GROHS v. LANIGAN et al
Filing
23
OPINION. Signed by Judge Jerome B. Simandle on 3/27/2019. (rss, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STEVEN GROHS,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-8024 (JBS)
v.
ADMINISTRATOR OF THE SPECIAL
TREATMENT UNIT, et al.,
OPINION
Respondents.
APPEARANCES:
Steven Grohs, Pro Se
594, Special Treatment Unit, South
Avenel, New Jersey 07001
Mark D. McNally, Deputy Attorney General
Office of the New Jersey Attorney General
New Jersey Department of Law & Public Safety
Division of Law, Health & Human Services Section
P.O. Box 112, 25 Market Street
Trenton, New Jersey 08625
Attorney for Respondents
SIMANDLE, District Judge:
I.
INTRODUCTION
Steven Grohs (“Grohs”) has submitted a petition
(“Petition”) for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (ECF 1.) Grohs completed his term of imprisonment for the
crime of attempted luring and enticing a child, and he has been
civilly committed since 2011 as a sexually violent predator. The
Administrator of the Special Treatment Unit and the Attorney
General of the State of New Jersey (collectively, “Respondents”)
oppose the Petition. (Answer, ECF 19.)
In this Petition, Petitioner challenges his prior criminal
conviction, alleging ineffective assistance of counsel in
pleading guilty without understanding the risk of a subsequent
civil commitment. The principal issues to be determined are: (1)
whether Petitioner, challenging his 2009 criminal conviction,
for which imprisonment ended in 2011, satisfies the “in custody”
requirement of § 2254 by his present civil commitment; and (2)
whether, assuming the existence of § 2254 jurisdiction, the
state court’s rejection of Petitioner’s ineffective assistance
of counsel claim was contrary to, or an unreasonable application
of, the governing federal precedent in Strickland v. Washington,
466 U.S. 668 (1984), and its progeny.
For the reasons stated herein, the Petition shall be denied
and no certificate of appealability shall issue.
II.
BACKGROUND
In September 2008, Petitioner was indicted in Camden
County, New Jersey, on fifteen counts of luring a child,
criminal sexual contact, child welfare endangerment, and related
offenses arising from his contact with a 14-year-old boy when
Grohs was 42. (ECF 19-3.)
On December 15, 2008, Petitioner entered a guilty plea to a
charge of Attempted Luring or Enticing a Child in violation of
2
N.J. Stat. Ann. § 2C:13-6. (ECF 19-4.) Represented by counsel,
Petitioner executed a plea form, setting forth the conditions of
his guilty plea (id. at 1-4), as well as a supplemental plea
form concerning the civil commitment implications of his guilty
plea to sexual offense charges (“Supplemental Form”). (Id. at 58.)
The Supplemental Form’s “Civil Commitment” section
provided:
Do you understand that if you are convicted
of a sexually violent offense, such as
aggravated sexual assault, sexual assault,
aggravated criminal sexual contact,
kidnapping under 2C:13-1(c)(2)(b), criminal
sexual contact, felony murder if the
underlying crime is sexual assault, an
attempt to commit any of these offense, or
any offense for which the court makes a
specific finding on the record that, based
on the circumstances of the case, the
offense should be considered a sexually
violent offense, you may upon completion of
your term of incarceration, be civilly
committed to another facility if the court
finds, after a hearing, that you are in need
of involuntary civil commitment?
(Id. at 8 (“Civil Commitment Provision”).) Petitioner circled
the answer “YES” directly next to this section. (Id.) He signed
and dated the bottom of this form. (Id.)
On December 15, 2008, the Law Division of the Superior
Court of New Jersey (“Law Division”) held Petitioner’s plea
hearing. (ECF 19-5.) At the hearing’s commencement, an Assistant
Camden County prosecutor, Christine Shah, noted on the record
3
that she and Petitioner had executed the final page of the plea
form and that he had circled the “Yes,” to the Civil Commitment
Provision. (Id. at 3.) The trial judge, the Honorable Lee A.
Solomon, J.S.C., now Justice of the New Jersey Supreme Court,
discussed the plea with Petitioner, affording him the
opportunity to ask questions of counsel and the court. (Id. at
4.) Petitioner’s responses to Judge Solomon’s questions on the
record demonstrated that: Petitioner spoke to his counsel,
Leslie Jackson, Esquire, before accepting the plea (id. at 5);
Petitioner had received the opportunity to ask her all of his
questions (id.); Ms. Jackson answered all of Petitioner’s
questions (id.); Petitioner had no further questions for Ms.
