KELLY v. STATE OF NEW JERSEY et al
Filing
19
OPINION. Signed by Judge Noel L. Hillman on 11/1/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
EUGENE I. KELLY,
:
:
Petitioner,
:
Civ. No. 15-3932 (NLH)
:
v.
:
OPINION
:
STATE OF NEW JERSEY, et al.
:
:
Respondents.
:
______________________________:
APPEARANCES:
Eugene I. Kelly
1329 Broad Street
Pleasantville, NJ 08232
Petitioner Pro se
Mario C. Formica, Esq.
Atlantic County Prosecutor’s Office’
4997 Unami Boulevard
Mays Landing, NJ 08201
Counsel for Respondents
HILLMAN, District Judge
Petitioner Eugene I. Kelly (“Petitioner”), a prisoner
formerly incarcerated at the Bayside State Prison and presently
on parole 1 has filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (the “Petition”).
ECF No. 1.
By
order of Court, Respondents filed an Answer to the Petition (the
“Answer”).
ECF No. 14.
Answer (the “Reply”).
1
Petitioner then filed a reply to the
ECF No. 18.
The Petition is ripe for
A prisoner released on parole satisfies the “in custody”
requirement of 28 U.S.C. § 2254(a). See Jones v. Cunningham,
371 U.S. 236, 242 (1963).
disposition.
For the reasons stated below, the Petition will be
denied.
I. BACKGROUND
On March 26, 2007, Officer Mark Gorman was conducting
routine patrol in a marked police vehicle in Pleasantville, New
Jersey.
ECF No. 14-10 at 63-64, 68, 71 (trial transcript).
As
Officer Gorman approached a red light on Washington Avenue
around 2:20 a.m., he saw Petitioner talking on a cellular
telephone while walking and swaying back and forth on the
sidewalk.
Id. at 64, 69, 70.
Petitioner looked at Officer
Gorman, pointed to his cellular telephone, and said in a slurred
voice, “I’m on my phone.
Just on the phone.”
Id. at 70-71.
Officer Gorman did not observe anyone else on the sidewalk or
street at that time.
Id. at 144, 169.
Officer Gorman was concerned for Petitioner’s safety
because he believed that Petitioner was intoxicated.
72.
Id. at 71-
He turned his patrol car around to check on Petitioner’s
well-being.
Id. at 72.
As Officer Gorman went to exit his
vehicle, Petitioner turned around and began to walk in the
opposite direction.
Id. at 73.
Officer Gorman said to
Petitioner, “Yo, where are you going?
talk to you.”
Id. at 73.
harassing me?
. . .
Come here . . . I want to
Petitioner stated, “Why are you
I’m not doing anything wrong.
2
I’m just
waiting for a ride.”
Id.
Officer Gorman asked Petitioner where
he was going, and Petitioner said, “Over there” and, after some
back and forth, stated that he was going to get cigarettes.
at 74-75.
Id.
Officer Gorman did not believe that any store within
about three miles was selling cigarettes at the time of the
night. 2
Id. at 76.
At this point, Officers Mark Porter and
Robert D’Arcangelo arrived.
Id.
Officer Gorman asked Petitioner for identification, to
which Petitioner responded, “Why are you doing this?”
77.
Id. at
After asking the question again three times, Petitioner
said, “yes,” and motioned towards his pocket.
Id. at 78, 106.
Officer Gorman ordered Petitioner to turn around, to put his
hands on top of his head, and to interlock his fingers.
78-79.
Id. at
Petitioner did not comply, and Officer Gorman asked him
if “he had anything on him that would hurt me,” to which
Petitioner responded, “No.”
Id. at 80.
As Officer Gorman positioned Petitioner for a pat down for
weapons, Officer D’Arcangelo saw a gun in Petitioner’s waistband
and screamed, “gun.”
2
Darlene
testified
that sold
1.5 miles
34, 238.
Id. at 80-81, 137.
