. 463, 470-71 (1999). “It is
custodial interrogation and not the mere focus upon a
particular subject which implicates the requirement
that Miranda warnings be given.” State v. Choinacki,
324 N.J. Super. 19, 43 (App. Div.) (citations omitted),
certif. denied, 162 N.J. 197 (1999). Moreover, even if
the judge erred in admitting the statement, the error
was harmless beyond a reasonable doubt, State v. Macon,
57 N.J. 325, 335 -36 (1971), in light of the other
overwhelming evidence of defendant’s driving the
vehicle at the time of the fatal crash.
(Opinion, Appellate Division, at 4-5 (Feb. 8, 2005).)
11
Pursuant to the Fifth Amendment to the United States
Constitution, applicable to the States through the Fourteenth
Amendment, "No person ... shall be compelled in any criminal case
to be a witness against himself ... ."
In Miranda v. Arizona,
the Supreme Court of the United States held that:
when an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any
significant way and is subjected to questioning, the
privilege against self-incrimination is jeopardized.
Procedural safeguards must be employed to protect the
privilege and unless other fully effective means are
adopted to notify the person of his right of silence
and to assure that the exercise of the right will be
scrupulously honored, the following measures are
required. He must be warned prior to any questioning
that he has the right to remain silent, that anything
he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so
desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After
such warnings have been given, and such opportunity
afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer
questions or make a statement. But unless and until
such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result
of interrogation can be used against him.
384 U.S. at 478-79 (footnote omitted).
A waiver may be made orally or may be implied from a
suspect’s conduct.
See North Carolina v. Butler, 441 U.S. 369,
373 (1979); United States v. Cruz , 910 F.2d 1072, 1080 (3d Cir.
1990), cert. denied, 498 U.S. 1039 (1991).
To introduce into
evidence a suspect’s statement made during custodial
interrogation, the government must establish, by a preponderance
12
of the evidence, a voluntary waiver of Miranda rights.
v. Connelly, 479 U.S. 157, 168-69 (1986).
Colorado
This is a rule of
constitutional dimension, violation of which may justify issuance
of a writ of habeas corpus.
See generally Dickerson v. United
States, 530 U.S. 428 (2000).
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must
cease. At this point he has shown that he intends to
exercise his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot be
other than the product of compulsion, subtle or
otherwise. Without the right to cut off questioning,
the setting of in-custody interrogation operates on the
individual to overcome free choice in producing a
statement after the privilege has been once invoked.
Miranda, 384 U.S. at 473-74.
A defendant’s right to cut off
questioning must be "scrupulously honored."
Michigan v. Mosley,
423 U.S. 96, 103-04 (1975).
"The requirement that Miranda warnings be given does not, of
course, dispense with the voluntariness inquiry.
But ...
‘[c]ases in which a defendant can make a colorable argument that
a self-incriminating statement was ‘compelled’ despite the fact
that the law enforcement authorities adhered to the dictates of
Miranda are rare.’"
Dickerson, 530 U.S. at 444.
"[T]he ultimate issue of ‘voluntariness’ is a legal question
requiring independent federal determination," and is thus not
subject to the § 2254(d) presumption of correctness.
Fenton, 474 U.S. 104, 109-110 (1985).
13
Miller v.
The Supreme Court has made clear that a statement
is involuntary when the suspect's "will was overborne
in such a way as to render his confession the product
of coercion." Arizona v. Fulminante, 499 U.S. 279, 288,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In determining
whether a statement is voluntary, Supreme Court
precedent requires consideration of "the totality of
all the surrounding circumstances--both the
characteristics of the accused and the details of the
interrogation." Dickerson v. United States , 530 U.S.
428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). These
surrounding circumstances include "not only the crucial
element of police coercion, Colorado v. Connelly, 479
U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986),"
but may also include "the length of the interrogation,
its location, its continuity, the defendant's maturity,
education, physical condition, and mental health."
Withrow v. Williams, 507 U.S. 680, 693, 113 S.Ct. 1745,
123 L.Ed.2d 407 (1993) (some internal citations
omitted).
Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002).
"[S]ubsidiary
questions, such as the length and circumstances of the
interrogation, the defendant’s prior experience with the legal
process, and familiarity with the Miranda warnings, often require
the resolution of conflicting testimony of police and defendant.
The law is therefore clear that state-court findings on such
matters are conclusive on the habeas court if fairly supported in
the record and if the other circumstances enumerated in § 2254(d)
are inapplicable."
