STILL v. HASTINGS et al
Filing
15
OPINION FILED. Signed by Judge Noel L. Hillman on 6/26/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
BEVERLY HASTINGS, et al.,
:
:
Respondents.
:
___________________________________:
BRANDON STILL,
Civ. No. 13-6226 (NLH)
OPINION
APPEARANCES:
Brandon Still, #452597
East Jersey Prison
Lock Bar R
Rahway, NJ 07065
Petitioner, pro se
HILLMAN, District Judge
This matter is before the Court pursuant to Petitioner
Brandon Still’s submission of a Petition (ECF No. 1) for writ of
habeas corpus, under 28 U.S.C. § 2254, challenging his state
court conviction for felony murder and related offenses.
For
the reasons set forth below, the Petition will be denied.
I.
FACTUAL BACKGROUND and PROCEDURAL HISTORY
A detailed discussion of the factual background of this
case is set forth in the appellate court’s decision on direct
appeal, see State v. Still, No. A-5456-02T3, 2006 WL 848368
(N.J. Super. Ct. App. Div. Apr. 3, 2006), and such a
1
comprehensive recitation is not relevant to the matter presently
before this Court.
Accordingly, only the facts and procedural
history relevant to this § 2254 petition are set forth below.
On or about March 19, 2002, grand jurors of the State of
New Jersey in the County of Atlantic returned a six count
Superseding Indictment, No. 02-03-0562, charging Petitioner
with: (1) Count One: first degree murder, N.J.S.A. 2C:113a(1)(2); (2) Count Two: felony murder, N.J.S.A. 2C:11-3(a)(3);
(3) Count Three: first degree robbery, N.J.S.A. 2C:15-1; (4)
Count Four: second degree possession of a weapon for unlawful
purposes, N.J.S.A 2C:39-4a; (5) Count Five: third degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:395(b); and (6) Count Six: first degree conspiracy, N.J.S.A. 2C:52.
Following a jury trial, Petitioner was found guilty of
Count One, second degree reckless manslaughter (amended from
murder), N.J.S.A. 2C:11-4(b)(1); Count Two, felony murder,
N.J.S.A. 2C:11-3(a)(3); Count Three, first degree robbery,
N.J.S.A. 2C:15-1; Count Four, second degree possession of a
weapon for unlawful purpose, N.J.S.A. 2C:39-4(a); and Count
Five, third degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b).
At sentencing, the trial judge merged the
convictions for reckless manslaughter (Count One), robbery
(Count Three), and possession of a firearm for an unlawful
2
purpose (Count Four), into the conviction for felony murder
(Count Two).
The Court imposed a forty-five year term of
incarceration, with a period of parole ineligibility of thirty
years, for the felony murder and merged convictions (Count Two);
and imposed a concurrent five year prison term for the
conviction for third degree unlawful possession of a weapon
(Count Five).
Petitioner appealed.
Petitioner raised six arguments on appeal: (1) that the
trial court erred in denying his motion to dismiss the
indictment on the ground of grand juror bias; (2) that the trial
court committed reversible error in admitting into evidence a
quantity of bullets seized on the execution of a search warrant;
(3) that the trial court erred in conveying a partisan
impression in its questioning of the State’s witness; (4) that
the trial court erred in denying his motion for a new trial; (5)
that the trial court committed plain error in the charge on
self-defense; and (6) that the charge on reasonable doubt
unconstitutionally diluted the State’s burden of proof.
The
appellate court considered Petitioner’s arguments in light of
the record and applicable law and found them to be without
sufficient merit to warrant reversal or remand.
the trial court was affirmed.
The decision of
A petition for certification to
the Supreme Court was denied.
3
Petitioner then initiated a proceeding for Post-Conviction
Relief (“PCR”).
Before the PCR Court, Petitioner argued (1)
that he was tried for a first degree robbery offense for which
he was not indicted; (2) that he received ineffective assistance
of counsel due to trial counsel’s failure to move for dismissal
of the robbery and felony murder counts at the close of the
State’s case and after the verdict was rendered as being against
the weight of the evidence, or for insufficient evidence; and
(3) that the merger of the counts in the Indictment was
unconstitutional because it resulted in two murder convictions
for one victim.
The PCR Court denied Petitioner’s application
for post-conviction relief.
Petitioner appealed the PCR Court’s determination and
presented four alleged points of error, as well as three
additional points in a supplemental brief.
In his initial
appeal of the PCR Court ruling, Petitioner argued: (1) that the
PCR Court erred in denying his petition for post-conviction
relief; (2) that the PCR Court erred in denying his petition for
post-conviction relief because Petitioner established that it
was improper for the trial court to proceed with the first
degree robbery offense when the grand jury never returned a true
bill for the charge; (3) that the PCR Court erred in denying his
motion for post-conviction relief because he successfully
demonstrated that his conviction for reckless manslaughter
4
should not have merged with his felony murder conviction; and
(4) Petitioner incorporated by reference the arguments contained
in his initial verified petition and in any pro-se supplemental
brief.
