ARAIZA-AVILA v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
Filing
12
OPINION. Signed by Judge Noel L. Hillman on 3/25/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
JESUS A. ARAIZA-AVILA,
:
:
Petitioner,
:
Civ. No. 16-4003 (NLH)
:
v.
:
OPINION
:
WARDEN OF NEW JERSEY
:
STATE PRISON
:
:
Respondent.
:
______________________________:
APPEARANCES:
Jesus A. Araiza-Avila
New Jersey State Prison, No. 413068C
PO Box 861
Trenton, NJ 08625
Petitioner pro se
Jennifer L. Bentzel
Burlington County Prosecutor’s Office
New Courts Facility
49 Rancocas Road
Mount Holly, NJ 08060
Counsel for Respondents
HILLMAN, District Judge
Petitioner Jesus A. Araiza-Avila (“Petitioner”), a prisoner
presently incarcerated at New Jersey State Prison in Trenton,
New Jersey 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 the Court, (ECF No. 2), Respondent the Warden of New
Jersey State Prison (“Respondent”) filed an answer to the
Petition (the “Answer”), (ECF No. 8).
to the Answer (the “Reply”).
Petitioner filed a reply
(ECF No. 9.)
The Petition is ripe
for disposition.
For the reasons stated below, the Petition
will be denied.
I.
BACKGROUND
The New Jersey Superior Court, Appellate Division set forth
the facts underlying Petitioner’s conviction, as established at
a jury trial, as follows:
The State’s evidence revealed the following
facts. Defendant and Autumn Moyer lived
together and had a baby girl. Their
relationship ended and Moyer began another
relationship with Gilbert Parra. On August
31, 2007, in a telephone conversation,
defendant threatened to assault Moyer.
Parra then took the phone from Moyer and
told defendant that his child referred to
Parra as “daddy” now. During the early
morning hours of September 1, 2007,
defendant and his uncle went to the house of
Moyer’s family. Defendant called and spoke
to Moyer’s sister. He asked her to come
outside. She complied, but upon seeing
defendant, ran back into the house and told
her sister and Parra of defendant’s presence
in front of her home.
Parra and Moyer then went outside. Shortly
thereafter, both were shot. Parra was
killed and Moyer was shot in the ankle.
Immediately after the shootings, Moyer told
her family “Chaparro shot me” and “He shot
me, he shot Gilbert, why did he shoot us,
why did he shoot me?” Moyer testified at
trial that defendant ran from the bushes and
shot Parra first. He then told her in
Spanish that it was her turn before shooting
her in the ankle. She also testified about
prior threats made against her by defendant.
Shortly after the shootings, police stopped
a pick-up truck in which defendant and his
uncle were traveling with two other
individuals. The uncle was bare-chested and
2
appeared intoxicated. Defendant was wearing
a green shirt. Police later found a pair of
gloves and a .38 caliber revolver containing
six spent cartridges in the truck. Forensic
investigation revealed that the gun fired
the bullets that killed Parra. No
fingerprints were found on the gun, but
defendant’s DNA was found on the gloves.
Defendant’s cell phone records indicated he
called the victim’s residence fourteen times
that night.
. . .
Moyer’s brother, Jonathan, testified that
defendant’s uncle, Rafael Nava-Avila, who
appeared intoxicated, had knocked on their
door and asked for a beer. Jonathan sent
him away. Shortly thereafter, Parra was
killed. Assuming it to be true, Jonathan
told the police that Nava-Avila had killed
Parra.
State v. Araiza-Nava-Avila, Indictment No. 07-11-1631, 2012 WL
1231888, at *1 (N.J. Super. Ct. App. Div. Apr. 13, 2012)
(footnote omitted).
In his defense, Petitioner presented testimony from one of
Moyer’s neighbors, who observed some men around the house and
heard gunshots around 3:00 a.m.
Id.
While the neighbor had
originally told police that the shooter was wearing a white
shirt, he testified at trial that he recalled the shooter to
have worn a green shirt.
Id.
