ROSA v. SLAUGHTER et al

Filing 31

MEMORANDUM ORDER directing the Clerk to reopen this matter for entry of this Order; ORDERED that Respondent's 29 Motion to Stay is GRANTED; ORDERED that the Clerk shall close this matter. Signed by Chief Judge Renee Marie Bumb on 5/18/2023. (dmr)(n.m.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KELVIN ROSA,

:
:
Petitioner
:
:
v.
:
:
JAMES SLAUGHTER,
:
ADMINISTRATOR
:
and ATTORNEY GENERAL
:
OF THE STATE OF NEW JERSEY, :
:
Respondents
:
:

Civ. Action No. 20-4686 (RMB)

MEMORANDUM ORDER

This matter comes before the Court upon Respondents’ motion for a stay of
this Court’s Opinion and Order of March 31, 2023, granting Petitioner’s petition for
writ of habeas corpus under 28 U.S.C. § 2254. (Mot. for Stay, Docket No. 29.) For
the reasons discussed below, the Court will grant Respondent’s motion for a stay.
I.

INTRODUCTION
On March 31, 2023, this Court granted Petitioner’s petition for writ of habeas

corpus under 28 U.S.C. § 2254 because he received ineffective assistance when his
counsel failed to make objections and request proper limiting instructions to mitigate
the severe prejudice to Petitioner by the misuse of Rule 404(b) evidence at trial. The
Court incorporates the Opinion by reference (Opinion, Docket No. 24; Order,
Docket No. 25) and will discuss below the issues necessary to resolve Respondent’s
motion for a stay pending appeal.

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II.

LEGAL STANDARD
Federal Rule of Civil Procedure 23(c) governs stays pending appeal and

creates a presumption of release from custody for a successful habeas petitioner. The
presumption of release may be overcome where a stay of the order is appropriate
under traditional rules governing stays. Hilton v. Braunskill, 481 U.S. 770, 774 (1987).
“[F]ederal courts may delay the release of a successful habeas petitioner in order to
provide the State an opportunity to correct the constitutional violation found by the
court.” Id. at 775 (citing e.g., Rogers v. Richmond, 365 U.S. 534, 549 (1961); Dowd v.
United States ex rel. Cook, 340 U.S. 206, 210 (1951); In re Bonner, 151 U.S. 242, 261–
262 (1894)). In determining a motion to stay pending appeal, courts should consider
the traditional factors governing issuance of a stay: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the proceeding; and (4) where
the public interest lies.” Hilton, 481 U.S. at 776. In addition to these traditional
factors, for habeas cases, courts should consider: (1) the possibility of flight; (2) the
risk that the prisoner will pose a danger to the public; and (3) “[t]he State's interest in
continuing custody and rehabilitation pending a final determination of the case on
appeal[,]” an interest which is “strongest where the remaining portion of the sentence
to be served is long, and weakest where there is little of the sentence remaining to be
served.” Id. at 777. In further guidance for balancing these factors, the Supreme
Court has stated:
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Where the State establishes that it has a strong likelihood
of success on appeal, or where, failing that, it can
nonetheless demonstrate a substantial case on the merits,
continued custody is permissible if the second and fourth
factors in the traditional stay analysis militate against
release. Cf. McSurely v. McClellan, 225 U.S.App.D.C. 67,
75, 697 F.2d 309, 317 (1982); O'Bryan v. Estelle, 691 F.2d
706, 708 (CA5 1982), cert. denied, 465 U.S. 1013, 104 S.Ct.
1015, 79 L.Ed.2d 245 (1984); Ruiz v. Estelle, 650 F.2d 555,
565–566 (CA5 1981). Where the State's showing on the
merits falls below this level, the preference for release
should control.
Id. at 778. Therefore, the Court turns to consideration of those factors.
III.

DISCUSSION
A.

Whether the Stay Applicant Has Made a Strong Showing that He is
Likely to Succeed on the Merits
1.

