WILCOX v. WARREN et al
Filing
20
OPINION filed. Signed by Chief Judge Jerome B. Simandle on 12/14/2015. (drw)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAHEEM WILCOX,
Petitioner,
Civil Action No. 13-3524 (JBS)
v.
CHARLES E. WARREN, JR., et al.,
OPINION
Respondents.
APPEARANCES:
RAHEEM WILCOX, 540816C
East Jersey State Prison
Lock Bag R
Rahway, New Jersey 07065
Petitioner Pro Se
KIMBERLY L. DONNELLY, ESQ.
UNION COUNTY PROSECUTOR
32 Rahway Avenue
Elizabeth, New Jersey 07202
Attorneys for Respondents
SIMANDLE, Chief Judge1
Raheem Wilcox 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, Union County, on July
5, 2002, after a jury found him guilty of the first-degree
murder of Ernestine Williams and other charges.
1
The State filed
This case was reassigned to the undersigned following the death
of the Hon. Dickinson R. Debevoise in August, 2015.
an Answer with the record.
Wilcox filed a motion to amend the
Petition to include three claims of ineffective assistance of
post-conviction relief counsel and a motion to stay the
Petition, as amended, until he exhausts those claims in the New
Jersey courts.
After carefully reviewing the arguments of the
parties and the state court record, this Court will deny the
motions to amend and to stay, dismiss the Petition with
prejudice, and deny a certificate of appealability.
I.
A.
BACKGROUND
The Crimes
Raheem Wilcox challenges a judgment of conviction imposing
a 40-year term of imprisonment with 30 years of parole
ineligibility imposed by the Superior Court of New Jersey, Law
Division, Union County, on July 5, 2002, after a jury found him
guilty of the first-degree murder of Ernestine Williams on April
13, 2000, third-degree possession of a weapon for an unlawful
purpose, and fourth-degree unlawful possession of a weapon.
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), state court factual findings are presumed correct
unless rebutted by clear and convincing evidence.
§ 2254(e)(1).
See 28 U.S.C.
As Wilcox has not rebutted the factual findings
of the Superior Court of New Jersey, Appellate Division, with
2
respect to the crime, the Court will rely on those findings.
See State v. Wilcox, 2012 WL 3116701 (N.J. Super. Ct., App.
Div., July 20, 2012); State v. Wilcox, Docket No. A-6787-01T4
sl. opinion (N.J. Super. Ct., App. Div., Oct. 10, 2003) (ECF No.
1-2 at 6-17.).
The Appellate Division found the that the evidence at trial
showed that Wilcox and Ms. Williams both worked at Federal
Express.
work.
On April 13, 2000, Wilcox brought three knives to
He ended his shift early, waited for Ms. Williams, and
they took the bus to the parking lot.
car.
They got into Williams’
Wilcox took out a knife and after a struggle, he stabbed
Ms. Williams in the back as she ran away.
Eyewitnesses described Wilcox’s murder of Ms. Williams with
a knife.
One Federal Express employee named Denise Drayton
testified that in the early morning hours of April 13, 2000, she
saw a woman flee from a car in the parking lot and heard the
woman shrieking for Drayton to call the police while a male
chased her.
She saw the man catch the woman and raise his hand
which held something pointy and shiny.
Drayton approached the
woman who was lying on the ground and saw there was a butcher
knife in the middle of her back.
Suna Ricks, another Federal
Express employee, testified that she heard a car horn blowing in
3
the parking lot and she saw the victim, whom she knew as “Tee,”
trying to get out of a vehicle; when Tee broke away, the man
chased her.
Tee yelled, “Call the police,” and she fell to the
ground.
Wilcox spontaneously blurted out his crime moments after he
murdered Williams.
Anthony Harley, a New Jersey Turnpike
employee, testified that Wilcox approached Harley at about 3:00
a.m. and said he needed an ambulance because he had just stabbed
his girlfriend.
When State Police Officer Patrick Doyle
arrived, Doyle handcuffed Wilcox, who told Doyle that he had
just stabbed his girlfriend.
Doyle asked where she was and,
after calling for an ambulance and providing directions, Doyle
read Wilcox his Miranda rights.
Later, Wilcox gave two
statements describing the murder to Sergeant Kevin Foley of the
Union County Prosecutor’s Office.
B.
State Court Proceedings
After a grand jury indicted Wilcox for first-degree murder,
third-degree possession of a weapon for an unlawful purpose, and
fourth-degree unlawful possession of a weapon, Wilcox moved to
suppress the admission of his statements.
The trial judge
conducted a suppression hearing and then denied the motion.
After a two week trial, the jury convicted Wilcox on all
4
charges.
On July 5, 2002, the trial judge sentenced him to 40
years in prison with 30 years of parole ineligibility.
appealed.
Wilcox
On October 10, 2003, the Appellate Division affirmed.
See State v. Wilcox, Docket No. A-6787-01T4 sl. opinion (N.J.
Super. Ct., App. Div., Oct. 10, 2003) (ECF No. 1-2 at 6-17.)
On
November 3, 2005, the New Jersey Supreme Court denied
certification.
See State v. Wilcox, 185 N.J. 389 (2005)
(table).
Wilcox filed his first petition for post-conviction relief
in the trial court on April 17, 2006.