Then, in his pro se supplemental brief, Petitioner argued:
(1) that his conviction for first degree robbery was obtained in
violation of the constitution of the State of New Jersey and in
violation of his Fifth, Sixth and Fourteenth Amendment rights to
due process; (2) that the his conviction was in violation of his
Fourteenth Amendment right to due process; and he was denied a
fair trial pursuant to the Supreme Court’s reasonable doubt
doctrine; and (3) that he was denied the right to a fair trial
and the right to due process because he was convicted of first
degree robbery under two separate theories.
The appellate court, relying on the reasoning set forth in
the PCR Court’s letter Opinion, affirmed the PCR Court’s
dismissal of the PCR petition.
The appellate court specifically
noted that the Superseding Indictment included a count for
robbery; that Petitioner was not deprived the effective
assistance of counsel; and that the sentencing mergers were
appropriate and, in fact, were not prejudicial to Petitioner.
State v. Still, No. A-2940-10T4, 2012 WL 6632791, at *3 (N.J.
Super. Ct. App. Div. Dec. 21, 2012).
5
With respect to the remaining arguments in the initial
appeal and the arguments raised in Petitioner’s supplemental
brief, the appellate court determined that, pursuant to R. 2:11–
3(e)(2), they lacked sufficient merit to warrant a discussion.
Petitioner then filed the instant habeas petition (ECF No.
1) pursuant to 28 U.S.C. § 2254.
In brief, he seeks relief on
the following grounds: (1) Petitioner was deprived of due
process and his right to a fair trial when he was tried for a
robbery, and related felony murder, different from the one
presented to the grand jury and described in the indictment; (2)
Petitioner was deprived of his Sixth Amendment right to
effective assistance of trial counsel by his counsel’s failure
to move for dismissal of the robbery and felony murder counts,
for insufficient evidence, at the close of the State’s case; (3)
Petitioner was deprived of his right to due process by the
merger of the robbery count into the felony-murder count for
purposes of sentencing; and (4) Petitioner was deprived of due
process by erroneous jury instructions on self-defense and
reasonable doubt.
In an Order dated November 18, 2013 (ECF No. 2), Petitioner
was advised of his rights pursuant to Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000).
He did not respond to the Court’s Order
therefore, pursuant to the terms of that Order, the Petition was
ruled upon as filed and an Answer was ordered (ECF No. 3).
6
Respondents filed their Answer (ECF No. 8), along with
exhibits from the state court record.
Respondents admit that
Petitioner has exhausted his first three grounds in state court,
but contend that Petitioner failed to exhaust his available
state remedies with respect to the fourth ground for relief.
Thereafter, Petitioner filed a Motion to Produce Documents
(ECF No. 11).
On August 21, 2014, the Court denied Petitioner’s
Motion as well as his previous request for the appointment of
pro bono counsel. (ECF No. 13).
Petitioner also filed his
Traverse (ECF No. 12) to Respondents’ Answer.
In the Traverse, Petitioner changes his arguments slightly
and sets forth several new grounds for relief.
These new
grounds are improperly raised because they were added after
Petitioner had been advised of his obligation to bring one allinclusive petition pursuant to Mason. See Thompson v. Warren,
No. 11-7164, 2014 WL 3778738, at *11 (D.N.J. July 31, 2014)
(barring petitioner’s post-Mason claims where petitioner failed
to comply with court’s order regarding Mason Notice); Boretsky
v. Ricci, No. 09-0771, 2012 WL 933318, at *1 (D.N.J. Mar. 20,
2012) (petitioner's affirmative response to Mason notice bars
post-Mason claims) (citations omitted); see also Bell v. City of
Phila., 275 F. App'x 157, 160 (3d Cir. 2008) (a litigant cannot
plead claims, state and/or support facts by any non-pleading
7
document, be it moving papers, an opposition to adversaries'
motion, the litigant's traverse).
Petitioner then filed a Motion (ECF No. 14) seeking an
Evidentiary Hearing with respect to Grounds 1 and 2 of his
Petition.
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:
(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).
8
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 “involve[s] an unreasonable
application” of federal law “if the state court identifies the
correct governing legal rule from [the Supreme] Court's cases
but unreasonably applies it to the facts of the particular state
prisoner's case,” and may 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). Id. at 407–09.
To be an “unreasonable application” of clearly established
federal law, the state court's application must be objectively
unreasonable. See id. at 409.
In determining whether the state
court's application of Supreme Court precedent was objectively
unreasonable, a habeas court may consider the decisions of
9
inferior federal courts. See 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 theory presented to the grand jury was limited to a
robbery of cab fare from the victim, Martin. (Pet. 14, ECF No.
10
1).
Thus, Petitioner asserts that the State’s presentation at
trial of marijuana as the object of the robbery, and of
Taliaferro as the subject of the robbery, violated Petitioner’s
due process rights.
1. Exhaustion
As an initial matter, the Court notes that this argument
was not raised on direct appeal and differs from the claim
Petitioner made in his initial petition for Post-Conviction
Relief.
