GIBBS v. BARTKOWSKI et al
Filing
66
OPINION. Signed by Judge Noel L. Hillman on 4/30/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARNELL GIBBS,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
:
:
:
:
:
:
:
:
:
:
:
Civ. No. 11-1137 (NLH)
OPINION
APPEARANCES:
Carnell Gibbs, #407538 / 399805
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner, pro se
John J. Santoliquido, Esq.
James F. Smith, Esq.
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, NJ 08330
Counsel for Respondents
HILLMAN, DISTRICT JUDGE
Before this Court is the Amended Petition for a writ of
habeas corpus of Petitioner Carnell Gibbs (“Petitioner”),
brought pursuant to 28 U.S.C. § 2254.
ECF No. 15.
For the
following reasons, the Court denies the Petition and declines to
issue a certificate of appealability.
I.
BACKGROUND
In its opinion affirming the denial of post-conviction
relief (“PCR”), the Superior Court of New Jersey, Appellate
Division, provided the following summary of the factual
background of Petitioner’s case:
During the early morning hours of October 22,
1998, in the parking lot of a bar, defendant
shot John Byrd and Alex Crawford.
Crawford
died and Byrd survived.
On the evidence
presented[,] the jury could have found the
following additional facts.
Defendant and
Byrd had had a contentious relationship for
some period of time. Byrd was the bigger man,
and on prior occasions had taunted and struck
defendant. Byrd had previously pulled a gun
on defendant and while defense witnesses
testified that Byrd had a gun on October 22,
1998, those witnesses did not report such
information to the police and no gun was found
on Byrd after defendant shot him.
The jury
certainly could have concluded that Byrd was
unarmed when he was shot.
Earlier in the evening of October 21, Byrd
allegedly gave defendant threatening looks and
called defendant names when they were both
inside the bar.
Byrd also boasted that he
owned “big dogs and big guns.” Defendant left
the bar and walked back to his sister’s
apartment.
He retrieved his own dog and a
nine millimeter handgun. Defendant’s cousin,
Thomas Allen, took the gun from defendant
before returning to the bar. When the two men
returned to the bar’s parking area, defendant
confronted Byrd and challenged him to a fight.
Defendant pulled up his shirt to show Byrd he
was unarmed. Byrd testified that he took off
his jacket in anticipation of a fight, but the
fight
was
preempted
by
the
shooting.
Defendant testified he thought he saw a chrome
gun in Byrd’s waistband.
Allen handed
defendant
the
gun
he
was
holding
for
defendant, and defendant proceeded to shoot
Byrd three times. Byrd fell to the ground and
defendant stood over him, firing multiple
shots at him. Alex Crawford, essentially an
innocent bystander, approached defendant with
his hands raised, perhaps in an effort to stop
2
defendant [from] shooting Byrd.
Defendant
then shot Crawford twice and walked away.
Crawford died from his wounds. Byrd was shot
so many times that paramedics ran out of
dressings for his wounds, but he lived. The
evidence
was
that
defendant
had
fired
seventeen shots, the maximum capacity of his
nine millimeter handgun.
ECF No. 51-33 at 3–4.
A jury convicted defendant of murder, N.J.S.A.
2C:11–3a(1)(2); attempted murder, N.J.S.A.
2C:5–1; conspiracy, N.J.S.A. 2C:5–2; unlawful
possession of a weapon, N.J.S.A. 2C:39–5b; and
possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39–4a. The trial court
sentenced defendant to an aggregate term of
seventy years in prison, fifty years for
murder and a consecutive twenty years for
attempted murder, subject to the parole
ineligibility provisions of the No Early
Release Act (“NERA”), N.J.S.A. 2C:43–7.2.
Defendant
appealed
his
convictions
and
sentence, and we affirmed his convictions.
The trial court, however, had attached NERA’s
parole disqualification provisions to the
sentence for murder, as well as to the
sentence for attempted murder, and in light of
State v. Manzie, 335 N.J. Super. 267 (App.
Div. 2000), aff’d. by equally divided Court,
168 N.J. 113 (2001), we remanded the matter to
the trial court for re-sentencing. State v.
Gibbs, No. A–860–00 (App. Div. May 24, 2002).
At that re-sentencing, the trial court again
imposed an aggregate sentence of seventy years
in prison, fifty years for murder, with a
thirty-year period of parole ineligibility,
and a consecutive twenty years in prison for
attempted murder, subject to NERA. Defendant
appealed his sentence as excessive, and his
appeal was heard on an Excessive Sentence Oral
Argument calendar, Rule 2:9–11; we affirmed
his sentence. State v. Gibbs, No. A–0758–02
(App. Div. June 9, 2003). The Supreme Court
denied
defendant’s
petition
for
certification. 174 N.J. 547 (2002).
3
Id. at 2-3.
As noted in the opinion above, Petitioner appealed his
conviction and sentence.
The Appellate Division affirmed his
conviction on May 24, 2002, but remanded on the matter of
sentencing.
ECF No. 51-17.
The New Jersey Supreme Court denied
certification on October 22, 2002.
ECF No. 51-20.
Petitioner
was resentenced by the trial court on June 21, 2002, to the same
aggregate sentence of seventy years in prison, but with a
thirty-year period of parole ineligibility on the murder count.
ECF No. 51-18; ECF No. 51-10 at 33–34.
The Appellate Division
affirmed that sentence on June 12, 2003, ECF No. 51-22, and
Petitioner does not appear to have filed a petition for
certification on the matter of his re-sentencing.
Petitioner
filed a PCR petition, which was denied in a letter opinion by
the Superior Court of New Jersey, Law Division, on August 22,
2007.
ECF No. 51-28.
Petitioner appealed, and on May 21, 2010,
the Appellate Division affirmed the denial of PCR.
33.
ECF No. 51-
The Supreme Court of New Jersey denied certification on
October 7, 2010.
ECF No. 51-35.
Petitioner then filed a habeas
petition with this Court executed on February 9, 2011.
1.
ECF No.
The Court administratively terminated the petition and
Petitioner filed an Amended Petition executed on February 7,
4
2012.
ECF No. 15.
Petitioner raises fourteen grounds for
habeas relief:
1.
Petitioner was denied the effective assistance of
trial and appellate counsel right [to a] fair trial and to
Due Process of the law under the state and federal
constitutions since trial counsel failed to: (1) ask the
court to interview the juror in order to determine juror
taint: and (2) move to disqualify jurors whom were unfit
and [] appellate counsel was ineffective in fail[ing] to
ask the court to interview jurors: and [(3)] a new trial
should have been granted due to such failure.
2.
Petitioner was denied the effective assistance of
appellate counsel, right to a fair trial and to due process
of the law under the state and federal constitutions since
appellate counsel failed to argue that a new trial was
warranted as the state failed to provide the Petitioner with
a complete report of its ballistics expert. The error was
contrary to clearly established federal law and was an
unreasonable determination of the facts in light of the
evidence presented therefore the writ should issue.