The Court’s Decision is Based on Ineffective
Assistance of Counsel

Respondents’ make the following points regarding their likelihood of success
on appeal: (1) the Court improperly relied on its disagreement with the state courts’
conclusion that the evidence was admissible; (2) the Court failed to give deference to
the state courts’ conclusion that Petitioner was not prejudiced. (Docket No. 29-1 at
8-31.) To the first point, this Court did not rule that the trial court erred under New
Jersey Rule of Evidence (“N.J.R.E.”) 404(b) in holding prior crimes, acts or wrongs
admissible to prove identity of the gun used in the charged offenses, and to link that
gun to the defendant. Undeniably, this Court disagreed with how that evidence was
presented at trial, and concededly defense counsel made some attempt to constrict
the testimony to that necessary to establish identity of the gun and Petitioner’s
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presence with that gun during prior acts. However, counsel’s objections were too
little too late, the damage was already done.
The limiting instruction given to the jury before its deliberation exacerbated
the prejudice to defendant by improperly focusing on the commission of a prior
crime rather than the prior act of possessing the same gun. (Opinion, Docket No. 24
at 57-59.) Specifically, the evidence was admitted to show only that defendant
possessed the same gun that was used to shoot Officer Rodgers during the United
Check Cashing burglary during the course of the Amaro Foods Burglary and the
Paramus Eluding Incident. Effective defense counsel is required to make appropriate
objections and to request carefully tailored limiting instructions, or alternatively, to
object to an improper jury instruction. See, State v. Gillispie, 208 N.J. 59 ( 2011)
(“Gillispie II”) (“We take this occasion to remind litigants and trial judges that othercrimes evidence must be appropriately sanitized…. Independently, we also
emphasize the importance of a firm and clear jury instruction when dealing with
other-crimes evidence”), see also, ABA Criminal Justice Standards, Defense Function
Standard 4-7.6(e) Presentation of Evidence (“Defense counsel should exercise
strategic judgment regarding whether to object or take exception to evidentiary
rulings that are materially adverse to the client, and not make every possible
objection….”) and Standard 4-1.5 Preserving the Record (“At every stage of
representation, defense counsel should take steps necessary to make a clear and
complete record for potential review” which may include “making objections and

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placing explanations on the record” and “requesting or objecting to jury
instructions.”)
2.

