ROWE v. NELSON et al
Filing
12
OPINION. Signed by Judge Noel L. Hillman on 4/22/2016. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
KENNETH NELSON, et al.,
:
:
Respondents.
:
___________________________________:
DERIC ROWE,
Civ. No. 13-4971 (NLH)
OPINION
APPEARANCES:
Deric Rowe, #488225 / 310202B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner, pro se
Jennifer L. Bentzel
Office of the Prosecutor, County of Burlington
49 Rancocas Rd.
P.O. Box 6000
Mount Holly, NJ 08060
Counsel for Respondents
HILLMAN, District Judge
Petitioner Deric Rowe, a prisoner confined at the New
Jersey State Prison in Trenton, New Jersey has submitted a
petition for writ of habeas corpus, under 28 U.S.C. § 2254,
challenging his state court conviction for first-degree robbery.
The respondents are Kenneth Nelson and the Attorney General of
the State of New Jersey.
For the reasons set forth below, the
Petition will be DENIED. 1
I.
FACTUAL BACKGROUND and PROCEDURAL HISTORY
The factual background of this case was succinctly
summarized by the state appellate court:
On the afternoon of September 5, 2002, Elizabeth Cook,
then seventy-six years old, went to the bank. After
completing her business inside, she walked toward her
car, which she had parked in the bank's lot. As she
opened the car door and tossed her purse onto the
passenger seat, a man approached her from the rear,
held a hard object to her back and told her to get
into the car. Ms. Cook thought the man had a gun and
she began to scream; the man quickly walked away. Ms.
Cook looked toward the man and yelled at him, “What's
the matter, what are you trying to do to me?” She
noted that he was wearing black pants and a hat with a
visor that was hanging down in the back. He got into
1To
the extent that Petitioner's claims are unexhausted, this
Court will deny them on the merits pursuant to 28 U.S.C. §
2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
State”). See Carrascosa v. McGuire, 520 F.3d 249, 255 n. 10 (3d
Cir. 2008) (“There is, however, a difference between granting an
unexhausted habeas claim on the merits and denying such a claim
on the merits, as recognized by the plain language of section
2254(b)(2) . . . Denying an unexhausted claim on the merits is
consistent with the statute”); Taylor v. Horn, 504 F.3d 416, 427
(3d Cir. 2007) (“Here, because we will deny all of Taylor's
claims on the merits, we need not address exhaustion”);
Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (“We would
permit Bronshtein to attempt on remand to establish a reason to
excuse his procedural default, but we find it unnecessary to do
so because it is apparent that the claims in question lack
merit. Under 28 U.S.C. § 2254(b)(2), we may reject claims on
the merits even though they were not properly exhausted, and we
take that approach here”).
2
a nearby car and drove away. She also saw another man
standing across the parking lot.
Ms. Cook got into her own car. She said she was too
shaken to go to the police and drove home, which took
only a few minutes. Her son-in-law was there and,
crying, she told him what had happened to her. He
called the police who came and took her statement.
The State also presented the testimony of Gary
Shivers, who had parked his car in the bank's lot and
walked toward the bank. He saw a small blue Honda
that had only partially pulled into a stall in the
bank lot. He then heard a woman scream and saw a man
walking toward the blue Honda. Shivers said the man
was wearing a heavy jacket, which he thought unusual
for a warm September day. When the man got to the
Honda, Shivers saw him trying to stuff a handgun into
a pocket. Shivers said he saw the handle of the gun,
not the barrel. The man got into the car and drove
away, but as he did so, Shivers noted the car's
license plate number and wrote it down. After he
finished his business at the bank, he drove to the
police station to report what he had seen.
Defendant was apprehended later that day. A search of
his car turned up a small orange cap of the type
placed on the barrels of toy plastic guns to signify
clearly they are not real weapons. The police
returned to Mrs. Cook and took her for a drive-by [for
identification purposes], in which she identified
defendant.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *1 (N.J.
Super. Ct. App. Div. Nov. 22, 2005).
On November 7, 2002, Petitioner was charged in a two-count
indictment for robbery, N.J.S.A. 2C:15-1a(2) (Count One), and
carjacking, N.J.S.A. 2C:15-2a(2) (Count Two).
At trial,
Petitioner testified on his own behalf:
He admitted he encountered Ms. Cook in the bank
parking lot but said their meeting was entirely
innocent. According to defendant, he had parked his
3
car and was walking to pick up some Chinese food from
a nearby Chinese restaurant when he bumped into Ms.
Cook. He said she made a remark to him which he
interpreted as a racial slur. He was angered by this
and responded with a racial remark of his own. He got
into his car and drove away without going to the
restaurant. He was stopped by police as he arrived at
his apartment complex.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *1.
On March 9, 2004, a jury found Petitioner guilty of
robbery, but was unable to reach a unanimous verdict with regard
to Count Two, first-degree carjacking.
At sentencing on June
11, 2004, the trial court imposed an extended term of thirty
years to robbery, subject to the parole ineligibility provisions
of the No Early Release Act (“NERA”), N.J.S.A. 2C:43-7.2, and
dismissed the count for carjacking.
Petitioner appealed his conviction and sentence.
On
November 22, 2005, the appellate division affirmed Petitioner’s
conviction, but remanded for sentencing. See State v. Rowe, No.
A-7131-03T4, 2005 WL 3108492, at *1 (N.J. Super. Ct. App. Div.
Nov. 22, 2005).
Petitioner filed a petition for certification
to the Supreme Court of New Jersey.
On August 8, 2006, the New
Jersey Supreme Court granted certification on the issue of
defendant's sentence, and remanded the matter to the trial court
for resentencing. See State v. Rowe, 188 N.J. 267, 905 A.2d 876
(2006).
4
Upon resentencing, the trial court again imposed a sentence
of 30 years’ imprisonment with an 85 percent period of parole
ineligibility.
Petitioner appealed this sentence, and the
appellate court affirmed.
His petition for certification to the
Supreme Court of New Jersey was denied on September 24, 2009.
See State v. Rowe, 200 N.J. 371, 982 A.2d 458 (2009).
Petitioner then filed a pro se petition for Post-Conviction
Relief (“PCR”) on April 15, 2010.
September 13, 2010.
He amended his petition on
On September 20, 2010, Petitioner’s counsel
filed another brief in support of his PCR petition.
Among other
things, Petitioner raised an ineffective assistance of counsel
claim.
The matter was heard before the state PCR court on
December 17, 2010.
On December 20, 2010, the PCR court issued a
written opinion denying Petitioner’s PCR petition. (Appendix
Ra19, PCR Op., Dec. 20, 2010, ECF No. 9-22).
Specifically, the
PCR court denied the petition as untimely because it was filed
more than five years after Petitioner’s June 11, 2004
conviction.
Despite the ruling of untimeliness, the PCR court
addressed Petitioner’s claims on the merits and found them to be
without merit.
