BISHOP v. STATE OF NEW JEREY et al
Filing
8
OPINION. Signed by Judge Renee Marie Bumb on 8/31/18. n.m.(dd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ALFRED RICKY BISHOP,
Petitioner
v.
THE STATE OF NEW JERSEY,
et al.,
Respondents
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Civil Action No. 16-9178(RMB)
OPINION
BUMB, District Judge
This matter comes before the Court upon the Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)
filed by Petitioner Alfred Ricky Bishop (“Petitioner”), an inmate
confined
in
Northern
State
Prison
in
Newark,
New
Jersey.
Respondents filed an answer opposing habeas relief. (Answer, ECF
No. 5.) For the reasons discussed below, the Court denies the
petition.
I.
PROCEDURAL HISTORY
On September 7, 2004, Petitioner was indicted in state court
in Atlantic County, New Jersey for possession of a controlled
dangerous substance (cocaine) in violation of N.J.S. § 2C:3510a(1) (Count One); possession of a controlled dangerous substance
with intent to distribute in violation of N.J.S. §§ 2C:35-5a(1)
and
2C35-5b(3)
(Count
Two);
and
possession
with
intent
to
distribute a controlled dangerous substance on public property, in
violation of N.J.S. § 2C:35-7.1 (Count Three). (Answer, Ex. 9, ECF
No. 5-11.) Petitioner pled guilty to Count One on February 22,
2005. (Answer, Exs. 1, 10, ECF Nos. 5-3, 5-12.)
On June 29, 2005, Petitioner waived indictment and pled guilty
to
the
charges
in
Atlantic
County
Accusation
No.
05-06-1364
including, aggravated manslaughter in violation of N.J.S. § 2C:114a (Count One); terroristic threats in violation of N.J.S. § 2C:123a; and unlawful possession of a weapon in violation of N.J.S. §
2C:39-5b (Count Three). (Answer, Exs. 2, 11, ECF Nos. 5-4, 5-13.)
Petitioner attempted to withdraw his guilty plea in hopes of a
lighter sentence but the trial court denied his motion. (Answer,
Ex. 3, ECF No. 5-5 at 3T8-13.)
On August 25, 2005, Petitioner was sentenced in accordance
with his plea agreements to a three-year term of imprisonment on
Count
One
of
Indictment
No.
04-09-1827;
a
24-year
term
of
imprisonment with an 85% parole disqualifier and five-year term of
parole supervision on Count One of Accusation No. 05-06-1364, to
be served consecutively with Count One of the Indictment; fouryear terms of imprisonment on Counts Two and Three of Accusation
No. 05-06-1364, to be served concurrently with Count One of the
Accusation,
and
consecutive
to
Count
One
of
the
Indictment.
(Answer, Ex. 3, ECF No. 5-5 at 3T:35-37.) The remaining counts in
2
Indictment No. 04-09-1827 were dismissed. (Answer, Ex. 3, ECF No.
5-5 at 3T37.)
On June 4, 2007, the Appellate Division affirmed Petitioner’s
sentence. (Answer, Ex. 15, ECF No. 5-17.) Petitioner timely filed
a petition for certification to the New Jersey Supreme Court, which
denied the petition on February 21, 2008. (Id., Ex. 17, ECF No. 519.) Petitioner filed a motion for post-conviction relief (“PCR”)
on April 4, 2008. (Id., Ex. 18, ECF No. 5-20.) The PCR Court held
a hearing and denied the petition on March 31, 2009. (Id., Exs. 5,
19, ECF Nos. 5-7, 5-21.) Petitioner appealed, and on January 3,
2011, the Appellate Division affirmed in part and remanded in part
for an evidentiary hearing. (Id., Exs. 20, 21, ECF Nos. 5-22, 523.) Petitioner filed a petition for certification with the New
Jersey Supreme Court, appealing the Appellate Division’s January
3, 2011 decision. (Id., Ex. 22, ECF No. 5-24.) The New Jersey
Supreme Court denied the petition on June 16, 2011. (Id., Ex. 23,
ECF No. 5-25.)
After holding a hearing on PCR remand, the PCR court denied
the petition on January 6, 2014. (Id., Ex. 24, ECF No. 5-26.)
Petitioner appealed, and the Appellate Division affirmed the PCR
remand court decision on June 22, 2016. (Id., Exs. 25, 26, ECF
Nos. 5-27, 5-28.) Petitioner filed a petition for certification to
the New Jersey Supreme Court, and the New Jersey Supreme Court
denied the petition on November 9, 2016. (Id., Exs. 27, 28, ECF
3
Nos. 5-29, 5-30.) Petitioner filed the instant habeas petition on
December 12, 2016. (Pet., ECF No. 1.)
II.
BACKGROUND
In a plea hearing on Indictment No. 04-09-1827, held on
February 22, 2005, Petitioner admitted he was in possession of
cocaine at the Berkley Gardens Apartments in Atlantic City, New
Jersey on August 5, 2004. (Answer, Ex. 1, ECF No. 1-3 at 1T6:177:5.) Pursuant to a plea agreement, Petitioner pled guilty to this
offense in return for dismissal of the remaining charges and the
State’s recommendation of a long-term inpatient drug treatment or
a three-year term of imprisonment. (Id., 1T3:1-13.)
On June 29, 2005, Petitioner waived indictment on Accusation
No. 05-06-1364 in Atlantic County and pled guilty to three counts.
(Answer, Ex. 2, ECF No. 5-4 at 2T2.)