The Prejudicial Nature of Rule 404(b) Evidence

To understand the inherently prejudicial nature of New Jersey Rule 404(b)
evidence, the Court begins with the text of the rule:
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Except as otherwise provided by Rule
608(b), evidence of other crimes, wrongs, or acts is not
admissible to prove a person's disposition in order to show
that on a particular occasion the person acted in
conformity with such disposition.
(2) Permitted Uses. This evidence may be admitted for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident when such matters are relevant to a
material issue in dispute.
N.J.R.E. 404(b). “[T]he [404(b)] evidence must relate to a material issue that
is in dispute….” State v. Skinner, 218 N.J. 496, 515 (2014) (alteration added). It is
well settled that admission of prior crimes or bad acts under N.J.R.E. 404(b) is
inherently prejudicial and deserving of careful scrutiny. “The underlying danger of
admitting other-crime evidence is that the jury may convict the defendant because he
is a bad person in general.” State v. Rose, 206 N.J. 141, 159, 19 A.3d 985, 996 (2011)
(quoting State v. Cofield, 127 N.J. 328, 336 (1992) (citation and internal quotation
marks omitted). “[T]he very purpose of Rule 404(b) is simply to keep from the jury
evidence that the defendant is prone to commit crimes or is otherwise a bad person,
implying that the jury needn't worry overmuch about the strength of the
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government's evidence.” State v. Skinner, 218 N.J. 496, 517, (2014) (quoting [State v.]
Rose, 206 N.J. [141], 180 [2011] (internal quotation marks omitted) (quoting United
States v. Green, 617 F.3d 233, 249 (3d Cir.) (internal quotation marks omitted), cert.
denied, 131 S. Ct. 363 (2010)).
Judge Alameida explained his pretrial ruling on admission of N.J.R.E, 404(b)
evidence, in relevant part:
Proof of the defendant's use or possession of a handgun in
one crime can be used to establish the identity of the
person or persons who committed another crime with the
same handgun. … The use and possession of the same gun
in three distinct matters is not only relevant but it's
probative as to the issue of the perpetrators' identity. … In
this case, the similarity of the North Bergen incident, the
Paramus incident, and the Willingboro incident is not
the reason for seeking admission of this evidence.
Rather, it is the weapon, the identity of the weapon. …
There of course is prejudice…. However, there are ways
of minimizing, sanitizing that particular impact…. It's my
intention at the conclusion of this oral opinion to provide
counsel with copies of the other crimes evidence charge. I
intend on directing counsel specific acts that may not be
mentioned and may not be testified to during the trial of
this case and I'm going to urge counsel to draft a charge,
meeting with each other prior to the trial to draft a charge
that will minimize the prejudice or eliminate the prejudice
as to Mr. Jimenez as it relates to the North Bergen incident
with which he wasn't involved and sanitizing the aspects
that I'm going to direct be taken out. …
The testimony relating to Mr. Rosa’s intention to shoot
Officer McGovern immediately after the stop that
occurred on February 3rd, 2005, may not be introduced in
any way. Mr. Nunez's testimony in that regard must not,
will not be permitted and a mistrial will be caused if that
testimony comes out. The prejudice to Mr. Rosa with the
admission of that testimony is immense and it is not
relevant to the weapons identity in this case.
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(Docket No. 18-5 at 3-12).
To reduce “the inherent prejudice in the admission of other-crimes evidence,”
the New Jersey Supreme Court explained:
trial courts are required “to sanitize the evidence when
appropriate,” [State v.] Rose, 206 N.J. [141], 161, 19 A.3d
985 [2011] (quoting [State v.] Barden, 195 N.J. [375,] 390,
949 A.2d 820) [2008]….
To further minimize the inherent prejudice in the
admission of other-crimes evidence, a carefully crafted
limiting instruction “must be provided to inform the jury
of the purposes for which it may, and for which it may
not, consider the evidence of defendant's [other crimes],
both when the evidence is first presented and again as part
of the final jury charge.” Rose, 206 N.J. at 161, 19 A.3d
985 (citing Barden, 195 N.J. at 390, 949 A.2d 820).
However, the inherently prejudicial nature of other-crimes
evidence “casts doubt on a jury's ability to follow even the
most precise limiting instruction.” [State v.] Reddish, 181
N.J. [553], 611, 859 A.2d 1173 [2004] (quoting State v.
Fortin, 162 N.J. 517, 534, 745 A.2d 509 (2000)).
State v. Green, 236 N.J. 71, 84–85 (2018).
To Respondents’ second point on likelihood of success on appeal, that
deference is owed to the state court’s finding of harmless error on direct appeal of
Petitioner’s challenge to admission of the Rule 404(b) evidence, deference is not
owed because the state court did not apply the prejudice standard required under
Strickland. “[W]hen a defendant challenges a conviction” the governing standard for
Strickland prejudice “is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland
v. Washington, 466 U.S. 668, 695 (1984)). Even if the harmless error standard
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employed by the state court on direct appeal of the evidentiary ruling is similar to the
Strickland prejudice standard, this Court summarized why the State court’s brief
discussion of harmless error was unreasonable:
Petitioner was prejudiced as soon as the prosecutor
suggested in his opening statement that this was a case
about burglaries so similar that Petitioner must have
committed these signature crimes. The prejudice became
worse when multiple witnesses described the Amaro
Foods Burglary in such detail, the only purpose for which
was to suggest the United Check Cashing Burglary must
have been committed by the same people. The one topic
that was strictly precluded by Judge Almeida’s pretrial
404(b) ruling and predicted to result in a mistrial, came in
and no mistrial was requested. Even then, the prejudice
worsened when the jury heard the dramatic story of the
dangerous conditions under which the police officers
apprehended Petitioner after the traffic stop. All without
proper limiting instructions. When the final jury
instruction was given, it only caused more confusion. In
the end, counsel’s deficient performance resulted in a trial
where it was impossible for the jury to focus on the crimes
that Petitioner was being tried for. Because of these errors,
Petitioner was ultimately on trial for those alleged prior
bad acts, and was denied a fair trial.
(Opinion, Docket No. 24 at 59-60.)
On direct appeal of Petitioner’s challenge to admission of the N.J.R.E. 404(b)
evidence, the state court’s decision that Petitioner was not prejudiced was
unreasonable. Under the Strickland prejudice prong, counsel’s errors were likely to
cause the jury to convict based on defendant’s propensity to commit burglaries,
where the remaining evidence against Petitioner was largely uncorroborated
accomplice testimony of Nunez, and a vague statement about a gun made to Officer
Serrano when Petitioner arrested Petitioner in the Dominican Republic. In sum,
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Respondents’ have not made a strong showing on the likelihood of success on the
merits. Nonetheless, continued custody is permissible if the second and fourth
factors of the traditional stay analysis militate against release, together with the
possibility of flight and danger to the public posed by the petitioner’s release, and the
length of the sentence remaining,. Hilton, 481 U.S. at 777-78.
B.

