MCDOUGLE v. HOLMES et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/8/2015. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 12-6692 (JBS)
CHRISTOPHER HOLMES, et al.,
JIMMY MCDOUGLE, 975281A
South Woods State Prison
215 Burlington Road South
Bridgeton, New Jersey 08302
Petitioner Pro Se
ANDREW ROBERT BURROUGHS, ESQ.
ESSEX COUNTY PROSECUTOR
50 West Market Street – 3rd Floor
Newark, New Jersey 07102
Attorneys for Respondents
SIMANDLE, Chief Judge1
Jimmy McDougle2 filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction
This case was reassigned to the undersigned following the death
of the Hon. Dickinson R. Debevoise in August, 2015.
The name of Petitioner on the § 2254 Petition is “McDougle,”
but state court orders and opinions have spelled his name as
“McDougle,” “McDougal,” and “McDougald.” In this Opinion the
Court will use “McDougle,” the name on the § 2254 Petition.
filed in the Superior Court of New Jersey, Essex County, on
November 18, 1992.
The State filed an Answer with the record.
After carefully reviewing the arguments of the parties and the
state court record, this Court will dismiss the Petition with
prejudice and deny a certificate of appealability.
McDougle challenges a judgment of conviction imposing a
life sentence with 32.5 years of parole ineligibility imposed by
the Superior Court of New Jersey, Law Division, Essex County, on
November 18, 1992, after a jury found him guilty of the firstdegree murder of Dwayne Fields, third-degree unlawful possession
of a weapon, and second-degree possession of a weapon for an
Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), state court factual findings are presumed
correct unless rebutted by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
As McDougle has not attempted to rebut
the factual findings of the Superior Court of New Jersey, the
Court will rely on those findings. The Appellate Division found
the following facts on McDougle’s direct appeal from the
conviction after his second trial:
[S]hortly after midnight on Sunday, February 11, 1990,
the victim, Dwayne Fields, was fatally shot in the
back as he was about to enter his home after being
dropped off by several companions. The State’s theory
of the shooting was that defendant had been sitting in
a car double parked in front of the victim’s home,
waiting for him to arrive. When the victim left the
car in which he had been driven home, defendant called
to him, exited the double-parked car, conversed with
the victim briefly, and then shot and killed him.
Defendant then reentered the car, which was occupied
by a group of his friends, and it sped away. The
asserted motive for the killing was retaliation for
defendant’s loss of the bottom part of his leg as the
result of a gunshot wound, defendant believing that
the victim was closely involved with the shooting or
the shooter. Although there was no eyewitness to the
actual shooting, the State produced witnesses who,
collectively, had observed sufficient segments of the
event to warrant the inference, beyond a reasonable
doubt, that defendant was the gunman.
State v. McDougal, Docket No. A-2627-92T4 sl. opinion (N.J.
Super. Ct., App. Div., Oct. 13, 1994) (ECF No. 21-14 at 54-55).
The testimony at trial established that the gunshot was
heard by the victim’s brother Michael and his sister who were
waiting for the victim, and Andrews, the victim’s friend who
lived across the street.
When he heard the shot Michael looked
out of the window and saw a man get into a white double-parked
Audi which sped away.
Andrews looked out of his window and also
saw the double-parked car speed away.
Findley, who was
returning home, saw the car double-parked with its engine
running; he recognized the driver, saw two other people in the
car, and saw McDougle and the victim standing on the street
speaking to each other.
Findley parked his car, entered his
house, which was a few houses away from the victim’s home, went
upstairs, and heard the shot within two or three minutes after
having seen the victim speaking with McDougle.
Kenneth Graves, Jonathan Graves, and their friend Thomas
Sewell also testified for the State.
After drinking all
evening, sometime after midnight the three young men, already
intoxicated, wanted to go to a bar but they had no money.
Kenneth Graves drove Sewell, who lived on the same street as the
victim, and his brother Jonathan to Sewell’s house.
into his house for about 15 minutes and, when he returned to the
car, he was joined on the street by McDougle, who got into the
car with the three men, and Kenneth drove to a bar a few blocks
Sewell testified that he neither heard a shot nor saw a
gun and the Graves brothers testified that they had the stereo
turned up loud and they didn’t hear the gun either.
