SANTIAGO v. WARREN
Filing
28
OPINION FILED. Signed by Judge Noel L. Hillman on 9/29/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
NA'EEM SANTIAGO,
:
:
Petitioner,
:
Civ. No. 12-2105 (NLH)
:
v.
:
OPINION
:
CHARLES WARREN, et al.,
:
:
Respondents.
:
___________________________________:
APPEARANCES:
Na’eem Santiago, #405131 / 983272
New Jersey State Prison
P.O. Box 861
Trenton, NJ
Petitioner, pro se
Mario C. Formica, Esq.
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, NJ 08201
Counsel for Respondents
HILLMAN, District Judge
This matter is before the Court pursuant to Petitioner
Na’eem Santiago’s submission of a Petition (ECF No. 1) for writ
of habeas corpus, under 28 U.S.C. § 2254, challenging his state
court conviction for felony murder and related offenses.
For
the reasons set forth below, the Petition will be DENIED. 1
1
To the extent that Petitioner's claims are unexhausted, this
Court will deny them on the merits pursuant to 28 U.S.C. §
2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
State”). See Carrascosa v. McGuire, 520 F.3d 249, 255 n. 10 (3d
I.
FACTUAL BACKGROUND and PROCEDURAL HISTORY
A discussion of the factual and procedural background of
this case is set forth in the state appellate court’s decision
on Petitioner’s appeal of post-conviction relief:
Defendant was convicted of murdering Vaughn Rollins on
the evening of October 22, 1996, when defendant was
sixteen years old. Defendant obtained the murder
weapon from Rollins' cousin, Stephon Duggan, who
testified that he specifically told defendant and his
co-defendant not to harm Rollins when defendant said
he was going to “rob a couple of people.” Duggan
testified that after the murder, he spoke with
defendant who told him the killing was an accident.
Rollins was sitting in his car counting money when he
was shot in the chest at close range by a man in a ski
mask. Fifteen-year-old Joel Townsel, who was sitting
on a porch in front of Rollins' car, testified he saw
a man put on a ski mask, demand money from Rollins and
shoot Rollins when he refused to turn it over.
Townsel testified that, although he did not get a good
look at the shooter, he picked out defendant's
photograph from a photo array at the urging of the
police. He did not identify defendant in court.
After the murder, defendant visited Aaron McCoy, an
older man with extensive experience in the criminal
justice system. McCoy testified that he told
defendant to take a cab and throw the gun off a bridge
Cir. 2008) (“There is, however, a difference between granting an
unexhausted habeas claim on the merits and denying such a claim
on the merits, as recognized by the plain language of section
2254(b)(2) . . . Denying an unexhausted claim on the merits is
consistent with the statute”); Taylor v. Horn, 504 F.3d 416, 427
(3d Cir. 2007) (“Here, because we will deny all of Taylor's
claims on the merits, we need not address exhaustion”);
Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (“We would
permit Bronshtein to attempt on remand to establish a reason to
excuse his procedural default, but we find it unnecessary to do
so because it is apparent that the claims in question lack
merit. Under 28 U.S.C. § 2254(b)(2), we may reject claims on
the merits even though they were not properly exhausted, and we
take that approach here”).
2
into the river.
defendant.
McCoy said he called a cab for
Three days after the murder, defendant told two young
women in Philadelphia not to mention that they had
seen him because the police “were trying to put a body
on him.” Defendant was arrested a year and a half
later.
State v. Santiago, No. A-2015-09T3, 2011 WL 890774, at *1 (N.J.
Super. Ct. App. Div. Mar. 16, 2011).
Petitioner was tried with his codefendant, Jamal Muhammad.
After a jury trial, Petitioner was convicted in February, 2000,
of: third-degree unlawful possession of a weapon, N.J. STAT. ANN.
2C:39–5b (count one); second-degree possession of firearms with
an unlawful purpose, N.J. STAT. ANN. 2C:39–4a (count two); firstdegree robbery, N.J. STAT. ANN. 2C:15–1 (count three); felony
murder, N.J. STAT. ANN. 2C:11–3a(3) (count four); murder, N.J.
STAT. ANN. 2C:11–3a(1)(2) (count five); and conspiracy, N.J.S.A.
2C:5–2 (count six).
On March 31, 2000, Petitioner was sentenced:
The judge merged the felony murder conviction into the
murder conviction, and sentenced defendant to life in
prison, with a minimum parole ineligibility period of
thirty years. [The] Judge [] also imposed a
consecutive, twenty-year sentence with a ten-year
parole ineligibility period for the robbery
conviction. Defendant received concurrent sentences
for the remaining convictions.
In the aggregate, defendant received a life sentence
plus twenty years, and was required to serve a minimum
of forty years before becoming eligible for parole.
He was sixteen-years-old when the crimes were
committed, and twenty-years-old when he was sentenced.
3
State v. Santiago, No. A-2064-13T1, 2015 WL 4411352, at *1 (N.J.
Super. Ct. App. Div. July 21, 2015).
Petitioner filed a direct appeal and the state appellate
division affirmed the convictions. State v. Santiago, No. A–
4881–99 (N.J. Super. Ct. App. Div. July 9, 2001).
The New
Jersey Supreme Court denied certification. State v. Santiago,
170 N.J. 210, 785 A.2d 438 (2001).
Petitioner then applied for post-conviction relief (“PCR”).
However, it is unclear when, exactly, Petitioner filed for that
relief.
It appears that Petitioner filed one pro se application
in 2003, see (Pro Se Notice of Petition, Resp’t’s Ex. 13, Aug.
10, 2003, ECF No. 18-13), and another in 2004, see Santiago,
2011 WL 890774, at *1; (Pro Se Notice of Petition, Resp’t’s Ex.
14, Nov. 22, 2004, ECF No. 18-14).
However, Petitioner’s PCR
application was not filed and addressed by the PCR court for
nearly five years, and no explanation for this delay is present
in the record. See, e.g., Santiago, 2011 WL 890774, at *1 n.1
(“The delay of almost five years in hearing defendant's PCR
application is not explained in the record.”).
On September 24,
2009, assigned PCR counsel filed a brief in support of
Petitioner’s PCR application. (PCR Br., Resp’t’s Ex. 15, Sept.
24, 2009, ECF No. 18-15).
Petitioner then filed another pro se
brief in support of PCR, the State filed a responsive
submission, and the PCR court heard oral argument on the
4
application.
In an oral opinion on October 23, 2009, the PCR
court denied Petitioner’s application. (PCR Tr., Resp’t’s Ex.
17, Oct. 23, 2009, ECF No. 18-17).
An appropriate order
followed. (PCR Order, Resp’t’s Ex. 18, Oct. 23, 2009, ECF No.
18-18).
Petitioner appealed, and the state appellate court affirmed
the decision of the PCR court. Santiago, 2011 WL 890774, at *4.
The New Jersey Supreme Court denied certification on December 1,
2011. State v. Santiago, 208 N.J. 600, 34 A.3d 782 (2011).
Petitioner filed the instant petition for writ of habeas corpus
under 28 U.S.C. § 2254 on or about April 2, 2012. (ECF No. 1).
In his Petition, he asserts nine grounds for relief.
Specifically, he alleges: (1) that the trial court erred by
failing to instruct the jury on the lesser-included offenses of
aggravated and reckless manslaughter; (2) ineffective assistance
of counsel due to his trial counsel’s failure to accept the
trial court’s offer to charge the jury on the lesser-included
offenses of aggravated manslaughter and reckless manslaughter;
(3) that the trial court’s admission of an identification made
by witness Joel Townsel was unnecessarily suggestive; (4)
ineffective assistance of counsel due to trial counsel’s failure
to move for a Wade hearing to bar the out-of-court
identification of Joel Townsel; (5) ineffective assistance of
counsel due to trial counsel’s failure to argue that the court
5
erred in explaining to the jury the mens rea required for a
robbery conviction; (6) ineffective assistance of counsel due to
trial counsel’s failure to object to the hearsay testimony of
Kenneth Howard, to ask for a limiting instruction on the use of
other-crimes evidence, and to object to “subsequent inadequate
instructions;” (7) ineffective assistance of counsel due to
trial counsel’s failure to object to the jury instruction on the
robbery offense; (8) ineffective assistance of counsel due to
trial counsel’s failure to move for dismissal of the robbery and
felony murder counts; and (9) that the trial court violated the
Supreme Court’s holding in Brady.