Petitioner also called Detective
Jayson Abadia of the Burlington County Prosecutor’s Office, who
had interviewed Nava-Avila on the day of the shooting.
*2.
Id. at
In response to questioning by defense counsel, “Abadia
3
testified to learning later in the investigation that Jonathan
had stated Nava-Avila was the shooter.
Abadia testified:
“But
what occurred that night, the information that was related that
evening, we were confident based on the investigation that the
defendant was the trigger man, was the shooter.”
Id.
Defendant
did not testify on his own behalf and maintained throughout
trial that Nava-Avila was the shooter.
Id.
The jury convicted Petitioner of first-degree murder, N.J.
Stat. Ann. § 2C:11-3(a)(1), (2), and second-degree aggravated
assault, N.J. Stat. Ann. § 2C:12-1(b)(1).
(ECF No. 8-8.)
Petitioner was sentenced to a 30-year prison term on the murder
conviction, with a 30-year mandatory minimum; and a 5-year
prison term on the aggravated assault conviction, subject to the
No Early Release Act, N.J. Stat. Ann. § 2C:43-7.
(ECF No. 8-8.)
Petitioner filed an appeal of his conviction and sentence
to the Appellate Division.
(ECF No. 8-14.)
In an unpublished,
per curiam decision, issued on April 13, 2012, the Appellate
Division affirmed Petitioner’s conviction and sentence.
Nava-Avila, 2012 WL 1231888.
Araiza-
Petitioner then filed a petition
for certification to the New Jersey Supreme Court, which was
denied on October 25, 2012.
State v. Araiza-Nava-Avila, 54 A.3d
811 (N.J. 2012).
Thereafter, Petitioner filed a petition for post-conviction
relief (the “PCR Petition”) in the Superior Court of New Jersey,
4
Law Division.
(ECF No. 8-24.)
the PCR Petitioner:
Petitioner raised one claim in
that his counsel was ineffective for
failing to provide copies of discovery that had been translated
into Spanish for Petitioner.
(ECF No. 8-25, at 9-10.)
Petition was denied without an evidentiary hearing.
27.)
The PCR
(ECF No. 8-
Petitioner appealed that decision to the Appellate
Division, which affirmed the decision of the PCR Court in an
unpublished opinion dated June 23, 2015.
See State v. Araiza-
Avila, A-3148-13T3, 2015 WL 3843509 (N.J. Super. Ct. App. Div.
June 23, 2015).
3, 2016.
The Supreme Court denied certification on June
State v. Araiza-Avila, 141 A.3d 297 (N.J. 2016).
On or about July 1, 2016, Petitioner filed the instant
Petition seeking relief pursuant to 28 U.S.C. § 2254.
1.)
(ECF No
In the Petition, Petitioner raises five claims for relief:
Ground One: The Court ordered sequential
deliberations which effectively prevented
the jury’s consideration of
Passions/Provocation Murder.
Ground Two: The Court erred in admitting
prior threats allegedly made by the
Defendant because they were highly
prejudicial and should have been excluded
under rule 403.
Ground Three: The Defendant was denied a
fair trial when the court failed, sua
sponte, to strike the testimony of Detective
Abadia in which he stated that the defendant
was guilty of the shooting.
Ground Four: The Court failed to instruct
the jury on the inherent unreliability of
5
oral statements allegedly made by the
Defendant.
Ground Five: Trial counsel was ineffective
for failing to provide [a] translator
translated copy of discovery. 1
(ECF No. 1, at 5-9.)
Respondent filed an Answer in which he
argues that Petitioner has failed to state a claim upon which
habeas relief may be granted.
(ECF No. 8, at 41-44.)
Petitioner filed a timely Reply.
(ECF No. 9.)
Petitioner was advised of his rights pursuant to Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000).
(ECF No. 10).
Petitioner
has advised the Court that he would like the Petition to be
ruled on as filed.
II.
(ECF No. 11.)
