SALAS v. WARREN et al
Filing
28
OPINION. Signed by Judge Noel L. Hillman on 7/30/2019. (rss, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JUAN C. SALAS,
Petitioner,
v.
CHARLES WARREN, et al.,
Respondents.
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Civ. No. 11-5154 (NLH)
OPINION
APPEARANCES:
Juan C. Salas, No. 704311-C/524176
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner pro se
Linda A. Shashoua
Robin Ann Hamett
Maura Murphy Sullivan
Camden County Prosecutor’s Office
25 North Fifth Street
Camden, NJ 08102
Counsel for Respondents
HILLMAN, District Judge
Petitioner Juan C. Salas (“Petitioner”), a prisoner
presently incarcerated at New Jersey State Prison in Trenton,
New Jersey, has filed an Amended Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (the “Amended Petition”).
(ECF No. 12.)
By order of the Court, (ECF No. 21), Respondents
Charles Warren and the Attorney General for the State of New
Jersey (“Respondents”) filed a full and complete Answer to the
Amended Petition (the “Answer”).
(ECF No. 26.)
Petitioner
filed a traverse to the Answer (the “Traverse”). 1
The Amended Petition is ripe for disposition.
(ECF No. 27.)
For the reasons
stated below, the Amended Petition will be denied.
I.
FACTUAL BACKGROUND AND PROCEDURAL HSITORY
a. State Court Proceedings
In its opinion on Petitioner’s direct appeal, the New
Jersey Superior Court, Appellate Division set forth the
following facts underlying Petitioner’s conviction:
The State presented evidence that defendant
and his companions took umbrage at the
intrusion of others into what they deemed
their territory in Camden for the sale of
narcotics. Their solution was to “clear the
block.” This they did with a hail of
bullets from at least five different
weapons. When the shooting ended, Richard
Williams was dead and Jabbar Lee died
1
In the Traverse, Petitioner appears to address claims that
were not raised in the Amended Petition. Specifically,
Petitioner raises several additional ineffective assistance of
counsel claims, including that his trial counsel was ineffective
for failing to investigate and failing to effectively present
the Miranda issues to the trial court; that his appellate
counsel was ineffective; and that his PCR counsel was
ineffective. (ECF No. 27, at 11–12.) These claims will not be
considered as a habeas petitioner cannot raise new claims in his
traverse. See Johnson v. D’Ilio, No. 15-2641, 2018 WL 4442221,
*3 n.1 (D.N.J. Sept. 17, 2018); Judge v. United States, 119 F.
Supp. 3d 270, 284 (D.N.J. 2015) (extending doctrine that a
moving party may not raise new issues in a reply brief to
petitions for habeas relief because “[b]asic fairness requires
that an opposing party have a fair notice of his adversary’s
claims, as well as an opportunity to address those claims”); see
also Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)
(“A Traverse is not the proper pleading to raise additional
grounds for relief.”).
2
shortly thereafter. David Williams (no
relation to Richard) had been shot in the
back, but he survived. David testified, as
did Joseph Quinones. Mr. Quinones had been
with defendant and his companions as they
planned what to do and saw them arm
themselves with weapons supplied by
defendant’s uncle. We infer from various
comments by counsel during the course of the
trial, in the absence of the jury, that
defendant’s uncle was known as a narcotics
trafficker.
One of the guns used was a semiautomatic
rifle similar to an AK-47. Police who
responded to the scene recovered more than
seventy shell casings and projectiles.
Investigator James Joyce of the New Jersey
State Police testified as an expert in
ballistics and firearm identification.
According to Investigator Joyce, at least
five separate guns were involved in the
incident, and there may have been as many as
eight.
Defendant was only seventeen years old at
the time of the shootings. He was taken
into custody several months later and, in
the presence of his mother, supplied a
statement about his involvement in this
incident, which was played for the jury.
According to that statement, the shootings
were planned by Angel Mendoza, who recruited
defendant and his brother, Jose Egron.
Defendant in his statement said that Mendoza
supplied the guns, not defendant’s uncle.
He said that Mendoza instructed him and his
brother to shoot at the victims, with the
expectation that they would run toward where
Mendoza would be stationed and that Mendoza
would kill them. Defendant said in his
statement that he went along with the plan
because he was afraid of what Mendoza would
do to him if he did not.
Defendant testified at his trial and
recanted his statement. He said he only
3
gave the statement because the police would
not let his mother leave until he did so.
His mother testified to the same effect.
Defendant testified he had no involvement
with the shootings although he could not
recall where he was when they occurred.
(ECF No. 26-10, at 2–4.)
Following a jury trial in March 2005, Petitioner was
convicted of two counts of first-degree murder, N.J. Stat. Ann.
§§ 2C:5-1, 2C:11-3(a)(1) and (2); one count of first-degree
attempted murder, N.J. Stat. Ann. §§ 2C:5-1, 2C:11-3a(1) and
(2); one count of first-degree conspiracy to commit murder, N.J.
Stat. Ann. § 2C:5-2; one count of second-degree possession of a
weapon for an unlawful purpose, N.J. Stat. Ann. § 2C:39-4a; one
count of third-degree unlawful possession of a weapon, N.J.
Stat. Ann. § 2C:39-5(b); and one count of third-degree hindering
apprehension, N.J. Stat. Ann. § 2C:29-3(b)(1).
(ECF No. 26-5.)
At sentencing, the sentencing court merged the conviction for
hindering apprehension with the convictions for murder and
attempted murder.
(Id.)
The sentencing court thereafter
sentenced Petitioner to a 40-year term of imprisonment, subject
to an 85 percent parole disqualifier on the first count of
murder; and a 30-year term of imprisonment with a 30-year term
of parole ineligibility on the second count of murder, to run
consecutive to the sentence imposed on the first count of
murder.
(Id.)
The remainder of Petitioner’s sentences were
4
ordered to run concurrent to the sentence on the first count of
murder.
(Id.)
Petitioner filed an appeal of his conviction to the
Appellate Division in which he raised the following issues for
review:
POINT I DEFENDANT WAS DENIED A FAIR TRIAL
AND DUE PROCESS OF LAW WHEN THE PROSECUTOR
TOLD THE JURY DURING SUMMATION THAT MR.
SALAS HAD GROWN UP IN A VIOLENT AND STRANGE
CULTURE, THEREBY INFLUENCING THE JURY’S
PERCEPTION OF MR. SALAS AS A VIOLENT AND
STRANGE MAN, RATHER THAN AS A 17-YEAR-OLD
JUVENILE.