Respondents filed their Answer on February 25, 2014. (ECF
No. 18).
Petitioner was granted three extensions of time in
which to submit his Traverse, which was filed on September 15,
2014. (ECF No. 27).
This matter is now fully briefed and the
Court has considered all submissions by the parties.
II.
STANDARDS OF REVIEW
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 now provides, in
pertinent part:
(a)
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment
of a State court only on the ground that he is in
custody in violation of the Constitution or laws
or treaties of the United States.
6
With respect to any claim adjudicated on the merits in
state court proceedings, the writ shall not issue unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as 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).
A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts
the governing law set forth in [Supreme Court] cases,” or “if
the state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06, 120 S. Ct.
1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., for the Court, Part
II).
A state court decision “involve[s] an unreasonable
application” of federal law “if the state court identifies the
correct governing legal rule from [the Supreme] Court's cases
but unreasonably applies it to the facts of the particular state
prisoner's case,” and may involve an “unreasonable application”
of federal law “if the state court either unreasonably extends a
legal principle from [the Supreme Court's] precedent to a new
7
context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply,”
(although the Supreme Court expressly declined to decide the
latter). Id. at 407–09.
To be an “unreasonable application” of clearly established
federal law, the state court's application must be objectively
unreasonable. See id. at 409.
In determining whether the state
court's application of Supreme Court precedent was objectively
unreasonable, a habeas court may consider the decisions of
inferior federal courts. See Matteo v. Superintendent, 171 F.3d
877, 890 (3d Cir. 1999).
The deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal case law, “as long as the reasoning of the state court
does not contradict relevant Supreme Court precedent.” Priester
v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3, 123 S. Ct. 362, 154 L.Ed.2d 263 (2002);
Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 154 L.Ed.2d
279 (2002)).
Finally, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167
L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976)); Haines v. Kerner,
8
404 U.S. 519, 520, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972).
A pro
se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance. See Royce
v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721–22 (3d Cir. 1989).
III. DISCUSSION
Because several of Petitioner’s claims address similar
subject matter and require similar analysis, this Court will
address the grounds for relief not in the order presented in the
Petition, but in an order which resolves each ground most
efficiently and clearly.
A. GROUND ONE
As his first basis for relief, Petitioner asserts that the
trial court erred by failing to instruct the jury on the lesserincluded offenses of aggravated and reckless manslaughter. 2
In
Beck v. Alabama the Supreme Court held that, in a capital case,
a trial court must give a requested charge on a lesser included
offense where it is supported by the evidence. See 447 U.S. 625,
635, 100 S. Ct. 2382, 2389, 65 L. Ed. 2d 392 (1980); see also
Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 2127, 124
L. Ed. 2d 306 (1993).
However, the Supreme Court did not
2
To the extent this claim is unexhausted, it will nevertheless
be denied on its merits. See 28 U.S.C. § 2254(b)(2); Carrascosa,
520 F.3d at 255 n.10.
9
resolve the question of whether instructions on lesser included
offenses were required in non-capital cases. See id.
The Third Circuit held that trial courts must charge a
lesser included offense so that the jury does not convict a
defendant of a crime more serious than the jury believes the
defendant actually committed merely because the jury believes
the defendant had some degree of involvement and does not want
to set the defendant free. See Vujosevic v. Rafferty, 844 F.2d
1023, 1027 (3d Cir. 1988) (citing Keeble v. United States, 412
U.S. 205, 212–13, 93 S. Ct. 1993, 1998, 36 L. Ed. 2d 844
(1973)).
In a subsequent case the Third Circuit observed that,
since it is unclear whether due process requires instruction on
a lesser included offense in non-capital cases, a federal court
should conduct its analysis with the relevant state law in mind.
See Geschwendt v. Ryan, 967 F.2d 877, 884 n.13 (3d Cir. 1992)
(relying on Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115
L. Ed. 2d 555 (1991)).
New Jersey law provides that an instruction as to a lesser
offense is warranted only where the facts provide a rational
basis for such a conviction. See N.J. STAT. ANN. § 2C:1-8 (“The
court shall not charge the jury with respect to an included
offense unless there is a rational basis for a verdict
convicting the defendant of the included offense.”); State v.
Brent, 137 N.J. 107, 644 A.2d 583 (1994) (holding that a
10
defendant is entitled to instruction on lesser included offense
supported by evidence regardless of whether charge is consistent
with theory of defense).
In this case, the trial court offered to charge lesserincluded offenses, and it is apparent from the record that
Petitioner and trial counsel made a strategic decision to
decline this offer.
Unlike the circumstances present in Brent,
Petitioner in this case explicitly requested not to be charged
with the lesser-included offenses.
As the appellate court noted
on review of Petitioner’s PCR application, Petitioner
“concede[d] that he agreed with trial counsel not to request a
lesser charge because trial counsel told him it would be
inconsistent with his defense of innocence.” Id.; see also
(Trial Tr. 90:14 – 91:1, Resp’t’s Ex. 6, Feb. 23, 2000, ECF No.
18-6).
In addition, “a trial court must be sensitive to the
potential that charging lesser-included offenses could prejudice
a defense to the more serious charges.” State v. Perry, 124 N.J.
128, 590 A.2d 624 (1991).
Petitioner’s “defense at trial was
that he did not shoot Rollins.” Santiago, 2011 WL 890774, at *3.
Therefore, if the trial court had insisted on charging a lesserincluded offense over Petitioner’s objection to same, it may
have prejudiced Petitioner’s chances of being acquitted of
murder by emphasizing Petitioner’s presence at the scene or
11
requiring counsel to abandon his chosen strategy.
As the PCR
judge noted, “[i]t would be inconsistent with the defense of
identification [that Petitioner was not the one who shot the
victim] and the fairness of the proceedings in that it would
give the jury an opportunity to consider a lesser-included
offense where there’s nothing in the record to justify it.” (PCR
Tr. 29:2-6, Resp’t’s Ex. 17, Oct. 23, 2009, ECF No. 18-17).
This Court agrees that, given the circumstances of the case and
Petitioner’s chosen defense strategy, the trial court was not
obligated to instruct with respect to lesser-included offenses
against Petitioner’s wishes.
Finally, as set forth above, the Supreme Court has not
conclusively addressed whether due process requires instruction
on a lesser included offense in non-capital cases.
“[The
Supreme] Court has held on numerous occasions that it is not an
unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has
not been squarely established by this Court.” Knowles v.
Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411, 1419, 173 L. Ed.
2d 251 (2009) (citation and internal quotation marks omitted).
Further, “[o]ther circuits have held that the failure to give
lesser included offense instructions in a non-capital case does
not present a constitutional question.” Peoples v. Cathel, No.
05-5916, 2006 WL 3419787, at *7 (D.N.J. Nov. 21, 2006)
12
(collecting cases).
Therefore, even if the state court
decisions in Petitioner’s case were erroneous — which this Court
does not find — any error did not involve an unreasonable
application of clearly established federal law as determined by
the Supreme Court of the United States. See, e.g., St. Fleur v.
Ricci, No. 10-0864, 2012 WL 194345, at *10 (D.N.J. Jan. 17,
2012); Peoples, 2006 WL 3419787, at *8; see also Porter v.
Brown, No. 04-4415, 2006 WL 2640624, at *9 (D.N.J. Sept. 12,
2006) (“The decision of the trial court not to give certain
instructions should be constitutionally upheld unless the facts
clearly indicate the appropriateness of an unrequested charge,
since a trial court does not have the obligation on its own
meticulously to sift through the entire record in every murder
trial to see if some combination of facts and inferences might
rationally sustain a manslaughter charge.”) (citations and
quotations omitted).
Petitioner is not entitled to habeas
relief on this claim.
B. GROUND THREE
As his third ground for relief, Petitioner asserts that the
state court’s ruling that the admission of the out-of-court
identification made by Joel Townsel was not unnecessarily
suggestive was contrary to clearly established federal law. 3
3
The Court notes that Ground Three of the Petition is
inextricably tied to Petitioner’s Ground Four, in which
13
Petitioner is not entitled to federal habeas relief on this
claim.
