VARGAS v. POWELL et al
Filing
9
OPINION. Signed by Judge Renee Marie Bumb on 6/8/2016. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JIMMY VARGAS,
Petitioner,
v.
JOHN POWELL, ADMINISTRATOR,
BAYSIDE STATE PRISON,
Respondent.
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Civil Action No. 15-2622(RMB)
OPINION
BUMB, District Judge
This matter comes before the Court upon the Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 filed by Petitioner
Jimmy Vargas (“Petitioner”), an inmate confined in Bayside State
Prison.
(Pet.,
ECF
No.
1.)
On
August
6,
2002,
judgment
was
entered against Petitioner after a jury in the Superior Court of
New Jersey, Law Division, Camden County found him guilty of (1)
theft of a firearm; (2) two counts of possession of a weapon
with unlawful purpose; (3) two counts of unlawful possession of
a
weapon;
(4)
harassment;
(5)
burglary;
(6)
two
counts
of
aggravated assault; and (7) two counts of criminal restraint.
(Pet., ¶5.) Petitioner was sentenced to an aggregate sentence of
36
years
imprisonment
with
a
parole
1
bar
of
24
years,
nine
months,
and
23
days.
(Pet.,
¶3.)
Petitioner
appealed
his
conviction and sentence, and the Appellate Division, on May 31,
2005, affirmed the Judgment but remanded for resentencing. (Id.,
¶9); (Order (“Vargas I”) (ECF No. 8-8.) The New Jersey Supreme
Court granted certification and remanded to the trial court for
resentencing in light of State v. Thomas, 188 N.J. 137 (2006).
(Id.,
¶9(g));
Petitioner
State
was
v.
Vargas,
resentenced
to
188
N.J.
349
(N.J.
an
eighteen-year
2006).
term
of
imprisonment, with a parole bar of nine years. (Pet., ¶9(g)(6)).
Petitioner filed a petition for post-conviction relief in
July 2007, which was denied without prejudice. (Pet., ¶11(a)(7);
(Order
Dismissing
App.
for
Post
Conviction
Relief
Without
Prejudice, ECF No. 8-22.) Petitioner filed a subsequent petition
for post-conviction relief on November 14, 2011, and it was
denied
on
August
27,
2012.
(Pet.,
¶11(b));
(Order
on
Post-
Conviction Applications on Indictable Offenses, ECF No. 8-26.)
The Appellate Division affirmed, (Sua Sponte Order, February 25,
2014, (“Vargas II”), ECF No. 8-30), and the Supreme Court denied
certification, (N.J. Supreme Court Order, February 3, 2015, ECF
No. 8-33.) Petitioner filed his habeas petition in this Court on
April 9, 2015. He raised the following grounds for relief:
GROUND ONE: THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED A READBACK OF
TESTIMONY TO THE JURY
2
GROUND TWO: THE TRIAL COURT ABUSED ITS
DISCRETION BY PERMITTING THE INTRODUCTION OF
THE DEFENDANT’S REMOTE CONVICTIONS
GROUND THREE: THE CUMULATIVE EFFECT OF THE
TRIAL COURT’S ERROR VIOLATED THE COMMON LAW
OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF
THE UNITED STATES CONSTITUTION
GROUND FOUR: THE TRIAL COURT ERRED IN
DENYING THE DEFENDANT’S PETITION FOR POST
CONVICTION RELIEF WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS HIS
CONTENTION
THAT
HE
FAILED
TO
RECEIVE
ADEQUATE LEGAL REPRESENTATION AT THE TRIAL
LEVEL
Respondent filed an Answer on September 16, 2015. (ECF No.
8.) This matter is now before the Court for resolution of the
habeas petition.
I.
BACKGROUND
The factual background in this matter was summarized by the
New
Jersey
Superior
Court
Appellate
Division
on
Petitioner’s
direct appeal. (Vargas I, ECF No. 8-8.) The facts found by the
Appellate Division are presumed correct pursuant to 28 U.S.C. §
2254(e)(1). The crimes were committed on October 6, 2000, in
Camden, New Jersey. Petitioner attacked Mariano Caba, in Caba’s
store, with a knife. Petitioner cut Caba’s hand and stole his
gun. Caba got away and notified a nearby police officer.
When Caba and the police officer returned to Caba’s store,
Petitioner exited with the gun in his hand, refusing to drop the
gun and telling the officer he would have to kill Petitioner.
3
Petitioner ran out the back of the store, pointed the gun at the
officer, a jumped a fence. Petitioner ran a few blocks, and
forced his way into the home of DaVada McGahee.