The PCR petition was denied formally in an order
dated December 22, 2010. (Appendix Ra20, Order, Dec. 22, 2010,
ECF No. 9-23).
Petitioner appealed the PCR court’s ruling and, in an
opinion dated January 11, 2013, the appellate court affirmed the
5
PCR court’s determination that Petitioner’s ineffective
assistance of counsel claim failed on the merits. (Appendix
Ra21, Appellate Order, Jan. 11, 2013, ECF No. 9-25).
The New
Jersey Supreme Court denied the petition for certification on
July 12, 2013. See State v. Rowe, 214 N.J. 175, 68 A.3d 890
(2013).
On or about August 14, 2013, Petitioner filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1).
On or about August 20, 2013, Petitioner paid the
required filing fee and submitted an Amended Petition. (ECF No.
2).
In his Amended Petition, Petitioner asserts eight grounds
for relief.
Namely he alleges, (1) “the trial court erred to
defendant’s prejudice by improperly charging the jury as to
carjacking, necessitating reversal”; (2) “the trial court
permitted improper and highly prejudicial hearsay testimony
concerning the alleged crime, necessitating reversal”; (3) “the
State committed significant and prejudicial misconduct,
necessitating reversal”; (4) “the extended-term sentence imposed
on defendant is improper and illegal”; (5) “the Defendant was
denied the effective assistance of appellate counsel”; (6)
“ineffective assistance of trial counsel”; (7) “Defendant’s PCR
petition should not have been procedurally barred”; and (8) “an
evidentiary hearing is required for [Petitioner] to establish a
6
prima facie showing of ineffective assistance of counsel.” (Am.
Pet. 4, 5, 6, ECF No. 2).
The Court issued an Order to Answer on February 6, 2014.
(ECF No. 5).
After receiving an extension, Respondents filed
their Answer on June 4, 2015. (ECF No. 9).
As an initial
matter, Respondents argue that some of Petitioner’s claims are
procedurally barred due to Petitioner’s failure to comply with
state procedural rules. 2 (Resp’ts’ Br. 27, ECF No. 9).
Alternatively, Respondents contend that Petitioner’s claims
should be denied on the merits.
Petitioner submitted his Reply on July 9, 2015. (ECF No.
11).
The matter is now fully briefed.
II.
DISCUSSION
A. STANDARDS GOVERNING PETITIONER’S CLAIMS
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
2
This Court notes that, to the extent the state courts addressed
and rejected Petitioner’s claims on the merits, this Court has
no basis to refuse to consider the merits of those claims in the
instant Petition. See Harris v. Reed, 489 U.S. 255, 265, 109 S.
Ct. 1038, 1045, 103 L. Ed. 2d 308 (1989) (“Of course, if the
state court under state law chooses not to rely on a procedural
bar in such circumstances, then there is no basis for a federal
habeas court’s refusing to consider the merits of the federal
claim.”); see also Johnson v. Williams, 133 S. Ct. 1088, 1101,
185 L. Ed. 2d 105 (2013).
7
(a)
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment
of a State court only on the ground that he is in
custody in violation of the Constitution or laws
or treaties of the United States.
With respect to any claim adjudicated on the merits in
state court proceedings, the writ shall not issue unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts
the governing law set forth in [Supreme Court] cases,” or “if
the state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court’s]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., for the Court, Part
II).
“[A] state-court decision involves an unreasonable
application of [Supreme Court] precedent if the state court
identifies the correct governing legal rule but unreasonably
8
applies it to the facts of the particular state prisoner’s case
. . .” White v. Woodall, 134 S. Ct. 1697, 1705, 188 L. Ed. 2d
698, reh’g denied, 134 S. Ct. 2835, 189 L. Ed. 2d 799 (2014)
(internal citations and quotations omitted).
“[A]n
‘unreasonable application of’ those holdings must be
‘objectively unreasonable,’ not merely wrong; even ‘clear error’
will not suffice.” Id. at 1702 (quoting Lockyer v. Andrade, 538
U.S. 63, 76, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144 (2003)).
Therefore, “a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. (internal citations and quotations
omitted).
An state court’s ruling may also involve an
“unreasonable application” of federal law “if the state court
either unreasonably extends a legal principle from [the Supreme
Court's] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply,” (although the Supreme Court expressly
declined to decide the latter). Williams, 529 U.S. at 407–09.
In determining whether the state court’s application of
Supreme Court precedent was objectively unreasonable, a habeas
court may consider the decisions of inferior federal courts. See
Glenn v. Wynder, 743 F.3d 402, 408 n.6 (3d Cir.), cert. denied
9
sub nom. Glenn v. Walsh, 134 S. Ct. 2700, 189 L. Ed. 2d 744
(2014); Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir.
1999).
The deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal case law, “as long as the reasoning of the state court
does not contradict relevant Supreme Court precedent.” Priester
v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002);
Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d
279 (2002)).
Finally, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167
L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
A pro se
habeas petition and any supporting submissions must be construed
liberally and with a measure of tolerance. See Royce v. Hahn,
151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878
F.2d 714, 721–22 (3d Cir. 1989).
A. GROUND ONE
As his first basis for habeas relief, Petitioner asserts
that the trial court erred by improperly charging the jury as to
10
the count of carjacking.
Petitioner asserts that “[t]he charge
of carjacking was unsupported, and the jury’s consideration of
it was” a violation of his rights under the Fourteenth
Amendment. (Am. Pet. 4, ECF No. 2).
In their Answer, Respondents contend that jury instructions
cannot serve as the basis for federal relief in a habeas
petition. (Resp’ts’ Br. 29, ECF No. 9).
However, Petitioner
does not challenge the particulars of the jury instructions.
Rather, he challenges the fact that the charge of carjacking was
submitted to the jury for consideration in the first instance.
The Supreme Court has stated that “habeas petitioners may
obtain plenary review of their constitutional claims, but they
are not entitled to habeas relief based on trial error unless
they can establish that it resulted in ‘actual prejudice.’”
Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722,
123 L. Ed. 2d 353 (1993); see also Fry v. Pliler, 551 U.S. 112,
121, 127 S. Ct. 2321, 2328, 168 L. Ed. 2d 16 (2007) (“[I]n §
2254 proceedings a court must assess the prejudicial impact of
constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in Brecht
. . . .”); Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013)
(holding that a writ will only issue if the error was not
harmless).
11
In this case the jury did not find Petitioner guilty of
carjacking.
Therefore, it cannot be argued that the
presentation of the carjacking charge to the jury resulted in
“actual prejudice” in the form of an unconstitutional
conviction.
Moreover, Petitioner does not argue that the
submission of the carjacking charge to the jury had any
collateral, prejudicial effect on any other aspect of his case.
Further, with respect to this ground for relief, Petitioner
seeks “reversal.” (Am. Pet. 4, ECF No. 2).
However, because he
was not convicted of carjacking; there is no conviction to be
reversed. 3
Accordingly, Petitioner has not established that the mere
presentation of the charge of carjacking to the jury resulted in
“actual prejudice,” and he is not entitled to habeas relief on
this ground. See Brecht, 507 U.S. at 637.