Jackson, Ms. Shah, or Judge Solomon (id.); and Petitioner was
satisfied with Ms. Jackson’s representation. (Id. at 6.)
Judge Solomon established on the record that Petitioner
understood the significance of his guilty plea and that he
accepted the factual basis for his plea. (Id. at 6-7) (asking
Petitioner’s awareness of, inter alia, the fact he would give up
certain federal and state constitutional rights by virtue of his
guilty plea). Judge Solomon further questioned Petitioner as
follows:
COURT: You're pleading guilty here today,
are you doing so of your own free will?
GROHS: Yes, Your Honor.
4
COURT: Nobody threatened you, coerced you or
forced you in any way to plead guilty?
GROHS: No, sir.
COURT: And once again, you've had a chance
to speak to Ms. Jackson?
GROHS: Yes, sir.
COURT: And you're satisfied with the way
she's represented you in this matter?
GROHS: Absolutely, Your Honor.
(Id. at 8.)
In response to Judge Solomon’s questions, Petitioner also
expressly testified that he reviewed the plea form with Ms.
Jackson and that he understood all of its contents. (Id.)
Judge Solomon then discussed the civil commitment
implications of Petitioner’s guilty plea. Specifically, Judge
Solomon noted that a petition for civil commitment could be
filed in the future, and both Petitioner and Ms. Jackson
acknowledged this fact. (Id. at 8-9.)
On February 20, 2009, and pursuant to his guilty plea,
Petitioner was convicted of Attempted Luring or Enticing a
Child. He was sentenced to five years’ imprisonment, with 728
days of jail credit. (ECF 19-6; ECF 19-7.) Accordingly,
Petitioner’s incarceration for this criminal conviction would
run until February 22, 2012.
5
On February 22, 2011, the Attorney General of the State of
New Jersey petitioned the Law Division to involuntarily civilly
commit Petitioner as a sexually violent predator under New
Jersey’s Sexually Violent Predator Act, N.J. Stat. Ann. § 30:427.24 to -.38 (“SVPA”). (ECF 19-8.)
On February 24, 2011, the Superior Court of New Jersey, Law
Division, Cumberland County, involuntarily civilly committed
Petitioner to the Special Treatment Unit (“STU”) in Avenel, New
Jersey. (ECF 19-9.) The Honorable Richard J. Geiger civilly
committed Petitioner pursuant to N.J. Stat. Ann. § 30:4-27.24,
et seq., which provides, in pertinent part:
Certain individuals who commit sex offenses
suffer from mental abnormalities or
personality disorders which make them likely
to engage in repeat acts of predatory sexual
violence if not treated for their mental
conditions ... [Therefore, there is a] need
for commitment of those sexually violent
predators who pose a danger to others should
they be returned to society ... If the court
finds that there is probable cause to
believe that the person is a sexually
violent predator in need of involuntary
commitment, it shall issue an order setting
a date for a final hearing and authorizing
temporary commitment to a secure facility
designated for the custody, care and
treatment of sexually violent predators
pending the final hearing.
6
N.J. Stat. Ann. § 30:4-27.25, § 30:4-27.28. Petitioner’s civil
commitment1 in 2011 to the STU followed expiration of
Petitioner’s criminal incarceration imposed in 2009.
On June 14, 2011, Grohs filed a petition for postconviction relief (“PCR”) pertaining to his 2009 criminal guilty
plea and sentence. (ECF 19-10.) On August 25, 2011, Petitioner
was assigned PCR counsel to represent him. (ECF 19-11.) On
January 25, 2012, Petitioner’s PCR counsel filed his brief in
support of PCR, asserting that trial counsel rendered
ineffective assistance for not notifying Petitioner of the civil
commitment ramifications of his guilty plea. (ECF 19-12.)
On July 26, 2013, following oral argument and supplemental
briefing, the trial court denied PCR in an oral decision. (ECF
19-18.) In her findings of fact, the Honorable Michele M. Fox,
J.S.C. noted that: Petitioner had circled “yes” next to the
Civil Commitment Provision; he testified under oath that he had
reviewed the plea form in its entirety and understood it; and
1
On August 22, 2014, Petitioner filed with this Court a petition
for habeas corpus relief under 28 U.S.C. § 2254 challenging the
Law Division’s order for his civil detention. Grohs v.
Administrator of the Special Treatment Unit, No. 14-5268. (No.