After hearing oral
argument on 17 ineffective assistance of counsel grounds, on May
9, 2008, the trial judge rejected all but one claim; the judge
ordered an evidentiary hearing on the claim that counsel was
ineffective in failing to request a voir dire on alleged juror
misconduct.
On June 26, 2009, the trial court conducted the
evidentiary hearing.
The trial judge denied relief in an
opinion and order filed on January 22, 2010.
Wilcox appealed.
On July 20, 2012, the Appellate Division affirmed.
See State v.
Wilcox, 2012 WL 3116701 (N.J. Super. Ct., App. Div., July 20,
2012).
On January 31, 2013, the New Jersey Supreme Court denied
certification.
See State v. Wilcox, 213 N.J. 46 (2013) (table).
5
In the Answer, the State indicates that Wilcox filed a
second petition for post-conviction relief, which the trial
court denied on January 24, 2014, because the grounds could have
been raised in the first post-conviction relief petition, the
issues “regarding failure to remove or to request a voir dire of
members of the jury was raised in petitioner’s first postconviction relief and rejected,” and Wilcox did not “point to
anything that might be contained in the jury selection
transcripts that might support any post-conviction relief
claim.”
(ECF No. 12-21 at 2.)
Wilcox filed a motion to
reconsider the denial of his second post-conviction relief
petition, which the trial court denied on March 12, 2014.
No. 12-21 at 11.)
(ECF
According to the State, Wilcox filed a notice
of appeal and a brief supporting that appeal in the Appellate
Division.
C.
Procedural History of § 2254 Petition
On May 24, 2013, Wilcox signed and presumably handed to
prison officials for mailing to the Clerk his § 2254 Petition
(ECF No. 1.)
He also filed a motion for a stay.
By Order
entered July 12, 2013, the Court notified Wilcox 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).
6
(ECF No. 2.)
In response, Wilcox wrote a letter asking the
Court to rule on the Petition as filed and to rule on his motion
for a stay.
(ECF No. 3.)
In an Order and Opinion entered on
October 7, 2014, the Court denied the motion for a stay and
ordered the Government to file an answer and the record.
The Petition raises eight grounds:
Ground One: THE STATE COURTS[’] RULING THAT
PETITIONER WAS NOT DEPRIVED OF HIS SIXTH AND
FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHTS TO
EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS BY HIS
TRIAL ATTORNEY[’S]FAILURE TO USE THE MENTAL HEALTH
EXPERT REPORTS AT TRIAL OR SENTENCING IN SUPPORT OF A
DIMINISH[ED] CAPACITY DEFENSE AND ESPECIALLY IN LIGHT
OF THE TRIAL COURT[’S] IMPOSITION OF PENALTY AT THE
LOWER END WAS CONTRARY TO CLEARLY ESTABLISHED FEDERAL
LAW.
Ground Two: THE STATE COURTS[’] RULING THAT
PETITIONER WAS NOT DEPRIVED OF HIS SIXTH AND
FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHTS TO
EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS RIGHT
TO FUNDAMENTAL FAIRNESS BY APPELLATE COUNSEL’S FAILURE
TO RAISE ON APPEAL THAT THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY PERMITTING DETECTIVE FOLEY TO
TESTIFY TO INADMISSIBLE HEARSAY MATERIAL THAT DENIED
PETITIONER’S SIXTH AMENDMENT CONFRONTATION RIGHT BASED
ON A NEW RULE OF CONSTITUTIONAL LAW AND PROVIDED CAUSE
FOR PROCEDURAL DEFAULT CONTRARY TO CLEARLY ESTABLISHED
FEDERAL LAW.
Ground Three: THE STATE COURTS[’] RULING THAT
PETITIONER WAS NOT DEPRIVED OF HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY PCR
COUNSEL’S FAILURE TO ADEQUATELY CROSS-EXAMINE
PETITIONER’S TRIAL ATTORNEY DURING THE EVIDENTIARY
HEARING HELD ON A TWOFOLD INEFFECTIVE A[SSISTANCE AND]
JURY MISCONDUCT CLAIM TO ASCERTAIN THE IDENTITY OF
PETITIONER’S FAMILY MEMBER WHO ADVISED HIM OF A
7
JUROR’S UNFAVORABLE COMMUNICATION DURING TRIAL WITH A
FAMILY MEMBER OF THE VICTIM BESIDES THE ALLEGED
PETITIONER HE WAS CONSTITUTIONALLY INEFFECTIVE FOR
FAILING TO TIMELY ADVISE THE COURT [] TO TAKE ACTION
AGAINST BY HIS OWN ADMISSION, AND TO CALL OTHER
POTENTIAL WITNESSES WAS BASED ON AN UNREASONABLE
DETERMINATION OF THE FACTS IN LIGHT OF THE EVIDENCE
PRESENTED IN THAT PROCEEDING AND ESTABLISHED CAUSE TO
EXCUSE A PROCEDURAL DEFAULT.
Ground Four: THE STATE COURTS[’] RULING AFFIRMING THE
DENIAL OF PETITIONER’S MOTION TO SUPPRESS ANY OF HIS
STATEMENTS DEPRIVED HIM OF HIS FIFTH AND FOURTEENTH
AMENDMENT RIGHTS AGAINST SELF INCRIMINATION AND DUE
PROCESS OF LAW CONTRARY TO CLEARLY ESTABLISHED FEDERAL
LAW.