B. GROUND TWO
In his second ground for relief, Petitioner asserts that
the “trial court permitted improper and highly prejudicial
hearsay testimony concerning the alleged crime, necessitating
reversal.” (Am. Pet. 4, ECF No. 2).
Petitioner objects to the
trial court’s decision to permit a police officer, Officer
3
To the extent Petitioner seeks reversal of the charge for which
he was convicted, first-degree robbery, Petitioner has not
offered a basis which would warrant this type of relief.
12
Spitler, to relay what the alleged victim had told him about the
incident during his own testimony.
Specifically, during trial
Officer Spitler stated,
She advised me she was leaving the First Union Bank,
walked over to her vehicle, a 1995 Ford Taurus that
was parked in the bank parking lot. When she got to
the door she attempted to unlock her door when someone
[w]alked up from behind her, she stated from her left
approximately two parking spots away from her and
placed something to her back and told her to get into
the car.
(Trial Tr. 95:12-19, Mar. 3, 2004, ECF No. 9-29).
Respondents contend that the admission of this testimony
was harmless. (Resp’ts’ Br. 45, ECF No. 9).
In addressing this claim on direct appeal, the appellate
court stated,
Although we concur that this testimony should not have
been presented in this manner, we do not agree that
its receipt calls for a reversal of defendant's
conviction. Officer Spitler’s testimony did not
present to the jury any information that was not
already before it through Ms. Cook's own testimony,
about which she had been thoroughly cross-examined.
Defendant's attorney, moreover, attempted through
cross-examination of Officer Spitler to demonstrate
certain weaknesses in Ms. Cook's alleged recitation of
what had occurred. Cotto, supra, 182 N.J. at 331. We
are unable to conclude that this testimony constitutes
plain error, i.e., it does not cause us to have a
reasonable doubt that it led the jury to a result it
otherwise would not have reached. State v. Branch, 182
N.J. 338 (2005). That this is so is demonstrated by
the jury’s failure to convict defendant of carjacking.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *4.
13
To the extent Petitioner contends that the trial court’s
admission of the officer’s hearsay testimony violated due
process, he is not entitled to habeas relief. See Marshall v.
Lonberger, 459 U.S. 422, 103 S. Ct. 843, 845, 74 L. Ed. 2d 646
(1983) (“The Due Process Clause does not permit the federal
courts to engage in a finely tuned review of the wisdom of state
evidentiary rules.”).
Generally, admissibility of evidence is a
state law question which is not cognizable as a habeas claim.
See Keller v. Larkins, 251 F.3d 408, 416 n. 2 (3d Cir. 2001) (“A
federal habeas court . . . cannot decide whether the evidence in
question was properly allowed under the state law of evidence”).
Further, the appellate court impliedly concluded that, even
if the challenged testimony constituted improper hearsay, its
admission did not have a prejudicial effect on Petitioner’s
trial. State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *4.
This Court must give deference to the state court's prejudice
analysis. See 28 U.S.C. § 2254(d)(1).
Moreover, as the appellate court noted, the testimony in
question did not introduce any information to the jury which had
not already been introduced through the testimony of the victim,
Ms. Cook, herself. See (Trial Tr. 17:7–19:3, Mar. 3, 2004, ECF
No. 9-29).
Officer Spitler’s account of what the victim told
him was further corroborated by the testimony of an independent
witness, Mr. Shivers. See (Id. at 59:2–61:18).
14
Because there
was other testimony which relayed the same information contained
in the challenged testimony, the state court’s determination
that Petitioner was not prejudiced by the admission of Officer
Spitler’s testimony was not an unreasonable application of
clearly established federal law. Albrecht v. Horn, 485 F.3d 103,
135 (3d Cir. 2007) (state court’s determination that petitioner
was not prejudiced by hearsay testimony of witnesses was not
unreasonable application of clearly established federal law, and
thus, federal habeas corpus relief was not warranted, since
there was other testimony of petitioner's threats and jury was
unlikely to have credited hearsay testimony over live
testimony).
Accordingly, Petitioner is not entitled to habeas relief on
this ground.
C. GROUND THREE
As his third ground for relief, Petitioner asserts that the
prosecutor gave damaging testimony in his summation, and he
refers the Court to the argument set forth in his brief on
direct appeal. 4
Respondents generally assert that Petitioner
cannot show that any prosecutorial conduct existed, and that
4
The Court notes that on appeal, Petitioner challenged the
remarks made in both the prosecutor’s opening and closing
statements. In this Petition, however, Petitioner limits his
challenge to the remarks made during the prosecutor’s summation.
(Am. Pet. 5, ECF No. 2).
15
none of the prosecutor’s statements were so improper so as to
result in substantial prejudice to Petitioner’s fundamental
right to a fair trial. (Resp’ts’ Br. 47-48, ECF No. 9).
In his brief on appeal, see (Appendix Ra6-redacted 31-39,
Brief on Appeal, ECF No. 9-9), Petitioner argued that the
prosecutor exhibited several instances of prosecutorial
misconduct during his summation, thus, effectively depriving
Petitioner of his fundamental right to a fair trial.
The Court
will address Petitioner’s objections to each portion of the
prosecutor’s summation, in turn.
1. Standard of review
This Court notes that Petitioner’s brief on appeal cites
almost entirely to state law.
Thus, Petitioner does not
adequately identify the federal or constitutional law which he
contends was violated by the prosecutor’s summation.
Nevertheless, in addressing the issue of prosecutorial
misconduct on habeas review, the Third Circuit has stated
The Supreme Court has held that federal habeas relief
may be granted when the “prosecutorial misconduct may
‘so infec[t] the trial with unfairness as to make the
resulting conviction a denial of due process.’” Greer
v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97
L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431
(1974)). The Court further opined that for due
process to have been offended, “the prosecutorial
misconduct must be ‘of sufficient significance to
result in the denial of the defendant's right to a
fair trial.’” Id. (citing United States v. Bagley, 473
U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)
16
(quoting United States v. Agurs, 427 U.S. 97, 108, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976))). See also Ramseur
v. Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992) (our
review of a prosecutor's conduct in a state trial in a
federal habeas proceeding is limited to determining
whether the prosecutor's conduct “‘so infect[ed] the
trial with unfairness as to make the resulting
conviction a denial of due process.’” (quoting Greer,
483 U.S. at 765, 107 S.Ct. 3102)). This determination
will, at times, require us to draw a fine line distinguishing between ordinary trial error on one
hand, and “‘that sort of egregious misconduct which
amounts to a denial of constitutional due process'” on
the other hand. Ramseur, 983 F.2d at 1239 (quoting
United States ex rel. Perry v. Mulligan, 544 F.2d 674,
678 (3d Cir. 1976)).
Werts v. Vaughn, 228 F.3d 178, 197-98 (3d Cir. 2000).