The state court record
reveals the following details of the crimes to which Petitioner
pled guilty. Around 2:00 or 2:30 in the afternoon of March 29,
2005, in Atlantic City, New Jersey, Petitioner saw Shaquanna Smith
walking with her thirteen-year-old sister and called out to the
thirteen-year-old girl. (Answer, Ex. 2, ECF No. 5-4 at 2T17:2319:2; Ex. 5, ECF No. 5-7 at 5T16:18-17:9.) Smith told Petitioner
the girl did not want to talk to him and Petitioner began following
them. (Id.) Petitioner brandished a gun and yelled that he could
speak to whomever he wished, threatening to shoot Smith if she
4
interfered.
(Id.)
The
girls
continued
walking
and
Petitioner
eventually walked away from them. (Id.)
At approximately 10:00 p.m. that same evening in Atlantic
City, Petitioner approached K.O. and her friends, pulled out his
gun, and ordered the girls to get on the ground. (Answer, Ex. 2,
ECF No. 5-4 at 2T17-18; Ex. 5, ECF No. 5-7 at 5T17:10-14; Ex. 21,
ECF No. 5-23 at 3.) Petitioner fired his gun into the air and rode
away on his bicycle. (Id.)
That
night,
Petitioner
was
at
his
girlfriend’s
home
in
Atlantic City, and Eliza Hernandez, whom Petitioner knew, was also
there. (Id., Ex. 2, ECF No. 5-4 at 2T14:9–17:18; Ex. 5, ECF No. 57 at 5T17:17-18:10.) Petitioner, standing directly in front of
Hernandez, pointed a loaded revolver in her face. (Id.) Cocking
and uncocking the hammer of the gun, Petitioner shot Hernandez in
the eye, killing her. (Id.)
Prior to sentencing, Petitioner attempted to withdraw his
guilty plea to aggravated manslaughter, arguing the recommended
sentence was excessive for what he called an accident. (Id., Ex.
3, ECF No. 5-5 at 3T8:12-17.) The court denied the motion and
sentenced Petitioner according to the terms of the plea agreements.
(Id. at 3T12:8-10; 3T32:7–37:5.) In support of the sentence, the
court found that aggravating factors for risk of reoffending
(factor three), Petitioner’s criminal history (factor six), and
need for deterrence (factor nine) substantially outweighed the
5
absence of mitigating factors. (Answer, Ex. 3, ECF No. 5-5 at
3T33:12-34:24.)
Petitioner appealed the sentence, arguing that the court
improperly used his mental health history to support findings of
aggravating factors three and nine. (Id., Ex. 4, ECF No. 5-6 at
4T25:11–26:8.) The Appellate Division rejected the argument and
affirmed Petitioner’s sentences. (Answer, Ex. 15, ECF No. 5-17.)
Petitioner raised various claims of ineffective assistance of
counsel
in
his
PCR
petition,
including
that
his
counsel
was
ineffective for failing to file a motion to suppress a statement
Petitioner made to police upon his arrest. (Id., Ex. 5, ECF No. 57 at 5T5:3-4, 5T7:2-7.) Petitioner also claimed his attorney was
ineffective for failing to hire a mental health expert to determine
if Petitioner had a mental health defense. (Id. at 5T31:8-11.) The
PCR court denied the petition, and the Appellate Division affirmed
with the exception of the claim asserting counsel should have hired
a mental health expert, which the Appellate Division remanded for
an evidentiary hearing. (Id., Ex. 21, ECF No. 5-23 at 9-10.)
At the PCR remand hearing, Petitioner testified that he was
in a trance when he shot Eliza Hernandez, and he heard voices
telling him to play with the gun. (Id., Ex. 6, ECF No. 5-8 at
6T23:16 – 25:6.) After the shooting, he left the house and emerged
from the trance, realizing he had done something wrong. (Id.) He
went
to
his
brother’s
house
in
6
Somers
Point,
then
went
to
Washington D.C., where his aunt lived. (Answer, Ex. 6, ECF No. 58 at 6T23:16–25:6.)
Psychologist David Bogacki testified on Petitioner’s behalf.
(Id., Ex. 7, ECF No. 5-9 at 7T20:1-6.) Dr. Bogacki evaluated
Petitioner
after
evidentiary
the
Appellate
hearing,
polysubstance
abuse
in
Division
and
he
full
sustained
remanded
diagnosed
for
a
Petitioner
remission,
PCR
with
generalized
anxiety disorder, rule out bipolar disorder, history of psychotic
symptoms,
and
personality
disorder
NOS,
with
histrionic
and
antisocial traits. (Id., Ex. 29, ECF No. 5-31 at 7.) He concluded
that Petitioner was likely suffering from a mental health disorder
at the time of the shooting. (Id., Ex. 7, ECF No. 5-9 at 7T29:10–
30:1-10.)
On cross examination, Dr. Bogacki testified that Petitioner
never told him he heard voices telling him to shoot Hernandez.
(Id. at 7T41:11-17.) Dr. Bogacki also testified that during his
evaluation
of
Petitioner,
Petitioner
said
he
was
extremely
reckless at the time of the shooting, and the shooting occurred as
a result of his recklessness. (Id. at 7T42:14-20.) Dr. Bogacki
agreed that Petitioner’s conduct and statements following the
shooting indicated his awareness of wrongdoing. (Id. at 7T42.)