As an initial matter, during trial Petitioner did not
challenge Townsel’s out-of-court identification as unnecessarily
suggestive.
Indeed, in Ground Four of this Petition, Petitioner
asserts that his trial counsel was ineffective for failing to
make this challenge during trial by requesting a Wade hearing.
Therefore, it is unclear to this Court how Petitioner can argue
that the state court made an affirmative ruling on this issue
which was contrary to clearly established federal law.
Petitioner raised this claim in the context of plain error
on direct appeal.
In addressing this argument, the state
appellate court noted that Petitioner did not object to
Townsel’s testimony during trial, and summarily rejected
Petitioner’s claim. (Op. on Direct Appeal 11, Resp’t’s Ex. 11,
July 9, 2001, ECF No. 18-11) (“Using that measuring stick [of
plain error], we see nothing that would warrant reversal.”).
Petitioner asserts that his trial counsel was ineffective for
failing to request a Wade hearing to suppress Townsend’s out-ofcourt identification of Petitioner. (Pet. 25, ECF No. 1); see
also United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.
Ed. 2d 1149 (1967). Several times in the supporting facts
section of Petitioner’s Ground Three he asserts that his “trial
counsel was ineffective for failing to move for a Wade hearing.”
(Pet. 24, 25, ECF No. 1). Nevertheless, in an effort to
construe the pro se petition liberally as this Court must, see
Royce, 151 F.3d at 118, the Court has distinguished these two
claims and will address them separately.
14
In the instant federal habeas petition, Petitioner does not
cite to any clearly established federal law which requires that
a trial court must sua sponte challenge an out-of-court
identification, or conduct a Wade hearing, in the absence of
such a challenge or request by a defendant at trial.
Further,
this Court’s review of relevant Supreme Court precedent suggests
that a state trial court has no such obligation.
In Watkins v.
Sowders, the Supreme Court stated that “under our adversary
system of justice, cross-examination has always been considered
a most effective way to ascertain truth.” 449 U.S. 341, 349, 101
S. Ct. 654, 659, 66 L. Ed. 2d 549 (1981).
Relying on the “time-
honored process of cross-examination as the device best suited
to determine the trustworthiness of testimonial evidence[,]” the
Supreme Court explicitly rejected the notion that a state
criminal court is compelled to conduct a hearing in every
instance where the propriety of identification procedures has
been questioned by a defendant. Id.
In light of the Supreme Court’s holding in Watkins, this
Court cannot conclude the state trial court in this case was
compelled to sua sponte conduct a hearing where no challenge to
the propriety of the identification procedure had been made.
Moreover, Petitioner in this case had the opportunity to
challenge the trustworthiness of Townsel’s testimony via the
15
“time-honored process of cross-examination. 4” Id.
Because there
was no due process violation, and no unreasonable application of
clearly established federal law, Petitioner is not entitled to
federal habeas relief on this claim.
C. GROUND NINE
As his final ground for federal habeas relief, Petitioner
relies on the Supreme Court’s decision in Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The Third
Circuit recently explained the application of Brady in the
context of a federal habeas corpus petition:
Prosecutors have an affirmative duty “to disclose
[Brady] evidence ... even though there has been no
request [for the evidence] by the accused,” which may
include evidence known only to police. Strickler v.
Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144
L.Ed.2d 286 (1999); Kyles, 514 U.S. at 438, 115 S. Ct.
1555. To comply with Brady, prosecutors must “learn
of any favorable evidence known to the others acting
on the government's behalf ..., including the police.”
Strickler, 527 U.S. at 281, 119 S. Ct. 1936 (internal
quotation marks omitted) (quoting Kyles, 514 U.S. at
437, 115 S. Ct. 1555).
To prove a Brady violation, a defendant must show the
evidence at issue meets three critical elements.
First, the evidence “must be favorable to the accused,
4
Although Petitioner did not cross-examine Townsel during trial,
the state appellate court noted on direct appeal that Townsel’s
own direct “testimony certainly challenged the validity of the
photo identification. Indeed the testimony could be viewed as
substantially benefitting Santiago.” (Op. on Direct Appeal 11,
Resp’t’s Ex. 11, July 9, 2001, ECF No. 18-11). This further
supports the conclusion that Petitioner is not entitled to
federal habeas relief based on the state trial court’s failure
to sua sponte question the propriety of the identification made
by Townsel.
16
either because it is exculpatory, or because it is
impeaching.” Id. at 281–82, 119 S. Ct. 1936; see also
United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct.
3375, 87 L.Ed.2d 481 (1985) (“Impeachment evidence
..., as well as exculpatory evidence, falls within the
Brady rule.”). Second, it “must have been suppressed
by the State, either willfully or inadvertently.”
Strickler, 527 U.S. at 282, 119 S. Ct. 1936. Third,
the evidence must have been material such that
prejudice resulted from its suppression. Id.; see also
Banks, 540 U.S. at 691, 124 S. Ct. 1256. The
“touchstone of materiality is a ‘reasonable
probability’ of a different result.” Kyles, 514 U.S.
at 434, 115 S. Ct. 1555. Materiality “does not
require demonstration by a preponderance that
disclosure of the suppressed evidence would have
resulted ultimately in the defendant's acquittal ...
[Rather], [a] ‘reasonable probability’ of a different
result is ... shown when the government's evidentiary
suppression undermines confidence in the outcome of
the trial.” Id. (internal quotation marks omitted).
Dennis v. Sec'y, Pennsylvania Dep't of Corr., No. 13-9003, 2016
WL 4440925, at *14 (3d Cir. Aug. 23, 2016).
In his Petition, Petitioner asserts that “the state court’s
ruling that the state did not violate Brady by failing to
disclose the prior conviction of armed robbery for its witness
Aaron McCoy was contrary to clearly established federal law and
an unreasonable application of federal law . . .” (Pet. 31, ECF
No. 1).
Petitioner raised this issue on direct appeal.
In
ruling on this issue, the state appellate court stated
Santiago complains that the State failed to disclose
in advance of trial that Aaron McCoy had a prior
conviction for armed robbery. The State admits the
failure; the existence of that conviction did not come
out until McCoy took the stand and testified. There
is no allegation, let alone demonstration, however,
17
that the omission was the product of misconduct or bad
faith on the part of the State.
While this information should certainly have been made
available in advance of trial, we cannot avoid noting
that the jury was fully apprised of McCoy’s extensive
criminal background. It strikes us as somewhat
tenuous that the revelation of one more conviction
would have tilted the balance of its assessment of
McCoy’s credibility. We note, moreover, that there
was no complaint at trial of this omission and no
request for a continuance. Santiago even used this
conviction to his advantage in summation. The
omission provides no basis, on balance, to overturn
these convictions.
(Op. on Direct Appeal 9-10, July 9, 2001, ECF No. 18-11)
(citation omitted).
As an initial matter, there is nothing before the Court to
suggest that McCoy’s undisclosed conviction for armed robbery
was “exculpatory or impeaching” beyond the fact of conviction.
Next, as the state appellate court noted, there is nothing to
suggest that the conviction was intentionally suppressed by the
prosecution.
Moreover, the jury was fully apprised by the
prosecution of McCoy’s multiple other conditions and,
ultimately, the jury was informed of his armed robbery
conviction.
Finally, as the state appellate court noted,
Petitioner used McCoy’s undisclosed conviction to his advantage
by attacking his credibility during closing summations. (Trial
Tr. 35:19 – 36:4; Closing Argument, ECF No. 18-7).
Therefore,
there is nothing in the record to suggest that advanced
18
disclosure of this particular conviction would have had any
impact on the outcome of Petitioner’s trial.
Given these circumstances, this Court cannot conclude that
the state court’s rejection of this claim was contrary to, or an
unreasonable application of, clearly established federal law.
Accordingly, Petitioner is not entitled to habeas relief on this
claim.
D. Ineffective Assistance of Counsel Claims
Petitioner’s Ground 2, and Grounds 5-8 are based on his
assertion that he was denied his Sixth Amendment right to
effective assistance of counsel.
1. Standard of Review
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.
Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added) (citations
omitted), cited in Ross v. Varano, 712 F.3d 784, 797 (3d Cir.