3.
Petitioner was denied the effective assistance of
trial counsel right to a fair trial and to Due Process of
the law under the state and federal constitutions since
trial counsel failed to have Nakia Allen and Omar Davis
testify on his behalf to establish[] a self-defense[,] was
contrary to clearly established federal law and was an
unreasonable determination of the facts in light of the
evidence presented therefore the w[r]it should issue.
4.
Petitioner was denied the effective assistance of
trial counsel under the state and federal constitutions
since trial counsel failed to pursue an intoxication
defense which was contrary to clearly established federal
law and was an unreasonable determination of the fact[s] in
light of the evidence presented therefore the writ should
issue.
5.
Petitioner was denied the effective assistance of
trial and appellate counsel, right to a fair trial and to
due process [] under the state and federal constitutions
since the verdict sheet failed to indicate that selfdefense was a defense which was [a] contrary determination
5
of the fact in light of the evidence presented therefore the
writ should issue[].
6.
Petitioner was denied the effective assistance of
trial counsel, right to a fair trial and to due process of
the law under the state and federal constitution[s] since
trial counsel failed to call Ebony Mays as a witness which,
was contrary to clearly established federal law and was an
unreasonable determination of the fact in light of the
evidence presented[,] therefore the w[r]it should issue.
7.
Petitioner was denied the effective assistance of
trial counsel, right to a fair trial and to due process of
the law under the state and federal constitutions since a
tape conversation with trial counsel revealed that his
performance was objectively unreasonable, which was contrary
to clearly established federal law and was an unreasonable
determination of the fact in light of the evidence
presented therefore the w[r]it should issue.
8.
Petitioner was denied the effective assistance of
trial counsel, right to a fair trial and to due process of
the law under the state and federal constitutions since
trial counsel failed to call Kevin Dorsey to testify, which
was contrary to clearly established federal law and was an
unreasonable determination of the fact in light of the
evidence presented therefore the w[r]it should issue.
9.
Petitioner was denied the effective assistance of
trial counsel, right to a fair trial and due process of the
law under the state and federal constitutions since trial
counsel advise[d] the Petitioner to lie about the number of
shell casings contained in the weapon, which was contrary
to clearly established federal law and was an unreasonable
determination of the fact in light of the evidence
presented[,] therefore the writ should issue.
10. Petitioner was denied his constitutional right to due
process of the law and right to a fair trial as no
objection was made to the jury charge since the charge
failed to distinguish the factual predicates for the
conviction for murder from that of aggravated and reckless
manslaughter and the conviction was not based on an invalid
predicate. [This w]as contrary to clearly established
federal law, and an unreasonable application of federal
[law], therefore, the writ should issue.
6
11. Petitioner was denied the effective assistance of
trial and appellate counsel, right to a fair trial and to
due process [of] the law under the federal constitution[]
since the jury charge was confusing and no objection was
made thereto, which was contrary to clearly established
federal law, and an unreasonable application of federal
law, therefore, the writ should issue.
12. The cumulative effect of trial counsel’s many
deficiencies deprived the Petitioner of effective
assistance of counsel. U.S. Const., Amends. VI; N.J.
Const. (19470, Art I, Para. 10 and the writ should issue.
13. Petitioner received an illegal sentence under Blakely
v. Washington.
14. The trial court erred in denying the defense Petition[]
for post conviction relief or, in the alternative, in not
affording the Petitioner an[] evidentiary hearing to fully
address his contention that he failed to receive adequate
legal representation at the trial and appellate levels.
ECF No. 15 at 13–24.
The Court dismissed the Amended Petition as time-barred
under 28 U.S.C. § 2244(d) on August 17, 2012.
ECF No. 19.
Petitioner filed a motion for reconsideration, which the Court
denied, and the case was again dismissed on March 18, 2013.
No. 24.
ECF
Petitioner appealed to the Third Circuit Court of
Appeals, and on April 17, 2015, the Third Circuit vacated this
Court’s March 18, 2013 judgment, finding the petition was not
time-barred, and remanded this matter for further proceedings.
ECF No. 40.
On June 8, 2015, this Court issued an Order
reinstating the action in accordance with the Mandate of the
Third Circuit, ECF No. 46, and Respondents were required to file
an Answer.
ECF No. 42.
In their Answer, Respondents argue that
7
Petitioner’s claims are meritless. 1
ECF No. 51 at 18–40.
The
Court agrees that the claims lack merit.
II.
LEGAL STANDRD
Under 28 U.S.C. § 2254(a), the district court “shall
entertain an application for a writ of habeas corpus [o]n 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.”
A
habeas petitioner has the burden of establishing his entitlement
to relief for each claim presented in his petition based upon
the record that was before the state court.
See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, 567 U.S. 37, 40–41 (2012).
Under the statute, as
amended by the Anti-Terrorism and Effective Death Penalty Act,
1
Respondents do not argue that Petitioner’s claims are
unexhausted. Instead, in Respondents Answer, they repeatedly
refer to the state court’s opinion denying PCR. Reviewing
Petitioner’s PCR, it appears that many of the claims raised in
Petitioner’s PCR petition, were never raised on appeal. See ECF
No. 51-31; ECF No. 51-34. In fact, in the Amended Petition for
habeas relief, Petitioner attaches Addendum I, listing only four
points raised on his appeal from the denial of PCR, and only
three points raised to the New Jersey Supreme Court on his
petition for certification. ECF No. 15 at 10–11. Thus, many of
Petitioner’s claims appear unexhausted. See 28 U.S.C. §
2254(b)(1)(A). Nevertheless, as will be demonstrated below,
because the claims can be denied on the merits, the Court will
not address the issue of exhaustion. See Taylor v. Horn, 504
F.3d 416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700,
728 (3d Cir. 2005).
8
28 U.S.C. § 2244 (“AEDPA”), district courts are required to give
great deference to the determinations of the state trial and
appellate courts.
See Renico v. Lett, 559 U.S. 766, 772–73
(2010).
Where a claim has been adjudicated on the merits by the
state courts, the district court shall not grant an application
for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)(1)–(2).
Federal law is clearly established
for these purposes where it is clearly expressed in “only the
holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court.
1376 (2015).
See Woods v. Donald, 135 S. Ct. 1372,
“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.”
Id.
Where a petitioner challenges an allegedly erroneous factual
determination of the state courts, “a determination of a factual
issue made by a State court shall be presumed to be correct [and
9
the] applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
In addition to the above requirements, a federal court may
not grant a writ of habeas corpus under § 2254 unless the
petitioner has “exhausted the remedies available in the courts
of the State.”
28 U.S.C. § 2254(b)(1)(A).
To do so, a
petitioner must “‘fairly present’ all federal claims to the
highest state court before bringing them in federal court.”
Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing
Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir.
2002)).
This requirement ensures that state courts “have ‘an
initial opportunity to pass upon and correct alleged violations
of prisoners’ federal rights.’”
Id. (citing United States v.
Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v.
Serrano, 454 U.S. 1, 3 (1981)).
To the extent that a petitioner’s constitutional claims are
unexhausted, a court can nevertheless deny them on the merits
under 28 U.S.C. § 2254(b)(2).
See Taylor v. Horn, 504 F.3d 416,
427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d
Cir. 2005).
10
III.
DISCUSSION
A. Grounds One through Nine, Eleven & Twelve: Ineffective
Assistance of Counsel
The majority of Petitioner’s claims relate to the alleged
ineffective assistance of his trial and appellate counsel.
The
Sixth Amendment guarantees the accused the “right . . . to have
the Assistance of Counsel for his defense.”
VI.
U.S. Const. amend.
The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of
the right by failing to render adequate legal assistance.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
See
A claim
that counsel’s assistance was so defective as to require
reversal of a conviction has two components, both of which must
be satisfied.
Id. at 687.
First, the defendant must “show that
counsel’s representation fell below an objective standard of
reasonableness.”
Id. at 687–88.
To meet this prong, a
“convicted defendant making a claim of ineffective assistance
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, 1088 (2014).
11
Second, a petitioner must establish that counsel’s
“deficient performance prejudiced the defense so as to deprive
the defendant of a fair trial.”
Strickland, 466 U.S. at 669.
To establish prejudice, the defendant must show that “there is a
reasonable probability that the result of trial would have been
different absent the deficient act or omission.”
Id. at 1083.
On habeas review, it is not enough that a federal judge would
have found counsel ineffective.
The judge must find that the
state court’s resolution of the issue was unreasonable, a higher
standard.
Harrington v. Richter, 562 U.S. 86, 101 (2011).
1. Ground One: Impartial Jurors
Petitioner alleges that his trial and appellate counsel
were ineffective for failing to ask the court to interview three
jurors who were familiar with Petitioner, and for failing to
move to disqualify those jurors.
ECF No. 15 at 13–15.
In
support of his claims, he alleges that three jurors: Daniel
Jackson, Reggie Gilford and Albie Mansfeld were all on bad terms
with Petitioner and that he both orally and in writing told his
trial counsel, but trial counsel did nothing. 2
2
Id.
The Court finds no juror by the name of Reggie Gilford on
the record. As noted by Respondents, there was a juror named
Reginald Bailey, ECF No. 51-3 at 14, but the two surnames do not
match.
12
The Appellate Davison, in affirming the denial of PCR,
having previously cited to the standard laid out in Strickland,
addressed this claim and found it meritless:
We turn now to defendant’s final argument with
respect to his claim of ineffective assistance
of counsel, which relates to the process of
jury selection. As part of defendant’s motion
for
a
new
trial,
defendant
submitted
certifications from several friends and family
members that questioned the impartiality of
two members of the jury panel. In arguing the
new trial motion, defense counsel told the
trial court that he had not been aware of these
contentions
until
after
the
trial
had
concluded. The trial court denied defendant’s
new trial motion and in doing so noted that
defense counsel had not sought to have these
panel members interviewed with respect to
these allegations.
Several years later, in conjunction with
defendant’s PCR petition, the trial court had
a certification from defendant’s mother and
sister that they had both told defendant’s
trial attorney that they recognized two
members of the jury panel and that defendant
had told them he had informed his trial
counsel of this, and the attorney had
responded that this “might work in our favor.”
Defendant also submitted a certification that
he had told his trial attorney that he had
difficulties in the past with these two
potential jurors but that the attorney did not
pursue the matter and “explained that if the
trial is lost, an issue will exist for
appeal.”
Under either scenario, we are satisfied
defendant failed to establish a prima facie
case of ineffective assistance of counsel
warranting a plenary hearing.
If the
statements of defense counsel at the new trial
motion are accurate, to the effect that he was
not informed of the allegations with respect
13
to these jurors until after the trial had
concluded, he could not be deemed ineffective
for letting them remain on the panel. If the
statements in the certifications of defendant
and his sister are accurate, that they
discussed with defendant’s trial attorney
during the trial the question of these jurors
participating, and he responded either that it
could work to defendant’s advantage or could
provide an issue on appeal, defendant’s
attorney made a strategic choice of how to
proceed.
If defendant thought he was
obtaining a jury tilted to the side of the
defense, rather than an impartial jury, he
should not be heard to complain now if that
choice did not work out as he had hoped. If,
on the other hand, he thought his attorney was
placing in his pocket an issue to be presented
on appeal, we decline to reward such a
strategy, with its obvious potential to
undermine the integrity of the judicial
proceedings.
Finally, we see no basis to conclude that
defendant’s trial attorney was ineffective for
not filing a motion seeking to have these
particular jurors interviewed with respect to
their knowledge of defendant.
Each had
specifically denied such knowledge during the
voir dire.
The material contained with the
certifications was far too vague to support a
finding that it was reasonably probable that
the trial court would have acceded to such a
motion if one had been filed. Defendant thus
fails
to
satisfy
the
Strickland/Fritz
standards for ineffective assistance.
ECF No. 51-33 at 14–16.
The Sixth Amendment right to a jury trial, guarantees a
criminal defendant the right to a “fair trial by a panel of
impartial, indifferent jurors,” Irvin v. Dowd, 366 U.S. 717, 722
(1961) (internal quotation marks omitted), and that right is
14
extended to state criminal trials through the Due Process Clause
of the Fourteenth Amendment.
148–49 (1968).
Duncan v. Louisiana, 391 U.S. 145,
“An impartial jury consists of nothing more than
jurors who will conscientiously apply the law and find the
facts.”
Lockhart v. McCree, 476 U.S. 162, 163 (1986); see also
United States v. Tindal, 357 F. App’x 436, 438 (3d Cir. 2009)
(explaining that “[j]urors are presumed to be impartial”).
Voir
dire “is conducted under the supervision of the court, and a
great deal must, of necessity, be left to its sound discretion.”
Connors v. United States, 158 U.S. 408, 413 (1895).
“This is so
because the determination of impartiality, in which demeanor
plays such an important part, is particularly within the
province of the trial judge.”
Ristaino v. Ross, 424 U.S. 589,
594–95 (1976) (internal quotations and citation omitted).
As detailed by the Appellate Division decision, Petitioner
raised this argument first in his motion for a new trial, and he
submitted affidavits from three individuals who claimed that
certain of the jurors were acquainted with Petitioner.
No.17, 183–85.
ECF
The trial judge denied the motion for a new
trial explaining that there was nothing to indicate any of the
jurors were impartial.
ECF No. 51-9 at 23–24.