POINT II THE TRIAL COURT ERRED, AND
CONSEQUENTLY IMPOSED AN EXCESSIVE SENTENCE,
IN REFUSING TO ORDER CONCURRENT THE
SENTENCES FOR THE FIRST-DEGREE MURDER
CONVICTIONS AND IN IMPOSING GREATER THAN THE
MINIMUM TERM UNDER THE NO EARLY RELEASE ACT.
A. The Trial Court Erred in Refusing to
Order Concurrent Sentences for the
Two First-Degree Murder Convictions
B. The Sentence Was Manifestly
Excessive.
(ECF No. 26-10, at 4.)
The Appellate Division affirmed
Petitioner’s conviction and sentence on July 3, 2007.
1, 7.)
(Id. at
Petitioner did not immediately file a petition for
certification to the New Jersey Supreme Court.
However, on or
about July 22, 2013, Petitioner filed a motion for leave to file
a petition for certification as within time with the New Jersey
Supreme Court.
(ECF No. 26-32.)
On September 17, 2013, the New
5
Jersey Supreme Court denied Petitioner’s motion without
explanation and dismissed the petition for certification.
(ECF
No. 26-33.)
On or about January 31, 2008, Petitioner filed his first
petition for post-conviction relief (“First PCR”) in the
Superior Court of New Jersey, Law Division.
(ECF No. 26-11.)
In the First PCR, Petitioner alleged that he was denied the
effective assistance of counsel in violation of the Sixth
Amendment and that his due process right to a fair trial was
violated as a result of various trial errors and prosecutorial
misconduct. (Id. at 5.)
On January 30, 2009, following oral
argument, the Superior Court denied the First PCR on the record.
(ECF No. 26-14.)
Petitioner appealed the denial of the First PCR to the
Appellate Division, where he argued that he received ineffective
assistance of counsel as a result of counsel’s failure to
investigate, failure to present a “meaningful trial strategy,”
failure to confer with Petitioner, and failure to adequately
present a Miranda 2 issue to the trial court.
9.)
(ECF No. 26-18, at
Petitioner also argued that his PCR counsel was ineffective
and that his statement to police was taken in violation of the
Fifth Amendment and should have been suppressed at trial.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
6
(Id.)
The Appellate Division affirmed the denial of the First PCR.
(Id. at 13.)
Petitioner, acting pro se, moved for
reconsideration of that opinion on March 9, 2011.
(ECF No. 26-
19.) 3
On March 9, 2011, Petitioner filed a motion to file a
petition for certification nunc pro tunc to the New Jersey
Supreme Court.
(ECF Nos. 26-21, 26-23.)
Petitioner raised the
same issues in his petition for certification that were raised
to the Appellate Division in the appeal of the First PCR.
ECF No. 26-24.)
(See
On April 21, 2011, the New Jersey Supreme Court
granted Petitioner’s motion to file a petition for certification
nunc pro tunc.
(ECF No. 26-26.)
Shortly thereafter, on July
14, 2011, the Supreme Court of New Jersey denied the petition
for certification.
(ECF No. 26-27.)
It appears that sometime after certification was denied on
the First PCR, Petitioner filed a pro se motion for leave to
file a successive petition for post-conviction relief in the
Superior Court (“Second PCR”).
(ECF No. 26-28.)
3
That motion
Instead of filing Petitioner’s pro se motion for
reconsideration, the Clerk of the Appellate Division forwarded
the motion to the Office of the Public Defender, Petitioner’s
counsel, “for whatever action they deem appropriate.” (ECF No.
26-20.) It appears from the record that the motion was not refiled and that the Office of the Public Defender instead
proceeded with a petition for certification to the New Jersey
Supreme Court.
7
was denied on January 20, 2012.
(ECF No. 26-29.)
Petitioner
did not file any appeal of that denial.
Petitioner filed a third petition for post-conviction
relief (“Third PCR”) on June 19, 2013, alleging that his
sentence was in violation of the Supreme Court’s decision in
Miller v. Alabama, 567 U.S. 460 (2012).
(ECF No. 26-30.)
The
Superior Court determined that the Third PCR was timely because
it was filed within one year of the issuance of Miller, but
ultimately denied relief on the merits.
3.)
(ECF No. 26-31, at 2-
Petitioner appealed that decision to the Appellate
Division, who affirmed the Superior Court’s denial of the Third
PCR on June 3, 2015.
(ECF No. 26-43.)
Petitioner filed a
petition for certification of that decision, which the New
Jersey Supreme Court denied on February 5, 2016.
(ECF No. 26-
49.)
b. Federal Habeas Proceedings
Petitioner first filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 with this Court on or about
September 8, 2011 (“Salas-I”).
(ECF No. 1.)
Because it was
apparent that all of Petitioner’s claims were not exhausted and
because Petitioner indicated that he was pursuing the Second
PCR, this Court granted Petitioner a stay and abeyance of the
habeas proceeding.
(ECF No. 6.)
8
On June 19, 2012, Petitioner submitted a letter to this
Court indicating that his Second PCR had been denied as untimely
and that he wished to include that claims raised in his Second
PCR in his petition for writ of habeas corpus.
(ECF No. 8.)
Thereafter, on or about July 11, 2012, Petitioner filed a second
§ 2254 petition, which gave rise to Petitioner’s second habeas
case, Salas v. Warren (“Salas-II”), No. 12-4275 (NLH) (D.N.J)
(No. 12-4275, ECF No. 1).
Upon recognizing that Salas-II was a
duplicate of Salas-I, on April 26, 2013, this Court directed the
Clerk to terminate Salas-II and elected to proceed solely with
Petitioner’s Salas-I action in order to eliminate any statute of
limitations concerns. (ECF No. 9.)
In the Court’s April 26 Order, it recognized that
Petitioner wished to raise in his habeas petition:
(a) all his state and federal law based
challenges raised on direct appeal to the
Appellate Division but not challenged before
the Supreme Court of New Jersey; (b) all his
state and federal law based challenges
raised, during his first PCR, to the Law
Division, Appellate Division and the Supreme
Court of New Jersey; and (c) all his state
and federal law based challenges raised and
dismissed as untimely during his second PCR.
(ECF No. 9, at 4.)
The Court advised Petitioner that he
intended to raise claims which may have exceeded the scope of
federal habeas review, notably that certain claims appeared to
be facially unexhausted and procedurally defaulted.
9
(Id. at 4-
14.)
The Court informed Petitioner that he may either withdraw
these challenges or otherwise attempt to overcome the procedural
bat by asserting facts warranting excuse of non-exhaustion and
resolution of these claims on the merits.
(Id. at 15-16.)
The
Court thus extended the stay in Salas-I to afford Petitioner the
opportunity to make an informed decision on his petition and
take any appropriate action in the state court.
(Id.)
In a letter dated July 12, 2013, Petitioner indicated that
he wished to seek certification with respect to his unexhausted
direct appellate claims.