Findley’s brother, Razhoon, testified that a week before
the shooting, he heard McDougle saying that there was a
connection between the victim and Sal, the person who had
previously shot McDougle in the leg.
Razhoon testified that he
heard McDougle say, “Watch what I do when I see [the victim.”
State v. McDougle, Docket No. A-1421-90T4 sl. opinion (N.J.
Super. Ct., App. Div., Mar. 5, 1992) (ECF No. 21-14 at 41.)
medical examiner testified that the cause of death was a gunshot
wound administered by a small-caliber gun that was fired from a
foot or a foot and one-half away from the victim.
The State Court Proceedings
The state court proceedings in this case were protracted,
involving two trials, two appellate opinions on direct appeal,
two evidentiary hearings on McDougle’s post-conviction relief
petition, and two appellate opinions on post-conviction relief.
McDougle was indicted in April 1990 for the first-degree murder
of Dwayne Fields on February 11, 1990, as well as two weapons
After the jury found him guilty of all charges, the
trial court sentenced him to life plus five years in prison with
a 32.5-year period of parole ineligibility.
On direct appeal,
the Appellate Division reversed and remanded for a new trial on
the ground that a son of one of the jurors had been shot and
killed in the street on the first day of deliberations and, as a
result, McDougle’s right to a fair trial was compromised.
State v. McDougald, Docket No. A-1421-90T4 sl. opinion (N.J.
Super. Ct., App. Div., Mar. 5, 1992) (ECF No. 21-14 at 37-50).
After a second trial, the jury found McDougle guilty of all
charges and the trial court imposed the same sentence.
appealed and on October 13, 1994, the Appellate Division
See State v. McDougal, Docket No. A-2627-92T4 sl.
opinion (N.J. Super. Ct., App. Div., Oct. 13, 1994) (ECF No. 2114 at 53-59.)
The New Jersey Supreme Court denied certification
on January 25, 1995.
See State v. McDougal, 142 N.J. 448 (1995)
On September 27, 1996, McDougle filed his petition for
After conducting an evidentiary hearing
and considering the testimony of defense counsel but not
McDougle, the trial judge denied post-conviction relief by order
and opinion filed July 20, 1998.
McDougle appealed, raising
On March 21, 2000, the Appellate Division
rejected two of the grounds but remanded for supplementation of
the record by the testimony of McDougle.
See State v. McDougle,
Docket No. A-457-98T4 sl. opinion (N.J. Super. Ct., App. Div.,
Mar. 21, 2000) (ECF No. 1-8.)
On July 7, 2000, the New Jersey
Supreme Court denied certification.
N.J. 487 (2000) (table).
See State v. McDougle, 165
After conducting the evidentiary
hearing on remand and considering McDougle’s testimony, on
August 21, 2008, the trial judge again entered an order denying
(ECF No. 1-10 at 6.)
and on July 8, 2011, the Appellate Division affirmed.
v. McDougal, 2011 WL 2652142 (N.J. Super. Ct., App. Div., July
The New Jersey Supreme Court denied certification on
December 8, 2011.
See State v. McDougal, 208 N.J. 601 (2011)
Procedural History of § 2254 Petition
On September 27, 2012, McDougle signed his Petition for a
Writ of Habeas Corpus and presumably handed it to prison
officials for mailing to the Clerk.
(ECF No. 1.)
entered March 7, 2013, the Court construed the Petition as
raising three grounds and notified McDougle of his right to
amend the Petition to include all available federal claims in
accordance with Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000).
(ECF No. 4.)
McDougle declined to file an amended petition
raising additional grounds or to dispute the Court’s recitation
of the grounds raised in the Petition.
(ECF No. 5.)
Petition, accordingly, raises the following three grounds:
Ground One: DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF PCR COUNSEL, WHO FAILED TO CHALLENGE THE
CONSTITUTIONAL EFFECTIVENESS OF APPELLATE COUNSEL IN
MISSING CRITICAL JURY CHARGE ERRORS.
Ground Two: DEFENDANT WAS DENIED HIS CONSTITUTIONAL
GUARANTEE OF EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE
TRIAL COUNSEL’S FAILURE TO RAISE CREDIBLE DOUBT ABOUT
WHETHER DEFENDANT WAS THE SHOOTER HAD A CLEAR CAPACITY
TO CAUSE AN UNJUST RESULT.