STANDARD OF REVIEW
A petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is the proper mechanism for a state prisoner to challenge
the fact or duration of his confinement where the petitioner
claims his custody is in violation of the Constitution or the
laws of the United States. See 28 U.S.C. § 2254(a); Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); 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
1
This claim could be read to assert error based on a failure to
provide a translator. It is clear from the Petition as a whole
that Petitioner’s claim, discussed infra, is that it would have
been beneficial if his counsel had provided him translated
copies of the discovery in the case.
6
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. See Appel v. Horn, 250 F.3d
203, 210 (3d Cir. 2001).
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).
The statute is clear.
If a claim has been
adjudicated on the merits in state court, 2 this Court has “no
2
“[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.
7
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 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.” Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003).
“[C]ircuit precedent does not
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. at 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.”).
8
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, 62
U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).
III. DISCUSSION 3
1. Ground One
In Ground One, Petitioner asserts that the trial court’s
3
The Court notes that its review of the record indicates that
Grounds One and Two appear to be unexhausted based on
9
instruction to the jury regarding sequential deliberation of the
murder charge and the lesser-included offense of passionprovocation murder “effectively prevented the jury’s
consideration of” passion-provocation murder.
5.)
(ECF No. 1, at
Petitioner alleges that the trial court’s instruction to
consider these offenses sequentially violated his due process
rights under the Fifth and Fourteenth Amendments.
(ECF No. 9,
at 24.)
Petitioner specifically takes issue with the following part
of the trial court’s charge to the jury:
The first question is this: Defendant Jesus
Araiza Avila is charged with murder as a
result of an incident that occurred on
September 1, 2007, in Burlington City. With
respect to this charge, how do you find?
Your choices are not guilty or guilty. . .
. If you are satisfied that the State has
met its burden of proof and has demonstrated
beyond a reasonable doubt each of the
elements of the charge of murder, then your
answer on this question is guilty. And if
you answer this question guilty, you do not
need to answer Questions 2, 3, or 4, you can
Petitioner’s failure to “fairly present” his federal claims to
the state court for review and only argued that these errors
violated New Jersey state law. See Rainey v. Varner, 603 F.3d
189, 198 (3d Cir. 2010) (observing that for a habeas petitioner
to “fairly present” a federal claim to the state courts he must
“present [its] factual and legal substantive to the state courts
in a manner that put them on notice that a federal claim is
being asserted”). While the Court is permitted to raise the
issue of exhaustion sua sponte, see United States v. Bendolph,
409 F.3d 155, 173 (3d Cir. 2005) (Nygaard, J., concurring), it
declines to do so here and will instead deny the Petition on the
merits pursuant to 28 U.S.C. § 2254(b)(2), see Mahoney v.
Bostel, 366 F. App’x 368, 371 (3d Cir. 2010).
10
then go on to Questions 5, 6, 7, 8. If you
answer Question Number 1 not guilty,
however, you should then go on to consider
Question Number 2. Question Number 2,
defendant Jesus Araiza Avila is charged with
passion provocation manslaughter as a result
of an incident that occurred on September
1st, 2007, in Burlington City.
(ECF No. 8-43, at 62-63 (emphasis added).)
Petitioner argues
that by instructing the jury to consider the charge of murder
before the lesser-included offense of passion-provocation
murder, it “preclude[d] proper consideration of
passion/provocation manslaughter.”
(ECF No. 9, at 25-26.)
In
addition to this charge, the trial court also provided to the
jury a sequential verdict sheet.
(ECF No. 8-43, at 62-64.)
On direct appeal, Petitioner argued that the jury
instructions were incorrect under state law.
The Appellate
Division denied relief because Petitioner could not demonstrate
that the jury instructions, if in error, were capable of
producing an unjust result.
at *3-4.
Araiza-Nava-Avila, 2012 WL 1231888,
Moreover, the Appellate Division held that while a
more recent version of the verdict sheet would have been
preferable, “the trial court’s use of a sequential verdict sheet
. . . did not constitute plain error.”
Id.
The Supreme Court has made clear that “the fact that [a
jury] instruction was allegedly incorrect under state law is not
a basis for habeas relief.”
Duncan v. Morton, 256 F.3d 189, 203
11
(3d Cir. 2001) (quoting Estelle v. McGuire, 502 U.S. 62, 71–72
(1991)).