In evaluating whether the remarks of the prosecutor rise to
the level of a constitutional violation, “Supreme Court
precedent requires the reviewing court to weigh the prosecutor's
conduct, the effect of the curative instructions and the
strength of the evidence.” Moore v. Morton, 255 F.3d 95, 107 (3d
Cir. 2001) (citing Darden v. Wainwright, 477 U.S. 168, 182, 106
S. Ct. 2464, 2472, 91 L. Ed. 2d 144 (1986)); see also Werts, 228
F.3d at 198 (citations omitted) (“The remarks must be
sufficiently prejudicial in the context of the entire trial to
violate a petitioner's due process rights.”); Ramseur, 983 F.2d
at 1239 (citing Greer, 483 U.S. at 766, 107 S.Ct. 3102).
2. Prosecutor’s statements regarding credibility
First, Petitioner objects to the following argument made by
the prosecutor during summation:
17
Is there anything about any of the testimony the State
presented that makes you wonder, Shake your head and
say where are these people coming from? None. The
only testimony that does that is Mr. Rowe’s
performance this morning.
. . .
How do we get to this place in the world where two
people, two honest and decent people just doing their
duty, come in and testify and a convicted felon gets
on the stand and says it’s all wrong, it’s all wrong,
they’re wrong, cops are wrong, where do we get to the
place in the world where that can happen? How do we
get there? I always tease my wife, I say I went to
bed one night and I woke up and the world was
different. I woke up to tribal council and rose
ceremonies and all those reality TV things and the
world changed and I didn’t know about it. But on a
more serious note, when did the world change that this
guy gets on the stand, tells a ridiculous story for
obvious reasons and anyone would think for a minute
that that would trump these two people who never met
each other, never talked to each other, and have
absolutely no reason to lie? How do we get there?
How do we get there?
(Appendix Ra6-redacted 33, Br. on Appeal, ECF No. 9-9); (Trial
Tr. 49:22-50:13, Mar. 4, 2004, ECF No. 9-31).
In his brief in support of his appeal, Petitioner asserted
that these statements “invited the jury to use the defendant's
prior conviction as evidence not merely as to credibility, but
as to character.” (Appendix Ra6-redacted 35, Br. on Appeal, ECF
No. 9-9).
Further, Petitioner asserts that by referencing the
victim and witness as “two honest and decent people,” the
prosecutor impermissibly vouched for their credibility. (Id.).
In addressing this claim on appeal, the appellate court
stated,
18
While a defendant's prior criminal record is a proper
factor to weigh in assessing his credibility as a
witness, that testimony is not automatically less
credible because the defendant has had involvement
with the criminal justice system. The trial court,
however, correctly explained the matter to the jury.
Further, the prosecutor's characterization of
defendant's testimony as “a ridiculous story”
contravened the principle that a prosecutor should not
disparage the defense.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *6.
Although the appellate court did not expressly make a
ruling regarding these remarks, in affirming Petitioner’s
conviction, it impliedly determined that the remarks were not so
prejudicial so as to have deprived Petitioner of a fair trial.
See id.
This Court finds that the state court’s determination
was not contrary to, or an unreasonable application of,
controlling Supreme Court precedent.
As the appellate court noted, the trial judge gave thorough
instructions regarding the credibility of the witnesses and of
Petitioner. (Trial Tr. 60:25-62:15, Mar. 4, 2004, ECF No. 9-31);
(Id. at 57:6-8)(“The lawyers, of course, have commented on what
they believe the testimony has shown you.
about it, however, is not evidence.”).
What they say
Further, the fact that
the jury found Petitioner not guilty of carjacking indicates
that the prosecutor’s remarks did not undermine the jury's
ability to view the evidence independently and fairly, and
further supports the appellate court’s denial of Petitioner’s
19
claim. See United States v. Young, 470 U.S. 1, 18 n.15, 105 S.
Ct. 1038, 1048, 84 L. Ed. 2d 1 (1985) (“The jury acquitted
respondent of the most serious charge he faced, interstate
transportation of stolen property.
This reinforces our
conclusion that the prosecutor's remarks did not undermine the
jury's ability to view the evidence independently and fairly.”).
Here, the New Jersey Appellate Division examined the
prosecutor's challenged remarks and, although it suggested that
they may have been improper, the appellate court held that when
examined in light of the entire trial and the trial court's
curative instructions, Petitioner had not been deprived of a
fair trial.
This was the correct analysis under Supreme Court
precedent. See Moore, 255 F.3d at 107.
Thus, even assuming that
the prosecutor’s comments regarding credibility were improper,
Petitioner is not entitled to habeas relief on this ground.
3. Prosecutor’s statements regarding crime in general
In his brief on appeal, Petitioner also objected to the
following two passages in the prosecutor’s summation:
I’ve often wondered, I guess doing this job for a
living kind of makes you wonder that but sometimes
when you go out late at night and you go out to dinner
maybe in Philadelphia or into a neighborhood, you’re
walking to your car and you’re in an area where you
start to think, well, maybe something might happen
here. I always wondered to myself if I was confronted
with a similar situation that Mrs. Cook had, how would
I react?
(Trial. Tr. 36:25-37:7, Mar. 4, 2004, ECF No. 9-31).
20
You know, just in closing, we don’t lock our doors at
night because of Al-Quaida [sic] or people far away,
some land that we see on a flickering TV screen. We
lock our doors because of fellow Americans who prey on
people and take advantage of the vulnerable. That’s
why we lock our doors cause we’re vulnerable, whether
we’re young or old, with gray hair, blond hair or
black hair. In a lot of ways we’re all vulnerable.
Mrs. Cook was vulnerable. You don’t need to be a
genius to know under the circumstances of this case
that she’s vulnerable and he knew she was vulnerable
and that’s why we’re here, in part.
(Id. at 50:21-51:7).
With respect to these remarks, Petitioner argued that the
prosecutor was “divert[ing] the attention of the jurors to the
overall issue of crime, with the implicit contention that crime
in general is a problem that can be ameliorated by convicting
the [Petitioner].” (Appendix Ra6-redacted 36, Br. on Appeal, ECF
No. 9-9).
On appeal, the appellate court summarily concluded that,
“[a]lthough the prosecutor should not have invited the jury to
dwell upon its fears in this way, we do not deem the remarks
such as to have deprived defendant of a fair trial.” State v.
Rowe, No. A-7131-03T4, 2005 WL 3108492, at *6.
This Court determines that, when considering the
prosecutor’s challenged remarks in the context of the entire
trial, the appellate court’s denial of Petitioner’s claim with
respect to these remarks was not an unreasonable application of,
or contrary to, Supreme Court precedent.
21
In reaching this
conclusion, this Court notes that the trial judge properly
instructed the jury on their duty “to weigh the evidence calmly,
without passion, without prejudice, without sympathy because
influences from those things might deprive either side, the
State or Mr. Rowe, of what you have promised them, an impartial
and fair trial by impartial and fair jurors.” (Trial Tr. 54:1722, Mar. 4, 2004, ECF No. 9-31).