A. Trial counsel failed to cross-examine witnesses
using information available but not used at trial that
would have created doubt that defendant was the
shooter and failed to advance a theory that occupants
of the white Audi were equally likely perpetrators.
(1) Trial counsel failed to argue or pursue a theory
that occupants of the Audi were equally probable
perpetrators of the murder even if defendant was in
(2) Trial counsel failed to cross-examine witnesses
using the grand jury testimony of Michael Fields.
(3) Trial counsel failed to have an effective plan or
strategy to overcome the State’s evidence.
B. But for counsel’s errors defendant would have been
Ground Three: THE TRIAL JUDGE’S DECISION NOT TO
PERMIT DEFENDANT TO PRESENT HIS OWN TESTIMONY ON THE
INEFFECTIVENESS OF TRIAL COUNSEL AT HIS [PCR]
EVIDENTIARY HEARING DENIED DEFENDANT DUE PROCESS OF
(Order, ECF Nos. 4 at 1-2, 14 at 2-3.)
The State filed an Answer arguing that McDougle is not
entitled to habeas relief and that the Petition does not state a
(ECF No. 21.)
McDougle did not file a reply.
The Court notes that, although the State did not raise the statute
of limitations as an affirmative defense, the Petition may be
untimely. The one year statute of limitations is governed by 28
U.S.C. § 2244(d)(1)(A), which provides that it begins on the date
on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review. In
this case, the New Jersey Supreme Court denied certification on
direct review on January 25, 1995, and the time to file a petition
STANDARD OF REVIEW FOR RELIEF UNDER § 2254
Section 2254 of title 28 of the United States Code sets
limits on the power of a federal court to grant a habeas
petition to a state prisoner.
S.Ct. 1388, 1398 (2011).
See Cullen v. Pinholster, 131
Section 2254(a) permits a court to
entertain only claims alleging that a person is in state custody
“in violation of the Constitution or laws or treaties of the
28 U.S.C. § 2254(a).
Where a state court
adjudicated petitioner’s federal claim on the merits,4 as in this
case, a court “has no authority to issue the writ of habeas
corpus unless the [state c]ourt’s decision ‘was contrary to, or
for certiorari in the United States Supreme Court expired 90 days
later on April 25, 1995. See Gonzalez v. Thaler, 132 S.Ct. 641,
653-54 (2012); Wali v. Kholi, 131 S. Ct. 1278, 1282 (2011). The
limitations period began the next day, on April 26, 1995, and ran
for 365 days until April 25, 1996, five months before McDougle
filed his petition for post-conviction relief in the trial court.
See Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004) (state
post conviction review petition had no effect on tolling because
the limitations period had already run when it was filed);
Schlueter v. Varner, 384 F.3d 69, 78-79 (3d Cir. 2004) (same).
“For the purposes of Section 2254(d), a claim has been
‘adjudicated on the merits in State court proceedings’ when a
state court has made a decision that 1) finally resolves the
claim, and 2) resolves th[at] claim on the basis of its
substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and
internal quotation marks omitted).
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
Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012)
(quoting 28 U.S.C. § 2254(d)).
“When reviewing state criminal
convictions on collateral review, federal judges are required to
afford state courts due respect by overturning their decisions
only when there could be no reasonable dispute that they were
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).
petitioner carries the burden of proof, and review under §
2254(d) is limited to the record that was before the state court
that adjudicated the claim on the merits.
See Pinholster, 131
S.Ct. at 1398.
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
“[C]learly established law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of t[he Supreme
Court’s] decisions,” as of the time of the relevant state-court
Woods, 135 S.Ct. at 1376 (quoting White v. Woodall,
134 S.Ct. 1697, 1702 (2014), and Williams v. Taylor, 529 U.S.
362, 412 (2000)).
A decision is “contrary to” a Supreme Court
holding within 28 U.S.C. § 2254(d)(1) if the state court
“contradicts the governing law set forth in [the Supreme
Court's] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result.”
Williams, 529 U.S. at 405-06.
Under the “‘unreasonable
application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from th[e Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the
Id., 529 U.S. at 413.