14-cv-5268, ECF 3 at 2.) On March 27, 2018, this Court denied
that habeas petition with prejudice and denied a certificate of
appealability. (No. 14-cv-5268, ECF 14 and ECF 15.) Petitioner
states that the judgment challenged in his instant habeas
Petition is the Camden County Law Division’s December 15, 2008
criminal judgment against him (No. 15-cv-8024, ECF 1 at 2; ECF
20-2 at 26), and not his ongoing order for civil commitments.
7
the prosecutor had made special note of civil commitment during
his plea hearing. (Id. at 15-16.) Finding that Petitioner had
failed to establish a prima facie case of ineffective assistance
of counsel (“IAC”) in accordance with Strickland v. Washington,
466 U.S. 668 (1984), Judge Fox determined that Petitioner was
not entitled to an evidentiary hearing as to his ineffective
assistance of counsel claim. (Id. at 17-18.)
On November 26, 2013, Petitioner directly appealed the Law
Division’s July 26, 2013 Order. (ECF 19-20.) Petitioner’s April
21, 2014 appellate brief argued that the trial court had
established only that he understood the plea form generally and
not necessarily the civil commitment consequences of his plea.
(ECF 19-21 at 14-15.)
On January 28, 2015, the Appellate Division of the Superior
Court of New Jersey (“Appellate Division”) affirmed the Superior
Court’s denial of Petitioner’s PCR application. (ECF 19-23.)
On February 19, 2015, Petitioner sought certification of
the Appellate Division’s January 28, 2015 ruling. (ECF 19-24,
ECF 19-25, ECF 19-26.) On March 19, 2015, Petitioner withdrew
that petition for certification (ECF 19-28, ECF 19-29), and
instead filed an April 1, 2015 motion for reconsideration with
the Appellate Division. (ECF 19-30.)
On May 6, 2015, the Appellate Division denied Petitioner’s
motion for reconsideration. (ECF 19-31.)
8
On May 13, 2015, Petitioner again filed a petition for
certification with the New Jersey Supreme Court as to the
Appellate Division's January 28, 2015 decision. (ECF 19-32, ECF
19-33.) On October 9, 2015, the New Jersey Supreme Court denied
Petitioner’s petition for certification. (ECF 19-35.)
On November 10, 2015, Petitioner filed the present § 2254
habeas Petition with this Court. (ECF 1.)
By Order entered January 13, 2016, this Court construed the
sole claim of the Petition as raising “th[e] issue whether
Petitioner’s trial counsel rendered ineffective assistance of
counsel for failing to advise him adequately of the civil
commitment consequences of his plea” (referred to as
Petitioner’s “IAC Claim”). (ECF 7.)
On April 13, 2016, Respondents filed a Notice of Change in
Petitioner’s Custody Status. The criminal incarceration
challenged by the sole count of Petitioner’s Petition ended on
or about February 22, 2011, when he was civilly committed to the
STU, as noted above. (ECF 17.) Respondents thereafter filed a
response to the Petition (ECF 19), and Petitioner filed his
reply. (ECF 20.)
Having reviewed the submissions of the parties, the Court
now denies the Petition and denies a Certificate of
Appealability, for the reasons explained below.
9
III. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
permits a federal court to entertain a petition for writ of
habeas corpus on behalf of a person in state 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.” 28 U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
the claim:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is “contrary to”
Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
“[A] state-court decision is an unreasonable application of
clearly established precedent if it correctly identifies the
10
governing legal rule but applies that rule unreasonably to the
facts of a particular prisoner's case.” White v. Woodall, 134 S.
Ct. 1697, 1706, reh'g denied, 134 S. Ct. 2835 (2014). Habeas
courts must presume that state court factual findings are
correct unless petitioners rebut the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
IV. ANALYSIS
A.
Habeas Jurisdiction
In their Answer to the Petition, Respondents suggest that
the Petition fails 28 U.S.C. § 2254(a)’s habeas jurisdictional
requirement that Petitioner must have been “in custody” at the
time he filed the Petition. (ECF 19-1 at 18-19.) Petitioner
challenges Respondents’ contention, arguing that his civil
commitment satisfies § 2254(a)’s requirement. (ECF 20 at 5; ECF
20-2 at 42-48.) The record before this Court indicates that
Petitioner fails to meet the jurisdictional “in custody”
requirement.