2013).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel's
performance fell below an objective standard of reasonable
professional assistance and that there is a reasonable
19
probability that, but for counsel's unprofessional errors, the
outcome would have been different. Strickland v. Washington, 466
U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
With respect to the “performance” prong, there is “a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689.
With respect to the “prejudice” prong, a “reasonable
probability” of prejudice is “a probability sufficient to
undermine confidence in the outcome.” Strickland at 694.
Thus,
counsel's errors must have been “so serious as to deprive the
defendant of ... a trial whose result is reliable.” Id. at 687.
The performance and prejudice prongs of Strickland may be
addressed in either order, and “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice ... that course should be followed.” Id. at 697.
There is “a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
As a general matter, strategic
choices made by counsel after a thorough investigation of the
facts and law are “virtually unchallengeable,” though strategic
choices “made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690–
91; see also Marshall v. Cathel, 428 F.3d 452, 462–63 (3d Cir.
20
2005).
If counsel has been deficient in any way, however, the
habeas court must determine whether the cumulative effect of
counsel's errors prejudiced the defendant within the meaning of
Strickland.
2. GROUND TWO
As his second ground for habeas relief, Petitioner asserts
that he was denied effective assistance of counsel because his
trial counsel failed to accept the trial court’s offer to charge
the jury on the lesser-included offenses of aggravated
manslaughter and reckless manslaughter. (Pet. 22-23, ECF No. 1).
Specifically, Petitioner states that he was misled by his
attorney that, “even if petitioner was to be found guilty [of
murder], he could only be sentenced to the lesser-included
offense based on the evidence presented at trial.” (Id. at 22).
Moreover, Petitioner asserts that the evidence elicited at trial
suggested that the shooting was an accident; therefore, his
counsel could have “maintained a general denial of guilt defense
. . . and the trial court would have been obligated to instruct
the jury on the lesser-included offenses in a manner which
preserved petitioner’s defense.” (Id. at 23).
The appellate division analyzed this issue in reviewing
Petitioner’s PCR petition.
In doing so, the PCR appellate court
first noted that Petitioner’s “defense at trial was that he did
not shoot Rollins.” Santiago, 2011 WL 890774, at *3.
21
Indeed,
Petitioner “concede[d] that he agreed with trial counsel not to
request a lesser charge because trial counsel told him it would
be inconsistent with his defense of innocence.” Id.; see also
(Trial Tr. 90:14 – 91:1, Resp’t’s Ex. 6, Feb. 23, 2000, ECF No.
18-6).
Indeed, the fact that Petitioner agreed to proceed
without lesser-included offenses undercuts Petitioner’s
assertion that trial counsel’s performance was somehow
deficient.
“The reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions.
Counsel’s actions are usually based,
quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.”
Strickland, 466 U.S. at 691.
The appellate court then noted that Petitioner “was
convicted of felony murder . . . and [under New Jersey statute],
‘manslaughter is not a lesser included offense of felony
murder.’” Santiago, 2011 WL 890774, at *3 (quoting State v.
Pennington, 273 N.J. Super. 289, 298, 641 A.2d 1085, 1090 (App.
Div. 1994)).
Under New Jersey law, felony murder occurs where a
death is caused “when the actor, acting either alone or with one
or more other persons, is engaged in the commission of, or an
attempt to commit, or flight after committing or attempting to
commit robbery, sexual assault, arson, burglary, kidnapping,
22
carjacking, criminal escape or terrorism . . .” N.J. STAT. ANN. §
2C:11-3(a)(3).
The state appellate court reasoned that
Even if the jury thought defendant recklessly killed
Rollins during the course of the robbery, defendant
would still be guilty of felony murder. Therefore,
even if the trial court had charged aggravated or
reckless manslaughter, and even if the jury had found
defendant guilty of one of these lesser crimes instead
of murder in count five of the indictment, defendant
would still have been convicted of felony murder in
count four.
Santiago, 2011 WL 890774, at *3.
It can be inferred from statements above that the appellate
court found that, even if his counsel had performed deficiently,
Petitioner was not prejudiced by the failure to request lesserincluded offenses because Petitioner would still have been
convicted of felony murder — and Petitioner’s conviction for
murder was merged with his conviction for felony murder for
sentencing purposes.
Thus, even accepting as true Petitioner’s
assertion that he was misled by trial counsel into believing
that if he was “found guilty [of murder], he could only be
sentenced to the lesser-included offense” (Pet. 22, ECF No. 1),
Petitioner still would have been sentenced on the felony murder
conviction.
This Court agrees that even if Petitioner had been charged
with lesser-included offenses, the fact remains that he was
still convicted on the first-degree robbery charge and, as a
corollary, on the felony murder charge.
23
A review of the record
does not permit this Court to conclude that a manslaughter
charge would have led the jury to find Petitioner guilty of a
lesser offense and not guilty of felony murder.
Accordingly,
even assuming Petitioner’s counsel misled him regarding how he
would be sentenced for the murder charge — which this Court does
not find — Petitioner was not prejudiced by this misinformation
because he still would have been convicted of, and sentenced on,
the felony murder charge. 5 See Werts v. Vaughn, 228 F.3d 178, 204
(3d Cir. 2000) (holding no prejudice under Strickland where the
result of the proceeding would not have been different).
In the
absence of any prejudice, Petitioner cannot, under Strickland,
establish that he was deprived of the effective assistance of
counsel as to this issue.
Thus, the appellate division’s denial
5
The Court notes that Petitioner does not assert that he would
have altered his entire trial strategy had he known he could
have been sentenced on a murder conviction, and not just on
lesser-included offenses. In fact, Petitioner contends that he
“could have maintained a general denial of guilt defense, . . .
and the trial court would have been obligated to instruct the
jury on the lesser-included offenses in a manner which preserved
petitioner’s defense.” (Pet. 23, ECF No. 1). Regardless, as set
forth below, this Court finds that the state court’s affirmation
of the PCR court’s decision that trial counsel’s performance was
objectionably reasonable was not an unreasonable application of
Strickland. See Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir.
2006) (“Strickland and its progeny make clear that counsel's
strategic choices will not be second-guessed by post-hoc
determinations that a different trial strategy would have fared
better.” (citing Strickland, 466 U.S. at 689)).
24
of this claim was neither contrary to nor an unreasonable
application of Strickland, and Petitioner is not entitled to
federal habeas relief on this claim.
Moreover, the appellate court summarily affirmed the
decision of the PCR court and found that Petitioner had not met
his burden of demonstrating ineffective assistance of counsel
under Strickland. Santiago, 2011 WL 890774, at *3.
Part of the
PCR court’s reasoning in rejecting this ineffective assistance
claim was that “trial counsel would have been doomed in its
defense theory had it argued that defendant . . . didn’t do it,
but if he did, he did it for love or he did it not for money.
Therefore, the petitioner, it is alleged, was not denied
effective assistance because to do so on that issue would’ve
been arguing for something inconsistent.” (PCR Tr. 31:18-25,
Resp’t’s Ex. 17, Oct. 23, 2009, ECF No. 18-17).
Considering Petitioner’s asserted defense, this Court
agrees that trial counsel’s failure to request a lesser-included
offense charge was a strategic decision that did not amount to
ineffective assistance.
Specifically, as the PCR judge
observed, a request for a lesser-included offense would have
directly contradicted Petitioner’s asserted defense theory at
trial. Id.
Therefore, contrary to Petitioner’s assertion, it
would have been impossible for Petitioner to “maintain[] a
general denial of guilt defense . . . [and also have instructed
25
the jury] on the lesser-included offenses in a manner which
preserved petitioner’s defense.” (Pet. 23, ECF No. 1); see also
United States v. Ware, 595 F. App'x 118 (3d Cir. 2014) (finding
that defense counsel’s decision not to request lesser-included
jury instruction was reasonable trial strategy because to do so
would have been contrary to defense narrative that defendant had
committed no crime); Archy v. Phelps, No. 11-905 (NLH), 2013 WL
326920, at *6 (D. Del. Jan. 28, 2013) (“Given this conflict
between the defense theories and a lesser included offense
instruction, and the possibility that the jury would have been
confused by the presentation of such conflicting theories, the
Court concludes that defense counsel reasonably opted against a
lesser included offense instruction.”).
Given these circumstances, this Court cannot determine that
the state court’s denial of this claim was an unreasonable
application of Strickland.