For an incorrect jury instruction to warrant habeas
relief, the instruction must have “by itself so infected the
entire trial [such] that the resulting conviction violates due
process.”
(1977)).
Id. (quoting Henderson v. Kibbe, 431 U.S. 145, 154
It is not enough that the instruction is merely
“undesirable, erroneous, or even universally condemned.”
Id.
To determine the effect of an allegedly erroneous jury
instruction on the validity of a petitioner’s conviction, courts
cannot judge the instruction “in artificial isolation,” but must
consider it “in the context of the overall charge.”
Cupp v.
Naughten, 414 U.S. 141, 146–47 (1973).
Petitioner has not shown that the trial court’s instruction
to the jury on passion-provocation violated his right to due
process.
Indeed, Petitioner cannot even demonstrate that the
jury instructions were incorrect under state law — the trial
court’s instruction was modeled after New Jersey’s model jury
charge on “Murder, Passion/Provocation and Aggravated/Reckless
Manslaughter.”
Araiza-Nava-Avila, 2012 WL 1321888, at *3.
Because Petitioner has not demonstrated that the jury
instructions on passion-provocation murder “so infected” his
trial to have deprived him of his right to due process, relief
on this claim is denied.
2. Ground Two
12
In Ground Two, Petitioner alleges that the trial court
erred in admitting evidence of prior threats made by Petitioner
to Moyer that he alleges were “highly prejudicial.”
at 6.)
(ECF No. 1,
Petitioner argues that this violated his right to due
process under the Fifth and Fourteenth Amendments.
(ECF No. 9,
at 33.)
The threats made by Petitioner were admitted through the
testimony of Moyer and her family members.
Petitioner
specifically challenges the testimony given by Moyer’s family
members, which the Appellate Division described as follows:
Moyer’s mother testified to being present
when Moyer translated that defendant
threatened to “beat the shit out of her.”
Moyer’s sister testified that during
arguments in front of her and over the
phone, Moyer translated that defendant was
threatening to kill Moyer. One threat
involved the use of “something in the trunk
of a car” against Moyer and any new
boyfriends. On another occasion, Moyer told
her sister that defendant threatened to kill
her and Parra.
Moyer’s father testified to seeing defendant
peeking through the window of their house. .
. . Moyer’s father further testified that,
in July 2007, Moyer told him that defendant
stated he had a bullet for her, Parra and
himself.
Moyer’s brother Jonathan testified that on
the night of the shooting Parra told him
defendant was coming to the house with
something for Moyer and Parra.
Araiza-Nava-Avila, 2012 WL 1231888, at *4.
13
The Appellate
Division affirmed the admission of the threats under the New
Jersey Rules of Evidence, finding that the threats were relevant
to the motive and intent of Petitioner to shoot Moyer and Parra.
Id. at *4-5.
The Supreme Court has held that “the Due Process Clause
does not permit the federal courts to engage in a finely-tuned
review of the wisdom of state evidentiary rules.”
Marshall v.
Lonberger, 459 U.S. 422, 438 n.6 (1983) (citing Spencer v.
Texas, 385 U.S. 554, 564 (1967)); see also Wilson v. Vaughn, 533
F.3d 208, 213 (3d Cir. 2008) (“Admissibility of Evidence is a
state law issue.”).
Thus, a petitioner cannot prevail on such a
claim unless he can “prove that he was deprived of ‘fundamental
elements of fairness in [his] criminal trial.”
Glenn v. Wynder,
743 F.3d 402, 407 (3d Cir. 2014) (alteration in original)
(quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992)).
Where a
petitioner brings a claim for habeas relief related to the
admission of “other crimes” evidence, he is only entitled to
habeas relief “if ‘the evidence’s probative value is so
conspicuously outweighed by its inflammatory content, so as to
violate a defendant’s constitutional right to a fair trial.’”
Bronshstein v. Horn, 404 F.3d 700, 730 (3d Cir. 2005) (quoting
Lesko v. Owens, 881 F.2d 44, 52 (3d Cir. 1989)).