(ECF No. 10.)
On or about April 11, 2016, Petitioner submitted a third §
2254 petition, giving rise to the case Salas v. Johnson, No. 162018 (NLH) (D.N.J.) (“Salas-III”).
(No. 16-2018, ECF No. 1.)
Because Salas-III challenged the same conviction as Salas-I,
this Court, in an order dated May 19, 2016, directed the Clerk
of the Court to terminate Salas-III and proceeded solely with
Petitioner’s Salas-I action.
(ECF No. 11.)
The election in
favor of Salas-I was made to eliminate any statute of limitation
concerns. See Urcinoli v. Cathel, 546 F.3d 269, 272 (3d Cir.
2008).
Additionally, the Clerk of the Court was directed to
refund Petitioner the $5 paid in connection with Salas-III.
Finally, because the Salas-III petition apparently raised only
one claim for relief, this Court afforded Petitioner one final
10
opportunity to submit an amended petition setting forth all
exhausted claims he wished to raise.
(ECF No. 11.)
On June 20, 2016, Petitioner filed an amended petition
representing his one all-inclusive petition.
(ECF No. 12.)
Because of the complicated procedural history of this matter,
this Court directed Respondents to file a limited answer as to
the issue of exhaustion.
(ECF No. 13.)
limited answer on September 26, 2016.
thereafter filed a reply.
Respondents filed their
(ECF No. 17.)
Petitioner
(ECF No. 20.)
On March 4, 2019, this Court ordered Respondents to file a
full and complete answer to the Amended Petition.
(ECF No. 21.)
Respondents filed their full and complete answer on June 7,
2019.
(ECF No. 26.)
2019.
(ECF No. 27.)
II.
Petitioner filed a traverse on July 11,
LEGAL STANDARD
A petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is the proper mechanism for a state prisoner to challenge
the fact or duration of his confinement where the petitioner
claims his custody is in violation of the Constitution or the
laws of the United States. See 28 U.S.C. § 2254(a); Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); Preiser v. Rodriquez, 411
U.S. 475, 498-99 (1973).
A habeas petitioner bears the burden
of establishing his entitlement to relief for each claim
11
presented in the petition. See Harrington v. Richter, 562 U.S.
86, 98 (2011).
The standard used in reviewing habeas claims under § 2254
depends on whether those claims have been adjudicated on the
merits by the state court.
If they have not been adjudicated on
the merits, the Court reviews de novo both legal questions and
mixed factual and legal questions. See Appel v. Horn, 250 F.3d
203, 210 (3d Cir. 2001).
If the state court adjudicated the
claim on the merits, then 2254(d) limits the review of the state
court’s decision as follows:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings 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 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
. . . .
12
28 U.S.C. § 2254(d).
If a claim has been adjudicated on the
merits in state court, 4 this Court has “no authority to issue the
writ of habeas corpus unless the [state court’s] decision ‘was
contrary to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of
the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.’” Parker v. Matthews, 567 U.S. 37,
40 (2012) (quoting 28 U.S.C. § 2254(d)).
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
Clearly established law “refers to the holdings, as opposed to
the dicta, of [the Supreme Court’s] decisions as of the time of
the relevant state-court decision.” Williams v. Taylor, 529 U.S.
4
“[A] claim has been adjudicated on the merits in State
court proceedings when a state court has made a decision that
finally resolves the claim based on its substance, not on a
procedural, or other, ground.” Lewis v. Horn, 581 F.3d 92, 100
(3d Cir. 2009) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d
Cir. 2009)). “Section 2254(d) applies even where there has been
a summary denial.” Pinholster, 563 U.S. at 187. “In these
circumstances, [petitioner] can satisfy the ‘unreasonable
application’ prong of § 2254(d)(1) only by showing that ‘there
was no reasonable basis’ for the [state court’s] decision.” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 98 (2011); see also
Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state
court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal
claim was adjudicated on the merits – but that presumption can
in some limited circumstances be rebutted.”).
13
362, 412 (2000).
A court must look for “the governing legal
principle or principles set forth by the Supreme Court at the
time the state court renders its decision.” Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003).
“[C]ircuit precedent does not
constitute ‘clearly established Federal law, as determined by
the Supreme Court,’ [and] therefore cannot form the basis for
habeas relief under AEDPA.” Parker, 567 U.S. at 48-49 (quoting
28 U.S.C. § 2254(d)(1)).
A decision is “contrary to” a Supreme Court holding within
28 U.S.C. § 2254(d)(1), if the state court applies a rule that
“contradicts the governing law set forth in [the Supreme
Court’s] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a [different result.]”
Williams, 529 U.S. at 405–06.
Under the “ ‘unreasonable
application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the
prisoner’s case.” Williams, 529 U.S. at 413.
“[A]n unreasonable
application of federal law,” however, “is different from an
incorrect application of federal law.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).
14
III. DISCUSSION
Prior to addressing the merits of the Amended Petition, the
Court notes that certain of Petitioner’s claims appear to be
unexhausted. See 28 U.S.C. § 2254(b)(1)(A)(requiring that a
habeas petitioner exhaust “the remedies available in the courts
of the States” before seeking federal habeas relief”); Rhines v.
Weber, 544 U.S. 269, 273–76 (2005); Lambert v. Blackwell, 134
F.3d 506, 513 (3d Cir. 1997).
Respondents argued in their
Limited Answer that the Amended Petition should be dismissed as
a mixed petition, i.e., a petition containing a mix of exhausted
and unexhausted claims.
(1982).
Accord Rose v. Lundy, 455 U.S. 509, 510
The Court declines to dismiss the Amended Petition for
failure to exhaust state remedies and will instead deny the
Amended Petition on the merits pursuant to § 2254(b)(2).
See
Mahoney v. Bostel, 366 F. App’x 368, 371 (3d Cir. 2010).
a. Grounds One, Two, Three, and Four
i. Procedural Default
Respondents, in their Limited Answer, argue that Grounds
One, Two, Three, and Four of the Amended Petition are
procedurally defaulted because they were denied by the New
Jersey Supreme Court on state procedural grounds.
at 28–29.)
(ECF No. 17,
Grounds One, Two, Three, and Four of the Amended
Petition are the same claims raised by Petitioner in his direct
appeal.
(See ECF No. 26-10, at 4.)
15
Petitioner duly exhausted
these claims in state court, but he failed to file a timely
petition for certification to the New Jersey Supreme Court.
Instead, Petitioner filed a motion for leave to file a petition
for certification as within time on July 22, 2013, nearly 6
years after the Appellate Division denied his appeal.
No. 18-1.)