Ground Five: THE STATE COURTS[’] RULING TO NOT PERMIT
PETITIONER TO CALL BACK A JUROR OR TO VOIR DIRE THE
JURY BASED ON ITS DETERMINATION THAT PETITIONER WAS
NOT DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AND A FAIR AN[D] IMPARTIAL JURY
DUE TO TRIAL COUNSEL’S FAILURE TO TIMELY ADVISE THE
COURT OF SAID JUROR WHO APPEARED TO HAVE MADE AN
UNFAVORABLE COMMUNICATION WITH A VICTIM’S FAMILY
MEMBER DURING PETITIONER’S TRIAL WAS CONTRARY TO
CLEARLY ESTABLISHED FEDERAL LAW.
Ground Six: THE STATE COURTS[’] RULING DENYING
PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING TO
DETERMINE WHETHER HIS TRIAL ATTORNEY DEPRIVED HIM OF
HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW FOR
FAILING TO REMOVE A BIASED VENIREMAN WAS CONTRARY TO
CLEARLY ESTABLISHED FEDERAL LAW RESULTING ALSO IN THE
DENIAL OF PETITIONER’S SIXTH AMENDMENT RIGHT TO A FAIR
TRIAL AND IMPARTIAL JURY.
Ground Seven: THE STATE COURTS[’] RULING AFFIRMING
THE DENIAL OF PETITIONER’S EXCESSIVE SENTENCE FOR HIS
MURDER CONVICTION VIOLATED HIS EIGHTH AMENDMENT
CONSTITUTIONAL RIGHT AGAINST CRUEL AND UNUSUAL
PUNISHMENT RESULTING IN AN UNREASONABLE APPLICATION OF
CLEARLY ESTABLISHED FEDERAL LAW.
8
Ground Eight: THE STATE COURTS[’] RULING THAT
PETITIONER WAS NOT DEPRIVED OF HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF PCR COUNSEL FOR
FAILING TO USE THE MENTAL HEALTH EXPERT REPORTS
ALTHOUGH RELYING ON THE INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL ARGUMENT FOR FAILING TO PRESENT A
DIMINISH[ED] CAPACITY DEFENSE WITH RESPECT TO
PETITIONER BEING UNABLE TO FORM THE INTENT TO COMMIT
MURDER RESULTED IN A DECISION THAT WAS BASED ON AN
UNREASONABLE DETERMINATION OF THE FACTS IN LIGHT OF
THE EVIDENCE PRESENTED IN THE STATE COURT AND
ESTABLISH[ES] CAUSE TO EXCUSE A PROCEDURAL DEFAULT.
(ECF No. 1-2 at 2-5.)
The State filed an Answer arguing that Wilcox is not
entitled to habeas relief and Wilcox filed motions to amend and
to stay the Petition.
II.
MOTIONS TO AMEND AND STAY PETITION
After the Answer was filed, Wilcox filed two motions:
a
motion to amend the § 2254 Petition to add three claims and a
motion to stay the Petition while he exhausts those claims
before the New Jersey courts.
Each of the three grounds Wilcox
seeks to exhaust and to add to his Petition asserts that postconviction relief counsel was ineffective.2
2
The problem with
In Ground A, he asserts that “PCR COUNSEL WAS INEFFECTIVE FOR
FAILING TO RAISE TRIAL AND APPELLATE COUNSEL’S
INEFFECTIVENESS[,] FOR FAILING TO OBJECT TO A POTENTIALLY BIASED
JUROR . . . AND FOR FAILING TO REQUEST A VOIR DIRE[.]” (ECF No.
17 at 7.) In Ground B, he claims that “PCR COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE TRIAL COUNSEL’S FAILURE TO
9
amending the Petition to exhaust these ineffective assistance of
post-conviction relief counsel grounds is that they are not
cognizable under § 2254.
Section 2254(i) provides that ”[t]he
ineffectiveness or incompetence of counsel during . . . State
collateral post-conviction proceedings shall not be a ground for
relief under section 2254.”
28 U.S.C. § 2254(i).
See Martel v.
Clair, 132 S. Ct. 1276, 1287 n.3 (2012) (“[M]ost naturally read,
§ 2254(i) prohibits a court from granting substantive habeas
relief on the basis of a lawyer’s ineffectiveness in postconviction proceedings.”); Stevens v. Epps, 618 F.3d 489, 502
(6th Cir. 2010) (“Ineffectiveness of post-conviction counsel
cannot be the grounds for federal habeas relief”).
In addition, shortly after he filed his § 2254 Petition,
the Court issued an Order giving Wilcox an opportunity to amend
the Petition to include all available grounds in accordance with
Mason v. Meyers, supra.
(ECF No. 2.)
In response, Wilcox
declined to add grounds, and he asked the Court to rule on the
Petition as filed.
(ECF No. 3.)
The filing of Wilcox’s § 2254
REQUEST A VOIR DIRE OF TWO SLEEPING JURORS,” and in Ground C he
asserts that “PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO
INVESTIGATE PETITIONER’S PRO SE CLAIM THAT TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO EXERCISE A PEREMPTORY CHALLENGE[.]”
Id. at 7-8.