1. The Petition As A Challenge To Petitioner’s 2009
Criminal Conviction
The Petition herein indicates this is a challenge to the
criminal conviction for attempting to lure a child upon which
Petitioner was sentenced on February 20, 2009. (ECF 1 at ¶¶ 15.) Petitioner’s Reply brief likewise claims that the Petition
challenges his February 2009 criminal conviction. (ECF 20-2 at
11
26 (“It is that underlying criminal conviction which Petitioner
is challenging in this action”).) His five-year incarceration
from that conviction expired on or about February 24, 2011, when
his imprisonment ended and his present civil commitment as a
sexually violent predator began.
Petitioner was no longer incarcerated at South Woods State
Prison when he filed his § 2254 Petition on November 6, 2015,
but was instead civilly committed at the STU at Avenel.
Accordingly, to the extent the Petition is challenging
Petitioner’s criminal conviction, he was not “in custody” for
purposes of § 2254(a) at the time the Petition was filed.
2. The Petition As A Challenge To Petitioner’s 2011
Civil Commitment
While Petitioner’s filings make clear that he is
challenging his 2009 criminal conviction, for purposes of
completeness this Court also notes that Petitioner cannot
challenge his 2011 civil commitment in this proceeding, as: (1)
the Petition did not comply with 28 U.S.C. § 2244(b)(3)(A); and
(2) Petitioner’s civil commitment was a collateral, not direct,
consequence of his criminal conviction.
Second or successive habeas application under 28 U.S.C. §
2244(b)(3)(A): Petitioner challenged his February 24, 2011 civil
commitment with his § 2254 petition before this Court in Grohs
v. Administrator of the Special Treatment Unit, No. 14-5268.
12
(No. 14-cv-5268, ECF 3 at 2.) See n.1, supra. On March 27, 2018,
this Court denied that habeas petition with prejudice and denied
a certificate of appealability. (No. 14-cv-5268, ECF 14 and ECF
15.)
Petitioner has not sought authorization from the Third
Circuit Court of Appeals to file a second or successive habeas
application challenging his civil commitment. See 28 U.S.C. §
2244(b)(3)(A) (“Before a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an
order authorizing the district court to consider the
application”).
Accordingly, to the extent the Petition is challenging
Petitioner’s February 24, 2011 civil commitment to the STU, he
has not obtained the requisite § 2244(b)(3)(A) clearance from
the Third Circuit for a second or successive petition. While
there are some references to Petitioner’s ongoing civil
commitment, it is clear as a matter of law that he cannot
challenge that a second time.
Petitioner’s civil commitment was a collateral consequence
of his criminal conviction: Here, the criminal conviction did
not impose a period of civil commitment, which was achieved
after a separate civil proceeding, in accordance with New
Jersey’s Sexually Violent Predator Act, supra. Courts have
13
relied on the distinction between the direct consequences of a
criminal conviction and its collateral consequences for purposes
of the “in custody” requirement of habeas jurisdiction. See,
e.g., Stanbridge v. Scott, 791 F.3d 715, 719 (7th Cir. 2015) (a
limitation is a direct consequence of a conviction if it is
“imposed by the sentencing court as part of the authorized
punishment, and included in the court’s judgment,” whereas
collateral consequences of judgments are “not included in the
court’s judgment, no matter whether the consequence is imposed
on a person automatically upon conviction or serves as a
necessary predicate for a subsequent determination by a court or
administrative agency on grounds related to the conviction”);
Piasecki v. Court of Common Pleas of Bucks Cty., No. 2016 WL
11448939, at *3 (E.D. Pa. Apr. 21, 2016) (citing cases). In
Stanbridge, the petitioner was civilly confined pursuant to the
Illinois Sexually Violent Persons Commitment Act after he had
already served his full criminal sentence on his sexual abuse
conviction. See 791 F.3d at 716. In that case, similar to the
instant case, the petitioner challenged his criminal conviction,
not his civil confinement. See id. Ultimately, the Seventh
Circuit determined that petitioner was not “in custody” pursuant
to his sexual abuse conviction, but rather he was “in custody”
on his civil commitment. See id. at 720-21. The Seventh Circuit
held that Stanbridge’s “restraint is not a direct consequence of
14
his criminal conviction. Rather, his civil commitment is clearly
a collateral consequence of his criminal conviction, as it was
not part of the judgment in the criminal case. See id. at 721
(citations omitted).
In this case, similar to Stanbridge, Petitioner’s civil
commitment to the STU is a collateral -- not direct -consequence of his February 20, 2009 criminal conviction. The
commitment was not imposed by the sentencing court and was not
included in the court’s judgment. (ECF 19-6.) Given that a
habeas petitioner is not “in custody” pursuant to a particular
limitation “unless his physical liberty of movement is limited
in a non-negligible way and that limitation is a direct
consequence of the challenged conviction,” Stanbridge, 791 F.3d
at 719 (emphasis added), Petitioner was not, at the time he
filed the Petition, “in custody” with respect to a challenge to
his criminal conviction and judgment.