Petitioner ran through McGahee’s home and out the front
door toward Caba’s store. He went back into the store and seized
a
third
victim,
Dionisio
Marte.
Petitioner
took
Marte
as
a
hostage, holding a gun to his head and ordering him outside.
Police were at the scene, and ordered Petitioner to drop the gun
and surrender. They fired two shots at Petitioner, who fell and
dropped
the
gun.
He
was
taken
into
custody.
On
appeal,
Petitioner raised only one claim of trial error, the trial judge
abused his discretion by declining the jury’s request for a
read-back of Petitioner’s and Caba’s testimony.
The
request
for
a
read-back
occurred
early
in
deliberations, and both sides agreed with the judge that it was
too early for a read-back. The judge instructed the jury to move
on and they could raise the question of a read-back again at
some later point. The jury never again asked for read-back,
although it asked for other information. The Appellate Division
found no abuse of discretion.
Petitioner also challenged his sentence based on mistaken
aggravating and mitigating factors. The Appellate Division held
that the findings on aggravating and mitigating factors were
based on competent and credible evidence in the record; and the
4
judge’s conclusion was reasonable based on weighing the relevant
factors.
The
Appellate
Division
rejected
Petitioner’s
consecutive
sentencing claim for substantially the same reasons expressed in
the
written
sentencing
decision
on
November
22,
2002.
The
Appellate Division also found that the jury made the requisite
findings to support the pre-amendment NERA sentence on Count
Fourteen, but remanded for an error conceded by the State.
Petitioner also challenged his sentence under the holdings
of Blakely v. Washington, 542 U.S. 296 (2004), and United States
v. Booker, 543 U.S. 220 (2005). The Appellate Division disagreed
because there is an exception to the Blakely/Booker doctrine
that applies when a sentence above the presumptive term is based
on the defendant’s prior record. Finally, the Appellate Division
summarily dismissed the claims raised in Petitioner’s pro se
brief because they were without merit and did not warrant a
written discussion.
II.
DISCUSSION
A.
Standard of Review
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim-5
(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.
“Contrary
to
clearly
established
Federal
law”
means
the
state court applied a rule that contradicted the governing law
set forth in U.S. Supreme Court precedent or that the state
court
confronted
a
set
of
facts
that
were
materially
indistinguishable from U.S. Supreme Court precedent and arrived
at a different result than the Supreme Court. Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013) (citing Williams v. Taylor, 529
U.S.
362,
405-06
(2000)).
The
phrase
“clearly
established
Federal law” “refers to the holdings, as opposed to the dicta”
of the U.S. Supreme Court’s decisions. Williams, 529 U.S. at
412.
An
“unreasonable
application”
of
clearly
established
federal law is an “objectively unreasonable” application of law,
not
merely
an
erroneous
application.
Eley,
712
F.3d
(quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
B.
Analysis
1.
GROUNDS ONE, TWO AND THREE
6
at
846
Respondent contends Petitioner failed, in Grounds One, Two
and Three, to allege that his conviction or sentence violated
federal law, therefore habeas relief is not available. (Answer
to Pet. for Writ of Habeas Corpus with Affirmative Defenses
(“Answer”), ECF No. 8 at 34.) Even when liberally construed,
Respondent asserts Grounds One, Two and Three “are completely
devoid of any reference to a federal case, statute, rule and/or
code.” (Id. at 36.) Matters of sentencing are generally matters
of state law that do not justify federal habeas relief. (Id. at
37.)
Respondent acknowledges that Petitioner mentioned the Due
Process Clause of the United States Constitution in Ground Three
of the petition. (Id. at 38.) Respondent, however, argues that
there
is
no
United
States
Supreme
Court
precedent
on
the
cumulative error doctrine. (Id.) In any event, Petitioner did
not show how his trial was fatally infected by error. (Id.)
It is true that federal habeas relief is not available to
correct errors of state law. Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (“it is not the province of a federal habeas court
to
reexamine
questions”).
The
state-court
habeas
determinations
petition
and
the
on
state
state-law
court
record
confirm that Petitioner’s claims in Grounds One and Two are
based on alleged state law errors. (Letter-Brief and Appendix on
Behalf of Defendant-Appellant, ECF No. 8-6 at 15-18); (Vargas I,
7
ECF No. 8-8 at 4.) See Baldwin v. Reese, 541 U.S. 27 (2004) (a
petitioner must fairly present the federal nature of his claim
in state court.) Petitioner is not entitled to habeas review of
Grounds One and Two, and they will be dismissed.