Petitioner
raised the argument again on his petition for PCR, submitting
certifications from his mother, his sister, and from himself,
stating they told trial counsel during trial that they were
15
acquainted with certain of the jurors, but counsel refused to
act on the information, stating “it might work in our favor.”
ECF No. 51-31 at 195–96, 240–41.
without an evidentiary hearing.
The PCR court denied the claim
ECF No. 51-28.
As the Appellate Division notes, and as verified by the
record, during jury selection, the trial judge asked if any
jurors were acquainted with Petitioner and no jurors replied
that they were.
See ECF No. 51-3 at 10.
Further, during voir
dire, each juror, including Daniel Jackson and Albie Mansfield
were questioned by the judge as to their ability to be
impartial, and both stated they could be.
44.
ECF No. 51-3 at 43–
Additionally, after trial counsel made a motion for a new
trial, a hearing was held in which trial counsel explicitly
stated, multiple times, that he was not aware of the allegations
surrounding the impartiality of the jurors, until close to a
month after the trial concluded, when Petitioner’s familymembers alerted him to that fact.
ECF No. 51-9 at 7–9.
Based
on these facts, the Appellate Division did not violate clearly
established law in finding trial counsel was not deficient under
Strickland, in failing to move for the jurors to be dismissed.
Moreover, even if Petitioner’s allegations are true, that
Petitioner or his family-members did in fact tell counsel before
the conclusion of trial that they recognized certain jurors, the
Appellate Division decision is still not objectively
16
unreasonable.
See Williams v. Taylor, 529 U.S. 362, 409–10.
The jurors gave no indication that they were acquainted with
Petitioner, stated they could be impartial, and Petitioner has
failed to indicate otherwise; the certifications and affidavits
are simply too broad to support any other conclusion.
Based on
these facts, the Appellate Division applied the prejudice prong
of Strickland, finding that even had trial counsel made a motion
for certain jurors to be interviewed regarding their knowledge
of Petitioner, the motion would have been denied.
The Court is
satisfied that the Appellate Division appropriately applied
Strikcland. 3
Further, to the extent trial counsel made a
strategic decision to retain certain jurors, strategic choices
generally do not violate Strickland.
See Strickland, 466 U.S.
at 681 (“Because advocacy is an art and not a science, and
because the adversary system requires deference to counsel’s
informed decisions, strategic choices must be respected in these
circumstances if they are based on professional judgment.”);
3
The Appellate Division also states that to the extent
Petitioner “thought his attorney was placing in his pocket an
issue to be presented on appeal” such a strategy is improper as
it undermines the integrity of the judicial process. ECF No.
51-33 at 15. Petitioner argues, however, that it was trial
counsel who made this strategic choice, not Petitioner himself.
Nevertheless, to the extent the Appellate Division failed to
fully address trial counsel’s error in saving the matter for
appeal, that would not change the result, in light of the
Appellate Division’s reasonable finding that there was no actual
juror bias.
17
Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998) (“Our
review of ineffective assistance of counsel claims does not
permit us, with the benefit of hindsight, to engage in
speculation about how the case might best have been tried.
We
therefore accord counsel’s strategic trial decisions great
deference.”).
Finally, insofar as Petitioner has failed to demonstrate
his trial counsel was ineffective on this matter, appellate
counsel cannot be deemed ineffective for failing to raise this
claim.
See, e.g., United States v. Mannino, 212 F.3d 835, 840
(3d Cir. 2000) (explaining, that if an underlying claim “is not
meritorious . . . defendants can not successfully argue that
counsel’s failure to raise the claim on direct appeal denied
them their constitutional right of representation”); Moore v.
Mitchell, 708 F.3d 760, 776 (6th Cir. 2013) (“a petitioner
cannot show that appellate counsel was ineffective for failing
to raise a claim on appeal if the underlying claim itself lacks
merit”).
As such, the Appellate Division’s reasoning does not
amount to an unreasonable application of the Strickland
standard, and the claim is denied.
2. Ground Two: Discovery
In Ground Two, Petitioner argues that appellate counsel was
ineffective for failing to adequately argue for a new trial,
insofar as the State failed to disclose the notes of the State’s
18
ballistics expert.
ECF No. 15 at 16–17.
Petitioner explains
that the State’s expert testified that all seventeen shell
casings found at the scene were from the same weapon, but the
expert’s report indicated otherwise.
Id.
At trial, the State’s
ballistics expert said that based on his notes, his report was
in error and in fact all the casings were from the same weapon.
Id.
The Appellate Division, in affirming the denial of PCR,
rejected this claim:
We turn now to defendant’s second claim of
ineffective assistance of counsel, this time
directed toward the attorney who represented
defendant in connection with his direct appeal
to this court.
Following the shooting,
seventeen shell casings and seven bullets or
bullet fragments were recovered from the scene
and
were
delivered
to
the
ballistics
laboratory maintained by the State Police for
examination.
Lieutenant Gerald Burkhardt
supervised this ballistics unit and conducted
the examination.
He prepared a report
summarizing the results of his examination,
and he testified at defendant’s trial.
Lieutenant Burkhardt noted in his report that
of the 17 shell casings, 16 were 9 mm Luger
caliber discharged shells and one was a 9 mm
Luger caliber Winchester discharged shell.
The latter was identified in his report as
specimen # 6, the remaining shells as
specimens # 1, 2 and 7 through 20.
He
concluded his report with the following
language: “Compared the seventeen shells
marked # 1, # 2 and # 7 thru # 20 against each
other with positive results.
The seventeen
shells marked # 1, # 2 and # 7 thru # 20 were
discharged in the same firearm.”
19
At trial, Lieutenant Burkhardt testified that
specimen # 6, the Winchester shell, was also
discharged in the same firearm. Defendant’s
attorney protested, noting that Lieutenant
Burkhardt had not included specimen # 6 in his
report’s concluding remarks. Burkhardt said
the omission was a typographical error on his
part and that his original laboratory notes
included specimen # 6 in his examination and
conclusions. After defendant was convicted,
his attorney moved for a new trial, arguing
that he should have been supplied Burkhardt’s
laboratory notes in advance of trial.
The
trial court denied the motion, and his
appellate attorney did not raise the issue on
appeal.
Defendant now complains that this
omission on the part of his appellate attorney
constituted ineffective assistance. The trial
court rejected this argument as do we.
We note initially that a defendant does not
have a constitutional right to have all
possible claims raised by appellate counsel.
Jones v. Barnes, 463 U.S. 745, 750–51, 103 S.
Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983).
“For
judges
to
second-guess
reasonable
professional judgments and impose on appointed
counsel a duty to raise every ‘colorable’
claim suggested by a client would disserve the
very goal of vigorous and effective advocacy.