Petitioner’s citation (ECF 20-2 at 26) to Bosner v. Dist.
Attorney of Monroe Cty., 659 F. App’x 126 (3d Cir. 2016) does
not alter this finding. In Bosner, the petitioner sought habeas
relief on his criminal conviction for unlawful contact with a
minor. See 659 F. App’x at 127. As a result of this conviction,
Bosner had to register as a sex offender. Id. His failure to
register led to a conviction and imprisonment, such that Bosner
was “in custody” because he failed to comply with a condition
15
arising from his initial criminal conviction. Ultimately, a
Third Circuit panel noted that sex offender registration
requirements do not constitute a “physical restraint” and do not
satisfy the “in custody” requirement of § 2254. The Third
Circuit affirmed the District Court in finding that Bosner was
not “in custody” on the expired sentence of imprisonment for
unlawful contact with a minor. See Bosner, 659 F. App’x at 129.
Nevertheless, and also for purposes of completeness, even
if this Court were to find that Petitioner was “in custody” on
his criminal conviction, his federal habeas claim fails on the
merits for the reasons described infra.
B.
Petitioner’s IAC Claim
As noted above, Petitioner’s IAC Claim is the sole ground
asserted in his Petition.
The PCR court rejected Petitioner’s IAC Claim. In rendering
the court’s decision, Judge Fox meticulously detailed the
testimony that Petitioner had given at his plea hearing
regarding his counsel’s assistance and his understanding of his
plea’s implications. Judge Fox noted the following:
At the plea hearing Prosecutor Shah stated
to the court in the presence of the
defendant and the defendant’s attorney, Ms.
Jackson, “the defendant also circled yes to
the paragraph that explains civil commitment
so I believe that’s everything, Judge.” Plea
transcript at page 5.
16
The defendant was placed under oath and
Judge Solomon colloquied the defendant ...
Judge Solomon explained to the defendant
that if he accepted the defendant's plea and
the defendant was released from state prison
after three years the defendant would then
be on parole, supervision for life and would
be required to register as a sex offender
pursuant to Megan's Law. The defendant
responded that he understood. Plea
transcript at pages 8 to 9. The defendant
answered affirmatively when asked by Judge
Solomon if he had had an opportunity to ask
questions of Ms. Jackson, whether Ms.
Jackson had answered all of the defendant's
questions, whether the defendant had any
questions of Ms. Jackson, Prosecutor Shah,
or the court, and if the defendant was
satisfied with Ms. Jackson’s representation.
Plea transcript at pages 9 to 10.
The following exchange then occurred between
Judge Solomon and the defendant with respect
to the plea form and supplemental plea form:
Judge: So there's a plea form and then there
are four additional pages comprising
supplemental plea forms. Do you see all
those?
Defendant: Yes, Judge.
Judge: Did you have a chance to go over them
with your attorney?
Defendant: Yes, Judge.
Judge: Do you understand everything on those
forms?
Defendant: Yes, sir.
Judge: Did you provide Ms. Jackson the
information she used to answer the questions
on those forms?
Defendant: Yes, sir.
17
Judge: Did you initial and sign, actually
initial pages one, two and three of the plea
form, sign page four of the plea form, and
sign, I believe you signed each of the
supplemental plea forms on the four pages?
Ms. Jackson: Judge, I had him initial pages
one through three on the supplemental.
Judge: And sign page four. Did you initial
and sign each of those pages to indicate
that you understood everything on those
pages?
Defendant: Yes, Judge.
Judge: Did you initial and sign each of
those pages to indicate that all the answers
given are true and correct?
Defendant: Yes, Judge.
Judge: If I were to ask you each and every
question as it appears on the four page plea
form and on the four page supplemental plea
form, would your answers be the same answers
that appear on the plea form and the
supplemental plea form?
Defendant: Yes, sir. Plea transcript at
pages 15 to 16.
(ECF 19-18 at 5-6 (emphasis added).)
