FITZGERALD v. WARREN et al

Filing 24

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/9/2016. (tf,n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAWUD FITZGERALD,
Civil Action No. 13-1163 (JBS)
Petitioner,
v.
OPINION
CHARLES WARREN, et al.,
Respondents.

APPEARANCES:
DAWUD FITZGERALD, 947706B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
Petitioner Pro Se
UNION COUNTY PROSECUTOR
by: Sara Beth Liebman, Esq.
32 Rahway Avenue
Elizabeth, New Jersey 07202
Attorneys for Respondents

SIMANDLE, Chief Judge1
Dawud Fitzgerald (“Dawud”) filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of
conviction imposed in the Superior Court of New Jersey, Law
Division, Union County, on April 22, 2005, and amended on

1

This case was reassigned to the undersigned following the death
of the Hon. Dickinson R. Debevoise in August, 2015.

November 25, 2008, after a jury found him2 guilty of being a
kingpin of a narcotics trafficking network, conspiracy to
distribute heroin and cocaine, operating a drug production
facility and 18 related charges.

The State filed an Answer with

the record and Dawud filed a Reply.

After carefully reviewing

the state court record and the arguments of the parties, this
Court will deny the Petition on the merits with prejudice and
deny a certificate of appealability.
I.
A.

BACKGROUND

The Crimes
Dawud challenges a sentence of life imprisonment plus 100

years imposed after a jury convicted him of being a kingpin of a
drug trafficking network which operated throughout New Jersey,
conspiracy to distribute heroin and cocaine, employment of a
juvenile in a drug distribution scheme, operating a drug
production facility, and other charges.

Under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), state court factual
findings are presumed correct unless rebutted by clear and

2

Dawud Fitzgerald was tried with his brothers, Dawshon
Fitzgerald and Dawmeen Fitzgerald, and their uncle, John
Fitzgerald. Dawshon, Dawud and Dawmeen were found guilty on all
21 counts in the indictment, and John was found guilty on some
counts. See State v. Fitzgerald, 2008 WL 2572617 (N.J. Super.
Ct., App. Div., June 30, 2008), certif. denied, 196 N.J. 597
(2008).

2

convincing evidence.

See 28 U.S.C. § 2254(e)(1).

As Dawud has

not rebutted the factual findings of the New Jersey courts, this
Court will rely on those findings.
The Appellate Division found that for several years the
Fitzgeralds “were trafficking cocaine and heroin throughout New
Jersey” and that they employed several persons “who were
involved in selling, transporting, and packaging the narcotics.”
State v. Fitzgerald, 2012 WL 469779 (N.J. Super. Ct., App. Div.,
Feb. 15, 2012), certif. denied, 212 N.J. 460 (2012).

Dawshon

was in charge of the heroin, Dawmeen was responsible for the
cocaine, and Dawud was the person who ensured that operations
ran smoothly.

The Fitzgerald organization used an apartment in

Newark as a lab for cutting and packaging the drugs and an
apartment in Elizabeth for sales.

After obtaining warrants,

members of the Union County Prosecutor’s Office Narcotics Strike
Force monitored intercepted telephone calls within the
organization between November 19, 2002, and December 17, 2002.
On December 17, 2002, at 6:00 a.m., officers on the strike force
simultaneously executed nine search warrants at the various
premises in Elizabeth, Newark and Roselle, and arrested Dawshon,
Dawud, and Dawmeen.

The evidence presented at trial consisted

primarily of the testimony of two members of the organization,
i.e., Angel Aviles and Sherrodd Britt, who had entered into plea

3

agreements;3 128 intercepted telephone conversations between the
Fitzgeralds and members of the organization; and evidence,
including drugs, guns, and money, seized during the execution of
the search warrants.
B.

The State Court Proceedings
The Fitzgeralds were tried before a jury from February 24,

2005, through March 15, 2005.

Dawshon, Dawud and Dawmeen were

found guilty on all 21 counts in the indictment; John was found
guilty on some counts.

After granting the State’s motion for

imposition of an extended sentence on each Fitzgerald brother,
the trial judge sentenced each to an aggregate term of life in
prison, plus 100 years, with a 65-year period of parole
ineligibility.

Each brother appealed.

On June 30, 2008, in a

single opinion, the Appellate Division affirmed their
convictions and remanded for resentencing.

See State v.

Fitzgerald, 2008 WL 2572617 (N.J. Super. Ct., App. Div., June
30, 2008).

On October 6, 2008, the New Jersey Supreme Court

denied petitions for certification.
196 N.J. 597 (2008) (table).

See State v. Fitzgerald,

On November 25, 2008, the trial

judge resentenced Dawud to an aggregate sentence of life plus

3

Aviles and Britt sold drugs out of the Elizabeth apartment,
which was open each day from 5:30 a.m. until 10:00 p.m., and had
500 to 600 customers a day.