He then grabbed the
Mulligan, an investigator and witness for Petitioner,
at trial that she investigated the location of stores
cigarettes in the vicinity, and that one store located
away, would have been open at 2:30 a.m. Id. at 2323
gun, a loaded .22 caliber handgun, while the other officers
secured Petitioner, who stated, “I need that gun for my
protection” or “I need it for my protection.”
165.
Petitioner was then arrested.
Id. at 82, 142,
None of the officers
involved in the incident saw any other person or vehicle during
their interaction with Petitioner. 3
Id. at 69-71, 144, 168.
After Petitioner’s arrest,
a grand jury sitting in Atlantic County returned an
indictment charging defendant Eugene I. Kelly with
third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession
of hollow-point bullets, N.S.J.A 2C:39-3(f); and
second-degree possession of a weapon by a convicted
person, N.J.S.A. 2C:39-7.
After a motion to suppress was denied, Kelly entered
into a plea agreement whereby he pled guilty to one
count of third-degree unlawful possession of a handgun
in satisfaction of all charges. In return, the State
agreed to recommend a sentence not to exceed five
years and to dismiss counts two and three of the
indictment. Kelly also agreed to waive his right to
appeal pursuant to Rule 3:9-3(d).
Prior to his sentencing, Kelly moved pro se to
withdraw his guilty plea. Judge Bernard E. DeLury,
Jr., denied Kelly’s motion and informed him that, as
part of the plea bargain, he waived his right to
appeal, and if he decided to appeal, “the State can
withdraw from this guilty plea pursuant to the rule
and then reinstate the dismissed charges against you
and proceed along the prosecution’s path to trial.”
Kelly indicated that he understood. Judge DeLury then
3
A witness for Petitioner, however, testified that he witnessed
Petitioner’s encounter with the police officers on March 26,
2007, and that the officers approached Petitioner without
justification and then “wrestled” him to the ground. Id. at
186, 188.
4
imposed the agreed-upon five-year term in accordance
with the plea agreement.
Kelly then filed a pro se notice of appeal, and the
State moved to annul the plea agreement. Judge DeLury
granted the State’s motion, vacated Kelly’s
conviction, and restored all charges. Kelly then
withdrew his appeal and moved for reconsideration of
his motion to suppress, which was denied.
New Jersey v. Kelly, A-0708-13T1 (N.J. App. Div. April 15, 2015)
(per curiam).
During the initial proceedings, the suppression
hearing, and plea negotiations, Petitioner was represented by
Eric Shenkus of the Public Defender’s Office.
Mr. Shenkus
withdrew as counsel and was replaced by Jill R. Cohen, Esq., who
represented Petitioner from pre-trial motions through trial.
The matter proceeded to trial on May 19, 2009, and
Petitioner was convicted of second-degree possession of a weapon
by a convicted person in violation of N.J. Stat. Ann. 2C:39-7b. 4
4
The State elected to try Petitioner on a single charge of
second-degree possession of a weapon by a convicted person and
dismissed the other two counts. That statute provides, in
pertinent part:
A person having been convicted in this State or elsewhere of
the crime of aggravated assault, arson, burglary, escape,
extortion, homicide, kidnapping, robbery, aggravated sexual
assault, sexual assault, bias intimidation in violation of
N.J.S.2C:16-1, endangering the welfare of a child pursuant to
N.J.S.2C:24-4, stalking pursuant to P.L.1992, c.209 (C.2C:1210) or a crime involving domestic violence as defined in
section 3 of P.L.1991, c.261 (C.2C:25-19), whether or not
armed with or having in his possession a weapon enumerated in
subsection r. of N.J.S.2C:39-1, or a person having been
convicted of a crime pursuant to the provisions of
N.J.S.2C:35-3 through N.J.S.2C:35-6, inclusive; section 1 of
5
ECF No. 14-10 at 300.
After trial, Judge DeLury granted the
State’s motion to impose an extended term and sentenced Kelly to
a sixteen-year term with an eight-year minimum term.