With respect to Petitioner’s IAC Claim -- “that Ms. Jackson
failed to advise him of the consequence of civil commitment upon
completion of his sentence” (id. at 12) -- Judge Fox found that
Petitioner had not established either of the two requisite
prongs for IAC claims as set forth in Strickland v. Washington,
466 U.S. 668 (1984). (Id. at 15-17.)
18
The Appellate Division affirmed the PCR trial court’s
decision “for the reasons stated in Judge Michele M. Fox’s
thorough oral decision of July 26, 2013.” (ECF 19-23 at 1.) The
Appellate Division then “add[ed] the following[:] [...] The
record clearly supports that defendant was made aware of the
potential civil commitment in accord with [State v.] Bellamy[,]
[178 N.J. 127, 136-40 (2003)].” (Id. at 4.)
Petitioner’s IAC Claim in the Petition fails because the
state courts’ rulings were neither contrary to, nor an
unreasonable application of, United States Supreme Court
precedent.
The Supreme Court set forth the standard by which courts
must evaluate IAC claims in Strickland v. Washington, 466 U.S.
668 (1984). First, the defendant must show that counsel’s
performance was deficient. This requirement involves
demonstrating that counsel made errors so serious that he was
not functioning as the “counsel” guaranteed by the Sixth
Amendment. Id. at 687. Second, the defendant must show that he
was prejudiced by the deficient performance. Id. This requires
showing that counsel’s errors deprived the defendant of a fair
trial. Id.
As to Strickland’s first prong, counsel’s performance is
deficient if his or her representation falls “below an objective
standard of reasonableness” or outside of the “wide range of
19
professionally competent assistance.” Id. at 690. In examining
the question of deficiency, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. In
addition, judges must consider the facts of the case at the time
of counsel’s conduct, and must make every effort to escape what
the Strickland court referred to as the “distorting effects of
hindsight.” Id.
As to Strickland’s second prong, a defendant must show a
reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. Id. at 694.
The petitioner bears the burden of showing that counsel’s
challenged action was not sound strategy. Kimmelman v. Morrison,
477 U.S. 365, 381 (1986).
“With respect to the sequence of the two prongs, the
Strickland Court held that ‘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, which we expect will often be so, that course should
be followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d. Cir.
2010) (quoting Strickland, 466 U.S. at 697)).
When assessing an IAC claim in the federal habeas context,
“[t]he pivotal question is whether the state court’s application
20
of the Strickland standard was unreasonable,” which “is
different from asking whether defense counsel’s performance fell
below Strickland’s standard.” Grant v. Lockett, 709 F.3d 224,
232 (3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86,
101 (2011)). “A state court must be granted a deference and
latitude that are not in operation when the case involves
[direct] review under the Strickland standard itself.” Id.
Federal habeas review of ineffective assistance of counsel
claims is thus “doubly deferential.” Id. (quoting Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011)). Federal habeas courts
must “take a highly deferential look at counsel’s performance”
under Strickland, “through the deferential lens of § 2254(d).”
Id. (internal quotation marks and citations omitted).
Ineffective assistance of appellate counsel is judged by the
Strickland standard as well. Albrecht v. Horn, 485 F.3d 103, 137
(3d Cir. 2007) (quoting United States v. Mannino, 212 F.3d 835,
840 n.4 (3d Cir. 2000)).
Here, the state court’s rulings on Petitioner’s IAC Claim
were neither contrary to, nor an unreasonable application of,
Strickland and its progeny.
First, with respect to Strickland’s defective performance
prong, and as Judge Fox noted, “defendant cited no case holding
that defense counsel is required to advise the defendant of the
potential for civil commitment as a consequence to accepting a
21
plea to a non-predicate offense.” (ECF 19-18 at 15.) “However,
[even analyzing] ... the performance of [Petitioner’s] counsel
[under such] a [hypothetical] duty,” this case still does not
demonstrate IAC “under Strickland prong one,” as Judge Fox
ruled. (Id. at 16.) Petitioner “was advised of the potential for
civil commitment[.] [H]e understood it ... The defendant circled
‘yes’ on the supplemental plea form [indicating he understood
it] ... Even more compelling is that in [his] Petition for PostConviction Relief[,] [Petitioner] wrote ‘the court duly advised
defendant that his guilty plea as to count one attempting to
lure or entice a child, created a reasonable probability that
defendant may be civilly committed upon his release from
prison.” (Id. at 15-16.) Indeed, Petitioner acknowledged to
Judge Solomon that he understood and accepted that risk, as
noted above.
In this situation, Petitioner has not demonstrated that
counsel’s representation “fell below an objective standard of
reasonableness under prevailing professional norms taking into
account all of the circumstances.” United States v. Scott, 664
F. App’x 232, 241 (3d Cir. 2016). In fact, Petitioner’s very
specific contentions in his PCR brief and his own repeated
acknowledgments of his plea’s implications at the December 15,
2008 hearing fatally undercut any suggestions either that: (1)
22
he was not informed about the potential for civil commitment, or
(2) Ms. Jackson was somehow at fault for not informing him.