(See ECF
In an unexplained order, the New Jersey Supreme
Court denied Petitioner’s motion to file a petition for
certification as within time and dismissed his appeal.
(ECF No.
26-33.)
Procedural default occurs where “a state court declined to
address a prisoner’s federal claims because the prisoner failed
to meet a state procedural requirement.”
Lark v. Sec’y Pa.
Dep’t of Corrs., 645 F.3d 596, 611 (3d Cir. 2011) (quoting
Coleman v. Thompson, 501 U.S. 722, 730 (1991)).
In other words,
where the state court dismissed petitioner’s federal claims
pursuant to an “independent” and “adequate” state procedural
ground, federal habeas corpus review is not available.
See id.
If the state law ground was not “independent” and “adequate,” a
federal court may review petitioner’s claims on the merits.
A state procedural rule is an inadequate
ground to bar federal review if it was not
firmly established and regularly followed by
the state courts at the time it was applied.
Whether a procedural rule “was firmly
established and regularly applied is
determined as of the date the default
occurred, and not as of the date the state
court relied on it, because a petitioner is
16
Id.
entitled to notice of how to present a claim
in state court.”
Id. (citations omitted) (quoting Albrecht v. Horn, 485 F.3d 103,
115 (3d Cir. 2007)).
The Third Circuit has explained “that an adequate
procedural ground is predicated on procedural rules that speak
in unmistakable terms.”
Cir. 1999).
Cabrera v. Barbo, 175 F.3d 307, 313 (3d
Critically, “the procedural disposition must
comport with similar decisions in other cases so there is a
firmly established rule that is applied in a consistent and
regular manner in the vast majority of the cases” and the rule
must have been in place at the time of the state court
procedural default.
Id.
Generally, courts will look to the last-reasoned opinion of
the state court to determine whether a claim was denied pursuant
to an independent and adequate state law ground.
Nunnemaker, 501 U.S. 797, 802 (1991).
Ylst v.
In Ylst, the Supreme
Court held that “[w]here there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon
the same ground.”
Id.
Under Ylst, “[i]f an earlier opinion
‘fairly appear[s] to rest primarily on federal law,’ we will
presume that no procedural default has been invoked by a
subsequent unexplained order that leaves the judgment or its
17
consequences in place.”
Id. (quoting Coleman, 501 U.S. at 740).
This presumption, however, is not irrebuttable and may be
refuted by “strong evidence.”
Id. at 804.
For example, the
Ylst court explained that “it might be shown that, even though
the last reasoned state-court opinion had relied upon a federal
ground, the later appeal to the court that issued the
unexplained order was plainly out of time, and that the latter
court did not ordinarily waive such a procedural default without
saying so.”
Id.
In Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992), the Third
Circuit considered whether an unexplained order from the
Pennsylvania Supreme Court denying a petitioner’s motion to
proceed nunc pro tunc was based on state procedural grounds or
whether it was required to “look through” to the lower court’s
decision on the merits.
Relying on the hypothetical set forth
in Ylst, the Third Circuit determined that petitioner’s claim
was procedurally barred because his motion to the Pennsylvania
Supreme Court was, in fact, untimely, and “the Pennsylvania
Supreme Court does not ordinarily waive this type of procedural
default.”
Id. at 860.
The situation here mirrors that of Caswell.
The direct
appeal claims were originally denied by the Appellate Division
on the merits.
(See ECF No. 26-10.)
Thereafter, Petitioner’s
motion to file a petition for certification as within time was
18
denied by the New Jersey Supreme Court without explanation and
his petition was dismissed.
(ECF No. 26-33.)
Petitioner’s
application to the New Jersey Supreme Court was filed well
outside the twenty-day limit for filing a petition for
certification, N.J. Ct. R. 2:12-3(a), approximately six years
from the entry of the Appellate Division’s decision affirming
his conviction.
(See ECF No. 26-32.)
Because it is plainly
evident that Petitioner’s application to the New Jersey Supreme
Court was untimely and there is no indication that the New
Jersey Supreme Court does not strictly enforce its timeliness
requirements, the presumption set forth in Ylst does not apply
here.
See Caswell, 953 F.2d at 860; see also Hull v. Freeman,
991 F.2d 86, 90–91 (3d Cir. 1993);
Smith v. Arvonio, Civ. A.
No. 93-25, 1994 WL 327123, at *6 (D.N.J. June 24, 1994); Lotwich
v. Neubert, Civ. No. 90-4689, 1991 WL 167025, at *5 (D.N.J. Aug.
23, 1991).
The New Jersey Court’s timely filing requirements are an
“independent and adequate” state law ground, see Smith, 1994 WL
327123, at *6, and, thus, Grounds One, Two, Three, and Four of
the Amended Petition have been procedurally defaulted.
Procedural default of a petitioner’s claims may, however,
be excused where the petitioner “can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
19
consider the claims will result in a fundamental miscarriage of
justice.”
Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002)
(quoting Coleman, 501 U.S. at 750).
Petitioner has offered no
reason why his procedural default of these claims should be
excused under the cause and prejudice standard.
Accordingly, Grounds One, Two, Three, and Four of the
Amended Petition are subject to dismissal with prejudice
pursuant to the doctrine of procedural default.
ii. Merits of Grounds One, Two, Three, and Four
While the Court finds that Grounds One, Two, Three, and
Four have been procedurally defaulted, it will, alternatively,
deny the claims on the merits as well.
1. Ground One
In Ground One, Petitioner claims that his right to due
process under the federal constitution was violated by
statements made by the prosecutor during trial that Petitioner
“[grew] up in a violent and strange culture, thereby influencing
the jury’s perception of [Petitioner] as a violent and strange
man, rather than as a 17 year old juvenile.”
7.)
(ECF No. 12, at
Respondents argue that the state court’s ruling on this
claim “was consistent with federal law on prosecutorial
misconduct and was based on a reasonable determination of the
facts in light of the evidence presented at trial.”
26, at 42.)
(ECF No.
Moreover, Respondents maintain that Petitioner has
20
failed to show that the comments made by the prosecutor caused
him any prejudice.
(Id. at 43.)
It appears that Petitioner takes issue with the same
statements made by the prosecutor as he did on direct appeal.
(See ECF No. 27, 6–7.)
In the prosecutor’s opening statement,
she made the following remarks:
The scene is going to tell you. You will
see the shell casings that were recovered
from that street. You will see the
photographs of that scene, that street that
had become a battlefield. These shootings,
the murders of Richard Williams and Jabar
Lee and the attempted murder of David
Williams, this case, this trial is going to
take you into a world that is different from
your own and into a value system that is
different from your own.
(ECF No. 26-52, at 27–28.)