. . . Nothing in the Constitution or our
interpretation of that document requires such
a standard.” Id. at 754, 103 S. Ct. at 3314,
77 L. Ed. 2d at 995. See State v. Gaither,
396 N.J. Super. 508, 515 (App. Div. 2007),
certify. denied, 194 N.J. 444 (2008).
We agree with the trial court that there was
no discovery violation, and thus defendant
cannot establish a prima facie case that his
appellate attorney was ineffective for failing
to present that argument in the direct appeal.
Rule 3:13–3 does not require that an expert
witness
for
the
prosecution
supply
to
defendant’s attorney the expert’s notes which
are not in the possession of the prosecutor.
Pressler, Current N.J. Court Rules, comment
20
3.2.9 on R. 3:13–3 (2010). State v. Lozada,
257 N.J. Super. 260, 275 (App. Div. 1992)
(noting “the breadth of discovery . . . does
not include the expert’s personal notes which
are not in the prosecutor’s file”).
Further, we are unable to ascribe the weight
to
Burkhardt’s
typographical
error
that
defendant does on appeal.
We note, for
instance, that the prosecutor stated in his
opening remarks that the seventeen casings had
been sent to the State Police for analysis and
that all of the casings came from the same
gun. Defendant was thus put on notice at the
outset of the trial what testimony to
anticipate. Moreover, Burkhardt’s report, in
addition to specifying the specimen numbers,
stated
that
seventeen
shells
were
all
discharged from the same weapon. The number
seventeen could only be reached if specimen #
6 were included in that total.
ECF No. 51-33 at 11–13.
The Appellate Division, having previously cited to the law
in Strickland, rejected this claim.
“[I]t is a well established
principle . . . that counsel decides which issues to pursue on
appeal,” Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996),
and appellate counsel need not raise every “colorable” claim
suggested by a defendant.
(1983).
Jones v. Barnes, 463 U.S. 745, 754
This is because the heart of effective appellate
advocacy involves the “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to
prevail.”
Sistrunk, 96 F.3d at 670 (citing Smith v. Murray, 477
U.S. 527, 536 (1986)).
The Supreme Court has therefore held
that “[g]enerally, only when ignored issues are clearly stronger
21
than those presented, will the presumption of effective
assistance of counsel be overcome.”
Smith v. Robbins, 528 U.S.
259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986)).
Because New Jersey state law does not require an
expert’s notes to be disclosed, this argument, if raised on
appeal, would likely not have prevailed, and does not present a
stronger argument than those raised on appeal.
U.S. at 288.
See Smith, 528
Thus, the Appellate Division did not unreasonably
apply Strickland to the facts of this case, and this claim is
denied.
3. Ground Three: Witness Testimony
Petitioner next argues that his trial counsel was
ineffective for failing to present two witnesses at trial: Nakia
Allen and Omar Davis, as he claims they would have testified
that the victims had guns on them at the time of the shooting,
thus bolstering his argument of self-defense.
ECF No 15 at 18.
In addition, he explains that Nakia Allen told Petitioner’s
sister, Terry Gibbs, that Mr. Byrd had a gun, and Petitioner’s
sister relayed that information to trial counsel.
Id.
The Appellate Division, in affirming the denial of PCR,
rejected this claim:
Defendant contends his trial counsel was
ineffective for failing to call Nakia Allen
and Omar Davis as witnesses at his trial, who
could both have testified that Byrd was armed
at the time of the shooting. Such testimony
22
would have bolstered defendant’s claim that he
acted
in
self-defense.
Terry
Gibbs,
defendant’s sister, provided a certification
in support of defendant’s PCR petition stating
that Nakia Allen told her that he arrived at
Wash’s Inn just after the shooting, removed a
gun from Byrd’s person when he was lying on
the ground, and threw it away.
Terry Gibbs
also claimed that Nakia told her that he was
willing to testify at Gibbs’ trial.
Terry
Gibbs stated that she notified defendant and
his attorney of these facts.
Nakia Allen, who is John Byrd’s cousin, also
provided a certification in support of Gibbs’s
PCR petition, describing the events on the
night of the shooting.
Allen explained he
arrived at Wash’s Inn just after Byrd was shot
and that he proceeded to Byrd’s body at which
point he noticed Byrd was carrying a “chrome
gun in his waistline.” Allen then certified
he instructed the crowd to stall the police,
took the gun from Byrd’s waistline, left the
scene and threw the gun in the ocean. Allen
also certified that he told Terry Gibbs of
these events two weeks after the shooting and
told her to “get Carnell’s trial attorney to
contact [him] because [he] was willing to
testify at Carnell’s trial about all that [he]
had done on the night of the shooting at Wash’s
Inn.” Terry Gibbs stated in her certification
in support of post conviction relief that she
shared these facts with defendant and his
attorney.
Omar
Davis
also
provided
an
undated
certification, stating that while at Wash’s
Inn on the night of the shooting, he “saw an
individual approach Alex Crawford while he was
on the ground and remove the gun from his hand.
This individual then left in a truck.”
The trial court rejected defendant’s claim
that his attorney had been ineffective for
failing to call Nakia Allen and Omar Davis as
witnesses at his trial.
Although we do not
fully subscribe to the reasons stated by the
23
trial court,
conclusion.
we
concur
in
its
ultimate
The trial court appeared to attribute lesser
significance to the certifications of Allen
and Davis because they were executed in 2003.
We are uncertain as to why the trial court
found that date material; the certifications
were clearly executed in conjunction with
defendant’s PCR petition, which was initially
filed in 2003.
Nor do we think that their
proposed testimony, particularly that of
Allen, could fairly be characterized as
cumulative.
Allen, who is Byrd’s cousin,
certified that he himself had removed a gun
from Byrd as Byrd lay wounded in the street.
Even if that testimony had been received,
however, it would not establish that defendant
acted in self-defense when he shot Crawford.
Defendant, who testified at trial, never said
that he feared Crawford had a gun. He admitted
on cross-examination that he never saw
Crawford with a gun and that Crawford had
never given defendant a reason to fear him.
Defendant was not justified in using deadly
force against Crawford “unless [he] reasonably
believe[d] that such force [was] necessary to
protect himself against death or serious
bodily
harm
[.]”
N.J.S.A. 2C:3–4b(2).
Further, deadly force is not justified if the
actor “knows that he can avoid the necessity
of using such force with complete safety by
retreating....” N.J.S.A. 2C:3–4b(2)(b).
Nor would that proposed testimony further
defendant’s claim of self-defense with respect
to Byrd. We cannot help but note, for example,
that it was not disputed at trial that
defendant, after initially firing his gun at
Byrd, approached Byrd as he lay helplessly on
the ground and fired several more bullets into
him.
Defendant could not have had a
reasonable belief at that juncture that it was
necessary for him to continue to shoot the
gravely wounded Byrd.
24
ECF No. 51-33 at 8–10.
The Appellate Division found that counsel was not
ineffective for failing to present these witnesses.
