RANGE v. NOGAN et al
OPINION. Signed by Judge Renee Marie Bumb on 5/25/2016. (tf,n.m. )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PATRICK NOGAN, ADMINISTRATOR
Civ. Action No. 15-2773 (RMB)
BUMB, United States 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
William Range (“Petitioner”), an inmate confined in East Jersey
State Prison. (Pet., ECF No. 1.) Petitioner pled guilty in the New
manslaughter. (Id.) Petitioner appealed his sentence, and the
Appellate Division remanded for resentencing on December 19, 2006.
(Id. at 2.) The New Jersey Supreme Court denied certification and
directed the trial court to amend its judgment to reflect that it
considered and found mitigating factor four. (Id.)
Petitioner subsequently filed a petition for post-conviction
relief, which was denied on February 24, 2012. (Pet., ECF No. 1 at
3, ¶11). The Appellate Division affirmed and the Supreme Court
denied certification. State v. Range, 2014 WL 2882449 (N.J. Super.
Ct. App. Div. June 26, 2014) certif. denied, 220 N.J. 100 (N.J.
Dec. 5, 2014). Petitioner filed his habeas petition in this Court
on April 9, 2015. Respondent filed an Answer on August 3, 2015.
(ECF No. 8.) Petitioner filed a Reply. (ECF No. 12.) This matter
is now before the Court for resolution of the habeas petition.
Petitioner’s family that Petitioner was selling drugs. (Answer,
Ex. 1, Transcript of Entry of Plea, 1T:8-8 to 13.) The factual
background was further summarized by the New Jersey Superior Court
Appellate Division on Petitioner’s appeal of the order denying
post-conviction relief. Range, 2014 WL 2882449. On March 9, 2005,
Petitioner pled guilty to first degree aggravated manslaughter in
exchange for the State’s agreement to amend the original charge of
murder and dismiss related charges for unlawful possession of a
weapon. The plea agreement called for a sentence of twenty-five
years, with an eighty-five percent period of parole ineligibility,
and five years of parole supervision. On November 21, 2008, upon
resentencing under State v. Natale, 184 N.J. 458 (2005), the trial
court imposed the same term of imprisonment. The New Jersey Supreme
Court denied certification but directed the trial court to amend
the judgment of conviction to reflect that it found mitigating
factor number four in imposing sentence.
Petitioner filed a petition for post-conviction relief on
June 28, 2011. In a brief filed by counsel, Petitioner asserted
providing the sentencing court with medical records of defendant's
mitigating factor in determining his sentence, and (2) failing to
argue against the findings of certain aggravating factors. The PCR
Court denied the claims without an evidentiary hearing.
The PCR judge, who was also the sentencing judge, explained
that he questioned Petitioner at the March 9, 2005 plea hearing
and was satisfied by Petitioner’s lucid responses. Petitioner
presented himself as being of sound mind, and he did not have any
understood his constitutional rights and waived those rights after
consulting with defense counsel. Defense counsel raised the issue
of Petitioner’s history of mental illness, and argued that it
should be considered as a mitigating factor upon sentencing.
Petitioner was remorseful and acknowledged he should be held
accountable for his actions. The PCR Court denied Petitioner’s
Division affirmed, substantially for the reasons expressed by the
PCR Court in his oral opinion delivered from the bench on February
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-(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
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
“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
application of law, not merely an erroneous application. Eley, 712
F.3d at 846 (quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
Petitioner raises one ground for habeas relief; trial counsel
was ineffective for failing to present evidence of his severe
mental illness at sentencing. (Pet., ECF No. 1 at 27.) Petitioner
acknowledged that trial counsel told the court Petitioner suffered
from mania, depression, and hearing voices, and that his use of
mind altering medications for years “surely took part in what
happened that day.” (Id.) Trial counsel referred to information in
the PSR, which Petitioner contends pales in comparison to evidence
in his medical records that were provided in his petition for postconviction relief.1 (Id.)
Petitioner notes that the sentencing court found his mental
illness to be only a “marginal” mitigating factor, and but for
counsel’s failure to offer his medical records at sentencing, the
court would have imposed a lower term of imprisonment. (Id. at 2728.) Petitioner explains that his PSR stated he was diagnosed with
paranoid schizophrenia, bipolar disorder, and claustrophobia, but
his medical records show he underwent hospitalizations since age
19, and his symptoms included inappropriate behaviors, paranoia,
mood swings, hearing voices, and suicide attempts. (Id. at 28.)
Respondent provided the medical records under seal, as Exhibit
10 to the Answer. (Sealed Medical Records, ECF No. 9.)
Petitioner contends the PCR Court admitted he did not have
the expertise to know what impact Petitioner’s mental illness had
on his commission of the crime, and that because he could not
answer that question, he applied mitigating factor number four
provide the sentencing court with the information it needed to
commission of the crime. (Id.) Petitioner also faults counsel for
not requesting an evidentiary hearing, and requests an evidentiary
hearing in this habeas proceeding. (Id. at 29.)