In the PCR Court, Petitioner argued simply that he was
not indicted for robbery. (Resp’t’s Ex. 19, Brief in Support of
PCR Pet. 7, ECF No. 9-5).
This claim was summarily rejected
because the record showed that Count 3 of the Superseding
Indictment clearly charged him with robbery.
Here, however, Petitioner has refined his argument and now
alleges a due process violation and a violation of his right to
a fair trial.
Specifically, he asserts that the robbery theory
advanced by the State during the trial was different than the
theory presented to the grand jury which returned the
indictment.
This is precisely the argument raised by trial
counsel in the Motion for Acquittal made at the close of the
State’s case, discussed in Ground Two below.
Additionally, Petitioner raised this same constitutional
argument in his supplemental brief in support of his appeal of
11
the PCR Court’s decision. 1 (Resp’t’s Ex. 27, Supp. Brief in
Support of Appeal from PCR Denial 18-23, ECF No. 9-13).
The
appellate court fully considered Petitioner’s arguments,
“including those presented in his supplemental brief,” and,
relying on N.J. Ct. R. 2:11–3(e)(2), determined that this claim
lacked “sufficient merit to warrant discussion.” State v. Still,
No. A-2940-10T4, 2012 WL 6632791, at *3 (N.J. Super. Ct. App.
Div. Dec. 21, 2012).
“When a federal claim has been presented to a state court
and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to
the contrary.” Harrington v. Richter, 562 U.S. 86, 99, 131 S.
1
To satisfy the exhaustion requirement, a federal habeas claim
must have been “fairly presented” to the state courts. Picard v.
Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
Although Petitioner cites only state law cases in the portion of
his Supplemental Brief devoted to this particular argument, it
is evident that Petitioner fairly presented a federal due
process claim to the state court. Specifically, in the summary
of “Point Three” — Petitioner’s third supplemental ground for
relief — Petitioner asserts that he was “denied the right to [a]
fair trial and the right to due process of law[.] (Resp’t’s Ex.
27, Supp. Brief in Support of Appeal from PCR Denial at 18, ECF
No. 9-13). This language, which was prominently displayed as
the heading for his ground for relief, was sufficient to put the
state court on notice that Petitioner was arguing that the error
violated federal due process requirements. Cf. Duncan v. Henry,
513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995), cited
in Keller v. Larkins, 251 F.3d 408, 414-15 (3d Cir. 2001)
(finding that passing reference to the concept of a “fair trial”
was insufficient to give fair notice of a federal due process
claim).
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Ct. 770, 784-85, 178 L. Ed. 2d 624 (2011).
claim has, in fact, been exhausted.
Therefore, this
See Locust v. Ricci, No.
08-2713 (SRC), 2010 WL 1463190, at *12 (D.N.J. Apr. 12, 2010)
(finding that claims raised only in PCR appeal brief and
dismissed by appellate court as without sufficient merit to
warrant discussion were exhausted).
2. Merits Discussion
Petitioner contends that the State impermissibly submitted
to the jury that marijuana was the object of the theft and that
Taliaferro was the victim of the robbery because he was not
indicted on that theory.
In his Traverse (ECF No. 12),
Petitioner alters his argument even further, and the focus of
his challenge shifts from the different theory presented during
trial, to the different theory presented in the jury
instructions. (Traverse 7, ECF No. 12).
As set forth above, this Court notes that Petitioner's new
challenge to the jury instructions is improperly raised. See
Thompson, No. 11-7164, 2014 WL 3778738, at *11; see also Bell,
275 F. App'x at 160.
Additionally, due to the lapse in time
from the date the Petition was filed, October 10, 2013, to the
date the Traverse was filed, May 30, 2014, any such a claim may
be untimely as beyond the one year period of limitations
applicable to § 2254 habeas petitions by 28 U.S.C. § 2244(d).
13
Regardless, because the Court construes Petitioner’s claim
as a challenge to the notice provided in the indictment, it is
irrelevant whether Petitioner compares the theory upon which he
was indicted to the theory presented by the State at trial, or
in the jury instructions. See Royce v. Hahn, 151 F.3d at 118
(noting a court’s obligation to construe pro se submissions
liberally).
For the reasons set forth below, Petitioner’s
argument fails under either theory of error.
A federal court may consider a habeas petition filed by a
state prisoner only “on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S .C. § 2254(a).
Claims based on errors of state
law are not cognizable on federal habeas review, and federal
courts cannot re-examine state court determinations on state law
issues. Estelle v. McGuire, 502 U.S. 62, 67–8, 112 S.Ct. 475,
116 L.Ed.2d 385 (1991); Pulley v. Harris, 465 U.S. 37, 41, 104
S.Ct. 871, 79 L.Ed.2d 29 (1984); Riley v. Taylor, 277 F.3d 261,
310 n. 8 (3d Cir. 2001).
Because the Fifth Amendment right to a
grand jury indictment does not apply to state criminal
prosecutions, 2 federal courts conducting habeas review are
confined “to a determination of whether due process requirements
2
See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000); Hurtado v. California, 110 U.S. 516, 4 S.