Petitioner
has not shown that had these witnesses testified, the outcome of
the trial would have been different, a necessary showing under
Strickland.
First, the record reflects that when Terry Gibbs,
defendant’s sister, testified at trial, she never mentioned
receiving information from Nakia Allen related to a gun on
Byrd’s possession.
ECF No. 51-7 at 128–33.
Second, as the
Appellate Division notes, and verified by the record, Petitioner
shot Mr. Byrd multiple times even after he was on the ground,
wounded, belying his argument of self-defense.
See, e.g., ECF
No. 51-4 at 104 (in which Cory Crawford, the brother of Alex
Crawford, stated on the record that after Mr. Byrd was laying on
the ground, Petitioner shot “like two more, three more” times).
Further, there was witness testimony that Mr. Byrd did not
appear to have a gun on him during the shooting.
See, e.g., ECF
No. 51-4 at 101 (in which Cory Crawford stated that he did not
see Mr. Byrd with a gun).
With respect to Mr. Crawford, Petitioner himself testified
that he did not see or believe Mr. Crawford had a gun on him
during the shooting.
ECF No 51-7 at 75–76.
25
Thus, whether or
not trial counsel called Omar Davis to testify, Petitioner’s
argument of self-defense was negated by Petitioner himself.
Therefore, to the extent Nakia Allen or Omar Davis were
available to testify, the Appellate Division did not
unreasonably apply Strickland in finding trial counsel was not
ineffective for failing to present these witnesses.
Because
Petitioner’s own testimony, and the testimony of other
witnesses, severely discredited any argument of self-defense, it
is not reasonably probable that outcome of the case would have
been a different had Mr. Allen and/or Mr. Davis testified.
As
such, the Appellate Division did not violate clearly established
law and the Court denies habeas relief on this claim.
4. Ground Four: Intoxication Defense
In Ground Four, Petitioner argues that he was intoxicated
at the time he committed the offense, such that trial counsel
was ineffective for failing to raise an intoxication defense.
ECF No. 15 at 19.
As an initial matter, this Court notes that while
Petitioner raised this claim on his petition for PCR, ECF No.
51-26 at 43–44, and the PCR court denied his claim, ECF No. 5128, he does not appear to have raised it on appeal.
However,
because this Court’s de novo review is a more exacting standard
than AEDPA deference, the Court finds Petitioner’s claims fail
under either standard.
See Harrington, 562 U.S. at 101
26
(explaining that under AEDPA deference a state court’s
resolution of a matter must be unreasonable) (emphasis added).
Petitioner’s argument that he was intoxicated at the time
of trial is contradicted by the record.
While Petitioner did
testify that he had one drink, ECF No. 51-7 at 46, the remainder
of his testimony about the events that transpired give no
indication that he was impaired when he committed the offense.
For example, he indicated that he initially left the inn and
drove home to get his dog, id. at 47, he was able to recall the
conversation he had with Mr. Byrd about where they should fight,
id. at 49, and after the shooting, he drove himself from the
murder scene, recollecting the route he took and the relevant
street names.
Id. at 73.
The record presents no conclusive
evidence that Petitioner was intoxicated during the shooting,
such that trial counsel was not ineffective for failing to argue
an intoxication defense.
Trial counsel sought to develop the
theory of self-defense, and cannot be faulted for failing to
argue a second theory.
See Hess, 135 F.3d at 908 (explaining
that we give deference to counsel’s strategic trial decisions).
Therefore, trial counsel was not deficient under Strickland and
this claim for habeas relief is denied.
5. Ground Five: Verdict Sheet
Petitioner argues that his trial and appellate counsel were
ineffective for failing to object to the verdict sheet which did
27
not state that “self-defense constituted a defense.” 4
at 19.
ECF No. 15
Again, this claim appears unexhausted, because it was
never raised on appeal from the denial of PCR.
Nevertheless,
this claim fails on the merits.
As Respondents note, New Jersey state law simply does not
require that a verdict sheet include self-defense.
See State v.
Branch, 693 A.2d 1272, 1284 (N.J. Sup. Ct. App. Div. 1997)
(finding “no reason to conclude that the omission of selfdefense from the verdict sheet” was plain error since “[t]here
is no verdict per se of self-defense”) (rev’d on other grounds,
714 A.2d. 918 (N.J. 1998)); State v. Colon, Indictment No.99-062311, 2006 WL 1418003, at *2 (N.J. Super. Ct. App. Div. May 19,
2006) (“even if there was sufficient evidence to warrant
submission of self defense to the jury, there is no requirement
that this defense be presented in the form of a separate
question on the verdict sheet.”).
Further, the jury was more
than adequately instructed on the theory of self-defense.
No. 51-8 at 40–46.
ECF
Therefore, because the claim is meritless
under state law, the alleged failure of trial and appellate
counsel to object to the verdict sheet fails under Strickland,
as counsels’ performance did not fall below an objective
4
A copy of the verdict sheet appears in the appendix to
Petitioner’s PCR petition. ECF No. 51-31 at 77–78.
28
standard of reasonableness.
As such, this claim for habeas
relief is denied.
6. Ground Six: Witness Testimony
Petitioner states that his trial counsel was ineffective
for failing to call Ebony Mays as a witness on his behalf.
No. 15 at 20.
ECF
He explains that Ms. Mays would have testified
about a prior fight between Petitioner and Mr. Byrd, which would
have bolstered his argument of self-defense.
Id.
Again, this
claim appears unexhausted, as it was never raised on appeal.
Nevertheless, the PCR court’s analysis of this claim is
instructive.
The PCR court’s opinion points to a statement made by Ebony
Mays to the Atlantic County Prosecutor’s Office in which she
mentioned a past fight between Petitioner and Mr. Byrd.
The
statement reads, in relevant part:
At this time, Mays stated that John and
Carnell had a fight some time ago at Bentley’s
Club (previously Wondergardens). She believed
that John may have hit Carnell. Mays stated
that Carnell and John just do not like each
other. She did not know any other details.
ECF No. 51-39 at 2.
The PCR court found this cumulative, as there “was
testimony at trial that Petitioner and John Byrd did not get
along.”
ECF No. 51-28 at 7.
In addition, Petitioner failed to
present a sworn affidavit from Ms. Mays, and there was “little
29
she could have offered the court other than a rumor she heard.”
Id.
The Court finds that Petitioner has not shown that his
counsel’s failure to call Ms. Mays as a witness prejudiced the
outcome of the trial, for substantially the same reasons as the
PCR court.
As evidenced by the above statement, Ms. Mays knew
virtually no details of the previous fight between Petitioner
and Mr. Byrd.
Further, the record reflects ample testimony at
trial relating to Petitioner and Mr. Byrd’s contentious
relationship.
Therefore, because this claim fails under the
second prong of Strickland, the Court denies habeas relief on
this claim.