Since failure to satisfy either Strickland prong defeats an
ineffective assistance of counsel claim, Petitioner’s failure to
demonstrate the deficient performance prong renders his IAC
Claim fatally defective -- even without demonstration of
deficiencies in his prejudice showing. See Strickland, 466 U.S.
at 697-98. Nevertheless, this Court will also discuss
Strickland’s prejudice prong, since the PCR trial court
considered that issue.
As noted supra, Petitioner’s IAC Claim is “that Ms. Jackson
failed to advise him of the consequence of civil commitment upon
completion of his sentence.” (ECF 19-18 at 12.) Judge Fox noted
that Petitioner “had the choice between accepting a plea to
second degree attempting to lure or entice a child for which
[he] received five years [in] New Jersey state prison, 85
percent parole ineligible as part of the sentence, or proceeding
to trial on a 15 count indictment, 12 counts of which are
predicate offenses under the Sexually Violent Predators Act ...
Additionally, [he] would have had to consider the potential
effect and exposure of his own admissions and his prior criminal
record, provided they could have been used at trial.” (ECF 19-18
at 16-17.)
23
Petitioner thus contends that counsel failed to advise him
of all the consequences of his plea2, and that if he had received
this information, he would not have entered a guilty plea. (ECF
20-2 at 10-11 and at 32-33 (“On December 13, 2008, Petitioner
engaged in a[n] out-of-court verbal discussion with his assigned
public defender ... Trial counsel conveyed information that it
was unlikely that the State would initiate civil commitment
proceedings against him because the section of the plea form
regarding civil commitment was only a ‘formality’”).)
In this situation, Petitioner “must show that there is a
reasonable probability that, but for counsel’s [alleged] errors,
he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). See
also Strickland, 466 U.S. at 694 (a “petitioner must demonstrate
that there is a reasonable probability, 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”).
However, Petitioner has expressly acknowledged that
“because of health concerns, he had no desire to remain in the
2
Petitioner’s criticism rings hollow, in any event. Petitioner
expressly acknowledged both by his signature on the Supplemental
Form (ECF 19-4 at 8) and by his verbal testimony under oath that
he understood the civil commitment implications of his guilty
plea. (ECF 19-18 at 15-16.)
24
custody of CCCF for another two (2) years [awaiting trial].”
(ECF 1-2 at 5.) That acknowledgment is inconsistent with any
purported contention that he would have insisted on going to
trial but for counsel’s advice.3 Furthermore, it is reasonable to
think that Petitioner would not have wanted to proceed to trial,
considering the risk that his prior offense history could be
introduced against him. (ECF 19-7 at 2-4 (referring to “four
prior circuit court convictions in Florida” involving “similar
kinds of [sexual misconduct] offenses”; noting the “similarity
3
The Third Circuit has held that “a defendant must make more
than a bare allegation that but for counsel's error he would
have pleaded not guilty and gone to trial.” Rice v. Wynder, 346
F. App’x 890, 893 (3d Cir. 2009). This Court notes the following
observations from the record with respect to Petitioner’s
burden. First, Petitioner has not submitted to this Court an
affidavit from any third persons, such as trial counsel,
regarding the content of their December 13, 2008 meeting.
Second, the declaration that Petitioner himself executed and
filed with his traverse relates exclusively to the issue of
expiration of his criminal conviction. (ECF 20-1.) Finally,
Exhibit Two appended to his § 2254 Petition expressly purports
to be a five-page continuation of his answer to Petition
Question 12(a) regarding 2007 – 2009 procedural events. (ECF 1-2
at 5-8.) While the filed copy of Exhibit Two is missing page
five (ECF 1-2 at 8-9), its content regarding December 2008
appears complete in its chronological sequence of events. It
does not make any allegations regarding trial counsel’s plea
advice or Petitioner’s intent to proceed to trial. (ECF 1-2 at
7-8.) Even if Exhibit Two had alleged that Petitioner would have
gone to trial but for counsel’s alleged mis-advice, his
unsupported assertions would have been insufficient to sustain
his habeas claim. See Rice, 346 F. App’x at 893. In any event,
Exhibit Two in relation to Strickland prejudice is not
dispositive of Petitioner’s IAC Claim. Petitioner has not
demonstrated Strickland’s deficient performance prong, as
discussed supra.