10
Petition on May 24, 2013, did not toll the 365-day statute of
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, Wilcox’s new claims, which were set
forth in his motion dated March 28, 2015, 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 amend the Petition to add new
claims and the motion to stay the amended petition while Wilcox
exhausts those claims.
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
“in violation of the Constitution or laws or treaties of the
United States.”
28 U.S.C. § 2254(a).
11
Where a state court
adjudicated petitioner’s federal claim on the merits,3 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.
3
“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).
12
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
13
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.”
28 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. DISCUSSION
A.
Self-Incrimination
In Ground Four of the § 2254 Petition, Wilson challenges
the admission of his confessions to Trooper Doyle and Detective
Foley.
Wilcox claims that the denial of his motion to suppress
his confessions violated his Fifth and Fourteenth Amendment
rights not to incriminate himself.
In the New Jersey courts,
Wilcox challenged the admission of his pre-Miranda statements to
State Trooper Doyle on the ground that he was in custody and
Doyle had not informed him of his rights under Miranda.
He
challenged the admission of his post-Miranda statements on the
14
grounds that he invoked his right to remain silent and he did
not voluntarily waive his Miranda rights.
The trial court and
the Appellate Division rejected each argument.
(1) Pre-Miranda Confession
After conducting a suppression hearing, the trial court
allowed the admission of Wilcox’s statements to Doyle and Foley.
Wilcox argued on direct appeal that his first confession to
Trooper Doyle violated Miranda v. Arizona, 384 U.S. 436 (1966),
because Wilcox was in custody when he gave the confession and
Doyle had not administered the Miranda warnings.
The Appellate
Division found the following facts regarding the pre-Miranda
statements to Doyle:
New Jersey Turnpike Authority employee Anthony Harley
testified that [Wilcox] approached him at
approximately 3:00 a.m. on April 13, 2000, and stated
that he needed an ambulance because he “just stabbed
[my] girlfriend.” State Police Officer Patrick Doyle
arrived at the scene and handcuffed defendant.
Defendant told the trooper that he had just stabbed
his girlfriend. The trooper asked where the victim
was because she may need medical attention. After the
trooper called with directions to send an ambulance to
the victim, Trooper Doyle read defendant his Miranda
rights.
(ECF No. 1-2 at 8.)
The Appellate Division held that Wilcox’s statement that he
just stabbed his girlfriend was admissible under the public
safety exception to the suppression remedy imposed by Miranda:
15
The trooper was responding to a call from the turnpike
official who had reported a stabbing. When he arrived
at the scene and even before defendant was placed into
custody, defendant volunteered the fact that he had
stabbed his girlfriend. At that point the trooper’s
focus was on whether defendant was armed and the
whereabouts and condition of the victim. He made no
effort to induce defendant to disclose details of the
crime. See New York v. Quarles, 467 U.S. 649, 653 . .
. Indeed, according to the record, Trooper Doyle
attempted to stop defendant from making admissions
prior to giving him Miranda warnings.
(ECF No. 1-2 at 10.)
The Fifth Amendment provides that no person "shall be
compelled in any criminal case to be a witness against himself."
U.S. Const. amend. V.
The Fourteenth Amendment incorporates the
Fifth Amendment privilege against self-incrimination.
Malloy v. Hogan, 378 U.S. 1, 8 (1964).
See
In Miranda, the Court
held that "without proper safeguards the process of in-custody
interrogation . . . contains inherently compelling pressures
which work to undermine the individual’s will to resist and to
compel him to speak where he would not otherwise do so freely."
384 U.S. at 467.
When police ask questions of a suspect in
custody without administering the required warnings, Miranda
dictates that the answers received be presumed compelled and
that they be excluded from evidence at trial in the State’s case
in chief.
See Oregon v. Elstad, 470 U.S. 298, 317 (1985).
"To
safeguard the uncounseled individual’s Fifth Amendment privilege
16
against self-incrimination . . , suspects interrogated while in
police custody must be told that they have a right to remain
silent, that anything they say may be used against them in
court, and that they are entitled to the presence of an
attorney, either retained or appointed, at the interrogation."
Thompson v. Keohane, 516 U.S. 99, 107 (1995); see also Miranda,
384 U.S. at 479.
In New York v. Quarles, Quarles was charged with criminal
possession of a weapon.
Officers Kraft and Scarring were on
road patrol in Queens, N.Y., when a young woman approached their
car and said that she had just been raped by a black male
carrying a gun who was wearing a black jacket with the name "Big
Ben" printed in yellow letters on the back and who had just
entered an A & P supermarket.
The officers drove the woman to
the supermarket, and Officer Kraft entered the store and spotted
a man matching the description given by the woman.
The man ran;
Officer Kraft pursued him with a drawn gun and ordered him to
stop and put his hands over his head.
Although more than three
other officers had arrived on the scene by that time, Officer
Kraft frisked the man and discovered that he was wearing an
empty shoulder holster.
After handcuffing him, Officer Kraft
asked him where the gun was and Quarles nodded in the direction
17
of some empty cartons and said, "the gun is over there."
Quarles, 467 U.S. at 652.
Officer Kraft retrieved a loaded
revolver from one of the cartons, formally placed Quarles under
arrest, and read him his Miranda rights.
After Quarles
indicated he would answer questions without an attorney, Kraft
asked him if he owned the gun and where he bought it, and
Quarles answered that he owned it and he had bought it in Miami.