Ct. 111, 28 L. Ed. 232 (1884).
14
have been satisfied.”
U.S. ex. rel Wojtycha v. Hopkins, 517
F.2d 420, 425 (3d Cir. 1975).
The Sixth Amendment provides, in relevant part, that “[i]n
all criminal prosecutions, the accused shall enjoy the right ...
to be informed of the nature and cause of the accusation.” U.S.
Const. amend VI.
This right applies to the states through the
Fourteenth Amendment.
In re Oliver, 333 U.S. 257, 68 S. Ct.
499, 92 L. Ed. 682 (1948).
Consequently, a state prisoner has a
right to adequate notice of the charges against which he must
defend; and this general principle is well established in
Supreme Court precedent. See Gray v. Netherland, 518 U.S. 152,
167, 116 S. Ct. 2074, 2083, 135 L. Ed. 2d 457 (1996); Russell v.
United States, 369 U.S. 749, 763–764, 82 S.Ct. 1038, 8 L.Ed.2d
240 (1962); In re Oliver, 333 U.S. 257; Cole v. Arkansas, 333
U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (“No principle
of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a
trial of the issues raised by that charge, if desired, are among
the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.”).
Therefore, although a state is constitutionally free to
dispense with the grand jury indictment altogether and may
proceed on a prosecutor's information if it so chooses, see
United States ex rel. Wojtycha, 517 F.2d at 425 (citing Beck v.
15
Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98
(1962)), a defendant remains entitled to proper notice of the
charges he faces, whether by information or indictment. See
e.g., Gray, 518 U.S. 152; Cole v. Arkansas, 333 U.S. 196.
In this case, however, Petitioner’s due process argument is
more nuanced than the simple claim that he was not afforded
proper notice of the charges against him.
Rather, Petitioner
asserts that he was deprived of adequate notice by a
prosecutorial decision to focus on a different theory of
liability at trial than that which was presented to a grand jury
for indictment.
With respect to this more nuanced due process
challenge, Petitioner has not pointed to a Supreme Court
decision which establishes that the prosecution must present the
same theory at trial as was presented to the grand jury for
indictment. See Lopez v. Smith, 135 S. Ct. 1, 5, 190 L. Ed. 2d 1
(2014) (“Absent a decision of ours clearly establishing the
relevant standard, the Ninth Circuit had nothing against which
it could assess, and deem lacking, the notice afforded
respondent by the information and proceedings.”).
As discussed above, Petitioner’s nuanced due process
argument was rejected by the trial court when it was raised in
Petitioner’s Motion for Acquittal made at the close of the
State’s case.
It was also summarily rejected by the Appellate
Court upon review of the PCR Court’s decision.
16
Because there is
no Supreme Court precedent clearly establishing the relevant
standard against which this Court can assess, and deem lacking,
the notice afforded Petitioner by the indictment and
proceedings, this Court has no basis to reject the state court's
assessment that Petitioner was adequately apprised of the
charges against him. See id.
Moreover, the record supports the state court’s finding
that Petitioner was afforded sufficient notice to satisfy the
more general notice requirement set forth in Russell, In re
Oliver, and Cole. See Russell, 369 U.S. at 763-64; In re Oliver,
333 U.S. at 273; Cole, 333 U.S. at 201.
These Supreme Court
cases require, in general terms, that a defendant is entitled to
notice of the charges against him.
Here, Count 3 of Superseding Indictment No. 02-03-0562,
alleges that Petitioner
in the course of committing a theft, did attempt to
inflict serious bodily injury and/or did purposely
inflict serious bodily injury upon CHARLES MARTIN;
contrary to the provisions of N.J.S. 2C:15-1, and
against the peace of this State, the government and
dignity of the same.
(Resp’t’s Ex. 22, Opp. to PCR Pet. 7, ECF 9-8).
Thus, Count 3 of the Superseding Indictment clearly
identified the charge against Petitioner, robbery; contained the
elements of the offense charged; and protected against double
jeopardy. See N.J. Stat. Ann. § 2C:15-1; State v. Sewell, 127
17
N.J. 133, 137, 603 A.2d 21, 23 (1992) (New Jersey robbery
statute entails two separate elements: a theft and an
accompanying injury or force); see also Russell, 369 U.S. at
763-64 (setting forth criteria by which the sufficiency of a
federal indictment is to be measured) 3.
Accordingly, the state
court’s finding that Petitioner was sufficiently on notice of
the charges against him was not contrary to, or an unreasonable
application of, Supreme Court precedent. See Smith, 135 S. Ct.
1; Russell, 369 U.S. at 763-64; In re Oliver, 333 U.S. at 273;
Cole, 333 U.S. at 201.
Furthermore, the factual circumstances of this case are not
complex.
The charges against Petitioner involve only two
potential objects of the theft — cab fare or marijuana — and
only two potential subjects of the theft — Martin or Taliaferro.