Where a petitioner seeks habeas relief, pursuant to §
2254(d)(2), on the basis of an erroneous factual determination
of the state court, two provisions of the AEDPA necessarily
First, the AEDPA provides that “a determination of a
factual issue made by a State court shall be presumed to be
correct [and] [t]he applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing
29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545
U.S. 231, 240 (2005).
Second, the AEDPA precludes habeas relief
unless the adjudication of the claim “resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2).
Ineffective Assistance of Post-Conviction Relief Counsel
In Ground One, McDougle asserts that post-conviction relief
counsel was constitutionally ineffective for failing to raise
The problem with this ground is that the AEDPA
specifies that “the ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction proceedings
shall not be a ground for relief [under § 2254(a)].”
“[M]ost naturally read, § 2254(i) prohibits a court
from granting substantive habeas relief on the basis of a
lawyer’s ineffectiveness in post-conviction proceedings.”
Martel v. Clair, 132 S. Ct. 1276, 1287 n.3 (2012); see also
Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012).
claim alleging the effectiveness of his counsel during postconviction proceedings is not cognizable under § 2254 as a
matter of law.
See 28 U.S.C. § 2254(i); see also Stevens v.
Epps, 618 F.3d 489, 502 (6th Cir. 2010) (“Ineffectiveness of
post-conviction counsel cannot be the grounds for federal habeas
relief”); Post v. Bradshaw, 422 F.3d 419, 423 (6th Cir. 2005)
(holding that petitioner’s motion for relief from judgment based
on post-conviction counsel’s failure to pursue discovery was not
permitted under § 2254(i) because it was grounded in claim of
ineffective representation during the federal post-conviction
Ineffective Assistance of Trial Counsel
In Ground Two, McDougle asserts that counsel was
constitutionally ineffective in failing to pursue a theory that
the other occupants of the Audi were equally probable
perpetrators of the murder, failing to cross-examine witnesses
using the grand jury testimony of Michael Fields, and failing to
have an effective strategy to overcome the State’s evidence.
The State argues that McDougle is not entitled to habeas relief
on his ineffective assistance of trial counsel claims because
the adjudication of those claims was not contrary to or an
unreasonable application of Supreme Court precedent.
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of
the right by failing to render adequate legal assistance.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
that counsel’s assistance was so defective as to require
reversal of a conviction has two components, both of which must
Id. at 687.
First, the defendant must “show that
counsel’s representation fell below an objective standard of
Id. at 687-88.
To meet this prong, a
“convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
Id. at 690.
The court must then determine whether,
in light of all the circumstances at the time, the identified
errors fell “below an objective standard of reasonableness[.]”
Hinton v. Alabama, 134 S.Ct. 1081, 1083 (2014) (per curiam).
satisfy the prejudice prong, “a defendant need not show that
counsel’s deficient conduct more likely than not altered the
outcome in the case.”
Strickland at 693.
prejudice, the defendant must show that “there is a reasonable
probability that the result of the trial would have been
different absent the deficient act or omission.”
S.Ct. at 1083.
“When a defendant challenges a conviction, the
question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.”
Id. at 1089 (quoting Strickland, 466
U.S. at 695).
McDougle presented the above ineffective assistance of
trial counsel claims in his petition for post-conviction relief
and on his first appeal from the denial of post-conviction
relief by the trial court.
The Appellate Division rejected each
of these grounds for the reasons expressed by the trial court in
its 25-page written opinion.
(ECF No. 1-8 at 5.)
this Court will review the reasonableness of the trial court’s
findings of fact and legal conclusions under § 2254(d).
(1) Failure to Argue That Occupants of the Audi Were
Equally Probable Perpetrators
In the first point of Ground Two of petitioner’s § 2254
petition, which was point seven of his amended post-conviction
relief petition, McDougle argued that counsel was ineffective in
cross-examining Jonathan Graves, Kenneth Graves, and Thomas
Sewell – who testified that they were in the Audi with McDougle
– because the cross-examination did not show that they were
equally probable perpetrators of the shooting.