Petitioner’s trial counsel, Joel Mayer, testified on behalf
of the State at the PCR remand hearing. (Answer, Ex. 6, ECF No. 58 at 6T54-6T64.) Mr. Mayer was aware of Petitioner’s mental health
7
history prior to Petitioner’s plea and he discussed it with the
prosecutor during plea negotiations. (Answer, Ex. 6, ECF No. 5-8
at 6T64:8-23.) Mr. Mayer had represented clients in cases where
diminished capacity or insanity defenses were at issue, but he
decided against having Petitioner evaluated by a mental health
expert because he did not think a mental health defense was viable
in light of the evidence against Petitioner. (Id.) Petitioner was
facing the possibility of being charged with murder, which would
have subjected him to a much greater sentence if he went to trial
and was convicted. (Answer, Ex. 6, ECF No. 5-8 at 6T55:6–57:7.)
The PCR remand court rejected Petitioner’s claim due to lack
of corroboration and lack of credibility. (Id., Ex. 8, ECF No. 510 at 8T19:20–20:3.) There was a lack of corroboration because
Petitioner was not diagnosed with an illness that established he
did not know the nature and quality of his action, did not know
the action was wrong or that he was incapable of acting with the
requisite state of mind. (Id. at 8T18:3-12.) Petitioner was not
credible because the PCR remand was the first time he mentioned
that he heard voices and was in a trance at the time of the
shooting. (Id. at 8T20:16-23:17.) Therefore, the PCR remand court
concluded
Petitioner’s
trial
counsel
was
not
ineffective
for
failing to have a mental health expert evaluate Petitioner for a
mental health defense, and further that there was no reasonable
probability that Petitioner would have declined to plead guilty
8
and insist on going to trial if counsel had hired a mental health
expert. (Answer, Ex. 8, ECF No. 5-10 at 8T23:5–24:9.)
III. DISCUSSION
A.
Standard of Review
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
“Contrary to clearly established Federal law” means the state
court applied a rule that contradicted the governing law set forth
in U.S. Supreme Court precedent or that the state court confronted
a set of facts that were materially indistinguishable from U.S.
Supreme Court precedent and arrived at a different result than the
Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The
phrase “clearly established Federal law” “refers to the holdings,
as opposed to the dicta” of the U.S. Supreme Court’s decisions.
Williams, 529 U.S. at 412. An “unreasonable application” of clearly
9
established
federal
law
is
an
“objectively
unreasonable”
application of law, not merely an erroneous application. Eley, 712
F.3d at 846 (quoting Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)).
B.
Analysis
1.
Ground One
a.
The Parties’ Arguments
In Petitioner’s first ground for relief, he argues his counsel
was ineffective for failing to hire a mental health expert before
accepting a plea. (Pet., ECF No. 1 at 7.) Petitioner asserts there
was evidence of mental illness in his presentence report. (Id.)
Petitioner maintains that but for counsel’s failure to hire a
mental health expert, he could have received a lighter sentence on
lesser charges or he could have used a diminished capacity defense.
(Id.)
Respondents argue that the state courts correctly rejected
this ineffective assistance of counsel claim. (Answer, ECF No. 5
at 13-20.) Under New Jersey law:
evidence that the defendant suffered from a
mental disease or defect is admissible
whenever it is relevant to prove that the
defendant did not have a state of mind which
is an element of the offense. In the absence
of such evidence, it may be presumed that the
defendant had no mental disease or defect
which would negate a state of mind which is an
element of the offense.
N.J.S. § 2C:4-2. (Answer, ECF No. 5 at 13.) A diminished capacity
defense is different from an insanity defense in that it is a
10
pinpointed attempt to negate the presence of an essential mental
element of the crime. (Answer, ECF No. 5 at 14, citing State v.
Rivera, 205 N.J. 472, 487 (2011)).
The mental disease or defect
must be identified and it must be one that is recognized by the
medical community. (Id.) After a court determines that evidence of
the defendant’s condition is relevant and sufficiently accepted
within the psychiatric community to be reliable for courtroom use,
the determination that the condition constitutes a mental disease
or defect is a question for the jury. (Id., citing State v.
Galloway, 133 N.J. 631, 643 (1993)).
A person is guilty of aggravated manslaughter, under New
Jersey law, if he/she “recklessly causes death under circumstances
manifesting extreme indifference to human life.” (Id.) (quoting
N.J.S. § 2C:11-4(1)). The recklessness element is met if the person
caused death “with an awareness and conscious disregard of the
probability of death.” (Answer, ECF No. 5 at 14, quoting State v.
Wilder, 193 N.J. 398, 409 (2008)).
Respondents
likely
suffering
note
from
that
a
Dr.
mental
Bogacki
disease
opined
at
the
Petitioner
time
he
was
shot
Hernandez, but he did not identify any mental disease. (Id., Ex.
29 at 6.) Additionally, Dr. Bogacki testified that Petitioner
recalled that he was extremely reckless on the night of the
shooting,
and
his
recklessness
11
caused
him
to
unintentionally
discharge his gun. (Answer, ECF No. 5 at 15, citing Ex.7, 7T44:1420.)
Respondents
assert
that
Petitioner’s
admitted
conduct
of
pointing a loaded gun at Hernandez’s face, while standing a foot
away from her, and cocking and uncocking the hammer of the gun
demonstrated his conscious disregard for the probability that he
would kill her if he fired the gun. (Answer, ECF No. 5 at 15.) His
conduct also demonstrated an extreme indifference to Hernandez’s
life because there is a high probability that shooting someone in
the face at point blank range will result in that person’s death
and
cocking
and
uncocking
the
hammer
of
the
gun
created
a
significant risk that the gun would discharge. (Id.) In New Jersey,
the focus on whether a defendant manifested extreme indifference
to human life “is not on the defendant’s state of mind, but on the
circumstances under which the defendant acted.” (Id., quoting
State v. Wilder, 193 N.J. 398, 409 (2008)).