In Ground Three, Petitioner alleged the cumulative errors
at
his
trial
Constitution.
violated
The
the
cumulative
Due
Process
error
doctrine
Clause
is
a
of
the
standalone
constitutional claim that the cumulative effect of the errors at
trial “so undermined the verdict as to constitute a denial of
his constitutional right to due process.” Collins v. Secretary
of Pennsylvania Dept. of Corr., 742 F.3d 528, 542 (2014) (citing
Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (holding that
petitioner could not show that the cumulative prejudice of trial
errors
“undermined
the
reliability
of
the
verdict”).
A
cumulative error claim must be exhausted in state court, and the
petitioner must show actual prejudice to be entitled to relief.
Id. (citing Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008).
Petitioner first raised his cumulative error claim in his
pro
se
brief
on
direct
appeal.
(Pet.,
¶9(f),
Point
V.)
The
Appellate Court denied the claim because it lacked sufficient
merit for a written discussion. (Vargas I, ECF No. 8-8 at 9.)
The New Jersey Supreme Court affirmed.
“Where
a
state
court's
decision
is
unaccompanied
by
an
explanation, the habeas petitioner's burden still must be met by
8
showing there was no reasonable basis for the state court to
deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
Petitioner alleged only two trial court errors: (1) failure of
the trial judge to grant the jury’s request for a readback; and
(2)
abuse
of
discretion
in
permitting
introduction
of
Defendant’s remote convictions. (Pet., ¶9(f)).
Petitioner
has
not
explained
how
he
believes
these
cumulative alleged errors prejudiced the jury’s verdict. There
is no basis in the record for this Court to conclude the failure
to
read
back
testimony
to
the
jury,
fifteen
minutes
after
deliberations began, prejudiced Petitioner. (Trial Transcript,
ECF No. 8-38 at 156-71; ECF No. 8-39 at 3-39.)
The jury was
invited to ask for a read-back after further deliberation but
failed
alleged
to
do
so.
error,
(Id.)
there
Having
can
found
be
no
no
prejudice
cumulative
from
error
this
because
Petitioner has only one remaining claim of trial court error in
obtaining his conviction. Therefore, the Court will deny Ground
Three of the habeas petition.
2.
GROUND FOUR
Petitioner phrased Ground Four as a challenge to the PCR
Court’s
decision
ineffective
not
to
assistance
hold
of
an
evidentiary
counsel
claim.
hearing
This
Court
on
his
cannot
review a state PCR Court’s determination under state law of
whether
to
conduct
an
evidentiary
9
hearing.
See
Estelle
v.
McGuire, 502 U.S. 62, 67 (1991) (habeas relief is not available
for errors of state law); see State v. Jones, 219 N.J. 298, 31011
(N.J.
affords
2014)
state
hearing).
The
(discussing
PCR
courts
Court
New
Jersey
discretion
will,
however,
to
Rule
3:22-10,
grant
liberally
an
which
evidentiary
construe
Ground
Four as raising the underlying ineffective assistance of counsel
claim.
In an Order dated February 26, 2014, the Appellate Division
affirmed
the
PCR
Court’s
denial
of
Petitioner’s
ineffective
assistance of counsel claim. (Vargas II, Sua Sponte Order, ECF
No. 8-30.) Petitioner alleged that his trial counsel failed to
fully impeach State Witness DaVada McGahee with a written police
investigation report that contradicted her trial testimony that
she saw Petitioner armed with a gun inside her home. (Id. at 1.)
Petitioner conceded that his counsel impeached McGahee on this
point with her statement to police, but failed to do so with the
police investigation report. (Id.)
The PCR Court found that defense counsel’s decision not to
impeach
strategic
McGahee’s
decision
credibility
entitled
in
to
a
redundant
deference.
(Id.
manner
at
was
1-2.)
a
The
record showed counsel impeached McGahee’s testimony by showing
that her statement to police did not mention Petitioner having a
gun in her home. (Id. at 2.) The Appellate Division held that
counsel’s avoidance of using “surplus and repetitive material”
10
was a reasonable approach. (Id. at 3.) The Appellate Division
was
also
“thoroughly
convinced”
that
if
trial
counsel
had
“embarked upon that redundant cross-examination” it would not
have altered the jury’s verdict. (Id.)
An
ineffective
assistance
of
counsel
claim
has
two
components:
First,
the
defendant
must
show
that
counsel’s performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense.