Thorough instructions were
also given regarding the jury’s duty to consider only the
specific evidence presented as it related to the charges against
Petitioner. (Id. at 62:18-21) (“[Petitioner is] entitled to have
his guilt or lack of guilt considered separately by you on the
specific evidence as it relates to each charge.”); see also (Id.
at 63:10) (“And the issue really for you is to determine what
crimes, if any, were attempted[.]”).
A jury is presumed to
follow its instructions. See Weeks v. Angelone, 528 U.S. 225,
234, 120 S. Ct. 727, 733, 145 L. Ed. 2d 727 (2000).
Therefore,
there was nothing before the appellate court to suggest — as
Petitioner argues — that the prosecutor’s comments caused the
jurors to base their decision on an overriding desire to
“protect[] society” rather than on the evidence presented at
trial. (Appendix Ra6-redacted 35, Br. on Appeal, ECF No. 9-9).
Moreover, the fact that the jury did not find Petitioner
guilty of the charge of carjacking further supports the state
appellate court’s denial of Petitioner’s claim. See Young, 470
22
U.S. at 18 n.15 (finding that jury’s acquittal of respondent
reinforced court’s conclusion that the prosecutor’s remarks did
not undermine the jury’s ability to view the evidence
independently and fairly).
For the foregoing reasons, this
Court determines that the state court’s determination regarding
the prosecutor’s comments was not an unreasonable application of
clearly established federal law.
Petitioner is not entitled to
habeas relief on this ground. 5
D. GROUND FOUR
As his fourth ground for relief, Petitioner asserts that
the extended-term sentence imposed upon him was improper and
illegal, and in violation of Blakely v. Washington, 542 U.S.
5
The Court notes that, in his brief on direct appeal, Petitioner
also took issue with certain remarks that the prosecutor made
during his opening statements, which Petitioner alleged
improperly commented on the witness’s trustworthiness, the
Petitioner’s character, and the pervasiveness of the crime.
(Appendix Ra6-redacted 35, Br. on Appeal, ECF No. 9-9). As
stated earlier, Petitioner limits his Amended Petition to a
challenge to the comments made in the prosecutor’s summation
(Am. Pet. 5, ECF No. 2); therefore, the Court does not discuss
the prosecutor’s opening statements in the body of this Opinion.
Nevertheless, this Court notes that the trial judge gave a
corrective instruction, and the jury did not find Petitioner
guilty of the charge of carjacking. (Trial Tr. 63:4-8, Mar. 4,
2004, ECF No. 9-31) (“The history of a particular person alleged
to be a victim does not impact on [the alleged crime], so you
can’t consider that. That might give rise to some inappropriate
sympathy so I’m going to suggest that you disregard it.”).
Accordingly, even if Petitioner had challenged the prosecutor’s
opening statement in his Amended Petition, such a claim would
fail for the same reasons discussed above.
23
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Petitioner
contends that “[t]he imposition of an extended term is not
supported by the findings and violated his right to a jury
trial.” (Am. Pet. 5, ECF No. 2). 6
Respondents contend that, to the extent Petitioner is
challenging his initial sentence, such a claim is moot because
Petitioner was resentenced. (Resp’ts’ Br. 54-55, ECF No. 9).
Furthermore, to the extent Petitioner means to challenge the
sentence he received upon resentencing, Respondents argue that
the sentence imposed was neither excessive nor unduly
burdensome, and was proper under New Jersey state law. (Id. at
55-58).
Accordingly, Respondents assert that neither of
Petitioner’s sentences — his initial sentence or the sentence
imposed upon resentencing — violated his constitutional rights
or federal law.
In addressing this argument on direct appeal, the appellate
court stated:
Defendant had an extensive criminal history, and the
State sought the imposition of a discretionary
extended-term sentence under N.J.S.A. 2C:44-3a. There
is no doubt that defendant, who had seven prior
6
The words “extended pages” appear in parentheses after the
conclusion of Petitioner’s supporting facts section for this
ground for relief. However, it is unclear to the Court what is
meant by this reference to “extended pages.” No additional
briefing was submitted in this matter and no “extended pages”
are appended to the Amended Petition. Therefore, the Court will
only consider the argument set forth in the Petition when
considering this ground for relief.
24
convictions, was eligible for an extended-term
sentence. Defendant makes two arguments: that the
manner in which the trial court imposed an extendedterm sentence was improper and that imposition of such
a sentence violated the principles enunciated in
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L. Ed.2d 403 (2004). We agree with the first
proposition, but not the second.
In State v. Dunbar, 108 N.J. 80 (1987), the Supreme
Court discussed at length the procedures and criteria
governing extended-term sentencing for persistent
offenders. The Court explicitly stated that it is
essential to such an extended-term sentence that the
court set forth its determination that “commitment [of
the defendant] for an extended term is necessary for
the protection of the public.” Id. at 90. The
sentencing court here, however, made no such finding
but merely noted the existence of defendant's prior
record. It is the nature and quality of that record,
however, that must be analyzed to determine whether
the protection of the public calls for an extended
term. We are, thus, compelled to remand the matter to
the trial court for purposes of engaging in that
analysis and resentencing.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *6.
Thus, although the appellate court remanded the case for
resentencing, it rejected Petitioner’s assertion that the
extended-term sentence violated his rights under Blakely.
This
Court finds that the appellate court’s analysis in this respect
was reasonable.
In Blakely, the Supreme Court held that, other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt. See
25
Blakely, 542 U.S. 296.
However, as the appellate court noted in
this case, the statute which provided authority for the
imposition of Petitioner’s extended-term sentence — N.J.S.A.
2C:44-3a — relies solely upon a defendant’s prior criminal
record to define eligibility for an extended-term sentence.
The
appellate court further noted that Petitioner, “who had seven
prior convictions, was eligible for an extended-term sentence.”
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *6.
Because Petitioner’s extended-term sentence was not based
on anything other than his prior convictions, Petitioner’s
assertion that his sentence was “not supported by the requisite
findings of fact” (Am. Pet. 5, ECF No. 2), is without merit.
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
2362-63, 147 L. Ed. 2d 435 (2000) (holding that the fact of a
prior conviction is an exception to the general rule that any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt).
Accordingly, there is no
Blakely violation and the state court’s rejection of
Petitioner’s challenge to his extended-term sentence, which was
properly imposed pursuant to N.J.S.A. 2C:44-3a, is not contrary
to, or an unreasonable application of, existing Supreme Court
precedent.
Petitioner is not entitled to habeas relief on this
ground.
26
E. INEFFECTIVE ASSISTANCE CLAIMS: GROUNDS FIVE AND SIX
Petitioner asserts that he was denied ineffective
assistance of appellate and trial counsel in his fifth and sixth
grounds for relief, respectively.
1. STANDARD OF REVIEW
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct.