This limited fact pattern further supports the state court’s
finding that Petitioner was fairly apprised, not only of the
3
This Court notes that Russell specifically addressed the
adequacy of a federal indictment and that the Supreme Court
clarified in Lopez v. Smith, 135 S. Ct. 1, 4, 190 L. Ed. 2d 1
(2014), that it has not established a specific standard by which
a court can evaluate notice afforded to a defendant in a state
indictment, information or proceedings. This Court cites the
criteria set forth in Russell solely for the limited purpose of
determining whether the state court’s finding regarding
sufficiency of notice in this case was contrary to, or an
unreasonable application of, the general proposition that a
defendant is entitled to notice of the charges against him
precedent.
18
charges against him, but of the basic facts upon which they were
premised.
Also, a review of the grand jury transcript — which
Petitioner cites in support of his contention that the theory
presented to the grand jury was limited to a theft of cab fare
from Martin — clearly establishes that marijuana, in addition to
cab fare, was discussed as the object of the theft; and that
both Taliferro and Martin were discussed as the subjects from
whom the marijuana was taken:
[Taliferro] indicated that he and Martin they had some
marijuana or some blunts present at the location when
this is occurring the, disagreement, on the table and
at that point when cross and the unknown male at this
time entered, they told them that basically they were
going to — they were going to take that marijuana.
They wanted — They wanted to smoke that marijuana and
when verbally they resisted, that’s when the guns were
produced and the scuffle ensued and ended with the
shooting of Martin.
(Resp’t’s Ex. 2, Atlantic County Grand Jury Transcript 11,
Mar. 20, 2002, ECF 8-4) (emphasis added).
Therefore, it is
unclear how, or why, Petitioner concludes that his indictment
was premised solely on a theory of theft of cab fare from the
victim, Martin. 4
4
While Petitioner quotes transcript language in his Petition
that allegedly supports his argument that he was only indicted
on a theory of cab fare theft from the victim, Martin, the Court
notes that this quoted language is taken from the grand jury
proceedings related to his initial indictment. (Pet. 14, ECF No.
1). However, as described above, subsequent grand jury
proceedings occurred and the initial indictment was superseded
19
To the extent Petitioner bases his argument on the text of
the indictment itself and the fact that Taliaferro is not
specifically named in the indictment, the Court notes that
Petitioner has not cited to any Supreme Court law which requires
that an indictment specify the identity of the victim of the
theft committed in the course of a robbery.
As discussed above,
relevant Supreme Court precedent establishes solely a general
proposition that a defendant is entitled to notice of the
charges against him.
Moreover, with respect to this general notice requirement,
Petitioner does not cite to any Supreme Court precedent which
establishes that the level of notice he received in this case
was inadequate.
Instead, Petitioner cites Brecht v. Abrahamson,
507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), and
Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392
(1980).
Neither case supports Petitioner’s request for habeas
relief.
First, the issue in Brecht dealt with the state’s improper
use of a defendant’s post-Miranda silence. See Brecht, 507 U.S.
619.
In this case, no such issue exists; therefore Brecht is
inapplicable.
by an indictment which included a charge for robbery.
Therefore, the language cited by Petitioner in Ground One is not
relevant to the issue Petitioner raises regarding the theory
upon which he was indicted.
20
Likewise, the Court in Beck held that the death sentence
may not be imposed where a jury was not permitted to consider a
verdict of guilt of a lesser included, non-capital offense. See
Beck, 447 U.S. at 627.
Here, however, the death sentence was
not imposed; thus, the state court’s ruling did not contravene
the decision in Beck.
Moreover, Petitioner does not explain how
the holding in Beck regarding lesser included offenses supports
his argument that the jury was presented with either an improper
theory during trial or improper jury instructions regarding
robbery and theft.
Finally, the Court notes that Petitioner also cites to
Allen v. Lee, 366 F.3d 319 (4th Cir. 2004), United States v.
Burley, 460 F.2d 998 (3d Cir. 1972), and Abu-Jamal v. Horn, 520
F.3d 272 (3d Cir. 2008) cert. granted, judgment vacated sub nom.
Beard v. Abu-Jamal, 558 U.S. 1143, 130 S. Ct. 1134, 175 L. Ed.
2d 967 (2010).
In addition to the fact that these are not
Supreme Court cases, these cases are factually distinguishable
and do not address the issues that are presently before this
Court.
Thus, they provide no support for Petitioner’s claims.
In summary, to succeed on his habeas claim, Petitioner must
point to Supreme Court case law which establishes that he was
deprived of adequate notice by a prosecutorial decision to focus
on a different theory of liability at trial than that which was
presented to a grand jury for indictment.
21
However, the Supreme
Court’s holding in Smith establishes that no precedent exists.
135 S. Ct. 1.
Similar to the Supreme Court’s holding in Smith,
this Court now determines that the general proposition that a
defendant is entitled to notice of the charges against him “is
far too abstract to establish clearly the specific rule
[Petitioner] needs.” Smith, 135 S. Ct. at 4.
The state court determined that Petitioner in this case was
afforded adequate notice, the record supports that
determination, and — most significant — no Supreme Court
precedent exists against which this Court can specifically
assess the validity of that determination.