In its answer to the petition, Respondent notes Petitioner
faced potential exposure to sentencing for first-degree murder as
a persistent offender with eighteen prior convictions, for thirtyfive years to life. (Answer, Ex. 2, Transcript of Sentence, 2T:114 to 7.) Even on the reduced charge of aggravated manslaughter, as
a persistent offender, Petitioner faced a sentence between thirty
years and life. (Answer, ECF No. 8 at 9, citing N.J.S.A. 2C:447a(1)).
In opposition to the ineffective assistance of counsel claim,
Respondent quotes the following colloquy between Petitioner and
counsel at the plea hearing:
[COUNSEL]: I have 95 percent of the discovery.
I met with him three times today, as well as
in the jail, Atlantic County jail.
Judge, I have informed him that if we were to
go to trial, which we’re not, I would probably
file a Miranda hearing, maybe a suppression
hearing and by – by not only giving up his
right to trial and other constitutional
rights, he’s giving up the right to my
pretrial motions, pretrial - - other pretrial
discovery, things like that.
Judge, he - - to be candid with the Court, he
wants to take responsibility for the - - of
his actions. He wants to get this over, not
only for himself and his family, but for the
victim, victim’s family, Your Honor, and of
course, I would hope the Court would take that
into account on the date of sentencing.
Your Honor, with that - - Mr. Range, have I
gone over everything with you?
[COUNSEL]: And it - - was it you, even though
I may not have advised you to plead guilty, is
it you that wants to take this deal?
(Answer, Ex. 1, Transcript of Entry of Plea, 1T:4-18 to 5-17.)
Specifically addressing Petitioner’s claim that counsel was
deficient for not providing the sentencing court with his mental
appreciably differs from what Petitioner and his trial counsel
represented to the Court at sentencing. (Answer, ECF No. 8 at 11.)
Trial counsel told the sentencing court “something happened in
1994” and Petitioner’s “mental health got worse . . . he started
hearing voices.” (Answer, Ex. 2 Transcript of Sentencing, 2T:4-17
to 20.) Petitioner himself told the sentencing judge: “I would
like to say I know my actions can’t bring back Kevin Brown. He was
a friend. You know what I mean? I do go through manic depression.
I’m paranoid schizophrenic. I wasn’t on my medication and I was
under the influence . . . of cocaine.” (Id. at 2T:9-25 to 10-7.)
Respondent should have provided a copy of his PSR to this Court.
Petitioner contends the PSR is necessary to demonstrate that the
Answer, ECF No. 12 at 4.) Petitioner argued,
[t]he PSR stated that Mr. Range said that he
had been diagnosed with paranoid schizophrenia
and bipolar disorder, and that he suffers from
claustrophobia. PSR. By contrast, the medical
records provided twenty-five pages worth of
documentation of Mr. Range’s severe paranoid
since the age of 19, and inappropriate
behaviors and symptoms, including paranoia,
mood swings, and hearing voices, and suicide
(Id. at 16.)
When deciding whether to grant an evidentiary hearing in a §
2254 proceeding, a federal court must take into account the
deferential standards prescribed by § 2254. Schriro v. Landrigan,
petitioner’s factual allegations or otherwise precludes habeas
relief, a district court need not hold an evidentiary hearing. Id.
As discussed below, the record precludes habeas relief. Therefore,
hearing. Additionally, the Court finds the PSR is not necessary
for determination of the issues presented here because the relevant
information is contained in the sentencing transcript.
Ineffective Assistance of Counsel
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
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)
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S.
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 second prong of the Strickland test, prejudice, requires
a defendant to “show that there is a reasonable probability that,
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
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.
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). The Appellate Division affirmed the PCR
Court’s denial of Petitioner’s ineffective assistance of counsel
claim substantially for the reasons expressed by the PCR Court in
his oral opinion delivered from the bench on February 24, 2012.
Therefore, this Court looks to the PCR Court’s oral opinion.
Judge Michael A. Donio, who was also the sentencing judge,
counsel. Judge Donio said it should not be overlooked that, at
sentencing, he said he believed the parties had taken Petitioner’s
mental illness into account when they negotiated the plea down
from murder to aggravated manslaughter. (Answer, Ex. 8, Transcript
of Mot. for PCR, T:13-22-25.) Therefore, he would find Petitioner’s
mental illness as only a marginal mitigating factor. (Id.) In his
PCR opinion, he further explained:
substantially clearly outweigh the mitigating
factors. Did the man have some mental things
going on before this. Yeah, he did. Was he
also under the influence, or was he by his own
admission doing cocaine on that day? Yes, he
did. Now, you know, how much of that is from
cocaine, how much is from schizophrenia, I
don’t know, but what I do know is that the
parties negotiated this and the defendant was
looking at up to 75 years in New Jersey State
Prison on a murder charge, and that the case
was pled early on . . . you’ll see from looking
at the colloquy that this defendant, okay,
mental illness or not, all right, I would not
let somebody enter into a plea to 25 years
state prison if I was concerned in any way,
shape or form as to their mental capability of
. . . yes, somebody may have a report somewhere
that says the he may have schizophrenia or
other mental issues and, of course, throwing
cocaine on top of it, you know, make somebody
deranged for the moment or whatever, but be no
mistake about it, this individual, when he
entered into the plea and at all times before
this court, has given appropriate answers to
appropriate questions, and has done so
quickly, cogently, coherently, and I’m not
saying he didn’t have a mental issue going on,
I’m saying that the prosecutor took that into
account in dropping this from a murder to an
. . .