Respondents note Petitioner’s trial counsel testified at the
PCR remand hearing that, “[u]ltimately, it was my determination
that the facts of the case as I anticipated would be introduced at
a trial would negate very clearly any potential mental capacity
defense, given his -- the behavior that he exhibited during,
immediately
offense.”
after
(Answer,
and
ECF
going
No.
through
5
at
the
15-16,
time
line
quoting
after
PCR
the
hearing
transcript, May 2, 2013, 6T55:23-56:3.) Respondents assert Dr.
12
Bogacki’s inability to provide evidence that Petitioner was unable
to form the intent to commit aggravated manslaughter vindicated
Petitioner’s trial counsel’s decision. (Answer, ECF No. 5 at 16.)
Mr. Mayer, Petitioner’s trial counsel, testified that he
sought to resolve the case prior to indictment to avoid the
possibility that Petitioner would be charged with murder, which
would expose him to a greater prison sentence. (Id.) Mr. Mayer was
“very confident that the risks in trying to present a defense of
diminished
capacity
and/or
insanity,
while
likely
being
unsuccessful, would expose [Petitioner] to a tremendously longer
state prison sentence.” (Id., quoting PCR hearing transcript, May
2, 2013, 6T57:3-7.) Further, he testified “there would be enough
facts to negate even relatively strong mental defense testimony
from a doctor if a doctor was available.” (Id.) Respondents submit
that
the
state
courts
reasonably
denied
the
remanded
PCR
ineffective assistance of counsel claim. (Id. at 16-20.)
b.
Ineffective Assistance of Counsel Standard of
Review
There are two elements to a Sixth Amendment ineffective
assistance of counsel claim, deficient performance by counsel and
prejudice. Premo v. Moore, 562 U.S. 115, 121 (2011) (citing Knowles
v.
Mirzayance,
556
U.S.
111,
122
(2009)).
For
the
deficient
performance prong, “a person challenging a conviction must show
that counsel's representation fell below an objective standard of
13
reasonableness.” Id. at 121 (internal quotations omitted) (quoting
Harrington v. Richter, 562 U.S. 86, 104 (2011)). A petitioner must
overcome a “‘strong presumption’ that counsel's representation was
within the ‘wide range’ of reasonable professional assistance.”
Id. (quoting Richter, 562 U.S. at 104) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). The burden a petitioner
must meet is “‘that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed the defendant by the
Sixth Amendment.’” Id. at 122 (quoting Richter, 562 U.S. at 104)
(quoting Strickland, 466 U.S. at 687)). Habeas review of counsel’s
performance is doubly deferential, and the question is not whether
counsel’s
reasonable
actions
were
argument
reasonable
that
but
counsel
whether
satisfied
there
is
any
Strickland’s
deferential standard. Id. (citations omitted).
Strict adherence to the Strickland standard is essential
“when reviewing the choices an attorney made at the plea bargain
stage.” Id. at 125.
In the case of an early plea, neither the
prosecution nor the defense may know with much
certainty what course the case may take. It
follows that each side, of necessity, risks
consequences that may arise from contingencies
or circumstances yet unperceived. The absence
of a developed or an extensive record and the
circumstance that neither the prosecution nor
the defense case has been well defined create
a particular risk that an after-the-fact
assessment will run counter to the deference
that must be accorded counsel's judgment and
14
perspective when the
offered, and entered.
plea
was
negotiated,
Premo, 562 U.S. at 126. To prove Strickland prejudice in the
context
of
acceptance
of
a
plea
offer,
a
petitioner
must
“demonstrate ‘a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.” Id. at 129 (quoting Hill v. Lockhart, 474 U.S.
52, 59 (1985)).
[W]here a plea has been entered without a full
trial or … even before the prosecution decided
on the charges … added uncertainty … results
when there is no extended, formal record and
no actual history to show how the charges have
played out at trial[, which] works against the
party
alleging
inadequate
assistance.
Counsel, too, faced that uncertainty. There is
a most substantial burden on the claimant to
show ineffective assistance.
Id. at 132. Hindsight and second guesses in such a case are
especially
inappropriate.
Id.
“[I]f
the
defendant
makes
an
insufficient showing on one [prong of the Strickland test]” a court
need not address the other prong. Strickland, 466 U.S. at 697. “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.” Id.
c.
Habeas
review
The State Court’s Decision
is
of
the
highest
state
court’s
reasoned
decision on the federal issue presented. Blystone v. Horn, 664
15
F.3d 397, 417 n. 15). The highest state court to address this issue
is the Appellate Division’s June 22, 2016 Opinion.
On remand, defendant, his trial counsel and
David Bogacki, Ph.D., testified at the
hearing. Defendant described his mental health
history as beginning at age nine or ten when
he began to hear voices that would tell him to
hurt himself or others. He was prescribed
medication that caused the hallucinations to
disappear. He was arrested several times as a
juvenile, and while in detention regularly
took his medication and “was fine.” He
continued to receive psychiatric care for
several years but then stopped taking the
medication
at
age
twenty-one
and
the
hallucinations returned.
On the day he committed the offenses,
defendant stated he only recalled the one
event in which he pulled the trigger of a gun
that killed a young woman. He said he was in
a “trance” and described it as if he was “in
a world outside of the norm…. It’s like
something’s taking over me.” He remembered a
voice telling him to play with a gun and as he
did so, it went off, shooting the victim. He
recalled leaving the house, and calling a cab
to go to his brother’s home. He then went to
his aunt’s house in Washington D.C. where he
was subsequently found and arrested.