New Jersey
v. Kelly, A-0708-13T1 (N.J. App. Div. April 15, 2015).
appealed, and the Appellate Division affirmed.
No. A-1096-09 (App. Div. Jan. 31, 2012).
New Jersey denied certification.
Kelly
State v. Kelly,
The Supreme Court of
210 N.J. 480 (2012).
Kelly then filed pro se a petition for post-conviction
relief (PCR).
See ECF No. 14-19.
Petitioner argued, inter
alia, that his trial counsel was ineffective for failing to ask
Officer Gorman certain questions on cross-examination at trial
about Petitioner’s alleged intoxication.
ECF No. 14-21 at 6.
After the appointment of counsel and the submission of briefs,
Judge DeLury heard oral argument.
On April 3, 2013, Judge DeLury filed a sixteen-page
decision denying Kelly’s petition without a hearing.
No. 14-21.
See ECF
He determined that Kelly’s arguments were
procedurally barred under N.J. Rule 3:22-5, because they were
“identical to those raised on appeal.”
The judge further found
P.L.1987, c.101 (C.2C:35-7); N.J.S.2C:35-11; N.J.S.2C:39-3;
N.J.S.2C:39-4; or N.J.S.2C:39-9 who purchases, owns,
possesses or controls a firearm is guilty of a crime of the
second degree and upon conviction thereof, the person shall
be sentenced to a term of imprisonment by the court.
6
that, even if Rule 3:22-5 were not applied, Kelly had not
established a prima facie case for ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984).
Relying on Strickland, Judge DeLury determined that “it cannot
be said that Petitioner’s counsel did not act reasonably when
[s]he chose to question Officer Gorman in the manner in which
[s]he did.”
ECF No. 14-21 at 14.
Petitioner appealed the denial of his PCR petition to the
Appellate Division, which affirmed on the basis of Judge
DeLury’s decision.
State v. Kelly, 2015 WL 1649249 (N.J. App.
Div. April 15, 2015).
On June 11, 2015, Petitioner filed the instant Petition
pursuant to 28 U.S.C. § 2254.
In it, Petitioner raises an
ineffective assistance of counsel claim, a Fourth Amendment
claim, and a due process claim.
See ECF No. 1.
The Court
screened the Petition and allowed the ineffective assistance of
counsel and due process claims to proceed. 5
(opinion) and 9 (order).
See ECF Nos. 8
Petitioner argues that his trial
counsel was ineffective for the following reasons: 6
5
The Court found that Petitioner had a full and fair opportunity
to litigate his Fourth Amendment claim in state court and thus
such a claim could not be reviewed pursuant to § 2254. See ECF
No. 8.
6
Petitioner has never raised in state court and does not now
7
•
Trial counsel failed to show the jury the jacket he
was wearing at the time of the incident “so they could
see it was impossible to see a gun in plain view sight
so big and long as it was.”
•
Trial counsel failed to call a taxi cab service owner
as a witness to testify that Petitioner was waiting
for a taxi cab.
•
Trial counsel failed to cross-examine Officer Gorman
as to whether he smelled alcohol on Petitioner; and
•
Trial counsel failed to ask why the police dispatch
report did to mention an intoxicated person.
ECF No. 1 at 6.
Petitioner also asserts a violation of his
right to due process in that Officer Gorman’s testimony at the
grand jury differed from his testimony given at the suppression
motion hearing regarding the pat down of Petitioner, i.e. that
Officer Gorman committed perjury.
ECF No. 1 at 8.
II. Standard of Review
A petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is the proper mechanism for a prisoner to challenge the
fact or duration of one’s confinement because the petitioner is
in custody in violation of the Constitution or the laws of the
United States.
See 28 U.S.C. § 2254(a); Pinholster, 563 U.S. at
raise in the Petition a claim of ineffective assistance of
counsel against the attorney who represented him at his
suppression hearing, Mr. Shenkus. Because the Petition raises
claims only against his trial attorney, Ms. Cohen, from conduct
arising at trial, the Court does not construe the Petition to
raise a claim for ineffectiveness at the suppression hearing
against Mr. Shenkus.