This requires
showing
that
counsel’s
errors
were
so
serious as to deprive the defendant of a
fair
trial,
a
trial
whose
result
is
reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Furthermore,
the
first
prong
of
the
test
“requires
a
defendant to show ‘that counsel’s representation fell below an
objective standard of reasonableness.’" Lafler v. Cooper, 132
S.Ct. 1376, 1384 (2012) (quoting Hill v. Lockhart, 474 U.S. 52,
57 (1985) (quoting Strickland, 466 U.S. at 688)). There is “a
strong presumption that counsel's conduct falls within the wide
range
of
defendant
reasonable
must
professional
overcome
the
assistance;
presumption
that
that,
is,
the
under
the
circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.
11
Louisiana,
350
U.S.
91,
101
(1955)).
“The
Sixth
Amendment
guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S.
1, 8 (2003) (citing Bell v. Cone, 535 U.S. 685, 702 (2002);
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland, 466
U.S. at 689; United States v. Cronic, 466 U.S. 648, 656 (1984)).
The
requires
second
a
prong
defendant
of
to
the
“show
Strickland
test,
prejudice,
that
is
reasonable
there
a
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is one ‘sufficient to
undermine
confidence
in
the
outcome.’”
Collins
v.
Sec.
of
Pennsylvania Dept. of Corr., 742 F.3d 528, 547 (3d Cir. 2014)
(quoting Strickland, 466 U.S. at 694).
The “ultimate focus” of the prejudice inquiry is on the
fundamental fairness of the proceeding. Id. at 696. “Prejudice
is viewed in light of the totality of the evidence at trial and
the testimony at the collateral review hearing.” Collins, 742
F.3d at 547 (citing Rolan v. Vaugh, 445 F.3d 671, 682 (3d. Cir.
2006)).
A
court
need
not
address
both
components
of
the
ineffective assistance inquiry. Strickland, 466 U.S. at 697. “If
it
is
easier
to
dispose
of
an
ineffectiveness
claim
on
the
ground of lack of sufficient prejudice . . . that course should
be followed.” Id.
12
Upon habeas review, deference is given to the last reasoned
State Court judgment on Petitioner’s claim. Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991).
This Court has reviewed defense counsel’s cross-examination
of
McGahee.
Petitioner
Counsel
had
a
challenged
gun
in
her
McGahee’s
home
by
testimony
questioning
why
that
her
statement to police did not contain any reference to Petitioner
having a gun. (Trial Transcript, ECF No. 8-34 at 121-131.) On
re-direct, McGahee was adamant that she told police, when she
gave her statement, that Petitioner had a gun on his hip when he
was in her house, but he did not point it at her. (Id. at 128.)
McGahee was at times emotional and seemed fearful of being in
the courtroom with the defendant. (Id. at 121-131.) Keeping her
on
the
stand
for
redundant
cross-examination
could
have
backfired.
“When
§
2254(d)
applies,
the
question
is
not
whether
counsel's actions were reasonable. The question is whether there
is any reasonable argument that counsel satisfied Strickland's
deferential standard.” Richter, 562 U.S. 105. Here, there is a
reasonable
argument
deferential
standard
that
by
counsel
exercising
satisfied
sound
trial
Strickland’s
strategy
and
choosing not to conduct redundant cross-examination.
In any event, the trial transcript reveals testimony that
Petitioner had a gun when he left Caba’s store, and he had a gun
13
when he returned to Caba’s store minutes later after passing
through McGahee’s home. (Id. at 136-147.) Officer Ruiz testified
that he saw Petitioner exit the house with a gun in his hand.
(Id.
at
146-47.)
fact,
that
testified
In
had
a
he
gun
on
cross-examination
in
his
pocket
when
Petitioner
he
entered
McGahee’s house and when he exited. (Trial Transcript, ECF No.
8-27
at
78.)
Petitioner
cannot
show
prejudice
for
counsel’s
failure to offer redundant cross-examination suggesting McGahee
never told police she saw Petitioner with a gun in her home. For
these reasons, the Court will deny Ground Four of the Petition.
III. CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to
a certificate of appealability in this matter. See Third Circuit
Local Appellate Rule 22.2. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing
of
the
denial
of
a
constitutional
right.”
28
U.S.C.
§
2253(c)(2). Based on the discussion in this Opinion, Petitioner
has not made a substantial showing of denial of a constitutional
right,
and
this
Court
will
not
issue
a
certification
of
appealability.
IV.
CONCLUSION
For the reasons discussed above, Petitioner is not entitled
to
habeas
relief
on
his
claim
14
of
ineffective
assistance
of
counsel. Therefore, in the accompanying Order filed herewith,
the habeas petition will be denied.
s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
United States District Judge
Dated: June 8, 2016
15
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