Defendant recalled telling his brother right
after the shooting that he “got into some
trouble” and telling a friend that he had just
done “the worst thing you [can] do.” He called
another friend, telling her he needed “to get
out of town because [he had done] something
bad.” Finally, defendant acknowledged that
during his statement to the police he never
told them he was in a trance or that a voice
had told him to shoot the gun. As to
conversations
with
his
defense
counsel,
defendant testified that he told his attorney
that he had mental health issues to which
16
counsel responded that his mental health would
not be a defense.
Defense counsel, admitted to the bar for
twenty-four years, stated he was privately
retained by defendant, having represented him
in several previous criminal matters. Counsel
was aware of defendant’s mental health
history. After a consideration of whether to
have defendant undergo a mental health
evaluation, counsel advised against it. He
explained that the facts which would have been
presented at trial would have negated any
potential mental capacity defense because of
the behavior defendant “exhibited during,
immediately after and going through the time
line after the offense.” He did not believe
that diminished capacity or insanity were
viable defenses.
Counsel further explained that there was an
opportunity for defendant to resolve the
matter with a lesser sentence and that he did
raise the subject of defendant’s mental health
history in his conversations and negotiations
with the prosecutor. He concluded: “I was very
confident that the risks in trying to present
a defense of diminished capacity and/or
insanity, while likely being unsuccessful,
would expose Mr. Bishop to a tremendously
longer state prison sentence.”
Bogacki conducted a psychological evaluation
of defendant in 2012 and presented testimony
of his findings at the hearing in July 2013.
Although the doctor was aware of defendant’s
history of psychotic symptoms, the testing and
evaluation did not reveal such symptoms and
the doctor found his regime of medications to
be stabilizing. He noted defendant had been
previously diagnosed with a schizoaffective
disorder and paranoid schizophrenia when
hospitalized but that his incarceration had
permitted
him
to
take
his
medications
regularly, thus stabilizing his condition.
17
Based upon defendant’s long-term history of
psychiatric problems, Bogacki concluded that
at the time of the shooting defendant was
suffering from a mental illness in the
psychotic spectrum of disorders. The doctor
agreed that defendant’s behavior following the
shooting was indicative of someone who was
aware that their actions were wrong. Bogacki
acknowledged that in the nine hundred pages of
medical records he reviewed, there were no
statements made by defendant that a voice had
told him to shoot the victim. In fact, at all
times defendant claimed the shooting had been
an accident.
In a comprehensive oral decision delivered on
January 2, 2014, Judge Kyran Connor found
trial
counsel
to
be
“an
experienced
practitioner of criminal law who had handled
mental health-related defenses over the course
of 20 years of practice. I find he was a man
with the experience to know when an insanity
or diminished capacity defense would play well
before a jury.” Judge Connor noted the
“infirmities” relating to defendant’s mental
health defense.
“[T]here is no diagnosis or opinion
that squarely holds that Mr. Bishop
at the time of this crime labored
under such a defect or reason from
a disease of the mind that he did
not know the nature and quality of
his action or that if he did know
it, he did not know that what he was
doing was wrong.
The judge commented that in his review of the
voluminous medical information, never had
defendant said that he was in a trance or
responding to a voice when he shot the victim.
He always referred to the shooting as an
accident.
In assessing the effectiveness of counsel
under the two prongs set forth in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct.
18
2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the
judge found that trial counsel was a
fully credible witness. I conclude
that
he
exercised
his
best
professional judgment in assessing
Mr. Bishop’s options in that he
reasonably excluded a mental health
defense as a viable option based on
all the factors to which I’ve
already
averted,
but
most
especially based on defendant’s
confessions
and
his
clear
demonstrations of a consciousness
of guilt.
Because of his findings on the first prong, it
was not necessary for the judge to reach the
second prong but he addressed it nevertheless,
finding that defendant received a favorable
plea offer and counsel’s use of the mental
health history was a factor in obtaining the
offer from the prosecutor. He rejected
defendant’s argument that he was prejudiced by
counsel’s failure to obtain a mental health
evaluation.
On appeal defendant argues:
PCR court erred in denying the
petition because trial counsel’s
failure to retain a mental health
expert before negotiating a plea
eliminated the maximum effective
use
of
Bishop’s
mental
health
defenses.
We are not persuaded by this argument. The
standard for determining whether counsel’s
performance was ineffective for purposes of
the
Sixth
Amendment
was
formulated
in
Strickland, supra, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674, and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42
(1987). In order to prevail on a claim of
ineffective assistance of counsel, defendant
must meet the two-prong test of establishing
19
both that: (1) counsel’s performance was
deficient and he or she made errors that were
so egregious that counsel was not functioning
effectively as guaranteed by the Sixth
Amendment to the United States Constitution;
and (2) the defect in performance prejudiced
defendant’s rights to a fair trial such that
there exists a “reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different.” Strickland, supra, 466 U.S. at
687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed.
2d at 693, 698.
We are satisfied from our review of the record
that defendant failed to meet his burden of
proof as to a showing of ineffectiveness of
trial counsel within the Strickland-Fritz
test.
Trial
counsel
assessed
whether
defendant’s mental health history could be a
viable defense to the charges and concluded
that insanity and diminished capacity would
not be supported by the admissible facts.
Defendant’s
actions
after
the
shooting
demonstrated that he was aware and understood
that what he had just done was wrong.