4

100 years, with a 65-year period of parole ineligibility (the
same as the original sentence).
On January 14, 2009, Dawshon and Dawud filed separate
petitions for post-conviction relief in the trial court.

On

November 30, 2009, the trial court entered orders denying each
petition.

Dawud and Dawshon appealed, and on February 15, 2012,

the Appellate Division affirmed in a single opinion.

See State

v. Fitzgerald, 2012 WL 469779 (N.J. Super. Ct., App. Div., Feb.
15, 2012).

The New Jersey Supreme Court denied certification on

November 9, 2012.

See State v. Fitzgerald, 212 N.J. 459 (2012)

(table); State v. Fitzgerald, 212 N.J. 460 (2012) (table).
C.

Procedural History of § 2254 Petition
On February 13, 2013, Dawud signed his Petition for a Writ

of Habeas Corpus and handed it to prison officials for mailing
to the Clerk.

(ECF No. 1 at 18.)

The Court notified him 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), and, in response, he indicated by letter dated July 2,
2013, that he wanted to file the amended § 2254 Petition
attached to the letter as his one all-inclusive petition.
Nos. 2, 3.)

(ECF

Dawud’s all-inclusive Petition raises the following

grounds:
Ground One: THE PETITIONER WAS DENIED HIS SIXTH
AMENDMENT CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL BY COUNSEL’S FAILURE TO: (A)
5

SUBJECT THE STATE’S CASE TO AN ADVERSARIAL TESTING
DURING THE PRETRIAL SUPPRESSION HEARING TO CHALLENGE
THE ADMISSIBILITY OF EVIDENCE OBTAINED PURSUANT TO
WIRETAP WARRANTS AND NO-KNOCK SEARCH WARRANTS; (B) TO
OBJECT TO THE STATE’S ADMISSION OF NUMEROUS HEARSAY
WIRETAP TAPES AND TESTIMONY; (C) TO OBJECT TO
PROSECUTORIAL MISCONDUCT OF THE STATE’S RELIANCE ON AN
UNTESTED INFORMANT; AND (D) FAILING TO OBJECT TO
ERRONEOUS JURY INSTRUCTIONS[.] THEREFORE, THE
CONVICTIONS SHOULD BE REVERSED.
Ground Two: THE TRIAL COURT FAILED TO GIVE CLEAR,
ACCURATE, AND COMPLETE JURY INSTRUCTIONS.
Ground Three: WHEN CHARGING THE “LEADER” COUNT, THE
TRIAL COURT ERRONEOUSLY EMPHASIZED THAT DEFENDANT NEED
ONLY HAVE UPPER-ECHELON STATUS IN RELATION TO “ONE
OTHER” PERSON IN THE ENTERPRISE.
Ground Four: THE TRIAL COURT ERRED BY REPEATEDLY
INSTRUCTING THE JURY TO CONSIDER DEFENDANT’S “GUILT OR
INNOCENCE.”
(ECF No 4 at 21, 7, 8, 10.)
The State filed an Answer arguing that none of the four
grounds raised in the Petition satisfies the standard for
granting habeas relief under 28 U.S.C. § 2254(d).

Dawud filed a

Reply arguing that he is entitled to habeas relief under §
2254(d)(1) because counsel was constitutionally ineffective.
II.

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

6

“in violation of the Constitution or laws or treaties of the
United States.”

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
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

4

“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).

7

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
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 of
8

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).
III.
A.

DISCUSSION

Ineffective Assistance of Counsel (Ground One)
In Ground One, Dawud asserts that trial counsel was

constitutionally ineffective in (1) failing at the suppression
hearing to adequately challenge the admissibility of evidence
obtained pursuant to wiretap warrants and no-knock search
warrants; (2) failing to object to hearsay in the wiretapped
recordings and testimony; (3) failing to object to the State’s
reliance on an untested informant; and (4) failing to object to
erroneous jury instructions.

(ECF No. 7 at 7.)

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
9

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
doubt respecting guilt.”

Id. at 1089 (quoting Strickland, 466

(1) Defective Performance at Suppression Hearing
In Ground One (A), Dawud asserts that counsel was
ineffective in failing to “subject the State’s case to an
adversarial testing during the pretrial suppression hearing to
challenge the admissibility of evidence obtained pursuant to
10

wiretap warrants and no-knock search warrants.”

(ECF No. 7 at

7.)
Dawud raised this claim on appeal from the order denying
post-conviction relief.

He argued that defense counsel failed

to challenge the state’s wiretaps on the ground that the State
did not minimize the interception of non-relevant conversations.
(ECF No. 14-5 at 21-24.)