The trial court
rejected this argument as in conflict with counsel’s trial
[I]n light of counsel’s testimony at the evidentiary
hearing, it is abundantly clear as to why counsel did
not attempt to characterize Sewell or either of the
Graves brothers as the shooter. Because it was beyond
dispute that [McDougle] was in a white car with these
individuals immediately after the shooting, such a
characterization would have exposed [McDougle] to
criminal liability as an accomplice. Perhaps more
significantly in the context of this trial, such a
suggestion would have been in irreconcilable conflict
with the strategy at trial, which relied on the jury’s
acceptance of a “two car” theory. In short, such
reference would have eviscerated the defense and
exposed the defendant to criminal liability under an
(ECF No. 21-14 at 114-115.)
In assessing counsel’s performance, “a court must indulge a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
Strickland, 466 U.S. at 689 (citation and
internal quotation marks omitted).
The habeas petitioner “bears
the burden of proving that counsel's representation was
unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.”
Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S.
In addition, this Court must presume the
correctness of the trial court’s factual finding that it is
beyond dispute that McDougle was in the car with Sewell and the
Graves brothers immediately after the shooting.
See 28 U.S.C. §
2254(e)(1) (“In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”).5
In this case, the state courts found that counsel’s alleged
failure not to characterize the other occupants of the Audi as
being the shooter was trial strategy.
This determination is not
contrary to or an unreasonable determination of the facts in the
record, nor is it contrary to, or an unreasonable application of
Strickland and its progeny.
See United States v. Leggett, 162
F.3d 237, 247 (3d Cir. 1998) (“[T]here is no constitutional
right to be represented by a lawyer who agrees with the
defendant's trial strategy.
Mere disagreement between defendant
and counsel with regard to strategic decisions does not create a
See also Miller-El v. Dretke, 545 U.S. at 240 (holding that a
district court must “ presume the [state] court’ s factual
findings to be sound unless [petitioner] rebuts the ‘
presumption of correctness by clear and convincing evidence.’”);
Rountree v. Balicki, 640 F.3d 530, 541-42 (3d Cir. 2011) (habeas
court is “ bound to presume that the state court’ s factual
findings are correct, with the burden on the petitioner to rebut
those findings by clear and convincing evidence.”) (quoting
Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009)).
situation severe enough to compel a district court to
investigate whether the defendant's rights are being
Accordingly, McDougle is not entitled to habeas
relief under § 2254(d)(1) or (2) on this claim.
(2) Failure to Cross-Examine Witnesses Using the Grand Jury
Testimony of Michael Fields
In the second point of Ground Two of the present § 2254
petition, which was point three of his amended post-conviction
relief petition, McDougle claimed that trial counsel was
deficient in failing to present at trial the grand jury
testimony of Michael Fields.
The trial court determined that
counsel was not deficient and that McDougle had not shown
The theory is that the grand jury testimony of Fields
should have been used at trial to discredit the
testimony of other witnesses. Before the grand jury,
Fields testified that he saw an individual get into
the backseat of a car. Other witnesses stated that an
unidentified individual got into the frontseat of an
Audi. (T. March 23, 1992 p3). Fields testified at
trial that he did not “recall exactly” where the
individual was located but that “he was just getting
in – jumping in the car.” (T. Nov. 6, 1992 p11).
The record illustrates that Fields was cross-examined
extensively regarding his prior testimony and the
inconsistencies between such testimony and his
testimony at trial. (T. Nov. 6, 1992 p25-6). Defense
counsel specifically questioned Fields as to where he
was located when he saw someone jump into the car.
This was clearly an effort by defense counsel to
suggest that Field’s testimony may be inaccurate due
to where he was located when he saw a figure get into
a white car. Inasmuch as counsel had successfully
challenged the recollection of Fields, the
presentation of his grand jury testimony to discredit
other witnesses would have done little to improve the
case for the defense. In fact, because the defense
relied, in part, on the testimony of those witnesses
who had observed someone get into the frontseat of an
Audi, an all out assault on the credibility of the
witnesses would have been detrimental to the defense.
Therefore, defense counsel’s failure to introduce the
transcript was not deficient, and in any event clearly
did not prejudice the defendant.
(ECF No. 21-14 at 110-111.)
As with respect to his previous claim, McDougle has not
overcome the presumption of correctness with respect to the
findings of fact made by the trial court, nor has he shown that
the adjudication of this claim “was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
is, therefore, not entitled to habeas relief based on this
ineffective assistance of counsel claim.