1441, 25 L.Ed.2d 763 (1970) (emphasis added) (citations
omitted), cited in Ross v. Varano, 712 F.3d 784, 797 (3d Cir.
2013).
This right exists at sentencing in both capital and non-
capital cases. See Lafler v. Cooper, 132 S.Ct. 1376, 1385–86,
182 L.Ed.2d 398 (2012) (collecting cases).
“Even though
sentencing does not concern the defendant's guilt or innocence,
ineffective assistance of counsel during a sentencing hearing
can result in Strickland prejudice because ‘any amount of
[additional] jail time has Sixth Amendment significance.’” Id.
at 1386 (quoting Glover v. United States, 531 U.S. 198, 203, 121
S.Ct. 696, 148 L.Ed.2d 604 (2001) (alteration in original)).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel's
performance fell below an objective standard of reasonable
27
professional assistance and that there is a reasonable
probability that, but for counsel's unprofessional errors, the
outcome would have been different. Strickland v. Washington, 466
U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
With
respect to the “performance” prong, there is “a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689.
With respect to the “prejudice” prong, a “reasonable
probability” of prejudice is “a probability sufficient to
undermine confidence in the outcome.” Strickland at 694.
Thus,
counsel's errors must have been “so serious as to deprive the
defendant of . . . a trial whose result is reliable.” Id. at
687.
The performance and prejudice prongs of Strickland may be
addressed in either order, and “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.” Id. at 697.
2. GROUND FIVE: APPELLATE COUNSEL
With respect to the performance of his appellate counsel,
Petitioner asserts that appellate counsel failed to argue
material claims on appeal; specifically, that Petitioner’s
conviction for first degree robbery was constitutionally
deficient. (Am. Pet. 5, ECF No. 2).
Petitioner further
clarifies that counsel’s assistance was deficient because: (1)
he failed to argue that the “state failed to offer proof beyond
28
a reasonable doubt that [Petitioner] either committed a theft or
an attempted theft[;]” and (2) because he failed to argue that
“the trial court committed reversible error when [it] failed to
charge the jury on the knowingly [sic] element of the robbery
offense.” (Id.).
As an initial matter, the Court notes that Petitioner did
not raise this issue before the state courts.
Instead, the
briefs in support of his PCR petition and in support of his
appeal of the denial of his PCR petition focus on the
performance of his trial counsel.
Nevertheless, Petitioner’s
claim that he received ineffective assistance of appellate
counsel fails on the merits for the reasons set forth below.
Here, Petitioner first asserts that his appellate counsel
was ineffective for failing to argue on appeal that the “state
failed to offer proof beyond a reasonable doubt that
[Petitioner] either committed a theft or an attempted theft[.]”
(Am. Pet. 5, ECF No. 2).
Respondents assert that, because
Petitioner is unable to show that this claim has any merit,
appellate counsel could not be deficient for failing to address
it. (Resp’ts’ Br. 64, ECF No. 9).
This Court agrees.
Presumably, Petitioner means to argue that his appellate
counsel’s performance was deficient because he failed to argue
on appeal that the prosecution had failed to produce sufficient
29
evidence to prove its case. 7
However, Petitioner has not
provided any support for his bald assertion that the state
failed to meet its burden of proof.
Therefore, he has not
presented any argument to suggest that his appellate counsel was
deficient for failing to raise a due process argument on appeal.
Moreover, this Court finds that there was sufficient
evidence presented during the trial to support Petitioner’s
conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (“[T]he relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.”) (emphasis in original).
As the appellate
court noted, two witnesses — the alleged victim and an eye
witness — provided testimony regarding the incident.
Specifically, the victim stated that Petitioner approached her
from behind in the bank parking lot, held a hard object which
7
See Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct. 2211, 2218,
72 L. Ed. 2d 652 (1982) (discussing differences between
reversals based on insufficiency of the evidence and reversals
based on verdicts against the weight of the evidence). Because
Petitioner asserts that his “conviction on the first degree
robbery charge is constitutionally deficient and must be vacated
as the state failed to offer proof beyond a reasonable doubt[,]”
Petitioner clearly believes his appellate counsel should have
raised a due process claim challenging the sufficiency of the
evidence.
30
she believed to be a gun to her back, and told her to get into
the car. (Trial Tr. 17:7-21, 25:25–26:2, Mar. 3, 2004, ECF No.
9-29).
The eye witness testified that he heard a loud scream
and saw someone walking back to his car while trying to “shove
what appeared to be a handgun into his left pocket[.]” (Trial
Tr. 61:5-18, Mar. 3, 2004, ECF No. 9-29).
This eye witness
wrote down the license plate number of the vehicle, which led
authorities to Petitioner. (Id. at 64:10-12).
Although
Petitioner presented a different narrative of the incident, the
jury — by finding Petitioner guilty — chose to believe the
testimony of the witnesses over Petitioner’s own testimony.
Because this Court determines that there was sufficient
evidence to support Petitioner’s conviction, Petitioner was not
prejudiced by appellate counsel’s failure to challenge the
sufficiency of the evidence on appeal.
Therefore, this Court
finds that Petitioner is unable to satisfy the prejudice prong
regarding his assertion that counsel was ineffective because he
did not argue that the “state failed to offer proof beyond a
reasonable doubt that [Petitioner] either committed a theft or
an attempted theft[.]” (Am. Pet. 5, ECF No. 2); Strickland, 466
U.S. at 697.
Additionally, habeas relief under Strickland is
not available where a petitioner claims that his counsel failed
to raise a claim that the court determines is without merit. See
Strickland, 466 U.S. at 691; Lemons v. Warren, No. 12-2355, 2015
31
WL 1497330, at *21 (D.N.J. Apr. 1, 2015) (citing Aparicio v.
Artuz, 269 F.3d 78, 99 (2d Cir. 2001)) (“Appellate counsel is
not ineffective by failing to raise meritless claims.”).
Because Petitioner’s argument that the State failed to meet its
burden of proof does not have merit, appellate counsel’s
performance was not ineffective by failing to raise this issue
on appeal.
Petitioner’s second argument with respect to his appellate
counsel’s performance is that he was ineffective for failing to
argue that “the trial court committed reversible error when [it]
failed to charge the jury on the knowingly [sic] element of the
robbery offense.” (Am. Pet. 5, ECF No. 2).
In other words,
Petitioner contends that the jury instruction was deficient
because it failed to include an element regarding a knowing
intent, and Petitioner asserts that his appellate counsel was
ineffective for not raising this due process argument on appeal.
However, as Respondents point out, the crime of robbery in New
Jersey, N.J.S.A. 2C:15-1(a), does not include a “knowing”
element. See N.J. STAT. ANN. § 2C:15-1 (West 2015) (“A person is
guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or (2)
Threatens another with or purposely puts him in fear of
immediate bodily injury; or (3) Commits or threatens immediately
to commit any crime of the first or second degree.