Furthermore, in the extensive discussions with
mental health professionals in the years
following
this
incident,
not
once
had
defendant offered that he was in a trance at
the time of the shooting or being directed by
voices; he had always described it as an
accident.
We
find
that
Judge
Connor’s
conclusion
that
trial
counsel’s
“representation was well within the range of
adequacy,
which
the
Sixth
Amendment
guarantees,” was supported by the credible
evidence in the record.
(Answer, Ex. 26, ECF No. 5-28 at 2-8.)
d.
Ground One of the Petition is Without Merit
The Appellate Division applied the correct standard under
Strickland
in
denying
Petitioner’s
20
ineffective
assistance
of
counsel claim. The Appellate Division also reasonably applied the
Strickland
standard
in
holding
that
defense
counsel
provided
adequate representation in compliance with the Sixth Amendment
because
counsel
exercised
his
professional
judgment
that
an
insanity or diminished capacity defense was unlikely to succeed.
Counsel’s opinion was supported by Petitioner’s behavior of
immediately admitting wrongdoing to his brother and friends after
shooting the victim, and his conduct of leaving town to stay with
a family member in Washington D.C. The lack of any evidence that
Petitioner told law enforcement or any mental healthcare providers
that he was in a trance or responding to voices in his head at the
time he shot the victim is compelling evidence in support of the
Appellate Division’s conclusion that counsel was not ineffective
for failing to hire a mental health expert to evaluate Petitioner
for a mental health defense. Ground One of the petition is denied.
2.
In
Ground
Ground Two is Unexhausted
Two
of
the
petition,
Petitioner
asserts
following:
Aggravating and mitigating factors were not
properly weighed in sentencing phase, which
gave defendant an excessive sentence. The
factual basis of the plea in itself does not
reflect the conduct required for aggravated
manslaughter.
The sentencing discretion range is clearly
barred, not the illegality finding mitigating
factors.
21
the
(Pet., ECF No. 1 at 18.)
Petitioner did not describe how these alleged errors violated
federal law. State law errors are not cognizable in federal habeas
petitions. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have
stated many times that federal habeas corpus relief does not lie
for errors of state law”) (internal quotations omitted)). The Court
liberally construes Ground Two as raising two federal claims:
(Ground
2a)
involuntary,
Petitioner’s
in
violation
plea
to
of
the
aggravated
Due
manslaughter
Process
Clause
of
was
the
Fourteenth Amendment, because the plea colloquy does not establish
the elements of the crime; and (Ground 2b) Petitioner’s sentence
was excessive in violation of the Cruel and Unusual Punishments
Clause of the Eighth Amendment.
Upon review of the state court record, Petitioner did not
fairly present the federal nature of these claims in the state
courts. (Answer, Exs. 4, 15, 18, 22, 27, 31, 33, 35, 39, 4, ECF
Nos. 5-6, 5-17, 5-20, 5-24, 5-29, 5-33, 5-35, 5-37, 5-41, 5-43.)
Grounds
2(a) and 2(b), therefore, are unexhausted. A federal
habeas court may dismiss unexhausted claims on the merits, if
appropriate. 28 U.S.C. § 2254(b)(2); see McLaughlin v. Shannon,
454 F. App’x 83, 86 (3d Cir. 2011) (when a petitioner presents a
mixed petition, a district court may deny meritless unexhausted
claims under § 2254(b)(2) rather than dismissing the mixed petition
without prejudice or permitting the petitioner to delete the
22
unexhausted claims). For the reasons discussed below, the Court
denies the federal claims in Ground Two on the merits.
a.
In
McCarthy
Ground 2(a) is without merit
v.
U.S.,
the
Supreme
Court
described
constitutional rights implicated by a guilty plea.
A
defendant
who
enters
such
a
plea
simultaneously waives several constitutional
rights,
including
his
privilege
against
compulsory self-incrimination, his right to
trial by jury, and his right to confront his
accusers. For this waiver to be valid under
the Due Process Clause, it must be an
intentional relinquishment or abandonment of
a known right or privilege. Consequently, if
a defendant's guilty plea is not equally
voluntary and knowing, it has been obtained in
violation of due process and is therefore
void. Moreover, because a guilty plea is an
admission of all the elements of a formal
criminal charge, it cannot be truly voluntary
unless
the
defendant
possesses
an
understanding of the law in relation to the
facts.
Thus, in addition to directing the judge to
inquire into the defendant's understanding of
the nature of the charge and the consequences
of his plea, Rule 11 also requires the judge
to satisfy himself that there is a factual
basis for the plea. The judge must determine
that the conduct which the defendant admits
constitutes the offense charged in the
indictment or information or an offense
included therein to which the defendant has
pleaded guilty. Requiring this examination of
the relation between the law and the acts the
defendant admits having committed is designed
to protect a defendant who is in the position
of pleading voluntarily with an understanding
of the nature of the charge but without
realizing that his conduct does not actually
fall within the charge.
23
the
394 U.S. 459, 466–67 (1969) (internal quotations, citations and
footnotes omitted).
The trial court engaged in the following plea colloquy with
respect to Petitioner’s guilty plea to aggravated manslaughter.
THE COURT:
Okay, now this charge is for
aggravated manslaughter, and it alleges that
you
caused
her
death
recklessly
under
circumstances
manifesting
extreme
indifference to human life. Would you tell me
what it was that you did which now causes []
you
[to]
plead
guilty
to
aggravated
manslaughter?
MR. MAYER: Judge, if I may? If there is no
objection from the prosecutor or from, your
Honor, if I may?
THE COURT:
Go right ahead, Mr. Mayer.