Dickerson, 474 U.S. at 117.
Here, the Appellate Division correctly identified the
applicable Supreme Court case law.
The state courts’ findings
that Petitioner was not subjected to custodial interrogation, and
that Miranda warnings were, therefore, not required is, as the
14
Appellate Division held, amply supported by the record.
Petitioner was in her own home, she invited the officers in to
question her about the accident, she agreed to be audiotaped.
There is nothing in the record to suggest that Petitioner
objected to the questioning or that she considered herself to be
in custody.
To the contrary, the very core of her argument here
is that the officers did nothing to make her aware that they
considered her a suspect.
Thus, she admits that she did not feel
any coercion at the time she made her statement; to the contrary,
the statement was clearly voluntary.
Petitioner is not entitled
to relief on this claim.
B.
The Ineffective Assistance of Counsel Claim
Petitioner claims that her trial counsel failed to provide
constitutionally effective assistance by (a) failing to
communicate plea offers accurately and failing to explain the
benefits of accepting the plea offers, (b) failing to retain an
accident reconstruction expert and failing to retain a forensic
DNA expert, and (c) failing to present medical proofs that
Petitioner was so incapacitated that she could not have left the
vehicle and that she did not have a facial laceration as the
police officer at the scene testified.
These were among a multitude of claimed defects in
representation that Petitioner raised in her state petition for
post-conviction relief.
The state courts rejected them all:
15
In evaluating an ineffective assistance claim New
Jersey follows the federal rule. State v. Fritz, 105
N.J. 42 (1987), (adopting the two prong test
articulated by the United States Supreme Court in
Strickand). The Strickland rule for evaluating
ineffective assistance of counsel is as follows:
First, Defendant must show that counsel’s
performance was deficient. The requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed Defendant by the Sixth
Amendment. Second, Defendant must show that
the deficient performance prejudiced the
defense. This requires showing that
counsel’s errors were so serious as to
deprive Defendant of a fair trial, a trial
whose result is reliable. Unless a defendant
makes both showings, it cannot be said that
the conviction ... resulted from a breakdown
in the adversary process that renders the
result unreliable.
[Strickland, supra, 466 U.S. at 697. See
also, State v. Marshall, 148 N.J. 89, 156
(1997); State v. Fritz, supra, 105 N.J. at
52.]
Defendant’s ineffective assistance of counsel
claims will now be discussed under the rubric announced
in Strickland/Fritz.
a.
Trial Counsel was not Ineffective Due to his
Failure to Engage an Expert Witness in the Field
of Accident Reconstruction.
Defendant argues that her trial counsel was
ineffective because he failed to obtain an expert in
the field of accident reconstruction. An expert of
this type would rebut the State’s expert who had stated
that defendant was driving the vehicle at the time of
the accident. As stated above, in order to prevail on
this claim, defendant must demonstrate that counsel
was, in fact, ineffective and that she was prejudiced
by this deficient performance. Strickland, supra, 466
U.S. at 687. Defendant is unable to meet either prong
of Strickland with regard to this first claim.
16
Defendant is unable to meet the first prong of
Strickland because trial counsel did consult with an
expert in accident reconstruction. The certification
from defendant’s trial counsel, Mr. Timothy Reilly,
Esquire, makes clear that he did speak with Dennis
Andrews, an accident reconstruction expert.
[Certification of Timothy Reilly, Pa5]. Mr. Andrews
told counsel that he could not provide any testimony
that would be helpful to defendant’s case. Ibid.
After this discussion with Mr. Andrews, Mr. Reilly made
the strategic decision not to present an expert in
accident reconstruction and attack other areas of the
State’s case, specifically, counsel states:
Thus, while an accident reconstruction expert
was consulted on Ms. Phillips’ behalf, the
expert would not have provided any support to
her defense, and presenting Mr. Andrews may
in fact have been detrimental to her case.
Based on the aforementioned, I made the
strategic decision not to present an accident
reconstruction expert, and to attack other
areas of the State’s case in order to provide
the best defense possible for Ms. Phillips.
[Certification of Timothy Reilly, Pa6].
It is well-settled that counsel is entitled to
make a wide-range of strategic decisions in order to
present his client’s case, and such decisions are
afforded a great deal of deference. “Strategic choices
made after thorough investigation of law and facts are
relevant to plausible options are virtually
unchallengeable.” Strickland, supra, 466 U.S. at 690.