The state court provided reasonable
justification for its conclusion that trial counsel satisfied
the deferential standards set forth in Strickland with respect
to foregoing the lesser-included jury instruction. See
Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788,
178 L.Ed.2d 624 (2011).
The state court’s rejection of this
claim is further supported by the fact that the record shows
that Petitioner participated in the selection of this trial
strategy. See Strickland, 466 U.S. at 691.
26
Accordingly, the
state court’s determination that trial counsel was not
ineffective for failing to request a lesser-included jury
instruction was not an unreasonable application of Strickland.
As the Supreme Court observed, “[i]t is ‘all too tempting’ to
‘second-guess counsel's assistance after conviction or adverse
sentence’.” Richter, 562 U.S. at 105 (quoting Strickland, 466
U.S. at 689–90).
Petitioner is not entitled to habeas relief on this claim.
See Ware, 595 F. App’x 121 (finding no ineffective assistance
because attorneys had a strategic reason for not requesting a
lesser-included jury instruction even though the strategy was
unsuccessful); see also Scott v. Bartkowski, No. 11-3365, 2013
WL 4537651, at *24 (D.N.J. Aug. 27, 2013) (collecting cases)
(“The denial of this claim was not an unreasonable application
of the Strickland standard as lesser included offenses would
have been completely inconsistent with petitioner's defense
theory at trial.”).
3. GROUND FOUR
As his fourth ground for relief, Petitioner asserts that he
was denied effective assistance of counsel because trial counsel
failed to move for a Wade 6 hearing.
A court in this district
recently explained:
6
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
27
The purpose of a Wade hearing is to determine whether
identification testimony should be suppressed because
the manner in which the identification of the suspect
was obtained was unduly suggestive. United States v.
Wade, 388 U.S. 218, 242 (1967). “Suggestive
confrontations are disapproved because they increase
the likelihood of misidentification . . . .” Neil v.
Biggers, 409 U.S. 188, 198 (1972). Significantly, the
Supreme Court has ruled that, where “identifications
were entirely based upon observations at the time of
the [incident] and not at all induced by the conduct”
of the pretrial identification procedures, the
identification does not violate due process. See
Coleman v. Alabama, 399 U.S. 1, 6-7 (1970).
Herrill v. Ricci, No. 10-3575, 2016 WL 1183176, at *18 (D.N.J.
Mar. 28, 2016), certificate of appealability denied (July 29,
2016).
Nevertheless, as discussed above, a Wade hearing is not
required in every case in which a defendant challenges out of
court identifications. See Watkins, 449 U.S. at 349.
Additionally, to show that he was prejudiced by counsel’s
failure to seek a Wade hearing, a petitioner “must show that he
would likely have prevailed on [his] suppression motion and
that, having prevailed, there is a reasonable likelihood that he
would not have been convicted.” Thomas v. Varner, 428 F.3d 491,
502 (3d Cir. 2005).
In this ground for relief, Petitioner challenges the
testimony and out-of-court identification made by Joel Townsel.
By way of background:
Joel Townsel, who was sitting on a porch in front of
Rollins’ car, testified he saw a man put on a ski
28
mask, demand money from Rollins and shoot Rollins when
he refused to turn it over. Townsel testified that,
although he did not get a good look at the shooter, he
picked out defendant’s photograph from a photo array
at the urging of the police. He did not identify
defendant in court.
Santiago, 2011 WL 890774, at *1.
Petitioner asserts that trial counsel should have requested
a Wade hearing to suppress the out-of-court identification and
testimony of Joel Townsel as unreliable; and that his failure to
do so constituted ineffective assistance.
The state appellate
court addressed this issue on review of the PCR court.
The
appellate court noted that it had already “considered
defendant's claim that the identification made by Joel Townsel
was unnecessarily suggestive and should have been excluded on
direct appeal, and therefore he may not raise the issue again
[on appeal of PCR].” Santiago, 2011 WL 890774, at *2 (citation
and quotations omitted).
The state appellate court then
referred to its opinion denying Petitioner’s direct appeal in
which it noted that Townsel’s direct “testimony certainly
challenged the validity of the photo identification.
Indeed the
testimony could be viewed as substantially benefitting
Santiago.” (Op. on Direct Appeal 11, Resp’t’s Ex. 11, July 9,
2001, ECF No. 18-11).
The state appellate court then summarily
affirmed the PCR court’s denial of this claim.
29
The oral opinion issued by the PCR judge helps to shed
light on the connection between the appellate court’s opinion on
direct appeal — denying Petitioner’s challenge to the admission
of the out-of-court identification by Townsend — and the
appellate court’s opinion on appeal of PCR — denying
Petitioner’s claim of ineffective assistance due to trial
counsel’s failure to request a Wade hearing.
Specifically, the
PCR judge stated:
whether or not any alleged deficiency or failure to
raise and to do the Wade hearing would have changed
the outcome of this case, it appears that based on the
totality of the rest of the evidence in the case and
based on the Appellate Division finding that any error
in the case does not constitute plain error and
therefore, assuming arguendo, that therefore, they
would say that if there was error, it was harmless
error and, assuming arguendo, that their reading of
the issue that the testimony could be viewed as
substantially benefitting Santiago, it would appear
that at least the second prong of the Strickland/Fritz
determination would not have been met on that issue.
(PCR Op. 25-26, Resp’t’s Ex. 17, Oct. 23, 2009, ECF No. 18-17).
In other words, because the testimony that would
hypothetically have been excluded as the result of a Wade
hearing was actually beneficial to Petitioner, Petitioner cannot
show that he suffered any prejudice under Strickland as a result
of his trial counsel’s failure to request the Wade hearing.
This Court is in agreement.
As the appellate court noted on direct appeal,
30
Townsel admitted in his testimony that prior to
viewing the photo array he had heard that Santiago was
responsible for the killing. He testified “names was
given to me during the time of the — the murder and
everybody was so sure that it was that person that I
just picked that picture out.” He also said that
prior to viewing the pictures, he was told which
picture displayed Santiago.
(Op. on Direct Appeal 10-11, Resp’t’s Ex. 11, July 9, 2001, ECF
No. 18-11).
Additionally, Townsel did not identify Petitioner in court
at trial.
Accordingly, the testimony given by Townsel served
mainly to cast doubt upon his out-of-court identification of
Petitioner and, indeed, his credibility in general.
Therefore,
even assuming Petitioner would have prevailed on his suppression
motion, Petitioner cannot show that there is a reasonable
likelihood that he would not have been convicted, and he has
failed to establish prejudice as a result of counsel’s failure
to request a Wade hearing. See Thomas, 428 F.3d at 502.
Because
Petitioner has not demonstrated by a reasonable probability that
the outcome of the proceedings would have been different but for
his trial counsel’s failure to request a Wade hearing, he is not
entitled to habeas relief on this claim.
4. GROUND FIVE
In Ground Five, Petitioner asserts that he received
ineffective assistance due to trial counsel’s failure to
challenge the jury instruction regarding the mens rea required
31
for a conviction for robbery.
In support of this claim,
Petitioner relies on the briefs submitted in support of PCR,
(PCR Br. 26-31, Resp’t’s Ex. 16, ECF No. 18-16), as well as the
arguments set forth in his Petition, (Pet. 27-28, ECF No. 1).
In his Petition, however, the supporting facts section
relates only to the evidence presented at trial; specifically,
evidence which Petitioner asserts suggests that the shooting was
the result of a disagreement with the victim over Petitioner’s
girlfriend, and not the result of a robbery.
Petitioner argues
that “trial counsel did not attempt to utilize the information
elicited at trial, that the shooting was an ‘accident’ to refute
the State’s theory of a robbery, felony murder, and knowing and
purposeful murder, to the jury.” (Pet. 28, ECF No. 1).
Respondents contend that the claim asserted in Ground Five
is identical to the claim asserted in Ground Seven.
Indeed,
Petitioner’s Ground Seven argues that he received ineffective
assistance because his counsel did not “object to the trial
court’s instruction to the jury on the robbery offense where the
court had transformed the requisite purposeful element to a
knowing element[,] thereby lessening the culpability for
conviction of first degree robbery.” (Pet. 29, ECF No. 1).
The
Court agrees that the caption for Ground Five and the caption
for Ground Seven present similar, if not identical, claims.