Therefore, the state
court’s determination that Petitioner was fairly apprised of the
charges against him was not contrary to, or an unreasonable
application of, Supreme Court precedent and Petitioner is not
entitled to habeas relief on this ground.
B. GROUND TWO
As his second ground for relief, Petitioner asserts an
ineffective assistance of counsel claim based on trial counsel’s
alleged failure to move for dismissal at the close of the
State’s case and after the verdict was rendered. 5
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel's
5
In his Traverse, Petitioner raises several new grounds for
relief, including: (1) trial counsel’s failure to properly
22
performance fell below an objective standard of reasonable
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).
Here, Petitioner contends that his counsel should have
moved for dismissal because the State failed to prove the
specific allegations of the indictment involving only the victim
Martin and the theft of cab fare — the argument set forth in
Ground One of this Petition.
However, as the PCR Court noted,
Petitioner's pro se argument is meritless because on March
31, 2003, at the close of the State's case, petitioner's
trial counsel made a motion pursuant to R. 3:1 8-1 for
acquittal on the felony murder count of the indictment.
(Resp’t’s Ex. 33, Letter Decision Denying PCR 11, Aug. 30, 2010,
ECF No. 10-3).
Additionally, with respect to the robbery charge
challenge the constitutionality of the grand jury process; (2)
trial counsel’s poor legal advice which forced Petitioner to
testify at his own trial; (3) trial counsel’s failure to
subpoena a witness; (4) appellate counsel’s failure to raise
certain issues on appeal; (5) trial counsel’s failure to make
the appropriate motion to dismiss the felony murder count; and
(6) trial counsel’s failure to lodge an objection during the
State’s opening remarks to the jury. (Traverse 12-16, ECF No.
12).
As noted above, however, these new grounds are improperly
raised because they were added after Petitioner had been advised
of his obligation to bring one all-inclusive petition pursuant
to Mason, 208 F.3d 414. See Thompson, No. 11-7164, 2014 WL
3778738 at *11; Boretsky, No. 09-0771, 2012 WL 933318, at *1;
see also Bell, 275 F. App'x at 160. Accordingly, this Court
declines addressing these claims.
23
and Petitioner’s allegation that trial counsel failed to move
for dismissal of the robbery and felony murder charges after the
verdict was rendered, the PCR Court stated,
[t]rial counsel did make a motion to dismiss both of these
charges at the end of the State's case. In addition, trial
counsel made a post-trial motion on the day of sentencing
for a Judgment of Acquittal pursuant to R. 3:18
Notwithstanding the Jury's Verdict.
. . .
Finally, on appeal defense counsel argued unsuccessfully
that the trial court erred in denying these motions.
(Resp’t’s Ex. 33, Letter Decision Denying PCR 11, Aug. 30, 2010,
ECF No. 10-3).
Indeed, the record shows that Petitioner’s trial
counsel made this motion. (Resp’t’s Ex. 35, Trial Transcript 7881, Mar. 31, 2003, ECF No. 10-5).
Because the record reveals that counsel performed the very
tasks which Petitioner alleges the failure to perform deprived
Petitioner of effective assistance, the PCR court rightly held
that Petitioner did not satisfy the requirements of Strickland.
Accordingly, Petitioner’s argument is without merit and no
further discussion is warranted.
Petitioner’s ineffective
assistance of counsel claim will be denied.
C. GROUND THREE
As his third basis for relief, Petitioner argues — as he
did in PCR Court — that he was improperly sentenced for two
24
separate murders. 6
Petitioner asserts that the merger of the
reckless manslaughter count and robbery count into the felony
murder count somehow produced this result.
This Court notes
that, where two statutory provisions proscribe the “same
offense,” they are construed not to authorize cumulative
punishments in the absence of a clear indication of contrary
legislative intent. Whalen v. United States, 445 U.S. 684, 692,
100 S. Ct. 1432, 1438, 63 L. Ed. 2d 715 (1980) (citing
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306).
This prohibition on cumulative punishments does not
come into play in this case, however, because Petitioner
received only one sentence for the three merged counts.
The PCR Court addressed this issue, found the merger of the
counts to be appropriate, and noted that the merger of the
counts benefited Petitioner by reducing the number of crimes for
6
In his Traverse, Petitioner’s third ground for relief morphs
from a challenge regarding sentencing to a challenge regarding
jury instructions. (Traverse 17, ECF No. 12). Specifically,
Petitioner contends that “the trial court erred in giving proper
jury instructions on the issue” of merger; and that, had proper
instructions been given, the jury may “have found petitioner
guilty of only second degree murder.” Id. This newly raised
argument is entirely distinct from his previous Ground Three — a
challenge to the sentence imposed — and, because it was raised
in his Traverse, long after he was informed of his rights under
Mason, it is improper and will not be addressed. See Thompson,
No. 11-7164, 2014 WL 3778738 at *11; Boretsky, No. 09-0771, 2012
WL 933318, at *1; see also Bell, 275 F. App'x at 160.