8
181; Preiser v. Rodriquez, 411 U.S. 475, 498-99 (1973).
A
habeas petitioner bears the burden of establishing his
entitlement to relief for each claim presented in the petition.
See Harrington v. Richter, 562 U.S. 86, 98 (2011).
The standard used in reviewing habeas claims under § 2254
depends on whether those claims have been adjudicated on the
merits by the state court.
If they have not been adjudicated on
the merits, the Court reviews de novo both legal questions and
mixed factual and legal questions.
203, 210 (3d Cir. 2001).
See Appel v. Horn, 250 F.3d
If the state court adjudicated the
claim on the merits, then 2254(d) limits the review of the state
court’s decision as follows:
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 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). If a claim has been adjudicated on the
9
merits in state court, 7 this Court “has no authority to issue the
writ of habeas corpus unless the [state court’s] decision ‘was
contrary to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of
the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.’”
Parker v. Matthews, 567 U.S. 37,
40 (2012) (quoting 28 U.S.C. § 2254(d)).
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
Court.
See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
Clearly established law “refers to the holdings, as opposed to
the dicta, of [the Supreme Court’s] decisions as of the time of
the relevant state-court decision.”
Williams v. Taylor, 529
“[A] claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that finally
resolves the claim based on its substance, not on a procedural,
or other, ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir.
2009) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir.
2009)). “Section 2254(d) applies even where there has been a
summary denial.” Pinholster, 563 U.S. 170, 187. “In these
circumstances, [petitioner] can satisfy the ‘unreasonable
application’ prong of § 2254(d)(1) only by showing that ‘there
was no reasonable basis’ for the [state court's] decision.” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). See
also Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a
state court rejects a federal claim without expressly addressing
that claim, a federal habeas court must presume that the federal
claim was adjudicated on the merits — but that presumption can
in some limited circumstances be rebutted”).
10
7
U.S. 362, 412 (2000).
A court must look for “the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.”
Andrade, 538 U.S. 63, 71-72 (2003).
Lockyer v.
“[C]ircuit precedent does
not constitute ‘clearly established Federal law, as determined
by the Supreme Court,’ [and] therefore cannot form the basis for
habeas relief under AEDPA.”
Parker, 567 U.S. at 48-49 (quoting
28 U.S.C. § 2254(d)(1)).
A decision is “contrary to” a Supreme Court holding within
28 U.S.C. § 2254(d)(1), if the state court applies a rule that
“contradicts the governing law set forth in [the Supreme
Court’s] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a [different result.]”
Williams, 529 U.S. at 405–06.
Under the “‘unreasonable
application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the
prisoner’s case.”
Williams, 529 U.S. at 413.
“[A]n
unreasonable application of federal law,” however, “is different
from an incorrect application of federal law.”
Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at
11
410).
III. Discussion
A. Exhaustion
Before reviewing the claims contained in the Petition, the
Court must determine whether Petitioner has exhausted them in
state court.
See 28 U.S.C. § 2254(b).
To satisfy the
exhaustion requirement in § 2254(b), “state prisoners must give
the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process,” including a
petition for discretionary review before the State's highest
court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
“[I]f
the petitioner fails to satisfy the exhaustion requirement prior
to filing a federal habeas petition and none of the exceptions
apply, the federal court is precluded from granting habeas
relief to the petitioner.”
Lambert, 134 F.3d at 513-14.
The
Court, however, may deny a habeas petition “on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”
28 U.S.C. §
2254(b)(2).
It appears from the record that most of Plaintiff’s claims
are unexhausted.
Because the grounds for relief raised in the
Petition may be denied on the merits without regard to
12
exhaustion pursuant to § 2254(b)(2), the Court will decline to
engage in an exhaustion analysis as it is unnecessary to the
disposition of the Petition.
B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel.
Washington, 466 U.S. 668, 685–86 (1984).