Thereafter, in her summation, the
prosecutor stated:
As Joseph Quinones told you, he wasn’t in
any real hurry to leave. He wanted to see
that big gun get fired. He wanted to hand
around because, as he told you, he didn’t
care. That’s his value system. It is alien
to each of us, but that’s his world, that’s
this world, and that’s their world.
(ECF No. 26-55, at 51–52.)
The Appellate Division denied this claim, explaining
We have carefully reviewed this trial record
and in our judgment the evidence presented
against defendant can fairly be described as
overwhelming. Although the prosecutor
should not have attempted to create for the
jury a view of the defendant as alien from
themselves, we are unable to conclude that
21
these brief remarks, to which no objection
was made, had the capacity to by themselves
poison the jury against defendant.
(ECF No. 26-10, at 6.)
Federal habeas relief may only be obtained on the basis of
prosecutorial misconduct where the misconduct “so infect[ed] the
trial with unfairness as to make the resulting conviction a
denial of due process.”
Werts v. Vaughn, 228 F.3d 178, 197 (3d
Cir. 2000) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)).
In evaluating whether the remarks of the prosecutor rise to the
level of a constitutional violation, “Supreme Court precedent
requires the reviewing court to weigh the prosecutor’s conduct,
the effect of the curative instructions and the strength of the
evidence.”
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001)
(citing Darden v. Wainwright, 477 U.S. 168, 182 (1986)); see
also Werts, 228 F.3d at 198 (“The remarks must be sufficiently
prejudicial in the context of the entire trial to violate a
petitioner’s due process rights.”).
Here, considering the entire trial record in this context,
the Court does not find that the prosecutor’s remarks “so
infect[ed] the trial with unfairness as to make the resulting
conviction a denial of due process.”
See Greer, 483 U.S. at 765
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
The trial court properly instructed the jury before the
prosecutor’s summation that “[w]hatever the attorneys say to you
22
in their closing is not evidence; it’s their recollection of the
evidence.
However, members of the jury, it’s your recollection
of the evidence that should control in rendering a verdict in
this matter.”
(ECF No. 26-55, at 21.)
The trial court again
instructed the jury following summations that “[a]ny arguments,
statements, remarks, the opening and closings of counsel are not
evidence and must not be treated by evidence.”
(Id. at 69.)
Moreover, the evidence presented against Petitioner at trial
was, as the Appellate Division noted, overwhelming.
26-10, at 6.)
(ECF No.
Petitioner admitted to law enforcement that he
participated in the shooting.
(Id. at 3.)
Quinones testified
that he saw Petitioner with a handgun shortly before the
shootings.
(ECF No. 26-53, at 70–72.)
The Appellate Division’s
adjudication of this claim was not an unreasonable application
of federal law and, thus, Petitioner is not entitled to habeas
relief on this claim.
2. Grounds Two, Three, and Four
The Court considers Grounds Two, Three, and Four of the
Amended Petition together as they all pertain to Petitioner’s
sentence.
Specifically, Petitioner contends that his sentence
is manifestly excessive and in violation of the Eighth Amendment
because the trial court refused to order concurrent sentences
for the two first-degree murder convictions.
8.)
(ECF No. 12, at 7–
The Appellate Division denied these challenges to
23
Petitioner’s sentence, finding that “the trial court put a
comprehensive statement on the record setting forth its reasons
for determining that defendant must serve consecutive terms for
the two murders” and that the trial court did not abuse its
discretionary sentencing power.
(ECF No. 26-10, at 7.)
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 indigency.”
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 28 U.S.C. §
2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990).
A sentence for a term of years may violate the Eighth
Amendment where it is “‘grossly disproportionate to the crime.’”
Graham v. Florida, 560 U.S. 48, 60 (2010) (quoting Harmelin v.
Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring in
part)).
This principle, however, “reserves a constitutional
violation for only the extraordinary case.”
Lockyer v. Andrade,
538 U.S. 63, 77 (2003); see also Ewing v. California, 538 U.S.
11, 21 (2003) (noting that outside of capital cases, “successful
challenges to the proportionality of particular sentences have
24
been exceedingly rare” (quoting Rummel v. Estelle, 445 U.S. 263,
272 (1980))).
For example, in Lockyer, the Supreme Court held
that a sentence of two consecutive terms of 25 to life in prison
for two counts of petty theft pursuant to California’s three
strikes law did not violate the Eighth Amendment.
See id. at
68, 77.
The Appellate Division’s resolution of Petitioner’s
challenges to his sentence were not contrary to this federal
precedent.
Petitioner’s sentence of consecutive 40- and 30-year
terms of imprisonment for two counts of first-degree murder are
not violative of the Eighth Amendment.
Accordingly, relief on
this claim is denied.
b. Ground Five
In Ground Five of the Amended Petition, Petitioner alleges
violations of his Sixth Amendment right to the effective
assistance of counsel.
(ECF No. 12, at 8.) 5
Specifically,
Petitioner claims that his counsel was ineffective because he
5
Respondents concede, and the record reflects, that
Petitioner’s claims related to his counsel’s alleged failure to
confer with Petitioner or present a defense at trial were
presented at each level of state court review. (ECF No. 17, at
30.) However, Respondents argue that Petitioner’s claim that
his trial counsel was ineffective for failing to file a motion
to suppress is unexhausted “to the extent that petitioner’s
allegation . . . refers to evidence other than his statement to
police.” (Id.) Petitioner does not indicate in his Petition or
Traverse to what evidence this claim refers. Accordingly, the
Court will treat the claim as unexhausted.
25
failed to confer with Petitioner, failed to file a motion to
suppress, and failed to present any defense at trial.
(Id.)
These claims were originally raised in Petitioner’s First PCR.
The Sixth Amendment of the United States Constitution
provides:
“[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defense.”
U.S. Const. amend. VI.
The Supreme Court has
recognized that “the right to counsel is the right to the
effective assistance of counsel.”
Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)).
A showing of ineffective assistance of
counsel requires two components to succeed.
two requisite proofs are as follows:
Id. at 687.
The
(1) a defendant must show
that counsel’s performance was deficient; and (2) the defendant
must show prejudice.
Id.
The analysis is underpinned by an
understanding that counsel’s role is to ensure the production of
a reliably just result with the adversarial process of trial.
Id.
When a convicted defendant complains of deficient
performance, the defendant’s burden of proof is to show that the
conduct of counsel fell below an objective standard of
reasonableness.
Id. at 688.
Hence, [j]udicial scrutiny of
counsel’s performance must be highly deferential.”
Id. at 689.
To combat the natural tendency for a reviewing court to
26
speculate whether a different strategy at trial may have been
more effective, the Supreme Court has “adopted the rule of
contemporary assessment of counsel’s conduct.”