(3) Failure to Have an Effective Strategy
In the third point of Ground Two of the present § 2254
petition, which was point four of his amended post-conviction
relief petition, McDougle argued that counsel lacked any plan or
strategy to overcome the state’s case.
The trial court rejected
this claim as follows:
This allegation come[s] without any reliable
independent proof, and, moreover, a careful
examination of the transcripts clearly show[s]
counsel’s strategy. The transcript indicates that
defense counsel’s strategy was that a reasonable doubt
existed “within the framework of the state’s own
case.” (T. Nov. 12, 1992 p.42-3). This strategy,
coupled with defense counsel’s careful assessment that
proposed defense witnesses would not “stand up at all”
on cross examination, were defense counsel’s stated
reasons for not calling any witnesses. And, defense
counsel made these strategic decisions after
“significant discussions” with his client.
The Court specifically questioned the petitioner about
this strategy and the performance of his attorney at
the end of the State’s case. The petitioner did not
complain, but instead stated, “I am satisfied, Your
Honor.” (T. Nov. 12, 1992 p.46).
In the apparent absence of any favorable witnesses,
and in the face of an abundance of evidence which
placed petitioner at the crime scene with a motive,
trial counsel zealously defended his client. Counsel
conducted vigorous cross-examination. Trial counsel
attempted to discredit the State’s witnesses by
challenging observations, questioning recollections,
and exposing biases.”
(ECF No. 21-14 at 111.)
Again, McDougle has not overcome the presumption that the
trial court’s factual findings concerning counsel’s conduct and
the existence of a trial strategy were correct.
In addition, he
has not pointed to any strategy, aside from arguing the
existence of a reasonable doubt, that would have shown that
there is a reasonable probability that the outcome of the trial
would have been different.
As the Supreme Court explained,
counsel cannot be constitutionally deficient in failing to
pursue a strategy that he or she thought had little chance of
[T]he state court’s rejection of [Petitioner’s]
ineffective-assistance-of-counsel claim [based on
counsel’s failure to present an insanity defense] was
consistent with Strickland . . . The law does not
require counsel to raise every available nonfrivolous
defense . . . . Counsel also is not required to have
a tactical reason-above and beyond a reasonable
appraisal of a claim’s dismal prospects for success for recommending that a weak claim be dropped
altogether. [Petitioner] has thus failed to
demonstrate that his counsel’s performance was
Knowles v. Mirzayance, 556 U.S. 111, 126-27 (2009) (citations,
internal quotation marks and footnote omitted).
Based on the foregoing, McDougle is not entitled to habeas
relief on this ineffective assistance of counsel claim because
he has not shown that it was based on an unreasonable
determination of the facts in light of the evidence presented or
contrary to or an unreasonable application of Strickland or
other Supreme Court precedent.
Trial Court’s Failure to Permit Petitioner to Testify at
Post-Conviction Relief Hearing
In Ground Three, McDougle asserts that the post-conviction
relief judge’s “decision not to permit [McDougle] to present his
own testimony on the ineffectiveness of trial counsel” violated
McDougle raised this ground on his appeal from the
initial order denying his post-conviction relief petition.
State v. McDougle, Docket No. A-457-98T4 sl. opinion (N.J.
Super. Ct., App. Div., Mar. 21, 2000) (ECF No. 1-8 at 5.)
that appeal, the Appellate Division “f[ou]nd merit . . . in
defendant’s contention that he should have been allowed to speak
on his own behalf as part of the evidentiary hearing,” id., and
remanded “for supplementation of the record by the testimony of
Id. at 7.
“The trial court held another
evidentiary hearing at which defendant testified and denied
defendant’s PCR petition by order dated August 21, 2008.”
v. McDougle, 2011 WL 2652142 at *1.
When McDougle appealed the
second order denying the petition for post-conviction relief he
did not challenge the manner in which the trial court permitted
him to testify or claim that he was again denied the opportunity
Because McDougle prevailed in the New Jersey courts
on this ground, it is not cognizable on habeas review.
Moreover, the entire record, including McDougle’s testimony, was
considered by the PCR court before issuing its 2008 denial of
Certificate of Appealability
McDougle has not made a substantial showing of the denial
of a constitutional right.
Therefore, no certificate of
appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B).
See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
This Court dismisses the Petition with prejudice and denies
a certificate of appealability.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
December 8, 2015
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