7. Ground Seven: Taped Conversation
In Ground Seven, Petitioner alleges that in a taped
conversation occurring after trial, his trial counsel “indicated
that he was ineffective.”
ECF No. 15 at 21.
Like a number of
the prior claims, while this claim was raised before the PCR
court, it was never raised on appeal.
The Court finds this
claim lacks merit.
Petitioner merely points to an entire undated transcript of
a taped conversation which allegedly took place between trial
counsel and two other individuals in which they appear to talk
about Petitioner’s trial.
ECF No. 51-40.
The Court has
reviewed the full transcript of the taped statement and, from
30
the parts that are comprehensible, finds nowhere in which trial
counsel stated he was ineffective.
Instead, to the extent the
transcript is accurate, the opposite is true; trial counsel
worked vigorously in defense of Petitioner.
Therefore, this
claim for habeas relief is denied, as it is unsupported by the
evidence.
8. Ground Eight: Witness Testimony
Petitioner argues his trial counsel was ineffective for
failing to call Kevin Dorsey to testify at his trial.
15 at 21.
ECF No.
He explains that Mr. Dorsey was present at the
shooting and could have testified that the victim, Mr. Crawford,
“appeared to . . . confront[]” Petitioner.
Id.
Once again,
this claim was never raised on appeal from the denial of PCR.
Petitioner’s argument is contradicted by the record.
Mr.
Dorsey was called as a witness by the State, but provided no
useful testimony, claiming repeatedly that he did not remember
the events surrounding the shooting.
ECF No. 51-4 at 139–43.
Similarly, on cross-examination by trial counsel, Mr. Dorsey
repeatedly stated that he did not recall the events of the
shooting.
Id. at 143–147.
Thus, trial counsel did in fact try
to elicit testimony from Mr. Dorsey, but the witness failed to
provide any testimony in the manner Petitioner describes.
such, this claim is denied because trial counsel was not
deficient under Strickland.
31
As
9. Ground Nine: False Testimony
In Ground Nine, Petitioner claims his trial counsel was
ineffective
for
advising
contained in the gun.”
“him
to
lie
about
ECF No. 15 at 22.
the
shell
casing
Petitioner does not
appear to have exhausted this claim; nevertheless, the Court denies
this claim on the merits.
Petitioner has provided no support for the claim here, and
did not provide support for the claim when he presented it to
the state court on his petition for PCR.
ECF No. 51-26 at 60.
Notably, the PCR court did not address this claim in its
opinion.
Reviewing the record, the Court finds only that Petitioner
testified on cross-examination by the State that he could not
“recall” how many bullets were in the magazine of his gun.
No. 51-7 at 59–60.
ECF
Because it is Petitioner’s burden to show
that he is entitled to relief for each claim raised on a habeas
petition, and because Petitioner has failed to provide any facts
or evidence to substantiate this claim, the Court denies relief
on this claim.
10.
See Eley, 712 F.3d at 846.
Ground Eleven: Jury Instruction
In Ground Eleven, Petitioner argues that his trial and
appellate counsel were ineffective for failing to object to the
jury instructions which were confusing, insofar as they failed
to clearly explain the law, and the “court charged the jury with
32
self-defense as to both John Byrd [and] Alex Crawford.”
15 at 23.
ECF No.
He explains that “[n]o charge for self-defense should
have been given with respect to Alex Crawford, as his death was
a result of a shooting directed against John Byrd.”
Id.
This
claim appears to have been raised before the PCR court, but
never raised on appeal.
To the extent the claim is unexhausted,
it nevertheless lacks merit.
The record is abundantly clear that the trial judge
instructed the jury as to the necessary elements of selfdefense, demonstrating the instructions did in fact clearly
explain the law.
See ECF No. 51-8 at 40–46.
Further,
Petitioner’s entire theory of the case was based on an argument
of self-defense; failing to charge the jury on self-defense
would have been illogical.
In fact, instructing on self-defense
with respect to Alex Crawford was a windfall for Petitioner, as
there was little evidence on the record to indicate Petitioner’s
shooting of Mr. Crawford was in self-defense. 5
Based on these
facts, trial and appellate counsel were not deficient under
Strickland and Petitioner is denied relief on this claim.
5
Petitioner testified on cross merely that he saw Mr.
Crawford: “running up towards me” ECF No. 51-7 at 76, “coming
towards me”, id. at 89, and that he felt Mr. Crawford “was
trying to do something to me.” Id. at 89. But he also
testified that he never saw Mr. Crawford with a gun. Id. at 76.
33
11.
Ground Twelve: Deficient Trial Counsel
Petitioner argues that the cumulative effect of trial
counsel’s deficiencies deprived him of the effective assistance
of counsel.
ECF No. 15 at 24.
While this claim does not appear
to have been properly exhausted, it nevertheless fails on the
merits.
The Third Circuit, citing to Brecht v. Abrahamson, 507 U.S.
619, 637 (1993), has explained that “a habeas petitioner is not
entitled to relief based on cumulative errors unless he can
establish ‘actual prejudice.’”
139 (3d Cir. 2007).
Albrecht v. Horn, 485 F.3d 103,
And while it is true “that errors that
individually do not warrant habeas relief may do so when
combined”, id., here, Petitioner has failed to demonstrate that
the cumulative errors resulted in actual prejudice.
For the
reasons described earlier in this Opinion, the evidence against
Petitioner was substantial.
Petitioner himself testified that he did not see or believe
Mr. Crawford had a gun and the record indicates Mr. Crawford was
merely an innocent bystander.
As well, witnesses testified that
Petitioner shot Mr. Byrd multiple times after he was already on
the ground wounded, and that Mr. Byrd did not have a gun.
Thus,
because Petitioner has failed to demonstrate actual prejudice by
his trial counsel, the claim is denied.
34
B. Ground Ten: Jury Instructions
In Ground Ten, Petitioner argues that the jury instructions
were inadequate in that they failed to properly distinguish
between murder, aggravated manslaughter, and reckless
manslaughter.
ECF No. 15 at 22.
Petitioner raised this claim to the state court on his
application for PCR, and the PCR court rejected it, both because
it was procedurally defaulted, and lacked merit.
at 6.
ECF No. 51-28
Putting the issue of procedural default aside, this claim
fails on the merits.
As noted above, the standard for habeas relief based on an
erroneous jury instruction looks to “whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process.”
147.
Cupp, 414 U.S. at
Here, before instructing the jury on each offense, the
trial judge specifically stated:
Now, at this point, ladies and gentleman, I’m
going to go into an explanation of the
offenses that you are going to have to deal
with in your deliberations and we’re going to
do this one at a time and I’m asking you again
and reminding you again not to mix these up,
but consider them in the order in which we
discuss them . . .
ECF No. 51-8 at 20.
The judge then continued to instruct the jury on each
offense, clearly distinguishing murder, from aggravated
35
manslaughter, from reckless manslaughter.