32
Petitioner attempts to distinguish these claims in his
Traverse, but it is clear that Petitioner is mistaken. (Traverse
9-10, ECF No. 27).
Petitioner is informed that the term “mens
rea” refers to the mental intent required to commit a crime.
Therefore, to the extent Petitioner’s claim in Ground Five is
that his counsel was ineffective for failing to challenge the
jury instruction on the mens rea for robbery, this is the same
as his claim in Ground Seven that his counsel was ineffective
for failing to challenge the jury instruction on the
“purposeful” and “knowing” element associated with the crime of
robbery.
Nevertheless, in construing the Petition liberally as this
Court must, see Royce, 151 F.3d at 118, it appears that
Petitioner means to assert an ineffective assistance claim in
Ground Five based on his counsel’s failure to argue that the
shooting occurred as a result of a dispute over Petitioner’s
girlfriend. See (Pet. 28, ECF No. 1) (“Trial counsel did not
attempt to utilize the information elicited at trial, that the
shooting was an ‘accident’ to refute the State’s theory[.]”).
Petitioner concedes that this claim is unexhausted. (Traverse
10, ECF No. 27) (“This issue was not ruled on in state court.”).
Nevertheless, it will be denied on the merits. See 28 U.S.C. §
2254(b)(2); Carrascosa, 520 F.3d at 255 n.10.
33
As explained in this Court’s discussion denying
Petitioner’s Ground Two, supra, trial counsel’s choice of trial
strategy was objectively reasonable, and the record shows that
Petitioner participated in the selection of this trial strategy.
See Strickland, 466 U.S. at 691.
Contrary to Petitioner’s
assertions, he could not have maintained both a defense of total
innocence, and a defense “that the shooting was an ‘accident’.”
(Pet. 28, ECF No. 1).
If trial counsel had “utilize[d]
information elicited at trial, that the shooting was an
‘accident’ to refute the State’s theory” as Petitioner argues
counsel should have in Ground Five, then counsel would have
completely undermined Petitioner’s defense theory. (Id.).
Not
only would this information have placed Petitioner at the scene,
it would essentially have conceded that Petitioner shot the
victim, if only by accident.
It is contradictory for a
defendant to argue both “I didn’t do it” and “if I did it, I did
it for this reason.”
Counsel’s reasonable decision not to
undermine the chosen defense theory is not ineffective
assistance.
Accordingly, Petitioner is not entitled to habeas
relief on this claim.
5. GROUND SIX
Under New Jersey Rule of Evidence 404(b), evidence of other
crimes, wrongs, or acts is inadmissible to show that a person
acted in conformity with those prior crimes, wrongs, or acts;
34
but “may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident when such matters are
relevant to a material issue in dispute.” N.J.R.E. 404(b)
(“Other Crimes Evidence”).
Following a preliminary hearing at
trial, the court permitted the admission of Other Crimes
Evidence against Petitioner.
Specifically, the trial court
allowed the State to elicit testimony from witnesses Kenneth
Howard and Stephon Duggan about an earlier armed robbery
incident involving Petitioner, his co-defendant, and Kenneth
Howard (the “Howard Robbery”).
Petitioner’s sixth ground for relief relates to evidence
regarding the Howard Robbery which was admitted at trial under
Rule 404(b).
In this claim, Petitioner asserts that his trial
counsel was ineffective for: (1) failing to object to the
hearsay testimony of Kenneth Howard; (2) failing to ask for a
limiting instruction on the use of other-crimes evidence; and
(3) failing to object to “subsequent inadequate instructions.”
(Pet. 29, ECF No. 1).
Petitioner raised this issue before the PCR court; however,
it was not presented to the state appellate court on appeal of
the PCR decision.
Accordingly, this claim is unexhausted.
Regardless, it will be addressed and rejected on the merits. See
28 U.S.C. § 2254(b)(2); Carrascosa, 520 F.3d at 255 n.10.
35
In his Petition, Petitioner relies on his brief in support
of PCR in support of this claim. (Pet. 29, ECF No. 1).
In Point
VI of his PCR brief, Petitioner asserted that his counsel was
ineffective for failing to object to an alleged hearsay
statement made by Kenneth Howard at a preliminary hearing, and
for failing to challenge “the jury instructions pertaining to
N.J.R.E. 404(b) which allowed the State to elicit testimony
about an earlier incident involving Kenneth Howard.” (Br. in
Support of PCR 42, Resp’t’s Ex. 15, ECF No. 18-15).
a. Hearsay Statements
With respect to the alleged hearsay, Petitioner asserts
that his trial counsel should have objected to the following
statements:
MS. ANDREWS: If that’s the case, how do you know this
is the one with the green eyes?
KENNETH HOWARD:
MS. ANDREWS:
I’m looking at him.
Somebody tell you?
KENNETH HOWARD: I’m looking at him and somebody . . .
yeah, I heard it . . . yeah. I mean you hear it.
People talk.
(Trial Tr. 13:23 - 14:3, Resp’t’s Ex. 4, Feb. 17, 2000, ECF No.
18-4).
As an initial matter, Petitioner concedes that these
statements were not made in front of the jury, but during a
preliminary hearing. (Id.).
Because these particular statements
were not heard by the jury, they had no impact on the outcome of
36
the trial.
As the PCR court observed, “the jury did not hear
that hearsay, [therefore], it could not have harmed the
petitioner.” (PCR Tr. 32:20-21, Resp’t’s Ex. 17, Oct. 23, 2009,
ECF No. 18-17).
Absent a showing that these hearsay statements
had any effect on the outcome of his trial, Petitioner has
failed to satisfy that he suffered any prejudice under
Strickland, and his ineffective assistance claim fails.
There are no arguments in the Petition, or in Petitioner’s
brief in support of PCR which establish that a failure to object
to hearsay statements made during a preliminary hearing —
outside the presence of the jury — rises to the level of a
constitutional violation.
In his brief in support of PCR,
Petitioner baldly asserts that “[t]rial counsel’s performance
was objectively unreasonable” and “had an objection [to the
hearsay statements] been raised, evidence of the robbery
involving Mr. Howard would have been barred.” (Br. in Support of
PCR 42, Resp’t’s Ex. 15, ECF No. 18-15).
statements are wholly unsupported.
These conclusory
There is nothing in
Petitioner’s arguments, the record, or in the rules of evidence,
to suggest that an objection to specific hearsay statements at
the preliminary hearing would have barred all evidence of the
Howard Robbery. 7
7
To the extent Petitioner means to assert that his trial counsel
should have objected to the admission of the evidence of the
37
b. Limiting Instructions
Petitioner’s claim that his trial counsel was ineffective
for failing to object to the jury instructions pertaining to the
Howard Robbery likewise fails.
In his brief in support of PCR,
Petitioner argued that “by failing to ask for an instruction at
the time the Howard robbery was testified to by Ken Howard and
Stephon Duggan and by failing to object to the charge given at
the time of the playing of Stephon Duggan’s statement, trial
counsel’s performance was objectively unreasonable.” (Br. in
Support of PCR 42, Resp’t’s Ex. 15, ECF No. 18-15).
Petitioner
further asserted that “[b]y failing to request a limiting
instruction, the jury was able to convict the defendant based on
the robbery of Mr. Howard.” (Id.).
Finally, Petitioner stated
that “the jury was able to learn of the past incident involving
Kenneth Howard from Mr. Howard and Mr. Duggan when assessing the
homicide crimes without any instruction being given. (Id. at 4344).
These claims are without merit.
First, this Court notes — as did the PCR court and the
state appellate court on direct appeal — that the trial court
twice gave the jury a limiting instruction as to how the Other
Howard Robbery, in general, the Court notes that trial counsel
did make a request to exclude all evidence of the Howard Robbery
at the conclusion of the preliminary hearing. See (Trial Tr.
48:5-6, Resp’t’s Ex. 4, Feb. 17, 2000, ECF No. 18-4) (“Based on
– all those factors, Judge, I would submit that this evidence
should not be allowed.”).
38
Crimes Evidence of the Howard Robbery could be used. See (Trial
Tr. 84:19 – 86:13, Jury Charge, Resp’t’s Ex. 7, Feb. 24, 2000,
ECF No. 18-7); see also (Op. on Direct Appeal 9, Resp’t’s Ex.