The admission of testimony regarding threats made by
Petitioner to Moyer did not deprive Petitioner of his right to
14
due process under the federal constitution.
As the Appellate
Division determined, the threats were properly admitted under
state law as evidence of Petitioner’s motive and intent to shoot
Moyer and Parra.
Moreover, the trial court gave a limiting
instruction to the jury that the threats were only to be
considered for “the limited purposes of trying to establish that
the defendant had motive and/or intent on the date of the
incident” and that it could not use the “evidence to decide that
the defendant has a tendency to commit crimes or that he is a
bad person.”
(ECF No. 8-43, at 46.)
Petitioner has not
demonstrated that the admission of the threats made against
Moyer violated the fundamental fairness of his trial.
Thus,
relief on this claim is denied.
3. Ground Three
In Ground Three, Petitioner claims that he was denied a
fair trial as a result of the trial court’s failure “to strike
the testimony of Detective Abadia in which he stated that
defendant was guilty of the shooting.”
(ECF No. 1, at 7.)
Detective Abadia had been called as a witness at trial by
defense counsel in support of Petitioner’s theory that NavaAvila was the shooter.
It appears that Petitioner takes
specific issue with the following questioning by defense counsel
on redirect examination of Detective Abadia:
Q:
[S]omewhere in this investigation you
15
learned that Jonathan Moyer ID’d Rafael
Nava[-]Avila as the shooter; isn’t that
true?
A: Later on. Later on, a lot later on.
But what occurred that night, the
information that was relayed that evening,
we were confident based on the investigation
that the defendant was the trigger man, was
the shooter.
Q: Much later Jonathan Moyer gave his
statement to police that very day; isn’t
that true?
A: There is a lot going on in an
investigation?
Q:
But isn’t that true?
A:
I believe so.
Q: And Mr. Nava[-]Avila was still in your
custody at that time wasn’t he?
A:
I couldn’t comment on it.
. . .
Q: So your office did not tell you that
Rafael Nava[-]Avila was still in custody,
did they?
A: They – obviously they told me he was in
custody because I interviewed him at ten, I
believe it was 10:30 in the morning.
Q: And you could have taken his clothing
but you didn’t, right?
A: No, I didn’t. I didn’t take his
clothing, there was no reason to.
Q: You could have checked him for gunpowder
resident but you didn’t?
A: There was no reason to, we were
confident we had – the perpetrator had been
identified and we were confident that we had
16
the perpetrator in custody and he is the
defendant.
. . .
Q: So you could have gotten his clothes
when you found out about Jonathan Moyer’s
statement, couldn’t you?
A:
Yes, we could have.
Q: And you could have done the other
testing right?
A:
That is correct.
Q: But you chose not to because you decided
we’ve got the guy and we’re not going to
look anymore, right?
A: Once again, all the evidence pointed to
the defendant and we were confident that the
defendant was the shooter.
(ECF No. 8-42, 52–53, 55 (emphasis added).)
The Appellate Division rejected this claim on direct
appeal, noting that
[D]efense counsel elicited Detective Abadia’s
testimony concerning his opinion that defendant
was the guilty party for strategic purposes to
support her argument that law enforcement
failed to properly investigate Nava-Avila.
Defense counsel did not object to the
testimony, did not request a cautionary
instruction from the judge, and continued to
ask questions soliciting similar opinion
testimony from Detective Abadia.
Araiza-Nava-Avila, 2012 WL 1231888, at *6.
Detective Abadia’s testimony did not violate Petitioner’s
due process right to a fair trial.
As the Appellate Division
found, the challenged testimony was elicited by defense counsel
17
as part of her strategy to shift the blame to Nava-Avila and
demonstrate that the police could have investigated Nava-Avila
further.
Petitioner has not demonstrated the trial court’s
failure to sua sponte strike this testimony so infected the
trial with unfairness that Petitioner’s conviction violates due
process.
See Estelle, 502 U.S. at 72–73.
Nor has Petitioner
pointed to any Supreme Court case that would support his
argument.