25
and the recurrence of [Petitioner’s] prior [sexual] offenses”;
referring to “a pending charge out of Dover for [Petitioner’s]
failure to register [as a sex offender]”; and stating that
Petitioner has served “substantial periods of incarceration[,]
and despite that[,] he continues to engage in those kinds of
activities”).) Nowhere does Petitioner claim he is not guilty or
otherwise had viable defenses to the many charges he would have
faced at trial.
Accordingly, the PCR court’s decision that Petitioner
failed to demonstrate prejudice is consistent with Strickland
and its progeny. Petitioner’s case is, in fact, analogous to the
facts in Brown v. Goodwin, No. 09-211, 2010 WL 1930574, at *1
(D.N.J. May 11, 2010), where petitioner “assert[ed] that his
trial counsel failed to inform him about the possibility of
civil commitment upon expiration of [his] prison term.” Id. at
*12. The Brown state courts examined materials similar to those
that exist in Petitioner’s case:
(a) [T]he plea forms and supplemented plea
forms executed by Petitioner (and these plea
forms, indeed, duly notified Petitioner of
the possibility of civil commitment);
(b) Petitioner's trial judge’s questions to
Petitioner verifying that Petitioner’s
attorney had explained everything on the
plea forms to Petitioner, and Petitioner’s
affirmation of the same;
(c) Petitioner’s acknowledgment that he was
subject to confinement at Avenel, if a
26
psychological examination revealed that his
conduct was characterized by a pattern of
repetitive and compulsive behavior; and
(d) [T]he prosecutor’s statements made
during the plea hearing reviewing the terms
of the plea agreement and stating that
Petitioner could be civilly committed upon
expiration of his prison term.
Id. at *12. From these materials, the Brown state courts “made
factual finding that Petitioner was adequately informed of the
possibility of civil commitment at the conclusion of his penal
sentence.” Id.
The Brown petitioner “offer[ed] th[e] [habeas] Court no
evidence whatsoever, and certainly no clear and convincing
evidence, suggesting that th[e] [state courts’] factual finding
was erroneous.” Id. The Brown petitioner's assertions, analogous
to those of Petitioner herein, were “limited to a bold
conclusion ‘that counsel was ineffective for failing to inform
[Petitioner,] before he pled guilty[,] that he faced a
probability of indefinite civil commitment.’” Id.
“However, [the Brown] [p]etitioner's loss of excitement
about the deal he made, or his assertion that he was entering
his plea without ‘sufficient understanding of penal
consequences,’” did “not provide th[e] [Brown] Court with any
evidence that Petitioner was uninformed of the possibility of
civil commitment.” Id.
27
Petitioner’s claim here suffers the same fatal
shortcomings. Petitioner having signed the plea form and
supplemental form, his having responded to the sentencing
court’s express questions about plea implications, and the
prosecutor having expressly referenced at the sentencing hearing
the possibility of commitment, Petitioner here, as in Brown,
cannot under these facts “show that there is a reasonable
probability that, but for counsel’s [alleged] error[] [in not
advising about commitment potential], he ... would have insisted
on going to trial.” Hill, 474 U.S. at 59. In short, Petitioner
knew about civil commitment possibility. See also Connolly v.
United States, No. 14-3574, 2017 WL 396540, at *3 (D.N.J. Jan.
30, 2017) (“Sixth Amendment claims fail even where a defendant
has been misled by counsel about the severity of a sentence
permitted by a plea agreement, so long as the defendant
acknowledges to the sentencing court that he understands the
implications of his plea”) (citing Fahfleder v. Varner, 32 F.
App’x 621, 622 (3d Cir. 2002) and United States v. Mustafa, 238
F.3d 485, 492 (3d Cir. 2001)).
For all of these reasons, Petitioner has not shown that the
PCR trial court’s opinion regarding his IAC Claim (ECF 19-18 at
15-17), or the Appellate Division’s affirmance (ECF 19-23), were
contrary to, or an unreasonable application of, federal
precedent.
28
V. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), Petitioner may not appeal
from a final order in this habeas proceeding where Petitioner’s
detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional
right.” “A [habeas 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 that the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right. As jurists of reason could not disagree with this Court's
resolution of the petition, the Court shall deny Petitioner a
certificate of appealability.
VI.
CONCLUSION
For the reasons stated above, the Petition is denied. A
certificate of appealability shall not issue.
An accompanying Order will be entered.
March 27, 2019
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
29
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?