(Answer, Ex. 8, Transcript of Mot. for PCR, T:13-22 to
17-5, ECF No. 8-8.) The PCR Court added:
Let me state unequivocally for this record
that based on my review of how this incident
happened and the savage stabbing of the
victim, there is no way, no shape, or no form
that I would have undercut this plea
agreement. I want to make crystal clear to
whoever looks at this in the future. There was
no way he was going to walk out of my court
with less than the negotiated bargained deal
of 25 years at 85 percent, that I could tell
you. So when you talk about a Strickland
standard where a defendant has the burden to
show counsel made such serious errors that
guaranteed by the Sixth Amendment, and that
the defendant suffered prejudice due to
counsel’s deficient performance, I don’t think
this defendant comes close to satisfying
either prong of the Strickland prongs.
(Id. at 8T:17-16 to 18-6.)
So you know, while maybe [counsel] didn’t sit
there and give me 58 pages of medical records,
and then I heard the man talk and I saw that
he was totally fine when he spoke with me . .
. [citing transcript] Defendant: I would like
to say I know my actions can’t bring back Kevin
Brown, he was my friend, you know what I mean?
I do go through manic depression, I’m paranoid
schizophrenic, I wasn’t on my meds, I was
under the influence. The Court: Of what?
Cocaine you know. I can’t bring him back now.
I have to be accountable for my actions.
That’s why I’m confessing to let the court
know what I did. He was manning up, he knew
what he did. He got away with a murder charge
and pled to agg man. That’s what he did. So
you know . . . [to] make these arguments, quite
frankly, that his counsel didn’t do what he
was supposed to do and he’s entitled to postconviction relief is, you know, under the
totality of facts in this case, it’s, you
know, in my view not a close call here. He got
a bargain of a benefit big time. His mental
history was put on the record, his cocaine use
was put on the record, okay? The derangement
that he showed that day was put on the record,
and he got less than the maximum for an agg
man. Maybe he would have gotten less
somewhere, I don’t know, but I could tell you
what, it would not have been in this court,
not in this room, that I could tell you. . .
(Id. at 8T:22-11 to 23-12.)
The record does not support Petitioner’s contention that the
court found mental illness
was only a
marginal mitigating factor was the court’s lack of knowledge of
how Petitioner’s mental illness contributed to his commission of
the crime. While the court admitted he did not know how much blame
to attribute to Petitioner’s schizophrenia as opposed to his
cocaine use (ECF No, 8-8 at 14), Petitioner’s medical records do
not answer that question, nor is it likely that even an expert
could do more than speculate on such a question.
The bottom line is that the court found Petitioner’s mental
illness was only a marginal factor in mitigating his sentence
because Petitioner’s mental illness was already taken into account
with the plea deal he received. Although his mental illness was a
mitigating factor, it was outweighed by the aggravating factors.
Therefore, the sentencing judge
was not going to reduce the
sentence even further than contemplated in the negotiated plea.
Had the court looked at Petitioner’s medical records at the time
of sentencing rather than at the PCR proceeding, the court very
clearly stated this would not have changed the sentence he imposed.
(ECF No. 8-8 at 17.) Under the circumstances, Petitioner cannot
meet the prejudice prong of the Strickland standard.
This Count also rejects Petitioner’s contention that the
discussion of his mental illness at sentencing pales in comparison
to the information in his medical records.
The court, at
sentencing, was aware of the chronic nature of Petitioner’s mental
illness and his specific diagnoses.
Petitioner was off his medications and using cocaine when he
committed the aggravated manslaughter, which he explained to the
judge at sentencing. (Answer, Ex. 2, 2T:9-25 to 10-7, ECF No. 82.)
unreasonable the sentencing judge’s conclusion that Petitioner’s
mental illness, as a mitigating factor, did not outweigh the
aggravating factors in sentencing. Therefore, Petitioner is not
entitled to habeas relief on his ineffective assistance of counsel
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.
For the reasons discussed above, Petitioner is not entitled
to habeas relief on his claim of ineffective assistance of counsel.
Therefore, in the accompanying Order filed herewith, the habeas
petition will be denied.
Dated: May 25, 2016
s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
United States District Judge
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