Accordingly, relief on this claim is denied.
4. Ground Four
In Ground Four, Petitioner contends that the trial court
“failed to instruct the jury on the inherent unreliability of
oral statements allegedly made by the defendant.”
at 8.)
(ECF No. 1,
Petitioner fails to allege how this error violated his
federal constitutional rights.
Nevertheless, in light of the
liberal construction courts are obligated to afford pro se
filings, Higgs v. Att’y Gen. of the U.S., 655 F.3d 333, 339 (3d
Cir. 2011), the Court will construe this claim as alleging a
violation of Petitioner’s right of due process under the Fifth
and Fourteenth Amendments.
The charge Petitioner argues the trial court should have
given to the jury is a Hampton/Kociolek 4 charge, which the
Appellate Division explained “informs the jury of its function
4
State v. Hampton, 294 A.2d 23 (N.J. 1972); State v. Kociolek,
129 A.2d 417 (N.J. 1957).
18
to determine whether the statements allegedly made by defendant
were actually made, and, if so, whether the statements or any
portion of them was credible.”
1321888, at *6.
Araiva-Nava-Avila, 2012 WL
The Appellate Division further explained that
if the statements made by defendant are “unnecessary to prove
defendant’s guilt because there is other evidence that clearly
establishes guilt . . . the failure to give a Hampton charge
would not be reversible error.”
688 A.2d 97, 105 (N.J. 1997)).
Id. (quoting State v. Jordan,
The Appellate Division
determined that the trial court did not err by not giving this
charge because the statements admitted were not necessary to
prove Petitioner’s guilt.
Id.
The Appellate Division’s determination was neither contrary
to nor an unreasonable application of federal law.
“It is not
the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”
67–68.
Estelle, 502 U.S. at
Indeed, as previously noted, supra, at 11–12, habeas
relief is unavailable for allegedly erroneous jury instructions
unless the petitioner establishes that the error “by itself so
infected the entire trial.”
Duncan, 256 F.3d at 203.
Petitioner has not made that showing here.
The Appellate
Division determined that the trial court did not err under state
law and Petitioner points to no Supreme Court precedent to
support his position that the trial court’s failure to provide
19
this jury instruction entitles him to habeas relief.
Accordingly, this claim is denied.
5. Ground Five
In Ground Five, Petitioner alleges that his counsel was
deficient for failing to provide copies of discovery that had
been translated into Spanish.
The Sixth Amendment of the United
States Constitution provides:
“[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defense.”
U.S. Const. amend. VI.
The
Supreme Court has recognized that “the right to counsel is the
right to the effective assistance of counsel.”
Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)).
A showing of
ineffective assistance of counsel requires two components to
succeed.
Id. at 687.
The two requisite proofs are as follows:
(1) a defendant must show that counsel’s performance was
deficient; and (2) the defendant must show prejudice.
Id.
The
analysis is underpinned by an understanding that counsel’s role
is to ensure the production of a reliably just result with the
adversarial process of trial.
Id.
When a convicted defendant complains of deficient
performance, the defendant’s burden of proof is to show that the
conduct of counsel fell below an objective standard of
reasonableness.
Id. at 688.
Hence, [j]udicial scrutiny of
20
counsel’s performance must be highly deferential.”
Id. at 689.
To combat the natural tendency for a reviewing court to
speculate whether a different strategy at trial may have been
more effective, the Supreme Court has “adopted the rule of
contemporary assessment of counsel’s conduct.”
Maryland v.
Kulbicki, 136 S. Ct. 2, 4 (2015) (quoting Lockhart v. Fretwell,
506 U.S. 364, 372 (1993)).
Thus, when reviewing for an
ineffective assistance of counsel, “a court must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.”
Woods, 135 S. Ct.
at 1375 (quoting Strickland, 466 U.S. at 689); cf. United States
v. Chronic, 466 U.S. 648, 659 (1984) (holding that courts may
presume deficient performance and resulting prejudice if a
defendant “is denied counsel at a critical stage of his trial”).