Clearly, here, counsel’s strategic decision to
attack other areas of the State’s case was a reasonable
decision since Mr. Andrews informed counsel that he was
unable to provide any testimony that would be helpful
to defendant’s case.
Additionally, in light of counsel’s discussion
with Mr. Andrews, defendant is unable to meet the
prejudice prong of the Strickland analysis. If an
accident reconstruction expert was unable to provide
any testimony that would have been beneficial to
defendant’s case, defendant was not prejudiced by
counsel’s failure to engage an expert in that field.
17
b.
Trial Counsel was Not Ineffective Due to his
Failure to Accurately Communicate All Plea Offers
Received from the State of New Jersey.
Defendant next argues that trial counsel’s alleged
failure to communicate all plea offers amounted to
ineffective assistance of counsel. It is well-settled
that counsel must communicate all plea offers made by
the State to his client. Flores v. State, 784 S.W.2d.
579, 581 (1990). Despite this, defendant still must
prove both the ineffective prong and the prejudice
prong of the Strickland analysis to prevail on an
ineffective assistance claim based on counsel’s failure
to communicate plea offers. State v. Murray, 345 N.J.
Super. 158, 174, certif. denied, 172 N.J. 179 (2001).
In a certification received from trial counsel,
paragraph eleven states:
Any plea offers extended to Ms. Phillips by
the Burlington County Prosecutor’s Office
were relayed to her at the earliest possible
time. In light of the fact that defendant
was arrested for driving while intoxicated
just prior to the commencement of trial, I
most certainly stressed the benefit of
accepting a plea bargain. At all times, Ms.
Phillips was adamant that she would not
accept a plea bargain under any
circumstances.
[Certification of Timothy Reilly, received by
the Court on January 28, 2008, paragraph 11.]
Defendant was also advised by this Court at her
pre-trial conference of the proposed plea agreement at
the time of plea cut-off. Defendant also signed the
pre-trial memorandum in this case, which contained a
plea offer from the State. Additionally, defendant’s
potential exposure was explained and it was explained
that the No Early Release Act would apply, if convicted
on Count 1 and/or 2. At no point did defendant ever
express an interest in accepting a plea offer.
Based on the fact that defendant was “adamant”
that she would not accept a plea offer under any
circumstances and the fact that defendant did not
express any interest in accepting a plea offer at the
18
pre-trial conference, even in the unlikely event that
defendant was able to prove actual ineffective
assistance of counsel based on an alleged failure of
counsel to communicate all plea offers made by the
State, defendant is unable to demonstrate any prejudice
because it apepars she would not have accepted any plea
offer. Therefore, defendant is not entitled to postconviction relief for counsel’s alleged failure to
communicate plea offers because she fails to meet the
second prong of the Strickland analysis.
c.
Trial Counsel Failure to Have the “Hair
Sample” Analyzed or Compared to the Other
Three Occupants of the Vehicle Did Not Amount
to Ineffective Assistance of Counsel.
Defendant’s next allegation states that trial
counsel was ineffective because he failed to have the
hair samples collected from the windshield directly in
front of the driver’s seat analyzed or compared to the
other occupants of the silver Volvo. Defendant argues
that had counsel done this, the evidence gathered would
have been helpful to her defense that she was not
driving the vehicle at the time of the accident.
Defendant is unable to meet the first prong of the
Strickland analysis.
“Counsel has a duty to make reasonable
investigations or to make reasonable decisions that
makes particular investigations unnecessary.”
Strickland, supra, 466 U.S. at 691. Whether counsel
has fulfilled this duty is measured by the
“reasonableness in all circumstances, applying a heavy
measure of deference to counsel’s judgments.” Ibid.
As stated above, strategic decisions made by counsel
after thorough investigations are “virtually
unchallengeable.” Ibid. at 690.
Again based on the certification of defendant’s
trial counsel, it is clear that counsel was not
ineffective in his decision not to have the hair
samples compared to the other passengers or analyzed by
a defense expert in DNA analysis. In his
certification, Mr. Reilly relates the extensive
investigation he conducted with regard to the hair
samples collected from the vehicle. [Certification of
Timothy Reilly, Esquire, Pa9].
19
Mr. Reilly did explore the possibility of having
Dr. Richard Saferstein, Ph.D., conduct mitochondrial
DNA analysis on the hair. [Certification of Timothy
Reilly, Esquire, Pa9]. Dr. Saferstein opined that the
State’s expert had properly analyzed the DNA evidence.