Maryland v.
Kulbicki, 136 S. Ct. 2, 4 (2015) (quoting Lockhart v. Fretwell,
506 U.S. 364, 372 (1993)).
Thus, when reviewing for an
ineffective assistance of counsel, “a court must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.”
Woods, 135 S. Ct.
at 1375 (quoting Strickland, 466 U.S. at 689); cf. United States
v. Chronic, 466 U.S. 648, 659 (1984) (holding that courts may
presume deficient performance and resulting prejudice if a
defendant “is denied counsel at a critical stage of his trial”).
Because Petitioner's ineffective assistance of counsel
claims are raised through a § 2254 petition, federal “review
must be ‘doubly deferential’ in order to afford ‘both the state
court and the defense attorney the benefit of the doubt.’”
Woods, 135 S. Ct. at 1376 (quoting Burt v. Titlow, 134 S. Ct.
10, 13 (2013)); see also Cullen, 563 U.S. at 190 (“[R]eview of
the [State] Supreme Court's decision is thus doubly
deferential.”); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(“[D]oubly deferential judicial review applies to a Strickland
claim evaluated under the § 2254(d)(1) standard . . . .”);
Yarborough, 541 U.S. at 6 (“Judicial review of a defense
attorney ... is therefore highly deferential––and doubly
27
deferential when it is conducted through the lens of federal
habeas.”).
Indeed, “[w]hen § 2254(d) applies, the question is
not whether counsel's actions were reasonable.
The question is
whether there is any reasonable argument that counsel satisfied
Strickland's deferential standard.”
Harrington, 562 U.S. at
105.
As to proving prejudice under Strickland, “actual
ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the
defendant affirmatively prove prejudice.”
466 U.S. at 693.
To
succeed on this proof, a defendant must show “a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.”
Hinton v.
Alabama, 134 S. Ct. 1081, 1088 (2014) (quoting Padilla v.
Kentucky, 559 U.S. 356, 366 (2010)).
A reasonable probability
is a probability which sufficiently undermines confidence in the
outcome of the trial.
Strickland, 466 U.S. at 694.
i. Failure to Confer
Petitioner first asserts that his trial counsel was
ineffective because he failed to confer with Petitioner.
No. 12, at 8.)
(ECF
Petitioner does not elaborate as to how or when
his counsel failed to confer with him.
(Id.)
Petitioner raised
a similar claim in his First PCR, in which he alleged that his
trial counsel only met with him once before trial.
28
(ECF No. 26-
58, at 28.)
The Superior Court denied this claim, finding that
Petitioner’s allegation that his counsel conferred with him only
once prior to trial did “not ring true,” noting the many times
Petitioner and his counsel met and appeared in court prior to
trial.
(Id. at 28–29.)
The Superior Court further observed
that billing records indicated that Petitioner met with his
trial on at least four occasions prior to trial.
(Id.)
The
Appellate Division affirmed this decision without discussion.
(ECF No. 26-18, at 11.)
The decision of the Superior court is neither contrary to
nor an unreasonable application of Strickland.
The Superior
Court found that, contrary to Petitioner’s allegation, he had
multiple opportunities to confer with counsel prior to trial.
Because Petitioner’s claim was unsupported by the record, the
Superior Court reasonably concluded that he “could not establish
either ineffective assistance, or prejudice.”
at 29.)
(ECF No. 26-58,
Petitioner has made no attempt to refute the Superior
Court’s factual determination that he indeed conferred with his
counsel multiple times before trial.
See § 2254(e)(1) (setting
forth that factual findings of the state court are “presumed to
be correct”).
Accordingly, relief on this claim is denied.
ii. Failure to File a Motion to Suppress
Petitioner claims that his trial counsel was ineffective
for failing to file a motion to suppress.
29
(ECF No. 12, at 8.)
Petitioner does not indicate in the Amended Petition what
evidence his counsel should have moved to suppress.
(See id.)
While pro se filings are liberally construed, “[a] habeas
petitioner bears the burden of articulating his allegations
clearly.”
Best v. Ecker, No. 15-2361, 2016 WL 8730900, at *9
(E.D. Pa. June 17, 2016) (citing Zettlemoyer v. Fulcomer, 923
F.2d 284, 298 (3d Cir. 1991)).
Indeed, a petitioner is required
to “state the facts supporting each ground” presented for
relief.
Mayle v. Felix, 545 U.S. 644, 655 (3d Cir. 2005).
As
Petitioner has not indicated what evidence his counsel should
have moved to suppress or provided any other factual support for
this claim, it is denied.
iii. Failure to Present a Defense
Petitioner also asserts that his trial counsel was
ineffective as he failed to present a defense or meaningful
trial strategy.
(ECF No. 12, at 8.)
The Superior Court denied
this claim, finding that Petitioner’s claim was “contrary to the
trial record.”
The Superior court recounted the many ways in
which counsel presented a defense at trial, noting that
“[d]efense counsel sought to establish the Defendant’s
credibility, and undermine the credibility of the evidence
against the Defendant.”
(ECF No. 26-58, at 31–34.)
The
Superior court then recounted how defense counsel employed that
strategy at trial.
(Id.)
The Appellate Division affirmed the
30
decision of the Superior court without explanation.
(ECF No.
26-18, at 11.)
The Superior Court’s analysis of this claim was neither
contrary to nor an unreasonable application of Strickland.
The
Superior Court reviewed the trial record and determined that
trial counsel, in fact, presented a cogent defense at trial.
Because Petitioner has not demonstrated that trial counsel was
deficient in this regard, his claim under Strickland fails.
Relief on this claim is therefore denied.
c. Ground Six
In Ground Six, Petitioner asserts that his due process
rights under the Fourteenth Amendment were violated as a result
of “multiple instances of prosecutorial misconduct and errors
committed by the trial court.”
(ECF No. 12, at 8.)
Instead of
providing any facts to support this claim, Petitioner asserts
other unrelated claims, stating that:
The Court erred in not granting Petitioner
an evidentiary hearing on his PCR petition,
Petition for Post-Conviction Relief was not
procedurally barred, Petitioner was denied
his right to the effective assistance of
Counsel guaranteed by both the United States
and New Jersey Constitution, Petitioner’s
statement to police was taken in violation
of his rights against self-incrimination and
rights afforded juveniles and should have
been suppressed.
(Id.)
The Court construes Petitioner as raising the following
claims for relief:
(1) that prosecutorial misconduct at trial
31
violated his rights under the Fourteenth Amendment, (2) that the
Superior Court erred in denying the First PCR without an
evidentiary hearing, (3) that the First PCR was not procedurally
barred, and (4) that Petitioner’s statement to law enforcement
was taken in violation of his Fifth Amendment rights under
Miranda. (See id.) 6
These claims are similar to those raised by
Petitioner in the appeal of the First PCR.