Because Petitioner's ineffective assistance of counsel
claims are raised through a § 2254 petition, federal “review
must be ‘doubly deferential’ in order to afford ‘both the state
court and the defense attorney the benefit of the doubt.’”
Woods, 135 S. Ct. at 1376 (quoting Burt v. Titlow, 134 S. Ct.
10, 13 (2013)); see also Cullen, 563 U.S. at 190 (“[R]eview of
the [State] Supreme Court's decision is thus doubly
deferential.”); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(“[D]oubly deferential judicial review applies to a Strickland
claim evaluated under the § 2254(d)(1) standard . . . .”);
21
Yarborough, 541 U.S. at 6 (“Judicial review of a defense
attorney ... is therefore highly deferential––and doubly
deferential when it is conducted through the lens of federal
habeas.”).
Indeed, “[w]hen § 2254(d) applies, the question is
not whether counsel's actions were reasonable.
The question is
whether there is any reasonable argument that counsel satisfied
Strickland's deferential standard.”
Harrington, 562 U.S. at
105.
As to proving prejudice under Strickland, “actual
ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the
defendant affirmatively prove prejudice.”
466 U.S. at 693.
To
succeed on this proof, a defendant must show “a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.”
Hinton v.
Alabama, 134 S. Ct. 1081, 1088 (2014) (quoting Padilla v.
Kentucky, 559 U.S. 356, 366 (2010)).
A reasonable probability
is a probability which sufficiently undermines confidence in the
outcome of the trial.
Strickland, 466 U.S. at 694.
Petitioner alleges that his counsel was ineffective for
failing to provide translated copies of discovery that “would
have effectively assisted the translator and the defendant.”
(ECF No. 1, at 23.)
reasons.
The PCR Court denied this claim for several
First, the PCR Court determined that Petitioner had
22
not supported his assertion that his trial counsel refused any
requests for Spanish-translated copies of discovery.
8-27, at 6.)
(ECF No.
The PCR Court further determined that even had
counsel failed to provide translated copies of discovery, she
would not have been deficient because trial counsel reviewed the
discovery with Petitioner.
(Id. at 7.)
Second, the PCR Court
found that Petitioner additionally failed to show how this
alleged failure prejudiced him — indeed, Petition “put forth no
evidence tending to suggest [his counsel] was not knowledgeable
about defendant’s case or that defendant would have been able to
gain greater insight after reading translated discovery on his
own.”
(Id. at 8.)
The Appellate Division affirmed.
Araiva-
Avila, 2015 WL 3843509, at *1.
Petitioner is not entitled to relief on this claim; the
PCR Court’s finding that his counsel was not ineffective for not
providing translated copies of discovery was not unreasonable.
First, Petitioner cannot show his counsel was deficient by not
providing translated copies of discovery.
Petitioner’s PCR
counsel conceded on the record at oral argument that trial
counsel reviewed the discovery with Petitioner with a translator
present.
There is no requirement that counsel also provide
translated copies of discovery for Petitioner to review on his
own.
Accord Echevarri v. MacFarland, No. 05-899, 2005 WL
3440430, at *6 (D.N.J. Dec. 14, 2005) (finding trial counsel was
23
not ineffective for not providing translated copies of discovery
where petitioner did not claim counsel never verbally discussed
the discovery with him).
Second, Petitioner has not alleged any
prejudice that occurred as a result of counsel’s error nor has
he demonstrated that the trial outcome would have been different
had counsel provided these translated documents.
Thus,
Petitioner is not entitled to relief on this claim.
IV.
CERTIFICATE OF APPEALIBILITY
The AEDPA provides that an appeal may not be taken to a
court of appeals from a final order in a § 2254 proceeding
unless a judge issues a certificate of appealability on the
ground that “the applicant has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
This Court will deny a certificate of appealability because
jurists of reason would not find it debatable that dismissal of
the Petition is correct.
V.
CONCLUSION
For the above reasons, the § 2254 habeas petition is
denied, and a certificate of appealability will not issue.
An
appropriate Order follows.
Dated: March 25, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
24
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?