See Strickland v.
A defendant who
alleges ineffective assistance must satisfy the two-part test
outlined in Strickland:
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 “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.
Id. at 687.
To show deficient performance, “the defendant must show
that counsel’s representation fell below an objective standard
of reasonableness . . . under prevailing professional norms.”
Id. at 686–88.
A petitioner must identify the particular acts
or omissions that are challenged as unprofessional.
690.
See id. at
Under the first prong of the Strickland test, scrutiny of
counsel's conduct must be “highly deferential.”
See id. at 689.
“Counsel is strongly presumed to have rendered adequate
13
assistance and made all significant decisions in the exercise of
reasonable professional judgment.”
Id. at 690.
The reviewing
court must make every effort to “eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.”
Id. at 689.
If counsel
makes “a thorough investigation of law and facts” about his
plausible options, then counsel's strategic choices are
“virtually unchallengeable.”
Gov't of Virgin Islands v.
Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006) (citing
Strickland, 466 U.S. at 690-91).
The second prong of the Strickland test requires the
petitioner to prove prejudice.
See Strickland, 466 U.S at 693.
To demonstrate prejudice, the defendant must show that counsel’s
deficient performance “actually had an adverse effect on the
defense.”
Id. at 693.
“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id. at 694.
“The
likelihood of a different result must be substantial, not just
conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
Only attorney errors that affect the outcome of a criminal
14
proceeding will be grounds for habeas relief.
U.S. at 691.
Strickland, 466
“[A] court need not determine whether counsel's
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies . . . .
If 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.
Petitioner first argues that his trial counsel was
ineffective for not showing the jury the jacket he was wearing
at the time of the incident “so they could see it was impossible
to see a gun in plain view sight so big and long as it was.”
It
appears from the record that the state courts did not reach the
merits of this argument, and thus state court deference may not
apply to this claim.
See Appel, 250 F.3d at 210.
Because this
Court’s de novo review is a more exacting standard than
deference to the state court decision, the Court finds
Petitioner’s claim would fail under either standard.
Petitioner’s argument fails because Petitioner cannot
demonstrate prejudice.
The testimony presented at trial
regarding the discovery of the gun is as follows:
“When
[Petitioner] placed his hands above his head, his jacket raised,
exposing his waistline, and I observed a handgun in his
waistband . . . .
[Petitioner] lifted his arms, his jacket – I
15
think he had a leather jacket on — he exposed it.”
10 at 137, 140.
ECF No. 14-
After Petitioner exposed the gun by raising his
arms, he then uttered that he needed the gun for his protection,
a statement that Officers Gorman, D’Arcangelo, and Porter all
heard.
See id. at 82, 142, 165.
The length of the jacket would
be irrelevant and immaterial in light of Petitioner’s utterance
to the officers and their testimony that they saw the gun in his
waistband when he lifted his arms.
Thus, it cannot be said that
but for counsel’s failure to present to the jury the jacket
there is a reasonable probability that the outcome of the trial
would have been different.
Next, Petitioner argues that his counsel was ineffective
for failing to call a taxi cab service owner as a witness to
testify that Petitioner was waiting for a taxi cab.
It appears
from the record that the state courts did not reach the merits
of this argument, and thus state court deference may not apply
to this claim.
See Appel, 250 F.3d at 210.
Because this
Court’s de novo review is a more exacting standard than
deference to the state court decision, the Court finds
Petitioner’s claim would fail under either standard.
As to this argument, Petitioner fails to demonstrate the
relevance and materiality of such testimony to his case, and
further, fails to demonstrate prejudice.