(See ECF No. 26-18,
at 9.)
While Petitioner does not provide any factual support for
his claim of prosecutorial misconduct in Ground Six, the Court
construes this claim as duplicative of the prosecutorial
misconduct claim raised in Ground One of the Amended Petition
and will deny the claim for the same reasons.
See supra, at 20–
23.
Petitioner’s claims that the Superior Court erred in not
granting an evidentiary hearing and in finding that the First
PCR was procedurally barred are also denied.
These claims
relate only to the application of state law and are thus not
cognizable on a § 2254 petition.
Estelle v. McGuire, 502 U.S.
62, 66 (1991) (observing that “federal habeas corpus relief does
not lie for errors of state law” (quoting Lewis v. Jeffers, 497
6
Petitioner appears to attempt to bring a claim of
ineffective assistance of counsel in Ground Six. However, he
fails to proffer any basis for this claim, preventing the Court
from considering any such claim.
32
U.S. 764, 780 (1990))); see also Lambert v. Blackwell, 387 F.3d
210, 247 (3d Cir. 2004) (admonishing that “alleged errors in
collateral proceedings . . . are not a proper basis for habeas
relief from the original conviction”).
Finally, Petitioner is not entitled to relief on
his claim
that the statement he gave to law enforcement was taken in
violation of Miranda.
Petitioner claims that his “statement to
police was taken in violation of his rights against selfincrimination and rights afforded juveniles and should have been
suppressed.”
Prior to trial, a hearing was held to determine whether
Petitioner’s statement to law enforcement complied with the
strictures of Miranda.
(ECF No. 26-50.)
At that hearing, the
trial court made the following findings regarding Petitioner’s
statement:
In this case, the defendant is a 17-year-old
male and his mother was present during the
police questioning. Before the questioning,
the mother also signed a consent form as a
witness. His mother . . . was present during
the questioning, interjected, asked
questions, told him that – what he
remembered. I’m satisfied that he was given
the opportunity to have his parent or
guardian present.
. . .
The total questioning of the defendant was
approximately 90 minutes. There’s no
evidence that’s been shown to the court that
his will was broken in any way.
33
. . .
The defendant was given his Miranda warnings
on two separate occasions in the presence of
his mother, and at no time during the
interview did he make any attempt to invoke
his rights to remain silent and his right to
have an attorney present during the
interview. Further, the defendant
specifically stated that he understood his
Miranda warnings. And only after that did he
give his statement.
I’m satisfied in this case that the fact that
defendant did not sign the Miranda warning
sheet does not have any effect in any way.
The question is was he given his rights, did
he understand them? I’m satisfied he did.
And the fact that an oversight that it was
not signed is not material.
. . .
It’s clear that the defendant was not subject
to repeated questions or physical or mental
abuse. It’s clear also that the participants
on the tape spoke in a relaxed manner and
they were not aggressive toward this
defendant. Therefore, based upon the
totality of the circumstances, I find there
was no evidence present defendant was subject
to any duress.
The State has presented evidence to the court
that the police complied with Miranda v.
Arizona and the New Jersey cases and the
heightened requirements of juvenile
statements to have an adult guardian or
parent present. For all these reasons, I
find that defendant’s motion to suppress the
statement in this matter is denied.
(Id. at 44–45.)
Petitioner did not challenge the trial court’s
34
determination on direct appeal and did not raise this issue
until his appeal of the First PCR. 7
The Appellate Division found
that this claim was procedurally barred under New Jersey Court
Rule 3:22-4(a) because it should have been raised on direct
review. 8
(ECF No. 26-18, at 12.)
Nevertheless, the Appellate
Division additionally denied the claim on the merits:
As is evident from the record of the Miranda
hearing, Judge Natal thoroughly reviewed the
evidence presented, made detailed
credibility findings, and provided sound
reasons for concluding that the State had
proved beyond a reasonable doubt that
defendant’s statement to police was provided
with a knowing and voluntary waiver of his
right to remain silent.
Defendant now maintains that the statement
should have been suppressed because no
attorney was present with defendant when he
gave his statement. The record
demonstrates, and Judge Natal found, that
defendant was fully advised of his right to
an attorney and knowingly and voluntarily
chose to waive that right. Nothing
presented by defendant causes us to question
the soundness of the ruling Judge Natal made
when he denied defendant’s motion to
suppress his statement.
7
This claim appears unexhausted because it was not presented
to the Superior Court prior to Petitioner raising it on appeal.
To properly exhaust a claim for habeas review, a petitioner is
required to invoke “a complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Accordingly, the Court’s review of the claim
is de novo. Appel, 250 F.3d at 210.
8
Despite the Appellate Division’s denial of this claim on
state procedural grounds, Respondents did not argue that this
claim is procedurally defaulted. The Court declines to raise
that issue sua sponte.
35
(Id. at 18–19.)
The Fifth Amendment to the United States constitution
provides in part “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.”
amend. V.
U.S. Const.
In Miranda v. Arizona, 384 U.S. 436 (1966), the
Supreme Court held that in order to protect an accused’s Fifth
Amendment right against self-incrimination during the inherently
coercive custodial interrogation setting, certain procedural
safeguards must be employed.
These safeguards include the
explicit warning that the accused “has the right to remain
silent, that anything he says can be used against him in a court
of law, that he was 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.”
Id. at 479.
After this explicit warning is provided, a suspect may
knowingly, intelligently, and voluntarily waive his rights.
Michigan v. Mosley, 423 U.S. 96, 108 (1975).
The question of
whether a suspect knowingly and voluntarily waived his rights
requires “an inquiry into the totality of the circumstances
surrounding the interrogation, to ascertain whether the accused
in fact knowingly and voluntarily decided to forego his rights
to remain silent and to have the assistance of counsel.”
v. Michael C., 442 U.S. 707, 724–25 (1979).
36
Fare
The Supreme Court
has held that the same inquiry applies where a suspect is a
juvenile and has instructed that the totality of the
circumstances inquiry mandates “inquiry into all the
circumstances surrounding the interrogation,” including
“evaluation of the juvenile’s age, experience, education,
background, intelligence, and into whether he has the capacity
to understand the warnings given to him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.”
Id. at 725.
Relying on the factual findings of the trial court, 9 the
Court finds that Petitioner’s statement was not taken in
violation of Miranda.
Petitioner was informed of his Miranda
warnings twice before his statement was taken and he
“specifically stated that he understood his Miranda warnings.”
(ECF No. 26-50, at 44–45.)