32
An act shall
be deemed to be included in the phrase ‘in the course of
committing a theft’ if it occurs in an attempt to commit theft
or in immediate flight after the attempt or commission.”).
Because there is no “knowing” element in the New Jersey
robbery statute, the trial court did not err by failing to
include an instruction on it.
Therefore, Petitioner was not
prejudiced by his appellate counsel’s failure to raise this due
process argument on appeal and he fails to satisfy the prejudice
prong of Strickland. See Strickland, 466 U.S. at 697.
Additionally, because Petitioner’s claim is without merit,
appellate counsel was not ineffective for failing to raise it on
appeal. See Id. at 691; Lemons, No. 12-2355, 2015 WL 1497330, at
*21.
3. GROUND SIX: TRIAL COUNSEL
In this ground for relief, Petitioner relies on the
arguments set forth in his counsel’s brief in support of his PCR
petition.
In his brief, Petitioner argues that trial counsel
was ineffective for failing to elicit testimony from Petitioner
about: “(1) Petitioner’s employment at the time[;] (2)
Petitioner’s residence with Jenny Forman [and] Petitioner’s
being provided with use of a car by Jenny Forman[;] (3) the fact
that Petitioner often drove the car with three (3) children as
passengers[; and] (4) Petitioner’s having a paycheck in his
pocket at the time of the alleged crime.” (Appendix Ra17 8-9,
33
Br. In Support of PCR, ECF No. 9-20).
In summary, Petitioner
argues that his trial counsel “disregarded critical information
that would have eviscerated essential elements of the State's
case at trial.” (Id. at 13).
In addressing this argument, the PCR court employed the
standard set forth in Strickland, and noted that Petitioner’s
complaints were “matters of trial strategy employed by
defendant’s attorney and do not represent the ineffective
assistance of counsel.” (Appendix Ra19 11, PCR Op., Dec. 20,
2010, ECF No. 9-22) (citing Strickland, 466 U.S. at 689).
Accordingly, the PCR court found that Petitioner had failed to
show that trial counsel’s performance was deficient as to amount
to ineffective assistance.
On appeal, the appellate court
summarily affirmed this decision. (Appendix Ra23 3, Appellate
Order Affirming PCR Op., Jan. 11, 2013, ECF No. 9-25).
For the
reasons that follow, this Court concludes that the state court’s
determinations are not contrary to, or an unreasonable
application of, clearly established federal law.
a) Failure to elicit testimony regarding Petitioner’s
employment and the fact that he had a paycheck in
his pocket
Petitioner first asserts that his trial counsel was
ineffective due to his failure to elicit testimony to establish
that Petitioner had employment at the time of the alleged crime.
34
Petitioner also contends that his counsel was ineffective
because he did not elicit testimony that Petitioner had a
paycheck in his pocket at the time of the alleged crime.
Petitioner argues that these pieces of information would have
established that Petitioner had no need for funds and, thus,
would have eliminated any motive for Petitioner to commit a
crime to obtain cash. (Appendix Ra17 12, Br. In Support of PCR,
ECF No. 9-20).
Because the crux of both of these arguments is
that trial counsel was ineffective for failing to demonstrate to
a jury that Petitioner did not have a financial motive to commit
the crime, the Court will address these arguments together.
The Court first notes that, in evaluating counsel’s
performance, there is a “strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 668-89.
A petitioner must
overcome the presumption that, under the totality of the
circumstances, the challenged action “might be considered sound
trial strategy.” Id. at 690-92; see also Showers v. Beard, 586
F. Supp. 2d 310, 321 (M.D. Pa. 2008) aff’d, 635 F.3d 625 (3d
Cir. 2011).
Here, as the PCR court noted, “if defense counsel
had asked about [Petitioner’s] employment, the door would have
been opened for the State to ask about [Petitioner’s] financial
status, which might have been detrimental to his case.”
(Appendix Ra19 13, PCR Op., Dec. 20, 2010, ECF No. 9-22).
35
Indeed, the fact that trial counsel objected at trial to the
prosecutor’s line of questioning regarding Petitioner’s
employment, supports the conclusion that trial counsel’s
strategy was precisely to avoid a discussion on “economics,” or
Petitioner’s financial status. See (Trial Tr. 85:14 - 86:22).
Based on the record, this Court determines that the state
court’s conclusion that trial counsel’s strategy was within the
wide range of reasonable professional assistance contemplated in
Strickland was not an unreasonable application of, or contrary
to, Supreme Court precedent.
Accordingly, Petitioner is not
entitled to habeas relief on this ground.
b) Failure to elicit testimony that Petitioner lived
with his girlfriend, who had three children, and
drove his girlfriend’s car
Petitioner next asserts that his trial counsel was
ineffective due to his failure to elicit testimony to establish
that Petitioner lived with his girlfriend, Jenny Forman; that
she allowed Petitioner to use her car; and that Petitioner drove
the car with Jenny Forman’s children as passengers.
Petitioner
asserts that this information would have informed a jury that he
“was enjoying a stable life with Jenny Forman” and would have
provided an explanation as to why a child’s cap gun cover was
found” in the car he was driving. (Appendix Ra17 9, Br. In
Support of PCR, ECF No. 9-20).
36
As the PCR court noted, testimony was presented to
establish that Petitioner lived with his girlfriend, that he
drove her car, and that she had children.
On direct
examination, Petitioner testified that he was driving his
girlfriend’s car. (Trial Tr. 63:6-7, Mar. 4, 2004, ECF No. 9-30)
(“After I seen that I said, well, let me go get my girlfriend’s
car.”).
Further, on cross examination, Petitioner established
that he was living with his girlfriend. (Trial Tr. 87:15-717,
Mar. 4, 2004, ECF No. 9-30) (“Q: Well, you were living with your
girlfriend, correct?
A: Yes.”).
Likewise, the jury was also made aware of Petitioner’s
explanation for the presence of a toy gun cap in the car he was
driving. (Appendix Ra19 12, PCR Op., Dec. 20, 2010, ECF No. 922) (“When asked why he would have a child’s toy in his car,
[Petitioner] testified that he was living with his girlfriend at
the time and that she had children.”).
Although Petitioner
attempts to categorize the reference to his girlfriend’s
children as “a vague reference to children in the car brought
out during cross-examination” (Appendix Ra17 13, Br. In Support
of PCR, ECF No. 9-20), this Court finds that the testimony was
very specific and clearly alerted the jury to the fact that
Petitioner’s purported reason for having a child’s toy in the
car he was driving was because the car belonged to his
girlfriend, who had children. See (Trial Tr. 18:12-14, Mar. 4,
37
2004, ECF No. 9-30) (“Q: So there is no reason for children’s
toys to be in a car you are driving, correct?
has children.”).
A: My girlfriend
Thus, the jury was, in fact, made aware of
Petitioner’s explanation for the presence of the toy gun cap in
his car; and, during testimony at trial the jury was presented
with precisely the information Petitioner asserts should have
been elicited by trial counsel.
