LEACH v. HASTINGS et al
Filing
17
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 12/21/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
REGINALD LEACH,
Petitioner,
Civil Action No. 12-7605 (JBS)
v.
BEVERLY HASTINGS, et al.,
OPINION
Respondents.
APPEARANCES:
REGINALD LEACH, 791472A
East Jersey State Prison
Lock Bag R
Rahway, New Jersey 07065
Petitioner Pro Se
CHRISTOPHER W. HSIEH, ESQ.
PASSAIC COUNTY PROSECUTOR
401 Grand Street
Paterson, New Jersey 07505Attorneys for Respondents
SIMANDLE, Chief Judge1
Reginald Leach filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction
filed in the Superior Court of New Jersey, Passaic County, on
February 20, 2004, as amended, after a jury found him guilty of
first-degree robbery and third-degree criminal restraint.
1
The
This case was reassigned to the undersigned following the death
of the Hon. Dickinson R. Debevoise in August, 2015.
State filed an Answer with the record, and Leach filed a
Traverse and a letter requesting a stay.
After carefully
reviewing the arguments of the parties and the state court
record, this Court will deny a stay, dismiss the Petition with
prejudice, and deny a certificate of appealability.
I.
A.
BACKGROUND
The Crimes
Reginald Leach challenges a judgment of conviction imposing
an extended 40-year term of imprisonment with 20 years of parole
ineligibility imposed by the Superior Court of New Jersey, Law
Division, Passaic County, on February 20, 2004, after a jury
found him guilty of first-degree robbery and third-degree
criminal restraint arising from the robbery of a Fashion Bug
store in Totowa on September 20, 2000.
Under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), state court factual
findings are presumed correct unless rebutted by clear and
convincing evidence.
See 28 U.S.C. § 2254(e)(1).
As Leach has
not rebutted the factual findings of the Superior Court of New
Jersey, Appellate Division, the Court will rely on those
findings.
See State v. Leach, Docket No. A-4766-03T4 sl.
opinion (N.J. Super. Ct., App. Div., Dec. 28, 2006) (ECF No. 1213).
2
The Appellate Division found that on September 20, 2000,
Leach and co-defendant Gloria Walton entered the Fashion Bug
shortly before it closed at 9 p.m.
When Tanisha Wilson, one of
three store employees who was present, began to ring up several
items of clothing for Leach and Walton, Leach grabbed the
manager, Julie Alberti, and placed a gun to her head.
Leach
directed Wilson to open the register and instructed Alberti to
open the safe.
Leach removed $2,895 in cash from the safe and
$778 in cash and checks from the register.
Leach ordered the
employees to go into the fitting room and he barricaded the door
with benches.
When the employees were able to get out of the
fitting room, one of them called the police.
They described the
man who robbed the store to Detective Blakely as a Black man
with a light beard and a limp, who wore a dark baseball cap.
B.
State Court Proceedings
A grand jury indicted Leach on three counts relating to the
Totowa Fashion Bug robbery (counts one, two and three), and on
three counts relating to a robbery of a Fashion But in
Parsippany that occurred on September 29, 2000 (counts four,
five and six).
The trial court granted Leach’s motion to sever
counts one through three from counts four through six.
After a
trial on counts one through three relating to the Totowa
3
robbery, on December 9, 2003, a jury found Leach guilty of the
first-degree robbery of the Totowa store and third-degree
criminal restraint, but acquitted him of unlawful possession of
a weapon.
On February 20, 2004, the trial judge sentenced Leach
as a persistent offender to an extended term of 40 years in
prison, with 20 years of parole ineligibility.
Leach appealed, and on December 28, 2006, the Appellate
Division affirmed the conviction but remanded for resentencing
in accordance with State v. Pierce, 188 N.J. 155, 169 (2006),
because the appellate court was not satisfied that the
sentencing court understood that the sentencing range included
the lower end of the ordinary range of a first degree crime and,
therefore, the sentence imposed may have been higher than it
might otherwise have been.
(ECF No. 12-13 at 13.)
On remand,
the trial court evidently imposed the same term, but the amended
judgment is not in the record.
On April 30, 2007, the New
Jersey Supreme Court denied certification.
See State v. Leach,
190 N.J. 396 (2007) (table).
Leach filed his post-conviction relief petition in the
trial court on February 6, 2008.