The Appellate Division found that

counsel was not ineffective during the motion to suppress
because there was probable cause for issuance of the warrants
and the “statements in the affidavits were supported by
sufficient factual underpinnings to justify issuance of the
wiretap orders.”

State v. Fitzgerald, 2012 WL 469779 at *22.

This Court must presume the correctness of the finding that
the affidavits supporting the warrant applications were
factually supported, as Dawud has not rebutted the finding with
clear and convincing evidence.

The Appellate Division was not

unreasonable in its application of Strickland when it concluded
that counsel was not constitutionally deficient in moving to
suppress the wiretap and no-knock warrants.
(2) Failure to Object to Admission of Hearsay
Dawud argues in Ground One (B) that counsel was deficient
in failing to object to the admission of unspecified hearsay in
the wiretaps and testimony.

Dawud raised this claim in passing

on appeal from the denial of post-conviction relief, but his
11

appellate brief did not identify the challenged hearsay.

As

Dawud did not identify in his Petition or state court briefs the
hearsay which he claims his attorney should have objected to,
Dawud has not shown that the Appellate Division unreasonably
applied Strickland when it rejected this unsupported claim.
(3) Failure to Object to State’s Reliance on an Untested
Informant
In Ground One (C) Dawud asserts that counsel was deficient in
failing to object to Detective Sheridan’s reliance on an
untested informant in his affidavit seeking the warrants.
Without elaboration, Dawud argued on appeal from the denial of
post-conviction relief that case should be remanded because the
trial court denied an evidentiary hearing and gave short shrift
to many of his claims.

The Appellate Division found:

Here, Detective Sheridan, who signed the affidavit of
probable cause in support of the wiretap warrant,
based his request on, among other things, what Dawshon
characterizes as “[i]nformation received from an
untested informant, hereinafter referred to as
Informant B . . .” The information provided by
Informant B was corroborated by the plethora of other
evidence cited in Detective Sheridan's affidavit,
including multiple controlled drug purchases,
witnessed narcotics activity and the defendants'
extensive criminal records. This evidence was obtained
from numerous sources, including Detective Sheridan,
other Elizabeth police officers, a reliable
confidential informant (Informant A), police
department records, and telephone records.
Dawshon has failed to show that, viewed within the
totality of the circumstances, a challenge to the
wiretap search warrant would have been meritorious.

12

State v. Fitzgerald, 2012 WL 469779 at *17-*18.
Again, this Court is required to presume the correctness of
the finding that the information provided by Informant B was
corroborated, as Dawud has not rebutted this finding with clear
and convincing evidence.

The Appellate Division did not

unreasonably apply Strickland when it rejected Dawud’s claim
that counsel was deficient in failing to challenge the issuance
of the warrants based on the unreliability of informant B.
(4) Failure to Object to Erroneous Jury Instructions
In Ground One (D), Dawud argues that counsel was deficient
in failing to object to erroneous jury instructions.

On appeal

from the order denying post-conviction relief, the Appellate
Division found that counsel was not deficient in failing to
challenge the accomplice liability instruction because, “while a
portion of the Model Charge was omitted, that portion generally
repeated the charge the jury received [and], although the court
does not appear to have specifically charged the jury that it
had to consider accomplice liability separately for each
defendant, the charge given implies that such consideration
should have occurred.”

Fitzgerald, 2012 WL 469779 at *18.

The

Appellate Division also found that counsel was not deficient in
failing to challenge the vicarious liability and conspiracy
instructions, as these instructions were not erroneous:

“Given

the facts of the case, that Dawshon was alleged to have operated
13

a drug trafficking network with multiple ‘employees,’ charging
the jury on both conspiracy and conspiracy based on vicarious
liability was appropriate.”

Id.

Because “counsel cannot be deemed ineffective for
failing to raise a meritless claim,” the New Jersey court
was not unreasonable in its application of Strickland when
it concluded that counsel was not deficient in failing to
challenge the accomplice liability and conspiracy
instructions.

Ross v. District Attorney of the County of

Allegheny, 672 F.3d 198, 211 n.9 (3d Cir. 2012) (quoting
Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000)).

B.

Due Process:

Instructions (Grounds Two, Three, Four)

Relying on the briefs filed on direct appeal, in Grounds
Two, Three and Four, Dawud asserts that “the trial court failed
to give clear, accurate, and complete jury instructions,” (ECF
No. 4 at 7), the kingpin or leadership instruction was
erroneous, id. at 8, and the court “erred by repeatedly
instructing the jury to consider defendant’s ‘guilt or
innocence.’”

Id. at 10.

In Waddington v. Sarausad, 555 U.S. 179 (2009), a habeas
case, the Supreme Court emphasized the established principle
that an ambiguity, inconsistency, or error in a state
instruction does not violate due process unless the defendant
14

also shows that “there was a reasonable likelihood that the jury
applied the instruction in a way that relieved the State of its
burden of proving every element of the crime beyond a reasonable
doubt.”