25
which he was sentenced. (Resp’t’s Ex. 33, Letter Decision
Denying PCR 11, Aug. 30, 2010, ECF No. 10-3).
The Appellate Division also discussed Petitioner’s claims
of improper merger of counts and sentencing in Petitioner’s
appeal of his PCR hearing and added that, “[t]he mergers also
eliminate defendant's concern that he was found guilty of two
homicide offenses with only one homicide victim.” State v.
Still, No. A-2940-10T4, 2012 WL 6632791, at *3 (N.J. Super. Ct.
App. Div. Dec. 21, 2012) (citing State v. Davis, 68 N.J. 69, 77
(1975) (noting “the prohibition against multiple punishment for
a single wrongdoing”)).
Petitioner is simply mistaken in his assertion that
sentencing resulted “in convictions for two murders for one
victim.” (Pet. 21, ECF No. 1).
It did not.
The transcript
makes clear that merger of the other counts “. . . leav[es] thus
count two, the felony, [and] count five, the unlawful possession
of a handgun as the ones that remain for appropriate sentence.”
(Resp’t’s Ex. 15, Sentencing Trial Transcript 13, May 9, 2003,
ECF No. 9-1).
Petitioner was sentenced to a 45 year New Jersey
State Prison term for count two, and a concurrent 5 year New
Jersey state prison term for count five. Id. at 19.
Petitioner cites to no Supreme Court precedent which
prohibits merger of counts in this manner for sentencing
26
purposes. 7
Accordingly, Petitioner has not shown, as required by
28 U.S.C. § 2254(d), that the decisions of the state courts
“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
“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.”
His claim will be denied.
D. GROUND FOUR
As his final grounds for relief, Petitioner contends that
he was deprived of his right to due process because of erroneous
instructions to the jury on the charge of self-defense.
Petitioner relies on the argument set forth in the brief filed
by counsel on direct appeal.
Specifically, Petitioner asserts
that the trial court’s instruction that the jury “may” consider
attendant excitement should have read that the jury “must”
consider attendant excitement when considering the total
7
In his Traverse, Petitioner cites to Sandstrom v. Montana, 442
U.S. 510, 510, 99 S. Ct. 2450, 2452, 61 L. Ed. 2d 39 (1979),
Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed.
2d 281 (1977), and Boyde v. California, 494 U.S. 370, 110 S. Ct.
1190, 108 L. Ed. 2d 316 (1990) in support of his Third Ground
for relief. (Traverse 17, ECF No. 12). These cases, however,
address the burden of proof, burden shifting and jury
instructions. Therefore, they do not support Petitioner’s
argument that the state court erred in this case by merging
counts for sentencing purposes.
27
circumstances and evaluating Petitioner’s self-defense argument.
(Resp’t’s Ex. 6, Brief in Support of Direct Appeal, 27-28, ECF
No. 8-8).
Petitioner contends that this difference allowed for
permissive consideration of a factor which should have been
mandatory, and lessened the burden of proof required to find
Petitioner guilty of the offense. Id.
With respect to this ground for relief, Respondents argue
that Petitioner failed to exhaust available state remedies and,
therefore, should be denied habeas relief.
However, as
Petitioner points out in his Traverse, the record clearly
indicates that Petitioner presented this argument on direct
appeal. Id.
The supporting facts section of his Petition even
refers to the appellate briefing.
Additionally, this issue was
presented to the New Jersey Supreme Court for certification.
(Resp’t’s Ex. 36, Letter in Lieu of Pet. For Cert., 2, ECF No.
10-6).
Notwithstanding Respondents’ failure to respond to this
ground for relief, Petitioner’s claim will be denied.
With respect to jury instructions, the Supreme Court has
stated:
In a criminal trial, the State must prove every
element of the offense, and a jury instruction
violates due process if it fails to give effect to
that requirement. See Sandstrom v. Montana, 442 U.S.
510, 520-521, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
Nonetheless, not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of
a due process violation. The question is “‘whether
the ailing instruction ... so infected the entire
28
trial that the resulting conviction violates due
process.’” Estelle v. McGuire, 502 U.S. 62, 72, 112
S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v.
Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d
368 (1973)). “‘[A] single instruction to a jury may
not be judged in artificial isolation, but must be
viewed in the context of the overall charge.’” Boyde
v. California, 494 U.S. 370, 378, 110 S.Ct. 1190, 108
L.Ed.2d 316 (1990) (quoting Cupp, supra, at 146-147,
94 S.Ct. 396). If the charge as a whole is ambiguous,
the question is whether there is a “‘reasonable
likelihood that the jury has applied the challenged
instruction in a way’ that violates the Constitution.”
Estelle, supra, at 72, 112 S.Ct. 475 (quoting Boyde,
supra, at 380, 110 S.Ct. 1190).
Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830, 1832,
158 L. Ed. 2d 701 (2004).
Moreover, “[a]n error in the jury instructions is not
grounds for habeas relief if the error is harmless.”