The trial court denied it
without conducting an evidentiary hearing by order and opinion
dated May 18, 2009.
Leach appealed, and the Appellate Division
4
affirmed on December 14, 2011.
See State v. Leach, 2011 WL
6183466 (N.J. Super. Ct., App. Div., Dec. 14, 2011).
The New
Jersey Supreme Court denied certification on June 8, 2012.
See
State v. Leach, 201 N.J. 479 (2012) (table).
C.
Procedural History of § 2254 Petition
On November 16, 2012, Leach signed and presumably handed to
prison officials for mailing to the Clerk his § 2254 Petition
(ECF No. 1.)
In an Opinion filed on February 20, 2013, Judge
Debevoise explained the exhaustion requirement and gave Leach an
opportunity to file an amended § 2254 petition containing all
available federal claims, in accordance with Mason v. Meyers,
208 F.3d 414 (3d Cir. 2000).
(ECF Nos. 3, 4.)
In response,
Leach filed an amended § 2254 Petition containing these grounds:
Ground One: THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE PETITIONER MADE A PRIMA
FACIE SHOWING THAT HIS DUE PROCESS RIGHT TO BE
PROTECTED AGAINST THE INTRODUCTION OF UNRELIABLE
IDENTIFICATION EVIDENCE WAS VIOLATED.
Ground Two: SINCE PETITIONER MADE A PRIMA FACIE
SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
THE COURT MISAPPLIED ITS DISCRETION IN DENYING POSTCONVICTION RELIEF WITHOUT CONDUCTING A FULL
EVIDENTIARY HEARING.
Ground Three: THE RULING DENYING POST-CONVICTION
RELIEF VIOLATED PETITIONER’S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
(ECF No. 5 at 4-5.)
5
The State filed an Answer arguing that Leach is not
entitled to habeas relief.
Leach filed a Traverse or Reply, as
well as a letter seeking a stay.
II.
Request to Stay Petition
After filing his Traverse or Reply, Leach filed a letter
stating that he filed a motion to correct an illegal sentence in
the New Jersey court and asking that his pending § 2254 Petition
be held in abeyance until he exhausted state remedies with
respect to the illegal sentence claim.
(ECF No. 15.)
After the
filing of Leach’s initial § 2254 Petition on November 16, 2012,
Judge Debevoise issued an Opinion and Order explaining the
exhaustion requirement to Leach and giving him an opportunity to
amend the habeas petition to include all available grounds in
accordance with Mason v. Meyers, supra.
(ECF Nos. 3, 4.)
In
response, Leach filed the amended § 2254 Petition presently
before the Court, which does not include a ground challenging
the legality of the sentence.
As the § 2254 Petition does not
challenge the legality of the sentence, there is no basis for
this Court to now stay the case in order for Leach to exhaust
the illegal sentence claim.
Moreover, the filing of Leach’s initial § 2254 petition on
November 16, 2012, did not toll the 365-day statute of
6
limitations under 28 U.S.C. § 2244(d).
See Duncan v. Walker,
533 U.S. 167 (2001) (holding that a properly filed § 2254
petition does not toll the statute of limitations under §
2244(d)).
Accordingly, Leach’s illegal sentence claim set forth
in his letter dated March 5, 2015, (ECF No. 15), would in any
event be time barred.
See 28 U.S.C. § 2244(d)(1) (imposing a
one-year statute of limitations under § 2254, which generally
begins to run from the date on which the judgment of conviction
became final by the conclusion of direct review or the
expiration of the time for seeking such review).
For all of
these reasons, the Court will deny the motion to stay the
Petition to exhaust an illegal sentence claim.
III.
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
United States.”
28 U.S.C. § 2254(a).
7
Where a state court
adjudicated petitioner’s federal claim on the merits,2 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
involved an unreasonable application of, clearly established
Federal Law, as determined by the Supreme Court of the United
States’, or ‘was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.’”
Parker v. Matthews, 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
wrong.”
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).
The
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.
2
“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).
8
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
Court.
See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
“[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
decision.
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
prisoner’s case.”
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
9
of the state court, two provisions of the AEDPA necessarily
apply.
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
evidence.”
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).
IV. DISCUSSION
A.