The Supreme Court reversed the state courts’ suppression of
Quarles’ statements, holding that a person’s statements, albeit
not preceded by Miranda warnings, are admissible if the totality
of the circumstances shows that the officer’s questions "relate
to an objectively reasonable need to protect the police or the
public from any immediate danger."
Quarles, 467 U.S. at 659
n.8.
In this case, the Appellate Division found on direct appeal
that Trooper Doyle arrived at the turnpike toll in Newark after
Wilcox had told the turnpike employee that he just stabbed his
girlfriend.
Trooper Doyle handcuffed Wilcox who told Doyle that
he had just stabbed his girlfriend; Doyle asked where the victim
was because she may need medical attention.
The Court is
required to presume the correctness of these factual findings.
See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an
18
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.”).
Wilcox 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 at
the suppression hearing.4
Thus, he has not satisfied the
requirements of 28 U.S.C. § 2254(d)(2).
Wilcox is also not entitled to habeas relief under §
2254(d)(1).
Under Quarles, the public safety exception to
Miranda applies so long as the questioning “relate[s] to an
objectively reasonable need to protect the police or the public
from any immediate danger.”
Quarles, 467 U.S. at 659 n.8.
The
facts found by the Appellate Division in this case are
4
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)).
19
consistent with application of the public safety exception set
forth in Quarles, i.e., Trooper Doyle questioned Wilcox because
there was an objectively reasonable basis for Doyle to conclude
that the victim may need emergency medical care, since Doyle
arrived in response to Hartley’s report of a stabbing of a woman
by Wilcox.
Wilcox has not shown that the Appellate Division’s
determination that Wilcox’s statement to Trooper Doyle was
admissible under the public safety exception was contrary to, or
an unreasonable application of, Quarles or other Supreme Court
holdings.
See Allen v. Roe, 305 F.3d 1046 (9th Cir. 2002)
(holding that, although the area where the gun was found was
isolated, the state courts’ application of the public safety
exception did not warrant habeas relief).
Wilcox is, therefore,
not entitled to habeas relief on this portion of Ground Four.
(2) Claim of Invocation of Right to Remain Silent
Wilcox also challenged the admission of the statements he
gave to Trooper Doyle and later to Detective Foley after he
received the Miranda warnings, arguing that he had invoked his
right to remain silent.
The Appellate Division found that
Wilcox did not invoke his right to remain silent or ask for an
attorney after receiving the Miranda warnings:
[W]e agree with the trial court that [Wilcox] did not,
ambiguously or otherwise, invoke his right to remain
20
silent. After the Miranda warnings were given he
agreed freely to be interviewed by Sergeant Foley. He
made no request or even a fleeting reference to
secession of the questioning, nor did he express a
desire to have counsel present. Indeed, being fully
cognizant of his rights, [Wilcox] initiated discussion
about the details of the criminal episode on several
occasions during the interviews, even without being
pressed by Foley.
It is true that at one point, [Wilcox] stated, “I
don’t like to talk about it, I know it’s wrong.”
However, we agree with the trial court that,
considered in context, these remarks were nothing more
than an expression of remorse. For example, after the
remark, [Wilcox] added “[i]t’s just hurting me by
talking about it.” As the trial court observed,
[Wilcox] apparently still had strong feelings about
the victim, and an acknowledgment that he had caused
her injury or even her death evoked pain and remorse.
As such, they cannot be construed as even an equivocal
invocation of his Miranda rights.
(ECF No. 1-2 at 11-12.)
Again, this Court must presume the correctness of the above
factual findings, as Wilcox has not rebutted them with clear and
convincing evidence.
Those findings establish that at no point
after he received the Miranda warnings did Wilcox say that he
wanted to remain silent, that he did not want to talk with law
enforcement officials, or that he wanted an attorney.
In Berghuis v. Thompkins, 560 U.S. 370 (2010), the Supreme
Court reversed the Sixth Circuit’s grant of habeas relief under
§ 2254 where the circuit had found that Thompkins’ incriminating
statement had been elicited in violation of Miranda because,
21
after being given the Miranda warnings, Thompkins essentially
sat in an interrogation room for almost three hours without
speaking.
When the police finally asked him if he believed in
God, he responded “Yes.”
The officer asked if he prayed to God,
and he again responded “Yes,” and if he prayed to God to forgive
him for shooting that boy down and he answered “Yes.”
375-76.
Id.
at
The Supreme Court held that habeas relief was improper
because the state court’s decision to admit the statements was
not contrary to, or an unreasonable application of, Supreme
Court holdings as “[t]he Court has not yet stated whether an
invocation of the right to remain silent can be ambiguous or
equivocal.”
Id. at 381.
In this case, where the evidence in the record does not
show that Wilcox unambiguously invoked his right to remain
silent, the Appellate Division’s determination that his postMiranda statements were admissible is not contrary to, or an
unreasonable application of, Miranda or other Supreme Court
holdings.
See Berghuis, 560 U.S. at 381-82; see also Davis v.
United States, 512 U.S. 452, 461-62 (1994) (“If the suspect’s
statement is not an unambiguous or unequivocal request for
counsel, the officers have no obligation to stop questioning
him.”)