Pagliaccetti v. Kerestes, 581 F. App'x 134, 136 (3d Cir. 2014)
cert. denied, 135 S. Ct. 1552 (2015) (citing Yohn v. Love, 76
F.3d 508, 522 (3d Cir. 1996)); see also Brecht v. Abrahamson,
507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353
(1993).
An error is harmless unless it “had substantial and
injurious effect or influence in determining the jury's
verdict.” Brecht, 507 U.S. at 637.
In this case, in addressing this claim on direct appeal,
the appellate court stated:
Here, defendant complains that the trial court erred
in its charge on self-defense, which provided:
In your inquiry as to whether a defendant who
resorted to deadly force knew that an opportunity to
29
retreat with complete safety was available, the
total circumstances, including the attendant
excitement accompanying the situation may be
considered.
(emphasis added by defendant).
Defendant asserts that the Model Charge on selfdefense requires an instruction stating that “the
total circumstances including the attendant excitement
accompanying the situation must be considered.”
(emphasis added). In the context of the entire
charge, the instruction was adequate. The charge
placed the burden of proof on the State to prove
beyond a reasonable doubt that the defendant knew he
could have retreated with complete safety. The
substitution of “may” for “must” does not amount to
plain error under R. 2:10-2 nor do we believe it had
the capacity to mislead the jurors in their
deliberations.
We are convinced the verdict would not have changed if
“must” had been substituted for “may” in the quoted
sentence. The disputed misstatement bearing on selfdefense obviously was not determinative since the jury
found defendant guilty of robbery, possession of a
firearm for an unlawful purpose, and unlawful
possession of a handgun, evidencing that the jury did
not believe defendant's version of Martin's death.
The jury simply did not accept defendant's assertion
that Martin was the aggressor, that Martin possessed
the only weapon, and that Martin was shot only once
during a tussle over that weapon.
State v. Still, No. A-5456-02T3, 2006 WL 848368, at *6-7 (N.J.
Super. Ct. App. Div. Apr. 3, 2006).
The state court properly determined that the substitution
of “may” for “must,” when viewed in the context of the overall
charge, see Boyde, 494 U.S. at 378, did not rise to the level of
a due process violation. See Estelle, 502 U.S. at 72.
The jury
instructions made clear that the State remained obligated to
30
prove “beyond a reasonable doubt that the defense of selfdefense [was] untrue.” (Resp’t’s Ex. 13, Trial Transcript “Jury
Instruction” at 61, April 3, 2003, ECF No. 8-15).
Thus, the use
of “may” did not, as Petitioner argues, lessen the State’s
burden of proof.
Moreover, to the extent the substitution of “may” for
“must” constituted an error in the jury instructions, the state
court properly determined that such an error was harmless; thus,
Petitioner is not entitled to habeas relief on this basis. See
Davis v. Ayala, No. 13-1428, 2015 WL 2473373, at *10 (U.S. June
18, 2015); Brecht, 507 U.S. at 637, 113 S.Ct. 1710.
Testimony
presented at trial supports a finding by the jury, not only that
Petitioner knew he could retreat with complete safety, but that
he was the aggressor. (Resp’t’s Ex. 8, Trial Transcript at 6970, 172-174, March 26, 2003, ECF No. 8-10).
As the appellate
court pointed out, the jury found Petitioner guilty of robbery,
possession of a firearm for an unlawful purpose, and unlawful
possession of a handgun — which is a clear indication that the
jury simply did not accept Petitioner’s version of the incident,
specifically his assertion that he was acting in self-defense.
Given the evidence at trial indicating that Petitioner was
the aggressor, and given the jury’s findings of guilt on other
counts — indicating that they believed Petitioner to be the
aggressor — the state court was correct in its conclusion that
31
the allegedly erroneous jury instruction on self-defense did not
have a “substantial and injurious effect or influence in
determining the jury's verdict.” Brecht, 507 U.S. at 637.
Thus, Petitioner has not shown, as required by 28 U.S.C. §
2254(d), that the decisions of the state courts “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 “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.”
Based on a review of the record, this Court finds
no basis to grant habeas relief on this ground.
III. MOTION FOR EVIDENTIARY HEARING
In this case, Petitioner seeks an evidentiary hearing to
show that: (1) Petitioner was deprived of due process and his
right to a fair trial when he was tried for a robbery, and
related felony murder, different from the one presented to the
grand jury and described in the indictment; and (2) Petitioner
was deprived of his Sixth Amendment right to effective
assistance of trial counsel by his counsel’s failure to move for
dismissal of the robbery and felony murder counts, for
insufficient evidence, or for the verdict being against the
weight of the evidence.
32
With respect to these grounds for relief, 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), and, as illustrated herein, this Court
determines that the asserted claims are lacking in substantive
merit.
Accordingly, Petitioner’s request for an evidentiary
hearing is denied as moot.
IV.
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.
33
1029, 154 L.Ed.2d 931 (2003) (citation omitted), cited in Eley
v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).
Here, jurists of reason would not disagree with this
Court's resolution of Petitioner's claims.
No certificate of
appealability will issue.
V.
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: June 26, 2015
At Camden, New Jersey
34
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