[Certification of Timothy Reilly, Esquire, Pa9]. He
further advised that mitochondrial DNA is shared only
by people related through maternal lineage and that he
other women in the car could only have provided the DNA
evidence, if they were related to defendant.
[Certification of Timothy Reilly, Esquire, Pa9]. After
this investigation, trial counsel made the strategic
decision that there was no benefit in calling Dr.
Saferstein.
Additionally, Defendant suggests that Mr. Reilly
was ineffective for failing to call a witness that
could testify that defendant was wearing synthetic hair
extensions on the night of the accident. Because the
hair taken from the windshield was human hair, this
fact would suggest that the hair found in the
windshield directly in front of the driver’s seat was
left by one of the other women in the car supporting
defendant’s contention that she was not driving the
car. [Certification of Timothy Reilly, Esquire, Pa9[.
Mr. Reilly states that he did interview the witness
provided by defendant, who would testify that she was
wearing synthetic hair extensions at the time of the
accident. [Certification of Timothy Reilly, Esquire,
Pa9[. However, this witness advised that the hair
extensions were synthetic hair that was “weaved” in
with defendant’s real hair. [Certification of Timothy
Reilly, Esquire, Pa9[. Therefore, this witness would
have been of no help in establishing that defendant was
not driving the vehicle. [Certification of Timothy
Reilly, Esquire, Pa9].
Based on the case law, the decision not to call
these witnesses was a thoroughly investigated,
strategic decision of counsel. In his certification
counsel states:
Therefore, based on my conversations with Dr.
Saferstein and Ms. Phillips, I did not feel
there was any benefit to calling either [Dr.
Saferstein] or the witnesses who could
testify to the hair extension issue. Also,
based on my conversation with Dr. Saferstein,
20
I also did not feel that there was any reason
to have any additional DNA evidence testing
conducted.
[Certification of Timothy Reilly, Esquire,
Pa9].
Such decisions are presumed appropriate and
virtually unchallengeable. Strickland, supra, 466 U.S.
at 690.
...
g.
Trial Counsel Failure to Procure Medical
Proofs of Defendants Incapacitation and Lack
of Facial Laceration was a Reasonable Trial
Strategy.
Defendant’s next allegation of ineffective
assistance of counsel on the part of trial counsel
alleges that Mr. Reilly should have procured medical
proofs to show that she was so incapacitated she could
not have left the motor vehicle. Additionally, she
argues that Mr. Reilly should have presented evidence
that she did not have a facial laceration, and
therefore, it was unlikely that her head had come into
contact with the windshield suggesting that someone
else had been driving the vehicle at the time of the
impact. Defendant is unable to meet the first prong of
Strickland with regard to either of these claims as
they are contrary to the proofs adduced at trial. [Fn2]
[Fn2] Defendant’s own recitation of the facts
acknowledges that defendant was the only
woman identified by Patrolman Seymour outside
the vehicle and that she was observed with a
visible laceration on her forehead. [Db
p.3].
Based on the undisputed testimony of Patrolman
Seymour, had counsel attempted to present evidence to
show defendant was too incapacitated to have left the
motor vehicle, it would have been devastating to
defendant’s case. Patrolman Seymour testified that
when he arrived, defendant was outside the vehicle
leaning against the door well of the driver’s side of
the vehicle. [2T44-12 to 44-18]. He was further able
to identify the woman he observed that evening sitting
21
in that position as the defendant, in Court. [2T47-24
to 48-8]. The patrolman’s testimony was undisputed.
Therefore, presenting this evidence would simply
bolster the State’s case as to the intoxication level
of the defendant and inflame the jury, while gaining no
tactical advantage for the defendant. Clearly, the
decision not to present such evidence was a wellarrived strategic decision of counsel.
Defendant also alleges that counsel was
ineffective for [not] producing medical proofs that she
did not have a laceration on her face, suggesting that
it was unli8kely that her head had made contact with
the windshield of the Volvo. This assertion is belied
by the record as well. Again, Patrolman Seymour
testified that he observed a “visual injury on her
forehead which appeared to be from her ehad hitting the
windshield. [2T47-21 to 47-23]. Additionally, the
Emergency Medical Technician, Gary Ackerman, testified
that he believed that defendant may have had a head
injury. [2T144-16 to 144-17]. Further, upon speaking
with the witnesses that defendant suggested could
testify to the fact she had no cuts on her face, they
told counsel they did, in fact, remember seeing “cuts
and scrapes on [defendant’s] forehead” in the hospital
after the accident. [Certification of Timothy Reilly,
Esquire, Pa9].