11, July 9, 2001, ECF No. 18-11); (PCR Tr. 33:8-11, Resp’t’s Ex.
17, Oct. 23, 2009, ECF No. 18-17).
Because a limiting
instruction was, in fact, given at trial, Petitioner’s counsel
could not have been ineffective simply for failing to ask for
one.
Furthermore, on direct appeal the state appellate court
found both that the admission of evidence regarding the Howard
Robbery was proper and that the limiting instructions regarding
the Other Crimes Evidence were sufficient. (Op. on Direct Appeal
9, Resp’t’s Ex. 11, July 9, 2001, ECF No. 18-11).
Therefore,
had Petitioner’s trial counsel objected to the limiting
instructions, any such objection would have failed.
Because
counsel cannot be ineffective for failing to raise a meritless
argument, see Ross, 672 F.3d at 211 n.9, Petitioner is not
entitled to habeas relief on this claim.
c. Subsequent Inadequate Instructions
As the final point to his Ground Six, Petitioner contends
that his trial counsel was ineffective for failing to “object to
subsequent inadequate instructions.” (Pet. 29, ECF No. 1).
While the contours of this argument are unclear, the Court
gleans that Petitioner refers to the remaining arguments in his
39
brief in support of PCR.
Specifically, Petitioner alleged in
his PCR proceedings that “there was no agreement to rob [the
victim]” and that “the defendant indicated to Mr. Duggan that
the shooting was an accident.” (Br. in Support of PCR 43,
Resp’t’s Ex. 15, ECF No. 18-15).
Presumably, then, Petitioner
means to assert in the instant Petition that trial counsel was
ineffective for failing to “incorporate[e] these facts into the
limiting instruction[.]” (Id.).
However, Petitioner provides no
support for his assertion that these facts should have been —
let alone could have been — incorporated into the jury
instruction; and common sense indicates that these alleged
“facts” had no place in the limiting instruction.
First, with respect to Petitioner’s complaint that “the
court failed to set forth that there was no agreement to rob
[the victim],” such an instruction would have been highly
improper, and would have directed a verdict in favor of
Petitioner, because Petitioner was charged with conspiracy to
commit robbery. (Id.).
Accordingly, this argument is
nonsensical and does not warrant further discussion.
Petitioner’s counsel was not ineffective for failing to raise
this frivolous argument during trial.
Next, Petitioner implies that the court should have set
forth in the jury charge “that the defendant indicated to Mr.
Duggan that the shooting was an accident.” (Id.).
40
However, had
Petitioner’s trial counsel attempted to introduce this evidence
in a jury instruction, it would have undermined Petitioner’s
asserted defense.
Accordingly, this claim is subject to the
same analysis as the ineffective assistance claims discussed
above, and is denied for substantially the same reasons.
Moreover, the jury heard the entirety of Mr. Duggan’s testimony,
including the statements regarding the shooting being an
accident.
Petitioner has presented no reason why this
particular piece of testimony should have been highlighted in a
jury instruction.
Accordingly, Petitioner’s counsel was not
ineffective for failing to present this meritless argument at
trial.
For the reasons state above, Petitioner is not entitled
to habeas relief on this ground.
6. GROUND SEVEN
As his seventh ground for relief, Petitioner asserts that
he received ineffective assistance of counsel because his trial
counsel failed to object to the trial court’s instruction to the
jury regarding the mental element required for a conviction for
robbery. (Pet. 29, ECF No. 1).
Specifically, Petitioner asserts
that the court “transformed the requisite purposeful element to
a knowing element thereby lessening the culpability for a
conviction of first degree robbery.” (Id.).
Petitioner raised
this argument in his PCR proceedings; however, he did not
present this argument to the state appellate court upon review
41
of PCR.
Therefore, this claim is unexhausted.
Nevertheless, it
will be addressed and rejected on its merits. See 28 U.S.C. §
2254(b)(2); Carrascosa, 520 F.3d at 255 n.10.
As set forth above, Petitioner cannot succeed on an
ineffective assistance of counsel claim unless he can show that
(1) his counsel’s performance was deficient; and (2) the
deficient performance prejudiced his defense. Strickland, 466
U.S. at 687, 694.
Here, Petitioner asserts that his counsel was
deficient because he failed to object to the jury instruction
regarding the robbery charge.
Therefore, in order to determine
whether the allegedly deficient performance resulted in
prejudice, this Court must determine whether the jury
instruction on the robbery charge was erroneous and harmful.
In this case, the trial court gave the following jury
instruction with respect to robbery:
Under our law, a person is guilty of robbery if in the
course of committing a theft he or somebody whose
conduct he is responsible for or both knowingly
inflicts bodily injury or uses force upon another, and
for it to be an armed robbery the person must be . . .
either armed with or uses or threatens the immediate
use of a deadly weapon.
A person is guilty of robbery if in the course of
committing a theft he knowingly inflicts bodily injury
or uses force upon another and is armed with or uses
or threatens the immediate use of a deadly weapon.
(Trial Tr. 92:6-17, Jury Charge, Resp’t’s Ex. 7, Feb. 17, 2000,
ECF No. 18-7).
42
In his Petition, Petitioner asserts that “the additional
element of ‘knowingly’ to the first-degree robbery instruction
reduced the mental culpability or requirement from a ‘conscious
object’ to cause serious bodily injury to ‘awareness’ that it
was practically certain to result.” (Pet. 30, ECF No. 1).
Petitioner is mistaken.
As the PCR court pointed out, the New Jersey Supreme Court
has ruled that “‘knowledge’ is the requisite mental state for
the injury/force element of robbery[.]” State v. Sewell, 127
N.J. 133, 149, 603 A.2d 21, 29 (1992); see also (N.J. MODEL JURY
CHARGE – ROBBERY, Resp’t’s Ex. 23, ECF No. 18-23).
Therefore,
there was no error as a result of the use of “knowingly” in the
jury instruction.
Although in his Traverse Petitioner attempts to distinguish
between the crimes of first-degree robbery — for which he was
charged — and second-degree robbery — the charge at issue in
Sewell — his argument is unavailing. (Traverse 11-12, ECF No.
27).
In his Traverse, Petitioner emphasizes the use of the word
“purposely” in the “grading” section of the New Jersey statute.
Specifically, the statute states that
[r]obbery is a crime of the second degree, except that
it is a crime of the first degree if in the course of
committing the theft the actor attempts to kill
anyone, or purposely inflicts or attempts to inflict
serious bodily injury, or is armed with, or uses or
threatens the immediate use of a deadly weapon.
43
N.J. STAT. ANN. § 2C:15-1.
In focusing on the phrase “purposely inflicts or attempts
to inflict serious bodily injury,” Petitioner ignores the other
clauses of the grading section of the statute, which are
conjoined with the term “or;” namely, “or is armed with, or uses
or threatens the immediate use of a deadly weapon.” Id.
In this case, the jury found Petitioner guilty of thirddegree unlawful possession of a weapon, second-degree possession
of firearms with an unlawful purpose, and murder.
Therefore, it
is evident that the jury believed that Petitioner was armed with
a deadly weapon.
Indeed, the jury was instructed as to the
meaning of “armed robbery” and “deadly weapon,” and Petitioner
does not object to those instructions. (Trial Tr. 95:2-18, Jury
Charge, Resp’t’s Ex. 7, Feb. 17, 2000, ECF No. 18-7).
In light
of the fact that Petitioner’s robbery charge was elevated to
first-degree robbery because Petitioner was armed with a deadly
weapon, a jury instruction on the “purposeful” infliction of
bodily injury was unnecessary.
The jury was properly instructed
that Petitioner was guilty of robbery if, in the course of
committing a theft, he knowingly inflicted bodily injury; and
the robbery charge was upgraded to a first-degree crime because
he was armed with a deadly weapon.
Because the jury instruction
was proper, any objection or attempt by counsel to replace the
word “knowingly” with “purposely” would have been futile.
44
Because counsel cannot be deemed ineffective for failing to
raise a meritless claim, see Ross, 672 F.3d at 211 n.9,
Petitioner is not entitled to federal habeas relief on this
claim of ineffective assistance.