Ineffective Assistance of Counsel
In each of the three grounds of the amended § 2254
Petition, Leach claims that counsel was constitutionally
ineffective.
He argues that counsel failed to adequately
challenge the reliability of the identifications, failed to
obtain and use at trial an outdated photograph of him which the
police had received from another police department, and failed
to attack the validity of information provided to the police by
an anonymous caller.
Leach raised these grounds before the New
Jersey courts on post-conviction relief.
10
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.
U.S. Const.
A claim that counsel’s assistance was so defective
as to require reversal of a conviction has two components, both
of which must be satisfied.
U.S. 668, 687 (1984).
See Strickland v. Washington, 466
First, the defendant must “show that
counsel’s representation fell below an objective standard of
reasonableness.”
Id. at 687-88.
To meet this prong, a
“convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment.”
Id. at 690.
The court must then determine whether,
in light of all the circumstances at the time, the identified
errors fell “below an objective standard of reasonableness[.]”
Hinton v. Alabama, 134 S.Ct. 1081, 1083 (2014) (per curiam).
To
establish 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.
Id., 134
“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
11
doubt respecting guilt.”
Id. at 1089 (quoting Strickland, 466
U.S. at 695).
(1) Failure to Challenge Unreliable Identification Evidence
In Ground One of the Amended Petition, Leach argues that
counsel failed to challenge the introduction of unreliable
identification evidence.
(ECF No. 5 at 4.)
As factual support,
he asserts that “[a] detective failed to preserve a post-it with
the phone number of an anonymous caller and the records of his
aborted attempt to create a composite sketch.”
Id.
As Leach
challenges counsel’s conduct with respect to the anonymous
caller in Ground Three, the Court will deal only with the
composite sketch issue here.
Leach presented Ground One as ground one in his appeal from
the denial of post-conviction relief.
(ECF No. 12-18 at 27.)
In affirming the denial of post-conviction relief, the Appellate
Division found that shortly after the robbery Detective Blakely
asked Ms. Velez, one of the Fashion Bug clerks, to assist police
in developing a composite sketch of the robbers.
The court
noted that “[b]ecause the police computer malfunctioned and no
sketch was generated . . ., Blakely did not keep notes of the
meeting nor mention it in his investigative report.”
State v.
Leach, 2011 WL 6183466 at *1 (N.J. Super. Ct., App. Div., Dec.
12
14, 2011).
The Appellate Division ruled that counsel’s failure
to attack Blakely’s failure to record the aborted effort at
generating a composite sketch “was a minor omission lacking
significance” and that “[t]here is no basis to conclude that
such a challenge would have in any way affected the outcome.”
Leach, 2011 WL 6183466 at *2.
This Court is required to presume the correctness of the
Appellate Division’s finding that Detective Blakely did not keep
a record of the attempt to prepare a composite sketch because no
sketch was created due to a computer malfunction.
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.”).
Leach has not
rebutted the presumption by clear and convincing evidence, and
he has not shown that the Appellate Division’s findings were
unreasonable in light of the evidence presented.3
Thus, he has
not satisfied the requirements of 28 U.S.C. § 2254(d)(2).
3
See also Miller-El v. Dretke, 545 U.S. at 240 (holding that a
district court must “ presume the [state] court’ s factual
13
Moreover, given the finding that no sketch was created and
the absence of evidence showing that the aborted attempt to
create a sketch had any effect on Ms. Velez’s pre-trial or incourt identification of Leach, the Appellate Division was not
unreasonable in its application of clearly established Supreme
Court precedent when it concluded that counsel’s failure to
challenge the absence of a record of the aborted effort at
generating a composite sketch “was a minor omission lacking
significance” and that “[t]here is no basis to conclude that
such a challenge would have in any way affected the outcome.”
Leach, 2011 WL 6183466 at *2.
Accordingly, Leach is not
entitled to habeas relief under § 2254(d)(1).
See Ross v.
District Attorney of the County of Allegheny, 672 F.3d 198, 211
n.9 (3d Cir. 2012)) (“[C]ounsel cannot be deemed ineffective for
failing to raise a meritless claim.”) (quoting Werts v. Vaughn,
228 F.3d 178, 202 (3d Cir. 2000)).
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)).