22
(3) Waiver of Miranda Rights
Wilcox also argued on direct appeal that his postMirandized statements were not admissible because he had not
voluntarily waived his Miranda rights.
In Berghuis, the Supreme
Court outlined its precedent on the waiver of Miranda rights:
[T]he accused's statement during a custodial
interrogation is inadmissible at trial unless the
prosecution can establish that the accused in fact
knowingly and voluntarily waived [Miranda] rights when
making the statement. The waiver inquiry has two
distinct dimensions: waiver must be voluntary in the
sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or
deception, and made with a full awareness of both the
nature of the right being abandoned and the
consequences of the decision to abandon it.
Berghuis, 560 U.S. at 382-83 (citations and internal quotation
marks omitted).
The Berghuis Court emphasized that the State may establish
waiver by a preponderance of the evidence, Berghuis, 560 U.S. at
384, and that “Miranda rights can . . . be waived through means
less formal than a typical waiver on the record in a courtroom.”
Id. at 385.
The Court further explained that, “[a]s a general
proposition, the law can presume that an individual who, with a
full understanding of his or her rights, acts in a manner
inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.”
23
Id.
In this case, the Appellate Division rejected Wilcox’s
challenge to his waiver substantially for the reasons expressed
by the trial judge, adding that “[n]othing in the record
supports a conclusion that defendant’s statements were not the
product of an essentially free and unconstrained choice.”
(ECF
No. 1-2 at 12) (citations and internal quotation marks omitted).
The record shows that, after the suppression hearing, the trial
judge found that Wilcox understood the Miranda warnings and that
he decided to waive them.
Specifically, as to Wilcox’s post-
Miranda statements to Trooper Doyle, the trial judge found that
while Trooper Doyle was reading the Miranda warnings, Wilcox
was alert, he was nodding that he understood those
rights as they were given and – and was told that he
could – he can waive those, you know, at any time he
wanted, he could withdraw his waiver and assert those
rights, and then – and then the Trooper asked okay?
And he got an ah-hum, which under the circumstances
was an affirmative – I interpret to be an affirmative
yes. He then proceeded, once again, to totally be
cooperative and volunteer information.
(ECF No. 12-30 at 28-29.)
With respect to the confessions Wilcox gave to Detective
Foley, the trial judge found that “Mr. Wilcox was given his
Miranda warnings over and over and over again, both orally and
written, and that he understood his rights and that he knowingly
waived his rights.”
(ECF No. 12-30 at 29-30.)
24
Again, the Court must presume the state courts’ factual
findings that Wilcox comprehended his Miranda rights and that he
voluntarily chose to give statements to Doyle and Foley.
U.S.C. § 2254(e)(1).
See 28
Wilcox has not rebutted these findings by
clear and convincing evidence, id., or shown that they were
unreasonable in light of the evidence in the record.
See 28
U.S.C. § 2254(d)(2).
In addition, the New Jersey courts’ determination that the
admission of Wilcox’s statements did not violate his Miranda
rights because the statements were made freely with an
understanding of his rights was consistent with Supreme Court
precedent.
“Where the prosecution shows that a Miranda warning
was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of
the right to remain silent.”
Berghuis, 560 U.S. at 384.
Based
on the foregoing, Wilcox has not shown that the New Jersey
courts’ adjudication of his waiver challenge was contrary to, or
an unreasonable application of, U.S. Supreme Court holdings.
See 28 U.S.C. § 2254(d)(1), (d)(2).
B.
Ineffective Assistance of Post-Conviction Relief Counsel
In Grounds Three and Eight of the § 2254 Petition, Wilcox
asserts that post-conviction relief counsel was constitutionally
25
ineffective.
As explained above, a ground challenging the
ineffectiveness or incompetence of counsel during state postconviction proceedings is not cognizable under § 2254.
U.S.C. § 2254(i) and supra at pp. 8-9.
See 28
Wilcox is, therefore,
not entitled to habeas relief on Grounds Three and Eight.
C.
Ineffective Assistance of Trial and Appellate Counsel
In Grounds One, Five, and Six of his § 2254 Petition,
Wilcox asserts that trial counsel was deficient in failing to
use previously obtained mental health expert reports at his
trial and sentencing, failing to advise the trial court that a
juror appeared to have made an unfavorable communication with a
family member of the victim, and failing to seek to remove a
biased venire person.
In Ground Two, Wilcox asserts that
counsel on direct appeal was deficient in failing to argue that
the trial court erred by allowing Detective Foley to testify to
(unidentified) hearsay that violated the Confrontation Clause.
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
26
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
U.S. at 695).
The Fourteenth Amendment guarantees a criminal defendant
pursuing a first appeal as of right certain “minimum safeguards
necessary to make that appeal ‘adequate and effective,’” Evitts
v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois,
351 U.S. 12, 20 (1956)), including the right to the effective
27
assistance of counsel, id. at 396.
The ineffective assistance
of counsel standard of Strickland applies to a claim that
appellate counsel was ineffective.
See Smith v. Robbins, 528
U.S. 259, 285 (2000); United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).
However, “it is a well established principle
that counsel decides which issues to pursue on appeal,” Sistrunk
v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate
counsel is not constitutionally required to raise every
nonfrivolous claim requested by the defendant.
See Jones v.