MR. MAYER:
Mr. Bishop, on that evening in
Atlantic City when you were together with Ms.
Hernandez, were you in possession of a
handgun?
MR. BISHOP:
Yes.
MR MAYER:
loaded?
And did you know that gun was
MR. BISHOP:
Yes.
MR MAYER: And was that a revolver?
MR. BISHOP:
Yes.
MR. MAYER: And while in her presence did you
have that handgun positioned in such away
[sic] as it was pointed at her face or at her
head?
MR. BISHOP:
Yes.
24
MR. MAYER:
loaded?
MR. BISHOP:
While you knew the gun to be
Yes.
MR. MAYER: And were you working the action of
that revolver with the hammer by pulling your
thumb back and forth allowing the hammer to go
back and then close on two or more occasions?
MR. BISHOP:
Yes.
MR. MAYER: Were you aware that if you did not
catch the hammer at the appropriate time while
the gun was pointed at her head and if the gun
fired, that there was a real likelihood that
she may be killed as a result of the gun going
off?
MR BISHOP: Yes.
THE COURT:
What distance were you from her
when this occurred?
MR BISHOP: About the same distance as me and
Mr. Mayer are.
THE COURT: Which is only about a foot apart,
is that correct?
MR BISHOP:
Yes.
THE COURT: And the gun was actually pointed
at her face or head?
MR BISHOP:
Yes.
THE COURT: Now, you understand that in order
to commit an aggravated manslaughter it has to
be
done
recklessly
under
circumstances
manifesting extreme indifference to the value
of human life. Do you admit that by the
handling of this known loaded weapon at that
distance with the weapon directly pointed at
her face that that was reckless conduct.
MR BISHOP:
Yes.
25
THE COURT: In other words, conduct in wanton
and willful disregard of her rights and
safety?
MR BISHOP:
Yes, sir.
THE COURT:
And do you agree that it was
handled -- the way the gun was handled and
pointed it was done so under circumstances
manifesting extreme indifference to her life
by you?
MR BISHOP:
Yes, sir.
THE COURT: And do you admit that that resulted
-- that conduct under the totality of those
circumstances resulted in a probability of
death occurring to her life not just a mere
possibility of death?
MR. BISHOP:
Yes, sir.
(Answer, Ex. 2, ECF No. 5-4 at 2T15-17.)
Under New Jersey law, “[a]ggravated manslaughter requires the
State to prove that ‘the defendant was aware of and consciously
disregarded a substantial risk of death, i.e., a probability that
death would result, and that the defendant manifested extreme
indifference to human life.’” State v. Jenkins, 840 A.2d 242, 251
(N.J. 2004) (emphasis added in Jenkins) (quoting State v. Cruz,
749 A.3d 832 (2000)). The conduct of pointing a loaded revolver at
a person’s face from only one foot away while cocking and uncocking
the hammer undoubtedly displays a conscious disregard that created
a substantial risk of death, and that by consciously engaging in
this conduct, Petitioner manifested an extreme indifference to
26
human life. Petitioner’s Due Process claim based on his assertion
that the factual basis of the plea did not support his conviction
is without merit. The Court denies Ground 2(a) of the petition.
b.
Ground 2(b) is without merit
The Court construes Plaintiff’s claim that his sentence is
excessive as alleging a violation of the Eighth Amendment. “The
Eighth Amendment's prohibition of cruel and unusual punishment
‘guarantees individuals the right not to be subjected to excessive
sanctions.’” Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting
Roper v. Simmons, 543 U.S. 551, 560 (2005)). The right stems from
the concept that punishment for crime should be proportionate to
the offense and the offender. Id.
In a challenge to the length of a sentence, courts consider
all of the circumstances of the case to determine whether the
sentence is unconstitutionally excessive. Graham v. Fla., 560 U.S.
48, 59 (2010) as modified (July 6, 2010). In “determining whether
a sentence for a term of years is grossly disproportionate for a
particular defendant's crime[][, a] court must begin by comparing
the gravity of the offense and the severity of the sentence. Id.
(quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (opinion
of KENNEDY, J.)).
[I]n the rare case in which [this] threshold
comparison ... leads to an inference of gross
disproportionality” the court should then
compare the defendant's sentence with the
sentences received by other offenders in the
27
same jurisdiction and with the sentences
imposed
for
the
same
crime
in
other
jurisdictions. [Harmelin, 501 U.S. at 1005.]
If this comparative analysis “validate[s] an
initial judgment that [the] sentence is
grossly disproportionate,” the sentence is
cruel and unusual.
Graham, 560 U.S. at 60. “If the defendant fails to demonstrate a
gross imbalance between the crime and the sentence, a court's
analysis of an Eighth Amendment challenge is at an end.” United
States v. Burnett, 773 F.3d 122, 137 (3d Cir. 2014).
Here,
Petitioner
was
sentenced
to
a
24-year-term
of
imprisonment for aggravated manslaughter. Petitioner’s extremely
reckless conduct took another person’s life. Petitioner was 21years-old when sentenced, therefore, he is not facing life in
prison. (Answer, Ex. 3, ECF No. 5-5 at 3T5.)
Moreover, “[t]he fact that the sentence fell within the
advisory guideline range is in and of itself strongly suggestive
of proportionality.” Id. at 138. The sentencing transcript reveals
that Petitioner was facing up to thirty (30) years with a mandate
to serve 85 percent without parole eligibility on the aggravated
manslaughter charge. (Answer, Ex. 3, ECF No. 5-5 at 3T5:10-15.)