16
The statute of which
Petitioner was convicted at trial provides:
A person having been convicted in this State or
elsewhere of the crime of aggravated assault, arson,
burglary, escape, extortion, homicide, kidnapping,
robbery, aggravated sexual assault, sexual assault,
bias intimidation . . ., endangering the welfare of a
child . . ., stalking . . . or a crime involving
domestic violence . . ., or a person having been
convicted of a crime pursuant to the provisions of
N.J.S.2C:35-3 through N.J.S.2C:35-6, inclusive;
section 1 of P.L.1987, c.101 (C.2C:35-7); N.J.S.2C:3511; N.J.S.2C:39-3; N.J.S.2C:39-4; or N.J.S.2C:39-9 who
purchases, owns, possesses or controls a firearm is
guilty of a crime of the second degree and upon
conviction thereof, the person shall be sentenced to a
term of imprisonment by the court.
N.J. Stat. Ann. 2C:39-7b.
See also ECF No. 14-10 at 142 (trial
transcript; charge to jury) (“[T]he state must prove
. . .
beyond a reasonable doubt . . . that [Exhibit] S-7 is a
firearm,” “that the defendant purchased, owned, possessed or
controlled the firearm on March 26, 2007 in Pleasantville, New
Jersey,” and “that the defendant is a person who previously has
been convicted of a crime of the third degree.”).
Whether
Petitioner was waiting for a cab is immaterial to whether
Petitioner was in possession of a weapon by a convicted person
in violation of N.J. Stat. Ann. 2C:39-7b.
The fact that this
witness would have allegedly testified that Petitioner was
waiting for a taxi cab does not account for the fact that
Petitioner was in possession of a weapon as a person convicted
of certain offenses.
Because the proposed testimony would be
17
immaterial to the dispositive issues in the trial, Petitioner
cannot demonstrate that the outcome of the trial would have been
different if the witness had testified. 8
Petitioner’s next argument is that his counsel was
ineffective for failing to cross-examine Officer Gorman as to
whether he smelled alcohol on Petitioner.
The state PCR court
did address this claim on the merits, and it reasonably applied
Strickland in denying the claim.
Even without state court
deference, however, the claim would fail under a de novo
standard.
Trial counsel cross-examined Officer Gorman at length
regarding Petitioner’s intoxication or impairment:
Q
A
Yeah, I did.
Q
You did. Did you ask whether he had been
drinking?
A
I did not.
Q
8
Did you ask him any questions to — to confi — to
confirm whether he was okay?
Did you ask him whether he was under the
Whether to call a witness is a strategic decision. See
Henderson v. DiGuglielmo, 138 F. App’x 463, 469 (3d Cir. 2005)
(“Counsel’s failure to call a witness is precisely the sort of
strategic trial decision that Strickland protects from secondguessing.”); Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir.
1998) (“Our review of ineffective assistance of counsel claims
does not permit us, with the benefit of hindsight, to engage in
speculation about how the case might best have been tried. We
therefore accord counsel’s strategic trial decisions great
deference.”)
18
influence of any drugs or alcohol?
A
I did not.
ECF No. 14-10 at 91-92 (trial transcript).
Q
And in your experience arresting or — or with
people who are intoxicated, you sometimes find
out after you think that their speech is strange
or slurred, that they’re in fact non-intoxicated,
right?
A.
Sometimes, yeah. I don’t know what their speech
is like on a prior occasion either though.
Q
Right, so you wouldn’t really know just from the
slurring of his speech that he was intoxicated?
A
It’s an indicator.
factual.
Q
Did you ever confirm whether or not he was on any
drugs or alcohol?
A
Besides him saying that he was on Percocets,
that’s the only confirmation that I have was out
of his mouth.
Q
Okay.
A.
No.
Q
You never checked his urine?
A
No.
Q
By the way, it’s — it’s illegal to be under the
influence of drugs, isn’t it?
A
It’s —
Q
Not legal drugs.
A
Yeah, it is.
It’s not a hundred percent
Id.
You never gave him a breathalyzer test?
19
Q
So, you could have taken a urine test to find out
whether or not there were any illicit drugs in
his system, right?
A
No.
Q
You couldn’t do that?
A
No, I couldn’t — I can’t make —
Q
You’ve never done that?