Id. at 191 (quoting Estelle v. McGuire, 502 U.S. 62, 72

(1991)).

“In making this determination, the jury instruction

may not be judged in artificial isolation, but must be
considered in the context of the instructions as a whole and the
trial record.”

Id.

(quoting Estelle, 502 U.S. at 72).

In this case, Dawud and his brothers challenged the jury
instructions on direct appeal and also challenged counsel’s
failure to object to instructions on post-conviction relief.
The Appellate Division determined that counsel was not deficient
in failing to object to the jury instructions because the
instructions were not improper or erroneous.

In any event, even

if the instructions regarding accomplice liability and
employment of a juvenile may have been ambiguous or confusing,
Dawud has not shown in Grounds Two and Three that the jury
applied the instructions in a way that relieved the State of its
burden of proving every element of the crime beyond a reasonable
doubt.
72.

See Waddington, 555 U.S. at 191; Estelle, 502 U.S. at

Accordingly, he is not entitled to habeas relief on Grounds

Two or Three.

See Williams v. Beard, 637 F. 3d 195, 223-25 (3d

Cir. 2011) (rejecting § 2254 claim that the instruction
unconstitutionally broadened the scope of accomplice liability
15

because petitioner failed to show that there was a reasonable
likelihood that the jury applied the instruction in a manner
that relieved the state of its burden of proving every element
beyond a reasonable doubt); Johnson v. Rosemeyer, 117 F.3d 104,
110 (3d Cir. 1997) (“[T]he jury instructions on justification .
. . would need to have relieved the state of the necessity of
proving an element of the offense as required by federal law or
to have deprived the petitioner of a defense the state had to
afford him under federal law in order to be significant in a
federal habeas corpus action.”)
In contrast, Dawud argues in Ground Four that “the trial
court erred by repeatedly instructing the jury to consider
defendant’s ‘guilt or innocence.’” (ECF No. 7 at 10.)

The

record shows that the trial court instructed the jury that
each defendant sits in this courtroom assumed to be
innocent, unless and until you find the State has
proven them guilty of, at least, one of these crimes
and all of their elements beyond a reasonable doubt.
The burden of proof is on the State and it never
shifts. There is no burden with respect to proof
imposed upon the defendant. No defendant is obliged
to prove that he’s innocent. He sits in this
courtroom assumed to be innocent.
(ECF No. 18-15 at 10-11.)
The trial court further instructed the jurors to determine
“not only whether the State has proved each and every element of
the offense charged beyond a reasonable doubt, but also whether

16

the State has proven beyond a reasonable doubt that the
defendant is the person who committed the crime.”

Id. at 14.

Dawud has not cited any Supreme Court case holding that,
where a court has properly instructed a jury on the beyond-areasonable-doubt standard, a court’s comments during trial that
the role of the jury is to determine a defendant’s “guilt or
innocence” violates due process.

Moreover, the Supreme Court

has itself has frequently observed that “the central purpose of
a criminal trial is to decide the factual question of the
defendant's guilt or innocence[.]”).
475 U.S. 673, 681 (1986).

Delaware v. Van Arsdall,

See, e.g., United States v. Gaudin,

515 U.S. 506, 514 (1995) (“[T]he jury's constitutional
responsibility is not merely to determine the facts, but to
apply the law to those facts and draw the ultimate conclusion of
guilt or innocence.”); Taylor v. Kentucky, 436 U.S. 478, 485
(1978) (“This Court has declared that one accused of a crime is
entitled to have his guilt or innocence determined solely on the
basis of the evidence introduced at trial”); Stone v. Powell,
428 U.S. 465, 489-90 (1976) (“The costs off applying the
exclusionary rule even at trial and on direct review are well
known:

the focus of the trial, and the attention of the

participants therein, are diverted from the ultimate question of
guilt or innocence that should be the central concern in a
criminal proceeding.”) (footnotes omitted); Williams v. Florida,
17

399 U.S. 78, 82 (1970) (“We find ample room in [our adversary]
system, at least as far as ‘due process’ is concerned, for the
instant Florida rule, which is designed to enhance the search
for truth in the criminal trial by insuring both the defendant
and the State ample opportunity to investigate certain facts
crucial to the determination of guilt or innocence.”).
Accordingly, the New Jersey courts did not unreasonably apply
clearly established Supreme Court precedent when they concluded
that the trial court’s isolated references to “guilt or
innocence” did not violate due process.

Dawud is not entitled

to habeas relief on Ground Four.
IV.

Certificate of Appealability

Dawud 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.

18

V.

CONCLUSION

This Court denies the Petition with prejudice and denies a
certificate of appealability.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

Dated:

March 9, 2016

19