(Opinion, Superior Court, Law Division, Burlington, at 9-15, 2021 (Feb. 25, 2008) (emphasis in original.)
Having reviewed the record, ... we affirm
substantially for the reasons stated in Judge Almeida’s
cogent written opinion. We add the following comments.
To prevail on a claim of ineffective assistance of
counsel, defendant must show that her counsel’s
performance was deficient and that those deficiencies
materially contributed to her conviction. See
Strickland v. Washington, 466 U.S. 668, 67-88, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987). Even viewing the facts
in a light most favorable to defendant, she did not
present a prima facie case of ineffective assistance of
counsel and was not entitled to an evidentiary hearing.
See State v. Preciose, 129 N.J. 451, 462-63 (1992).
22
(Opinion, Appellate Division at 5-6 (Oct. 7, 2009).)
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.”
U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.”
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)
(emphasis added).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel’s performance
fell below an objective standard of reasonable professional
assistance and that there is a reasonable probability that, but
for counsel’s unprofessional errors, the outcome would have been
different.
(1984).
Strickland v. Washington, 466 U.S. 668, 687, 694
A “reasonable probability” is “a probability sufficient
to undermine confidence in the outcome.”
Strickland at 694.
Counsel’s errors must have been “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Id. at 687.
“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 695.
There is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
As a general matter, strategic
23
choices made by counsel after a thorough investigation of the
facts and law are “virtually unchallengeable,” though strategic
choices “made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.”
91.
Id. at 690-
If counsel has been deficient in any way, however, the
habeas court must determine whether the cumulative effect of
counsel’s errors prejudiced the defendant within the meaning of
Strickland.
See Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d
Cir. 1996).
The Strickland two-part standard applies to ineffectiveassistance claims arising out of the guilty plea process.
v. Lockhart, 474 U.S. 52, 57-9 (1985).
Hill
In the context of guilty
pleas, the first element of the Strickland test remains “nothing
more than a restatement of the standard of attorney competence.”
Hill, 474 U.S. at 58.
The “prejudice” requirement, “on the other
hand, focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process.
In other
words, in order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”
Hill, 474 U.S. at 59.
Alternatively, a prisoner may establish prejudice by
demonstrating that he likely would have received a lower sentence
24
by pleading guilty rather than proceeding to trial, see U.S. v.
Booth, 432 F.3d 542, 546-47 (3d Cir. 2005).
Here, the state courts correctly identified and applied the
governing Supreme Court case law.
The state court decisions are
neither contrary to nor an unreasonable application of the
governing Supreme Court case law, nor are they based on an
unreasonable determination of the facts in light of the evidence
presented.
C.
Petitioner is not entitled to relief on this claim.
The Sentence
Petitioner contends that the imposition of a sentence
greater than the presumptive sentence, based upon the trial
judge’s findings regarding aggravating factors, violated her
Sixth Amendment right to trial by jury.
Petitioner raised this
claim in her state petition for post-conviction relief.
The
state courts rejected the claim.
... Point (a) of defendant’s pro se petition
alleges that the holding in State v. Natale, 184 N.J.
458, requires the Court to re-review the sentence
imposed here. This claim is not procedurally barred
because it could not have been reasonably brought on
direct appeal because Natale was not decided until
August 2, 2005. Defendant’s direct appeal was decided
by the Appellate Division on February 8, 2005 and
certification was denied by the Supreme Court on May 3,
2005. While this fact procedurally allows the claim to
be brought under Rule 3:22-4, it is the same fact which
is fatal to the defendant’s claim. Natale holding was
given only “pipeline retroactivity.” Ibid. at 494.
Therefore, Natale holding applies only to defendants
who have cases on direct appeal as of the date of the
decision. Consequently, without reaching the merits of
defendant’s Natale claim, this claim is denied.
25
(Opinion, Superior Court, Law Division, Burlington, at 23 (Feb.
25, 2008).)
Finally, defendant’s direct appeals were concluded
before Natale was decided. As the Supreme Court
indicated, Natale only has pipeline retroactivity.
Natale, supra, 184 N.J. at 494. Therefore, Natale’s
sentencing principles cannot be invoked in defendant’s
PCR petition.
(Opinion, Appellate Division at 6 (Oct. 7, 2009).)
A federal court’s ability to review state sentences is
limited to challenges based upon “proscribed federal grounds such
as being cruel and unusual, racially or ethnically motivated, or
enhanced by indigencies.”