A
You got to commit a crime. You’ve got to be out
behind a — you got to be behind a — a — wheel to
do that, and even — even with that, you got to,
you know, you got to get his permission to do
that, but you have to be under the influence of a
— of a whe — you know, a car or a motorcycle or
something like that. I just can’t — I just can’t
stop someone on the — on the side of the street
and say, you know, “I need a urine test from you
because I think you are under the influence of
some drug.” I — can’t do that, no.
Id.
Citing Strickland, the PCR court noted the strong
presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance and that Petitioner’s counsel
was not unreasonable in questioning Officer Gorman in the manner
in which she did.
If it were faced with this issue de novo,
this Court would reach the same conclusion.
The cross-
examination of Officer Gorman was well within the prevailing
professional norms, and there is no reasonable probability that
the verdict would have been different if counsel had asked
Officer Gorman whether he smelled alcohol on Petitioner’s
20
breath.
Petitioner’s final argument is that his counsel was
ineffective for failing to ask why the police dispatch report
did not mention an intoxicated person.
It appears from the
record that the state courts did not reach the merits of this
argument, and thus state court deference may not apply to this
claim.
See Appel, 250 F.3d at 210.
Because this Court’s de
novo review is a more exacting standard than deference to the
state court decision, the Court finds Petitioner’s claim would
fail under either standard.
As to this claim, Petitioner cannot demonstrate prejudice.
In order to demonstrate prejudice, Petitioner must show that but
for counsel’s failure of performance, there is a reasonable
probability that the outcome of the proceeding would be
different.
Given the elements of the offense charged, discussed
supra, Petitioner has not and cannot demonstrate that the
report’s lack of reference to an “intoxicated person” would have
changed the result of the trial.
Whether Petitioner was
intoxicated or whether the dispatch report referenced his
alleged intoxication is simply irrelevant to the elements
necessary to sustain a conviction.
There is thus no reasonable
probability that the outcome of the trial would be different but
for counsel’s failure to ask why the report did not reference an
21
“intoxicated person.”.
Petitioner has failed to establish
prejudice as to this claim.
C. Due Process
Petitioner’s second ground for relief is that his right to
due process was violated when an officer “committed perjury at
my grand jury he testified he patted me down but five months
later he testified he never touched me committing perjury.”
No. 1, Pet. at 8.
ECF
It appears from the record that the state
courts did not reach the merits of this argument, and thus state
court deference may not apply to this claim.
F.3d at 210.
See Appel, 250
Because this Court’s de novo review is a more
exacting standard than deference to the state court decision,
the Court finds Petitioner’s claim would fail under either
standard.
Due process is violated “when the State, although not
soliciting false evidence [at trial], allows it to go
uncorrected when it appears.”
269 (1959).
Napue v. Illinois, 360 U.S. 264,
Perjury occurs when a witness “‘gives false
testimony concerning a material matter with the willful intent
to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.’”
United States v.
Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008) (quoting United
States v. Dunnigan, 507 U.S. 87, 94 (1993)).
22
“[I]n order to
make out a constitutional violation [the petitioner] must show
that (1) [the witness] committed perjury; (2) the government
knew or should have known of his perjury; (3) the testimony went
uncorrected; and (4) there is any reasonable likelihood that the
false testimony could have affected the verdict.”
Lambert v.
Blackwell, 387 F.3d 210, 242 (3d Cir. 2004).
A review of Officer Gorman’s testimony regarding the pat
down demonstrates that he did not perjure himself, nor has a
constitutional violation of due process occurred.
At the grand
jury, Officer Gorman testified that, “When I patted him down his
hands were over his head interlocked just for my safety and I’m
patting him down.
Another officer screams out gun.”
14-1 at 6 (grand jury transcript).
ECF No.
At the suppression hearing,
Officer Gorman testified that, “I didn’t even pat him down.”
ECF No. 14-2 at 21 (suppression hearing transcript).
At trial,
however, he went on to explain the context of his prior
statements and provided a comprehensive account of how the
mechanics of the pat down occurred:
A
So, I told him to turn around, put his hands on
top of his head, and interlock his fingers.