Barnes, 463 U.S. 745, 751 (1983); see also Smith v. Robbins, 528
U.S. 259, 288 (2000).
(1) Failure to Use Mental Health Reports
In Ground One of the § 2254 Petition, Wilcox claims that
trial counsel was deficient in failing to “use the mental health
expert reports at trial or sentencing in support of a
diminish[ed] capacity defense and especially in light of the
trial court[’]s imposition of penalty at the lower end[.]”
No. 1-2 at 2.)
(ECF
Wilcox raised this ground on post-conviction
relief and included in his appendix several mental health
evaluations, arguing that, if presented at trial, the
evaluations would have established a diminished capacity defense
or reduced his sentence.
28
As to use of the reports to establish a diminished capacity
defense, the Appellate Division agreed with the trial judge
“that trial counsel’s decision to pursue a passion/provocation
defense as opposed to diminished capacity, was one of trial
strategy.”
Wilcox, 2012 WL 3116701 at *3.
The Appellate
Division noted that
the State asserted at oral argument that it had a
report as to defendant’s mental status, prepared
before trial, in which the expert concluded that
[Wilcox] had the mental capacity to engage in
purposeful and knowing conduct. By not introducing
his own reports at trial [or] sentencing . . ,
defendant was able to argue diminished capacity
without running the risk of the State offering
evidence to the contrary.
Wilcox, 2012 WL 3116701 at *3.
The Appellate Division noted that trial counsel had argued
in summation that Wilcox snapped at the time of the crime and
that the evidence showed at worst that he had committed
aggravated manslaughter.
The court found that, “without opening
the door to the admission of the State’s proofs, [Wilcox]
nonetheless argued diminished capacity to the jury, without
objection, once the judge refused to give the jury a
passion/provocation instruction.”
Id. at *4.
The Appellate Division further found that counsel’s
decision not to use the reports at sentencing was not deficient.
29
Id.
“Even in the absence of reports, trial counsel was so
effective in his sentencing presentation that despite the
presence of aggravating factor one, ‘[t]he nature and
circumstances of the offense,’ N.J.S.A. 2C:44-1(a)(1), [Wilcox]
was sentenced in the lower end of the range.”
Id.
As explained above, the Appellate Division found that trial
counsel made a strategic decision not to use the mental health
reports.
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.”
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)
(citing Strickland, 466 U.S. at 688-689).
As Strickland
explained, to establish constitutionally deficient performance,
“the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.”
Strickland, 466 U.S. at 689 (citation and
internal quotation marks omitted).
The Appellate Division’s
determination that counsel was not deficient in failing to use
the previously obtained mental health reports at trial or
sentencing is not 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
30
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
situation severe enough to compel a district court to
investigate whether the defendant's rights are being
impinged[.]”).
Accordingly, Wilcox is not entitled to habeas
relief on this claim.
(2) Failure to Advise the Court of Juror’s Communication
In Ground Five of his § 2254 Petition, Wilcox claims that
counsel was ineffective in failing to timely advise the trial
court that a juror appeared to have made an unfavorable
communication with a family member of the victim.
at 4.)
(ECF no. 1-2
Wilcox raised this ground in his post-conviction relief
petition.
After conducting an evidentiary hearing and
considering the testimony of Wilcox, Tammy Smart (the ex-wife of
Wilcox’s cousin), and Wilcox’s trial attorney, the trial court
decided not to recall the juror because Wilcox failed to show
that “a specific, non-speculative impropriety [] occurred” or
that he “may have been harmed by jury misconduct.”
(ECF No. 1-2
at 25.)
The Appellate Division noted that Wilcox testified that “he
saw a particular juror making flirtatious eye contact on three
31
separate occasions with a woman seated behind the prosecutor,”
and that “his attorney told him that he saw that same juror make
an inappropriate gesture to [the victim’s] family.”
2012 WL 3116701 at *1.
Wilcox,
Wilcox’s trial attorney testified that
after the jury returned to the court room to render its verdict,
Wilcox told him that he thought that a juror had made some eye
contact with the victim’s side, but Wilcox did not report any
other observations regarding the juror.
Tammy Smart testified
that while she was in the courtroom after deliberations and
immediately before the jury announced the verdict, she saw a
juror nodding his head and patting his chest while making eye
contact with the victim’s family.
The Appellate Division ruled
that, “[i]n light of the judge’s determination that trial
counsel’s testimony was credible, and was corroborated by Smart,
and his conclusion that [Wilcox] was not credible, the judge
certainly had no record upon which to require voir dire of the
juror.
Defendant made no showing at all, much less a ‘strong
showing’ of such a need.”
Id. at *4 (citations omitted).
This Court must presume the correctness of the finding that
the juror made a gesture to the victim’s family after
deliberations had concluded and after the jury returned to the
courtroom, but immediately before the jury announced the
32
verdict.
Under the facts found by the New Jersey courts,
Wilcox’s trial attorney was not constitutionally deficient in
failing to seek to voir dire the jury because the gesture
occurred after deliberations had concluded.
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)).
No impropriety occurs when a
juror, by body language, conveys the notion that the jury is
about to announce a finding of guilt, and the state courts’
conclusion does not violate any established precedent.
(3) Failure to Remove Biased Venire Person
In Ground Six of his § 2254 Petition, Wilcox asserts that
trial counsel was deficient in failing to remove a biased venire
person.