See Grecco v. O’Lone, 661, F.Supp.
408, 415 (D.N.J. 1987) (citation omitted).
Thus, a challenge to
a state court’s discretion at sentencing is not reviewable in a
federal habeas proceeding unless it violates a separate federal
constitutional limitation.
See Pringle v. Court of Common Pleas,
744 F.2d 297, 300 (3d Cir. 1984).
See also 28 U.S.C. § 2254(a);
Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497
U.S. 764, 780 (1990).
Petitioner contends that the trial judge improperly
sentenced her to terms greater than the presumptive term for his
crimes of conviction, in violation of the rule announced in
Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New
Jersey, 530 U.S. 466 (2000).
As noted above, the state courts
rejected this claim.
26
In Apprendi v. New Jersey, 530 U.S. at 471, 490, pursuant to
the Fourteenth Amendment right to due process, coupled with the
Sixth Amendment right to trial by jury, the Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”
In Blakely v. Washington, 542 U.S. 296
(2004), the Supreme Court overturned a sentence imposed under
Washington state’s sentencing system, explaining that “the
relevant statutory maximum is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may
impose without any additional findings.”
(internal quotations omitted).
542 U.S. at 302
More specifically, “the
‘statutory maximum’ for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
(emphasis in original) (citations omitted).
542 U.S. at 303
Most recently, in
United States v. Booker, 543 U.S. 220 (2005), the Supreme Court
applied the rule of Apprendi to the United States Sentencing
Guidelines, finding the Guidelines unconstitutional, and
rendering them merely advisory, rather than mandatory.
In State v. Natale, 184 N.J. 458 (N.J. 2005), the Supreme
Court of New Jersey evaluated the constitutionality of the New
Jersey sentencing scheme in light of the Apprendi line of cases.
27
Our Code provisions make clear that, before any
judicial factfinding, the maximum sentence that can be
imposed based on a jury verdict or guilty plea is the
presumptive term. Accordingly, the “statutory maximum”
for Blakely and Booker purposes is the presumptive
sentence.
Natale, 184 N.J. at 484.
Because the Code’s system allows for
sentencing beyond the statutory maximum presumptive term, the
Supreme Court of New Jersey found the state sentencing system
unconstitutional and determined that the appropriate remedy would
be to follow the lead of Booker and abolish the presumptive
terms.
“Without presumptive terms, the ‘statutory maximum’
authorized by the jury verdict or the facts admitted by a
defendant at his guilty plea is the top of the sentencing range
for the crime charged, e.g., ten years for a second-degree
offense.”
Natale, 184 N.J. at 487 (citation omitted).
The
Supreme Court of New Jersey held that the rule it announced in
Natale was applicable retroactively only to cases in the direct
appeal pipeline as of the date of that decision, August 2, 2005.
Natale, 184 N.J. at 494.
Petitioner had already concluded his
direct appeals by the date of the Natale decision; thus, the
Natale decision did not entitle him to relief, as a matter of
state law.
Similarly, the Court of Appeals for the Third Circuit
generally has held that the rules announced in the Apprendi line
of cases are not applicable retroactively to cases on federal
collateral review.
See generally In re Olopade, 403 F.3d 159 (3d
28
Cir. 2005) (finding that the decision of the supreme Court in
Booker does not apply retroactively to cases on collateral
review); United States v. Swinton, 333 F.3d 481 (3d Cir.), cert.
denied, 540 U.S. 977 (2003) (holding that Apprendi does not apply
retroactively to cases on collateral review); In re Turner, 267
F.3d 225 (3d Cir. 2001) (holding that Apprendi does not apply
retroactively to cases on collateral review).
See also United
States v. Price, 400 F.3d 844, 849 (10th Cir.), cert. denied, 126
S.Ct. 731 (2005) (Blakely does not apply retroactively to cases
on collateral review).
Here, whether or not the sentence was imposed in violation
of the rules announced in the Apprendi/Natale line of cases,
Petitioner is not entitled to relief in this federal collateral
proceeding.
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
29
to deserve encouragement to proceed further.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing of
the denial of a constitutional right.
Jurists of reason would
not disagree with this Court’s resolution of Petitioner’s claims.
No certificate of appealability will issue.
V.
CONCLUSION
For the reasons set forth above, the Petition will be
denied.
An appropriate order follows.
At Camden, New Jersey
/s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: January 30, 2012
30
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