Indeed, review of Petitioner’s
statement demonstrates that prior to beginning the interview,
the interviewing officer confirmed that Petitioner understood
each of his Miranda rights and explained that Petitioner could
end the interview at any time.
(ECF No. 26-16, at 100–01.)
At
no point did Petitioner invoke those rights during the 90-minute
9
While the Court’s review of this unexhausted claim is de
novo, the presumption of correctness afforded to the findings of
the state court remains in effect. Collins v. Sec’y Dept. of
Corrs., 742 F.3d 528, 544 n.9 (3d Cir. 2014).
37
interview.
(See id. at 100-19.)
The trial court additionally made findings regarding
Petitioner’s ability to understand the nature of his rights and
the consequences of waiving those rights.
The trial court
observed:
In this case, we have a 17-year-old
defendant who has completed the tenth grade
education. He is familiar with the criminal
justice system, based upon the criminal
records that were presented to the court
showing numerous adjudications in the
juvenile system, and there was nothing to
show that there was any intoxication or any
mental defect that would affect his ability
to think clearly.
(ECF No. 26-50, at 42.)
The totality of the circumstances of Petitioner’s
interrogation demonstrates that he knowingly and voluntarily
waived his Miranda rights.
Petitioner was properly informed of
his rights prior to the interview and affirmatively stated that
he understood those rights.
Thus, because the Court finds that
Petitioner’s statement was not taken in violation of Miranda,
relief on this claim is denied.
d. Ground Seven
In Ground Seven of the Amended Petition, Petitioner alleges
that his sentence is in violation of the Eighth and Fourteenth
Amendments.
It appears that Petitioner’s claim is based on the
Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460
38
(2012), which held that mandatory life sentences without the
possibility of parole for juvenile offenders violate the Eighth
Amendment of the Constitution.
Petitioner claims that his
aggregate seventy-year sentence for a crime committed while he
was a minor constitutes an unconstitutional “de facto life
sentence for a juvenile.”
(ECF No. 12, at 8.)
Petitioner
further asserts that his youth was not properly considered by
the trial judge at sentencing.
(Id.)
Respondents argue that
the state court reasonably applied Miller to Petitioner’s
sentence.
(ECF No. 26, at 72–76.)
Petitioner raised this claim is his Third PCR.
On appeal,
the Appellate Division affirmed the Superior Court’s denial of
his petition.
(ECF No. 26-43.)
The Appellate Division agreed
with the Superior Court that Petitioner’s case was
distinguishable from Miller.
(Id. at 5–6.)
The Appellate
Division explained that the sentence at issue in Miller was a
mandatory life sentence without the possibility of parole
imposed on a defendant who was a minor at the time the crime was
committed.
(Id.)
Petitioner’s sentence, conversely, was not a
mandatory life sentence and permits him to be eligible for
parole after 64 years.
(Id.)
The Appellate Division further
noted that
Miller only addressed those sentences,
unlike here, where the youth of the offender
was not considered at sentencing, and the
39
Court rejected a “categorical bar on life
without parole for juveniles.” Contrary to
defendant’s contentions, the judge did
consider defendant’s youth at sentencing.
The judge noted that defendant had already
incurred an extensive juvenile record and
addressed mitigating factor thirteen, which
requires the sentencing court to consider
whether “[t]he conduct of a youthful
defendant was substantially influenced by
another person more mature than the
defendant. The judge declined to find this
mitigating factor because “defendant and his
contemporaries in age were the ones who
committed the offense.”
(ECF No. 26-43, at 6 (citations omitted) (first quoting Miller,
567 U.S. at 479–80; then quoting N.J. Stat. Ann. 2C:44-1b(13)).
In Miller, the Supreme Court held that “a sentencing scheme
that mandates life in prison without possibility of parole for
juvenile offenders” violates the Eighth Amendment’s prohibition
of cruel and unusual punishment.
567 U.S. at 479.
The Supreme
Court found such schemes unconstitutional because they pose a
significant risk of disproportionate punishment “[b]y making
youth (and all that accompanies it) irrelevant to imposition of
that harshest prison sentence.”
Id.
In Montgomery v.
Louisiana, 136 S. Ct. 718, 732 (2016), the Supreme Court ruled
that Miller applied retroactively.
The Montgomery court further
clarified that “Miller did not foreclose a sentencer’s ability
to impose life without parole on a juvenile,” but required that
“sentencing courts consider a child’s ‘diminished culpability
40
and heightened capacity for change’ before condemning him or her
to die in prison.”
Id. at 726.
The Appellate Division’s decision was neither contrary to
nor an unreasonable application of Miller. 10
In contrast to the
mandatory life sentences at issue in Miller, Petitioner’s
sentence of consecutive terms of 40 and 30 years on his two
convictions for first-degree murder, with the possibility of
parole only after 64 years, while undoubtedly long, was not
compelled but a discretionary decision of the sentencing judge. 11
In exercising that discretion the sentencing judge properly
considered Petitioner’s age, noting that “this was not the
conduct of a youthful defendant that was substantially
influenced by another person more mature than this defendant.
This defendant and his contemporaries in age were the ones who
committed this offense.”
(ECF No. 26-57, at 32–33.)
10
Petitioner additionally argues that his sentence violates
Miller as it is “the functional equivalent of life without
parole.” The Supreme Court, however, has “not yet explicitly
held that the Eighth Amendment extends to juvenile sentences
that are the functional equivalent of life.” Starks v.
Easterling, 659 F. App’x 277, 280 (6th Cir. 2016).
11
Petitioner is required to serve 85% of his 40-year term and
30 years of his 30-year term. (See ECF No. 26-5.) According to
the publicly accessible New Jersey Department of Correction’s
Offender Search Engine, Petitioner’s current parole eligibility
date is December 19, 2066.
41
The Appellate Division properly determined that because
Petitioner was not sentenced under a scheme which mandated a
life sentence without parole, Miller is not applicable and,
therefore, Petitioner is not entitled to resentencing.
Accord
Bacon-Vaughters v. Johnson, No. 18-9034, 2019 WL 2646579, at *2
(D.N.J. June 27, 2019) (“The holding of Miller applies to
mandatory sentences of ‘life without possibility of parole for
juvenile offenders.’”); Wali v. Att’y Gen. of N.J., No. 16-9018,
2019 WL 2071191, at *3 (D.N.J. May 3, 2019) (same).
Accordingly, relief on this claim is denied.
IV.
CERTIFICATE OF APPEALABILITY
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding
unless a judge issues a certificate of appealability on the
ground that “the applicant has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
This Court will deny a certificate of appealability because
jurists of reason would not debate the Court’s ruling.
V.
CONCLUSION
For the foregoing reasons, the Amended Petition is denied.
An appropriate Order will be entered.
Date: July 30, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
42
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