When Petitioner attempted to withdraw his guilty plea, the trial
court
advised
that,
based
on
Petitioner’s
extensive
criminal
history, and the fact that he shot a person in the face and killed
her, he would have been sentenced in the upper range. (Id. at
3T5:17-7-11.) This Court concludes the severity of the sentence is
28
not grossly disproportionate to the gravity of the crime. See
Burnett, 773 F.3d at 137 (24-year sentence for robbery where the
victims were tied up and terrorized with a gun, and one victim was
clubbed on the head when he tried to escape, was a reasonable and
appropriate
sentence).
The
Court
denies
Ground
2(b)
of
the
petition.
3.
Ground Three
For his third ground for relief, Petitioner asserts:
It was brought to trial courts [sic] attention
during PCR hearing that Due Process was
violated at the very first process of
defendant by arresting Officer’s [sic] who
clearly never read him his rights. This
confession should have been vacated the plea
should not have been accepted.
(Pet., ECF No. 1 at 19.)
In opposition to Ground Three, Respondents contend that the
state courts correctly found that the police advised Petitioner of
his Miranda 1 rights before speaking to him. (Answer, ECF No. 5 at
25.) In his initial PCR brief, Petitioner argued “Counsel failed
to
make
efforts
to
have
petitioner’s
statement
suppressed.”
(Answer, Ex. 31, ECF No. 5-33 at p. i.) The PCR court stated,
“[t]he recorded transcribed statements reveals [sic] that Mr.
Bishop
was
advised
of
his
Miranda
rights
and
waived
them,
initialing each line on the card. Before he began questioning,
1
Miranda v. Arizona, 384 U.S. 436 (1966).
29
Investigator Michael Mattioli asked if he had read the defendant
his rights, the defendant understood them, if he was presented a
card which he signed.” (Id., Ex. 5, ECF No. 5-7 at 5T35:1-7.)
The PCR court therefore concluded that it was unlikely a judge
would grant a motion to suppress the statements if the motion had
been made, and counsel did not err for failing to make the motion.
(Id.,
5T35:12–36:1.)
Respondents
conclude
Petitioner
has
not
established that the court’s ruling was based on an unreasonable
determination
of
facts
or
was
contrary
to,
or
involved
an
unreasonable application of federal law. (Answer, ECF No. 5 at 2627.)
This claim was raised as an ineffective assistance of counsel
claim in the first PCR proceeding, therefore, the Strickland
standard governs habeas review. In the habeas petition, the basis
for Petitioner’s claim that counsel erred by not bringing a motion
to suppress his statements was that the police did not read him
his Miranda rights. The PCR court found the police did read
Petitioner his Miranda rights. The Appellate Division affirmed
without discussion.
On habeas review, a state court’s determination of facts is
presumed correct and unless rebutted by the petitioner by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1). Petitioner has
offered no evidence in support of his claim that the police did
not read him his Miranda rights before taking his statement.
30
Therefore, there was no basis for counsel to make a motion to
suppress the statement, and the PCR Court reasonably applied
Strickland in denying the claim that counsel was ineffective.
Ground Three of the petition is denied.
4.
Ground Four
For his fourth ground for relief, Petitioner states, “Before
being sentenced, defendant asked the court to retract his plea,
but was denied by the court. Defendant had the right to change his
mind and have a trial by jury.” (Pet., ECF No. 1 at 20.) In
opposition, Respondents note Petitioner did not exhaust this claim
in the state courts, but argue it is without merit because New
Jersey law does not permit a defendant to withdraw a negotiated
plea simply because he changed his mind. (Answer, ECF No. 5 at
28.)
Claims of state law error are not cognizable under § 2254.
Estelle, 502 U.S. at 67. “There is no Federal or Constitutional
right to withdraw a guilty plea.” Roten v. Deloy, 575 F. Supp. 2d
597, 605 (D. Del. 2008) (citing Hines v. Miller, 318 F.3d 157, 162
(2d Cir. 2003)); see Government of Virgin Islands v. Berry, 631
F.2d 214, 219 (3d Cir. 1980) (“there is no absolute right to
withdraw a guilty plea”). A plea of guilty is a waiver of trial
resulting
in
a
conclusive
conviction
and
does
not
deny
the
defendant a right to a jury trial. U.S. v. Colonna, 142 F.2d 210,
213 (3d Cir. 1944). A defendant’s contention that he did not know
31
he would be subjected to a severe sentence is not sufficient
grounds
for
reversing
the
trial
court’s
decision
to
deny
defendant’s motion to withdraw his guilty plea. Colonna, 142 F.2d
at 213.
The trial court denied Petitioner’s motion to withdraw his
guilty plea because the only basis for the motion was Petitioner’s
belief that he might get a shorter sentence if he went to trial
and argued the shooting was an accident. (Answer, Ex. 3, ECF No.
5-5
at
5T8:7-13:10.)
No
federal
or
constitutional
right
is
implicated by this claim. Therefore, it is not cognizable in this
habeas petition. Ground Four of the petition is denied.
IV.
CERTIFICATE OF APPEALABILITY
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.
28
U.S.C.
§
2253(c).
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 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
Cockrell, 537 U.S. 322, 327 (2003).
32
further.”
Miller-El
v.
For the reasons discussed above, Petitioner has not made a
substantial showing of the denial of a constitutional right.
Therefore, the Court will deny a certificate of appealability.
V.
CONCLUSION
In the accompanying Order filed herewith, the Petition for
habeas relief under 28 U.S.C. § 2254 is denied.
Dated: August 31, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
33
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