Id. at 20–40.
The
judge clearly defined and explained the differing mental states
of murder and aggravated manslaughter, id. at 34–35, and
emphasized the different elements required to find Petitioner
guilty of aggravated manslaughter, as opposed to reckless
manslaughter.
Id. 37–38.
Based on these facts, the Court is
satisfied that the jury instruction did not violate Petitioner’s
constitutional rights, and this claim for habeas relief is
denied.
C. Ground Thirteen: Illegal Sentence
In Ground Thirteen, Petitioner argues that his sentence is
illegal under Blakely v. Washington, 542 U.S. 296 (2004), in
that his sentence was excessive.
ECF No. 15 at 24.
Petitioner
raised this claim on his application for PCR, but does not
appear to have raised it on appeal.
The Court first notes that a review of the pertinent dates
demonstrates that Blakely is likely not applicable.
In Blakely,
the trial court sentenced the defendant to more than three years
beyond the 53-month statutory maximum, on the basis that he
acted with “deliberate cruelty.”
542 U.S. at 303.
On June 24,
2004, the Supreme Court reversed, explaining that it violates a
defendant’s Sixth Amendment right to a jury trial where the
facts supporting such a finding are neither found by the jury,
nor admitted to by the defendant.
36
Id. at 303–04.
Regarding
whether Blakely applies retroactively, the Third Circuit has
stated “[t]hough we have not decided whether Blakely applies
retroactively, it stands to reason that it would not, because
‘Blakely simply applied Apprendi [v. New Jersey, 530 U.S. 466
(2000)] to a different statutory scheme[.]’”
Reinhold v. Rozum,
604 F.3d 149, 154 n.4 (3d Cir. 2010) (citing Lloyd v. United
States, 407 F.3d 608, 612 (3d Cir. 2005)).
Based on the record
provided, Petitioner’s direct appeal concluded in June of 2003,
when the Appellate Division affirmed the sentence imposed at
Petitioner’s resentencing, which was prior to the decision in
Blakely. 6
ECF No. 51-22.
Thus, to the extent Petitioner’s
sentence is excessive, because he was sentenced prior to the
Supreme Court’s holding in Blakely, Blakey would likely not
affect this Court’s analysis.
Moreover, state sentences are generally matters of state
law.
See Chapman v. United States, 500 U.S. 453, 465 (1991) (“a
person who has been so convicted is eligible for, and the court
may impose, whatever punishment is authorized by statute for his
offense, so long as that penalty is not cruel and unusual . . .
and so long as the penalty is not based on an arbitrary
6
Petitioner does not appear to have filed a petition for
certification to the New Jersey Supreme Court from the Appellate
Division June 12, 2003 order on resentencing.
37
distinction that would violate the Due Process Clause of the
Fifth Amendment”) (citations omitted).
Here, the facts do not indicate that the sentence imposed
is cruel and unusual, or arbitrary in a manner that would
violate the United States Constitution.
Petitioner was
sentenced to fifty years for murder and a consecutive twenty
years for attempted murder.
On the murder count, during the
resentencing, the judge sentenced Petitioner to fifty years, and
stated “[i]t is a first-degree crime and while the sentence
could be up to life imprisonment with no parole for 30 years, I
am imposing a sentence of 50 years . . .”
ECF No. 51-10 at 33.
Thus, on the murder count, Petitioner received far less than the
possible maximum; the Court is, therefore, satisfied that his
sentence was not unconstitutional.
With respect to the attempted murder count, the PCR court
explained that at the time Petitioner was sentenced, “the
presumptive sentence was 15 years (10-20).” 7
ECF No. 51-28 at 7.
Here, Petitioner was sentenced to 20 years, which still falls
7
The PCR court denied this claim explaining that because
State v. Natale, 878 A.2d 724 (N.J. 2005) — which, similar to
Blakely, precludes New Jersey courts from sentencing defendants
above presumptive statutory terms without submitting aggravating
factors to the jury — was decided after the direct appeal on
Petitioner’s case concluded, the holding in Natale did not apply
to his sentence. ECF No. 51-28 at 7.
38
within the sentencing range. 8
The Court does not find the
sentence cruel and unusual, or arbitrary.
See, e.g., Apprendi,
supra, 530 U.S. at 481 (“we should be clear that nothing in this
history suggests that it is impermissible for judges to exercise
discretion . . . in imposing a judgment within the range
prescribed by statute.
We have often noted that judges in this
country have long exercised discretion of this nature in
imposing sentence within statutory limits in the individual
case”) (emphasis in original); Lockyer v. Andrade, 538 U.S. 63,
77 (2003) (explaining that a state sentence raises federal
constitutional concerns only when it is grossly disproportionate
to the crime committed); United States v. Miknevich, 638 F.3d
178, 185–86 (3d Cir. 2011) (explaining that the Eighth Amendment
only forbids “punishment grossly disproportionate to the
severity of the crime . . .a sentence within the limits imposed
by statute is neither excessive nor cruel and unusual under the
Eighth Amendment.”) (internal quotations and citations omitted).
Because the sentence imposed does not violate Petitioner’s
constitutional rights, the Court denies relief on this claim.
8
Under N.J. Stat. Ann. § 2C:5-4a, “an attempt . . . to
commit murder . . . is a crime of the first degree . . .”, and
under N.J. Stat. Ann. § 2C:43-6a(1), a sentence on a first
degree crime “shall be fixed by the court and shall be between
10 years and 20 years”.
39
D. Ground Fourteen: Denial of PCR and Evidentiary Hearing
In Petitioner’s final ground for habeas relief, he argues
that the PCR court erred in denying his PCR petition or, in the
alternative, erred in failing to grant him an evidentiary
hearing.
ECF No. 15 at 24.)
Once again, because the Court finds Petitioner’s claims
meritless, and because Petitioner bears the burden of
establishing his entitlement to relief for each claim presented,
this claim must be denied.
See Eley, 712 F.3d at 846; see also
28 U.S.C. § 2254(d).
IV.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. §2253(c), a petitioner may not appeal from
a final order in a habeas proceeding where that petitioner’s
detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional
right.”
“A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve
encouragement to proceed further.”
U.S. 322, 327 (2003).
Miller-El v. Cockrell, 537
Because jurists of reason would not
disagree with this Court’s conclusion that Petitioner has failed
to make a substantial showing of the denial of a constitutional
right insofar as Petitioner’s claims are without merit,
40
Petitioner’s habeas petition is inadequate to deserve
encouragement to proceed further.
As such, a certificate of
appealability will be denied.
V.
CONCLUSION
For the reasons stated above, Petitioner’s Amended Petition
for habeas relief will denied and Petitioner will be denied a
certificate of appealability.
An appropriate order follows.
Dated: April 30, 2018
At Camden, New Jersey
s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
41
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?