Finally, this Court finds that Petitioner cannot
demonstrate prejudice due to trial counsel’s failure to elicit
testimony regarding the precise number of children that
Petitioner’s girlfriend had — three children.
As set forth
above, the jury was made aware of the fact that Petitioner lived
with his girlfriend and drove her car; that his girlfriend had
children; and that Petitioner’s explanation for the presence of
the toy gun cap in his car was because he was driving his
girlfriend’s car and she had children.
This Court finds that
the precise number of children his girlfriend had would not have
affected the outcome of the trial. See Strickland, 466 U.S. at
694.
Rather, as the PCR court noted, it is apparent from the
verdict that the jury relied on the testimony of the victim and
the eyewitness, and rejected Petitioner’s explanations.
(Appendix Ra19 14-15, PCR Op., Dec. 20, 2010, ECF No. 9-22).
For these reasons, this Court finds that the state court’s
determination that trial counsel was not ineffective was not
38
contrary to, or an unreasonable application of, existing Supreme
Court precedent.
Accordingly, Petitioner is not entitled to
habeas relief on this ground.
c) Other alleged failures mentioned in Petitioner’s
brief in support of PCR
This Court takes this opportunity to address several
references to alleged errors of trial counsel mentioned in
Petitioner’s brief in support of his PCR petition, despite the
fact that they are not specifically or individually raised as
arguments.
First, Petitioner takes issue with the fact that his trial
counsel did not elicit testimony regarding Petitioner’s prior
convictions on direct examination. (Appendix Ra17 9, 10, 13, Br.
In Support of PCR, ECF No. 9-20).
However, Petitioner himself
concedes that “[a]lthough the fact that counsel allowed the
prior convictions of the Petitioner to be brought out on crossexamination [] rather than on direct examination thus
highlighting their import, this might somehow be characterized
as a matter of trial strategy or style.” (Id. at 9).
Indeed,
given the presumption that, under the totality of the
circumstances, the challenged action “might be considered sound
trial strategy,” Strickland, 466 U.S. at 690-92, this Court
agrees with the PCR court’s determination that trial counsel was
not ineffective because he declined to draw attention to
39
Petitioner’s prior criminal history on direct examination.
(Appendix Ra19 14, PCR Op., Dec. 20, 2010, ECF No. 9-22).
Accordingly, Petitioner is not entitled to habeas relief on this
ground.
Next, Petitioner argues that trial counsel “permitted the
jury to see the petitioner as a person with a vague explanation
for moving his car to the bank parking area, also with an odd
explanation for never getting Chinese food after that was his
original plan . . . and arguably a person with no settled
existence in the area[.]” (Appendix Ra17 13, Br. In Support of
PCR, ECF No. 9-20).
As the PCR court noted, Petitioner
“explained his parking spot selection process and he explained
that he decided to go to McDonald’s because he was upset after
his encounter with Ms. Cook.” (Appendix Ra19 14, PCR Op., Dec.
20, 2010, ECF No. 9-22).
Indeed, with respect to why Petitioner moved his car from a
legal parking space in the bank parking lot, Petitioner
explained that he did so because he was afraid of getting a
ticket. See (Trial Tr. 81:18-25, Mar. 4, 2004, ECF No. 9-30)
(“Q: Okay. And the reason for that is what?
get no ticket.
correct?
A: Didn’t want to
Q: Well, you are in a regulation park space,
A: Yes.
ticket, were you?
Q You weren’t worried about getting a
A: I have gotten tickets.”).
On redirect
Petitioner further clarified his reason for believing he would
40
get a ticket and for moving the car. (Id. at 105:4-5) (“Q: Why
did you think you would get a ticket in that area, Mr. Rowe? . .
. A: Any other banks, if you parked there, you will get
tickets.”).
Also, Petitioner stated that he decided to abandon
his plan to go to the Chinese restaurant and to go elsewhere —
ultimately McDonald’s — because he was upset about his encounter
with the victim. See (Id. at 91:23-25) (“After I had the
argument with her I decided, well, I am just going to leave.
I
was upset.”).
Finally, this Court finds that Petitioner’s complaint that
trial counsel allowed Petitioner to be portrayed as “arguably a
person with no settled existence in the area,” (Appendix Ra17
13, Br. In Support of PCR, ECF No. 9-20), is without merit.
Petitioner asserts that trial counsel failed “to present
information that would allow the jury to understand that the
Petitioner was enjoying a stable life with Jenny Forman, had the
use of a car provided by her, was actively working . . . thus
eliminating any motive to commit a crime[.]” (Id. at 9).
However, Petitioner testified that he resided in Lumberton
(Trial Tr. 59:2-7, Mar. 4, 2004, ECF No. 9-30), and, as
previously discussed, the jury was made aware of the fact that
he was in a relationship, that he lived with his girlfriend, and
that he used her car.
Further, as set forth above, trial
counsel’s decision not to elicit testimony regarding
41
Petitioner’s employment was a reasonable trial strategy.
Accordingly, Petitioner has not shown that counsel was
ineffective in this respect and he is not entitled to habeas
relief on this ground.
F. GROUND SEVEN: PETITIONER’S PCR PETITION SHOULD NOT HAVE
BEEN PROCEDURALLY BARRED
Petitioner states that the delay in the filing of his PCR
petition was due to excusable neglect.
However, because this
Court has addressed, and rejected, each of Petitioner’s grounds
for relief in this Petition on the merits, Petitioner’s
arguments regarding the timeliness of his PCR petition are moot.
The Court declines to make a determination with respect to this
issue.
G. GROUND EIGHT: REQUEST FOR EVIDENTIARY HEARING
Petitioner asserts that “an evidentiary hearing is required
for [Petitioner] to establish a prima facie showing of
ineffective assistance of counsel.” (Am. Pet. 6, ECF No. 2).
With respect Petitioner’s ineffective assistance of trial
counsel claims, the record shows that these issues were
adjudicated and denied on the merits by the state courts, as
discussed above.
Therefore, the facts necessary for a
determination of Petitioner's claims can be fully discerned from
the available state court record. See 28 U.S.C. § 2254(e)(2).
Moreover, as discussed above, the facts relevant to a
42
determination on Petitioner’s claims as they relate to the
performance of appellate counsel are likewise discernable from
the available state court record.
And, as illustrated herein,
this Court determines that the asserted claims — with respect to
both appellate and trial counsel — are lacking in substantive
merit.
Accordingly, Petitioner’s request for an evidentiary
hearing is denied as moot.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254.
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
“A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (citation omitted), cited in Eley
v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).
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Here, jurists of reason would not disagree with this
Court’s resolution of Petitioner’s claims.
No certificate of
appealability will issue.
IV.
CONCLUSION
For the reasons set forth above, the Petition for a Writ of
Habeas Corpus under Title 28 U.S.C. § 2254 will be denied.
An
appropriate Order follows.
__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: April 22, 2016
At Camden, New Jersey
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