14
(2) Failure to Use Outdated Police Photograph
In Ground Two, Leach claims that the New Jersey “court
misapplied its discretion in denying post-conviction relief
without conducting a full evidentiary hearing.”
4.)
(ECF No. 5 at
As factual support, he asserts that “[c]ounsel elected to
omit obtaining an outdated police photograph not presented to
any witness who testified at trial.”
Id. at 5.
The Appellate
Division found the following facts with respect to this claim:
On September 26 and 27, 2000, Blakely contacted
several police departments in an effort to locate a
photograph of defendant. He acquired one “outdated”
photograph. On October 12, 2000, once defendant was
taken into custody, Blakely photographed him. That
picture, not the outdated one, was included in the
photo arrays shown to eyewitnesses. Velez, who was
shown the array only once, and the other eyewitnesses,
all selected defendant's photo.
Leach, 2011 WL 6183466 at *1.
The Appellate Division determined that counsel was not
deficient in failing to obtain and use at trial the outdated
photo Detective Blakely received from the Parsippany police
because “that photo was not shown to the eyewitnesses
involved[.]”
Id. at *3.
The court ruled that “defense counsel
did not fall short of his professional responsibilities by not
obtaining the photo, as it played no role in the eyewitness
15
identification or any other part of the case.”
Leach, 2011 WL
6183466 at *2.
Again, this Court is required to presume the correctness of
these facts.
Leach has not rebutted them by clear and
convincing evidence or shown that the findings were unreasonable
in light of the evidence presented at trial or on postconviction relief.
Because the photo “played no role in the
eyewitness identification or any other part of the case,” Leach,
2011 WL 6183466 at *2, the Appellate Division was not
unreasonable in its application of Strickland to this claim and
Leach is not entitled to habeas relief.
(3) Failure to Attack the Validity of Information Provided
by an Anonymous Caller
In Ground Three, Leach asserts that “[t]he ruling denying
post conviction relief violated petitioner’s right to effective
assistance of counsel.”
(ECF No. 5 at 5.)
As factual support,
he asserts that counsel “elected to attack the validity of the
information provided by an anonymous caller (who never testified
at trial) during a pre-trial hearing without attempting to
obtain that individual’s name.”
Id.
Leach also presented this ground on appeal from the denial
of post-conviction relief.
The Appellate Division found the
following facts regarding the anonymous caller:
16
On September 25, 2000, Blakely was given the phone
number of an anonymous caller to the station who
claimed to have information regarding the robbery.
The number was written on a post-it which Blakely
later discarded. When Blakely spoke to the anonymous
caller, he learned she had worked at a Marshall's
department store next door to the Totowa Fashion Bug.
The caller supplied defendant's name and co-defendant
Gloria Walton's name, but refused to disclose her
identity. After being given the suspects' names,
Blakely obtained their criminal histories. He
testified about these circumstances in full at a
pretrial hearing conducted at defense counsel's behest
with regard to the anonymous caller.
Leach, 2011 WL 6183466 at *1.
The Appellate Division determined that “trial counsel
sufficiently developed the record regarding the anonymous
caller.
It would have been a massive undertaking to attempt to
obtain that individual's name, with no possible discernable
benefit to the defense.
Even if the identity of the caller was
known, it would not have affected the outcome.”
Id.
In his Traverse, Leach argues that if counsel had found out
the identity of the anonymous caller, the caller would have
testified and shown that Detective Blakely had testified
falsely.
(ECF No. 14 at 9-10.)
He further argues that the
anonymous caller would have supported his argument that the
witnesses misidentified him.
Id.
The problem with these
arguments is that Leach presented no facts to show what the
anonymous caller would have told his attorney in the event that
17
the attorney had discovered her name and contacted her.
Moreover, in light of the Appellate Division’s factual finding
that each of the three Fashion Bug eyewitnesses identified
Leach, the Appellate Division was not unreasonable in its
application of Strickland when it concluded that counsel’s
failure to uncover the anonymous caller’s name did not affect
the outcome of the trial.
Accordingly, Leach is not entitled to
habeas relief on Ground Three.
B.
Certificate of Appealability
Leach 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.
V.
CONCLUSION
This Court denies the request for a stay, dismisses the
Petition with prejudice, and denies a certificate of
appealability.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge
Dated:
December 21, 2015
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