As factual support, he does not explain the nature of
the alleged bias; he simply refers to the brief filed on his
appeal from the denial of post-conviction relief.
In point five
of that brief, counsel indicates that in Wilcox’s pro se
submission to the trial court, he had “alleged that his trial
attorney was constitutionally ineffective because he failed to
exercise a peremptory challenge on a venireman for bias.”
No. 12-4 at 21.)
(ECF
Without setting forth the factual basis for
33
the alleged bias, counsel continued, “[a]ssuming the defendant’s
facts are true,” the trial court improperly rejected the claim
without addressing the merits.
Id.
The Appellate Division
affirmed the denial of relief on this ground because “[n]o facts
are even asserted supporting this claim.”
Wilcox, 2012 WL
3116701 at *4.
This Court agrees with the Appellate Division and finds
that, in the absence of any factual showing, Wilcox has not
established that the Appellate Division’s rejection of this
ground was based on an unreasonable determination of the facts
in light of the evidence presented or was contrary to, or an
unreasonable application of, Supreme Court holdings.
See 28
U.S.C. § 28 U.S.C. § 2254(d)(1) and (d)(2).
(4) Failure to Argue on Direct Appeal That the Admission of
Hearsay in Detective Foley’s Testimony Violated the
Confrontation Clause
In Ground Two of the § 2254 Petition, Wilcox asserts that
appellate counsel was deficient in failing to argue on direct
appeal “that the trial court committed reversible error by
permitting Detective Foley to testify to inadmissible hearsay
material that denied Petitioner’s Sixth Amendment confrontation
right[.]”
(ECF No. 1-2 at 2.)
As factual support, Wilcox does
not describe the challenged testimony; he refers the Court to
34
his pro se letter briefs filed on appeal from the denial of
post-conviction relief.
Id.
The record shows that Wilcox
raised the identical heading as point two in his pro se
supplemental brief filed in the Appellate Division.
12-8 at 11.)
(ECF No.
He argued that “the Miranda card used by Detective
Foley to elicit oral statements that resulted to written
statements belonged to Officer Raul Morales,” and that
“Detective Foley’s use of inadmissible hearsay material
consisting of testimony regarding another officer[’]s Miranda
card violated defendant’s right to confrontation, given that the
officers were available to testify.”
(ECF No. 12-8 at 13.)
Wilcox further argued that “the trial court erred in permitting
Foley to testify to the use of Officer[] Morales[’] Miranda card
to elicit oral statements from defendant without the right to
confront him and Officer DiPalma.”
Id. at 14-15.
Wilcox
claimed that the trial judge “should have allowed [Morales] to
testify to rebut Detective Foley’s allegation that defendant
wrote those responses.”
Id. at 17.
not discuss this ground, stating:
The Appellate Division did
“We briefly touch upon
defendant’s pro se points, only to the extent we note that none
raise issues worthy of discussion in a written opinion.”
Wilcox, 2012 WL 3116701 at *5.
35
Wilcox appears to argue that counsel was constitutionally
deficient in failing to challenge Foley’s trial testimony which
indicated that Wilcox had acknowledged receiving Miranda
warnings from Detective Morales.
This Court notes that, after
conducting the suppression hearing, the trial court found that
“Mr. Wilcox was given his Miranda warnings over and over and
over again, both orally and written, and that he understood his
rights and that he knowingly waived his rights.”
at 29-30.)
(ECF No. 12-30
The Appellate Division agreed that Wilcox had
voluntarily waived his Miranda rights.
This Court finds that
the New Jersey courts’ adjudication of the claim that counsel
was deficient in failing to challenge Foley’s testimony was not
contrary to, or an unreasonable application of, Supreme Court
holdings concerning the Confrontation Clause or the right to the
effective assistance of counsel.
See, e.g., Knowles v.
Mirzayance, 556 U.S. 111, 127 (2009) (“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.”)
D.
Eighth Amendment
In Ground Seven of the § 2254 Petition, Wilcox asserts that
his sentence violated the Eighth Amendment.
36
Wilcox argued on
direct appeal that his 40-year term of imprisonment was
excessive and the Appellate Division rejected the claim, finding
that “the sentence is not manifestly excessive or unduly
punitive and does not constitute an abuse of discretion.”
(ECF
No. 1-2 at 16-17.)
The legality and length of a sentence are generally
questions of state law over which this Court has no jurisdiction
under § 2254.
See Chapman v. United States, 500 U.S. 453, 465
(1991); Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991);
Wainwright v. Goode, 464 U.S. 78 (1983).
Moreover, the Supreme
Court held in Lockyer v. Andrade, 538 U.S. 63 (2003), that
California’s imposition of two consecutive terms of 25 years to
life in prison for a third strike conviction for stealing five
videotapes did not violate clearly established Supreme Court
Eighth Amendment precedent.
In light of Lockyer, the New Jersey
courts’ adjudication of the Eighth Amendment claim was not
contrary to, or an unreasonable application of, clearly
established Supreme Court precedent.
E.
Certificate of Appealability
Wilcox has not made a substantial showing of the denial of
a constitutional right.
Therefore, no certificate of
37
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.
IV.
CONCLUSION
This Court dismisses the Petition with prejudice and denies
a certificate of appealability.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Dated:
December 14, 2015
38
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?