7. GROUND EIGHT
In his eighth ground for relief, Petitioner asserts that
his trial counsel was ineffective for failing to move for the
dismissal of the robbery and felony murder counts.
Respondents
contend that this claims is unexhausted. (Br. in Opp. 27-28, ECF
No. 18).
Petitioner responds that this issue was presented to
the appellate court on appeal of PCR. (Traverse 12, ECF No. 27).
The Court has reviewed Petitioner’s briefs submitted in support
of his appeal of the PCR court decision and is unable to
conclude that Petitioner presented this argument to the state
court on appeal of PCR.
Nevertheless, to the extent this claim
is unexhausted, it will be rejected on the merits. See 28 U.S.C.
§ 2254(b)(2); Carrascosa, 520 F.3d at 255 n.10.
As set forth above, Petitioner cannot succeed on an
ineffective assistance of counsel claim unless he can show that
(1) his counsel’s performance was deficient; and (2) the
deficient performance prejudiced his defense. Strickland, 466
U.S. at 687, 694.
Here, Petitioner asserts that his counsel was
deficient “for failing to move for the dismissal of the robbery
and felony murder counts based on insufficient evidence, or the
45
verdict being against the weight of the evidence.” (Pet. 31, ECF
No. 1).
Therefore, in order to determine whether the allegedly
deficient performance resulted in prejudice, this Court must
determine whether there is any merit to Petitioner’s argument
that there was insufficient evidence to support a conviction for
robbery or felony murder.
A sufficiency of the evidence claim is governed by Jackson
v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L.Ed.2d 560
(1979).
“[I]n a challenge to a state criminal conviction
brought under 28 U.S.C. § 2254 — if the settled procedural
prerequisites for such a claim have otherwise been satisfied —
the applicant is entitled to habeas corpus relief if it is found
that upon the record evidence adduced at the trial no rational
trier of fact could have found proof of guilt beyond a
reasonable doubt.” Id. at 324; accord McDaniel v. Brown, 558
U.S. 120, 121, 130 S. Ct. 665, 666, 175 L. Ed. 2d 582 (2010).
[Jackson]
requires a reviewing court to review the
evidence in the light most favorable to the
prosecution. Expressed more fully, this means a
reviewing court “faced with a record of historical
facts that supports conflicting inferences must
presume — even if it does not affirmatively appear in
the record — that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer
to that resolution.”
McDaniel, 130 S. Ct. at 673 (quoting Jackson, 443 U.S. at 326);
see also House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 165
L.Ed.2d 1 (2006) (“When confronted with a challenge based on
46
trial evidence, courts presume the jury resolved evidentiary
disputes reasonably so long as sufficient evidence supports the
verdict.”).
The Supreme Court emphasized that “the standard ... does
not permit a court to make its own subjective determination of
guilt or innocence.” Jackson 443 U.S. at 320, n.13.
Moreover,
“a reviewing court must consider all of the evidence admitted by
the trial court, regardless whether that evidence was admitted
erroneously.” McDaniel, 130 S. Ct. at 672 (citation and internal
quotation marks omitted).
Additionally, “under Jackson, the
assessment of credibility of witnesses is generally beyond the
scope of review.” Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct.
851, 130 L.Ed.2d 808 (1995).
In his Petition, Petitioner does not provide any factual
support for this claim, and instead refers to the “facts as
detailed in the briefs filed by his attorney, as well as those
he filed pro se . . .” (Id. at 30).
Indeed, Petitioner raised
this claim in Point Four of his pro se brief in support of PCR.
(ECF No. 18-16).
Specifically, Petitioner argued
he could not be convicted of robbery because the
aggravating circumstances were not present, that is,
petitioner never threatened anyone or placed anyone in
fear of bodily injury. Under the State’s theory,
there was no evidence that petitioner had even
committed attempted robbery because all of the
elements of such an offense were not established,
namely that in the course of (1) purposely taking a
substantial step (2) to exercise unlawful control over
47
the property of another, petitioner (3) took a
substantial step (4) to threaten another with, or
place another in fear of, immediate bodily injury.
(Pro se PCR Br. 32, Resp’t’s Ex. 16, ECF No. 18-16).
Petitioner
then recited a version of the evidence and testimony adduced at
trial which, presumably, he believes supports his claim.
As an initial matter, the Court notes that the elements
listed in Petitioner’s pro se brief in support of PCR are the
elements for the offense of attempted robbery, not robbery,
itself. See State v. Farrad, 164 N.J. 247, 258, 753 A.2d 648,
654 (2000).
Under New Jersey law,
A person is guilty of robbery if, in the course of
committing a theft, he:
(1) Inflicts bodily injury or uses force upon another;
or
(2) Threatens another with or purposely puts him in
fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any
crime of the first or second degree.
N.J. STAT. ANN. § 2C:15-1(a).
The State’s theory in this case was that Petitioner and his
co-defendant conspired to commit an armed robbery and that, in
the course of that robbery, Petitioner shot and killed the
victim.
Significant evidence adduced at trial supported this
theory.
Specifically, during trial Stephon Duggan testified
that Petitioner and his co-defendant came to him to get a gun
(Trial Tr. 64:24-25, Resp’t’s Ex. 4, Feb. 17, 2000, ECF No. 18-
48
4), which Petitioner’s co-defendant immediately handed to
Petitioner (Id. at 72: 21-22).
Duggan further testified that
Petitioner and his co-defendant told him that “they was [sic]
going to rob a couple of people” and that one of the names
mentioned as a target was Vaughn Rollins, the victim. 8 (Id. at
73:11-15).
Additionally, Duggan testified that immediately after he
gave the gun to Petitioner and his co-defendant, they committed
a robbery in his presence.
Specifically, Duggan testified that
Petitioner brandished a knife against a boy on a bike.
Duggan
stated that he walked away so he did not witness the entire
robbery, but he confirmed that a few minutes later he saw
Petitioner with the boy’s clothes and Petitioner’s co-defendant
with the boy’s bike. (Id. at 77:14-19).
Finally, at trial Joel Townsel testified that a man in a
ski mask “walked over to the car, and he pulled a gun out and
said give me your money.” (Trial Tr. 50:23-24, Resp’t’s Ex. 5,
Feb. 22, 2000, ECF No. 18-5).
8
In his pro se brief in support of PCR, Petitioner states that
Duggan testified that “there was no plan or agreement to rob or
shoot [the victim].” (Pro se PCR Br. 35, ECF No. 18-16).
However, this assertion is contradicted by the record. Although
at first he could not remember, the record indicates that Duggan
later testified that Petitioner and his co-defendant referenced
the victim, Vaughn Rollins, as a potential target of their
intended robbery.
49
Accordingly, evidence was presented to the jury indicating
that Petitioner acquired a gun for the purpose of committing
robbery, that he specifically targeted Vaugh Rollins as a victim
of the robbery, that Petitioner engaged in a theft, and that he
shot the victim in the course of the robbery.
Thus, evidence
existed at trial which could have satisfied the elements of
robbery, even though the theft may have been unsuccessful. See
Farrad, 164 N.J. at 258 (“[A] defendant can be convicted of
robbery, even if the theft is unsuccessful, if he or she (1)
purposely takes a substantial step (2) to exercise unlawful
control over the property of another (3) while threatening
another with, or purposely placing another in fear of, immediate
bodily injury.”).
Viewing the evidence adduced at trial in the light most
favorable to the prosecution, this Court cannot conclude that
“no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Jackson, 443 U.S. at 324; accord
McDaniel, 130 S. Ct. at 673.
Because Petitioner cannot
demonstrate that the verdict was against the weight of the
evidence or that insufficient evidence existed at trial to
support a charge for robbery or felony murder, he cannot show
prejudice as a result of his counsel’s failure to raise these
arguments.
Accordingly, Petitioner is not entitled to habeas
relief on this claim.
50
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254.
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
“A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029, 154 L.Ed.2d 931 (2003) (citation omitted), cited in Eley
v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).
Here, jurists of reason would not disagree with this
Court's resolution of Petitioner's claims.
No certificate of
appealability will issue.
V.
CONCLUSION
For the reasons set forth above, the Petition for a Writ of
Habeas Corpus under Title 28 U.S.C. § 2254 will be denied.
An
appropriate Order follows.
__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: September 29, 2016
At Camden, New Jersey
51
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