Q
Did he put his arms over his head?
A
He — I had
movement.
He was — I
That’s how
to actually kind of help him do this
He wasn’t doing anything voluntarily.
would s — say give him 50 percent.
I would classify it. I had to kind of
23
turn him, show him exactly how I want him to. I
said, Put your hands on top of your head.” I
said that a couple of times. He finally — he
finally did it, but he put his hands on top of
his head like this. He wouldn’t interlock — he
would not even come close to interlocking his
fingers. I asked him again, then he went like
this. Well, that’s not interlocking your
fingers. And then, I did it myself.
Q
You did it yourself for him?
A
I did.
Q
After you got him to interlock his fingers, did
you ask him anything?
A
I asked him if he had anything on him that would
hurt me.
Q
Okay.
A
Any weapons or anything on him that would hurt
me.
Q
Any response?
A
It was, at that time, you know, no.
Q
Okay, what happens at that point?
A
At that time, . . . I’m going to pull him back a
little bit. . . . [I]f someone’s 6 ft., and I’m
. . . 5’8”, I have to bring him down towards me a
little bit to position myself to be able to make
as safe as possible in that situation to, you
know, maneuver where I have to maneuver. So, as
I’m doing that, I’m getting him perfect for me to
initiate my pat down of him. Again, he would be
brought back a little bit, and I’m going to reach
around, and you start from — this is how I was
trained, at least — you start from the head to
the — to the feet. All the way down to the feet.
Q
Okay.
A
Did I actually — technically, a “frisk” is
24
You know.
If anything?
Did you ever frisk him?
starting from the fingers, because you search
someone’s fingers — they could have a . . . blade
in there, they could have anything. So, by
definition, did I — did I frisk him? If you want
to count that. Yeah. I would say yes.
Q
Were you planning on frisking him more?
A
Yes. I was going to — I was going to pat him
down for — again. If he had a weapon or anything
that would hurt me.
ECF No. 14-10 at 79-81 (trial transcript).
Officer Gorman,
however, was unable to continue to pat down Petitioner because
Officer D’Arcangelo spotted the gun and yelled, “gun.”
Here, Petitioner has failed to establish a constitutional
violation of due process.
After a comprehensive review of
Officer Gorman’s testimony, the Court cannot conclude that
Officer Gorman perjured himself regarding whether he did or did
not pat down Petitioner.
Officer Gorman provided testimony at
trial to put his prior statements into context:
that the
technical start of a “pat down” occurred when Petitioner stood
with interlocked fingers and Officer Gorman started his visual
inspection, but that Officer Gorman never had an opportunity to
finish the “pat down” with a physical pat down to feel for
weapons.
It is clear from Officer Gorman’s explanation at trial
that a pat down is a process with various stages to it, which
explains the alleged discrepancy in his prior testimony.
Court cannot discern any willful intent to provide false
25
The
testimony on the part of Officer Gorman, who tried only to
explain how the events unfolded.
Furthermore, Petitioner has
not established the elements necessary to sustain a
constitutional due process violation, and at no point in the
Petition has Petitioner even attempted to explain how any
discrepancy over the pat down would have affected or undermined
the verdict.
Notably, the testimony at trial is that Officer
D’Arcangelo visualized the gun in Petitioner’s waistband when he
lifted his arms above his head at the start of the pat down.
Whether a gun would have been discovered in the latter portions
of the physical pat down or whether a full pat down occurred
would appear to be irrelevant and immaterial to the elements
necessary to sustain a conviction.
Because Petitioner has
failed to establish a violation of his due process rights, the
Court will deny the second ground for relief in the Petition.
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
26
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 (2003).
Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.
Thus, no certificate
of appealability shall issue.
V.
CONCLUSION
For the above reasons, the § 2254 habeas petition will be
denied, and a certificate of appealability will not issue.
An
appropriate Order follows.
Dated: November 1, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?