Whether the Applicant Will Be Irreparably Injured Absent a Stay

Respondents contend the State will suffer irreparable injury absent a stay
pending appeal because the 30-day time period to determine whether to initiate a
new trial or release Petitioner does not provide the State sufficient time to appeal
prior to commencing a new trial. It is true that denial of a stay pending appeal may
render the appeal moot. Therefore, Respondents have established the possibility of
irreparable injury, the inability to appeal, absent a stay.
C.

Injury to Petitioner

Respondents contend that Petitioner is not subject to appreciable harm if the
motion to stay pending appeal is granted. Given the seriousness of the charges and
Petitioner’s status as a Dominican Republic national with a history of flight from
criminal charges, substantial bail will likely be set and preclude his release pending
appeal and/or retrial. The likelihood of substantial bail reduces the harm to
Petitioner by continuing his custody pending appeal, and this factor does not strongly
weigh in favor of release.
D.

The Public Interest, Risk of Flight, Danger to the Public and Length
of Sentence
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Respondents submit that the public has an interest in guarding against the
waste of judicial resources required by immediate retrial of Petitioner. Denial of
Respondents’ motion for a stay pending appeal would force the State to incur
substantial expenses in time and resources to convene a retrial. Success on appeal
could avoid those significant expenditures. Respondents contend that the public has
an interest in obtaining meaningful appellate review based on the seriousness of the
offense, including attempted murder of a police officer that ended his career.
The public has a strong interest in upholding the Constitutional guarantees in
a criminal trial. However, the additional factors present for issuance of a stay
pending appeal where habeas relief has been granted, unlike stays in typical civil
actions, weigh in favor of continued custody. Petitioner poses a risk of flight if
released pending appeal. He was previously returned to the United States from the
Dominican Republic to face the criminal charges at issue here. This Court’s grant of
habeas relief does not preclude Petitioner’s retrial. Therefore, there is a potential he
will be convicted for attempted murder of a police officer, an offense that suggests his
release poses a danger to the public. Finally, Petitioner has served approximately
half of his 30-year sentence, and is ineligible for parole until the year 2034, which is a
factor that creates a strong interest in the State retaining custody during appeal.
Hilton, 481 U.S. at 777. The Court finds that the factors balance in favor of
Petitioner’s continued custody pending Respondents’ appeal.
IT IS therefore on this 18th day of May 2023,

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ORDERED that the Clerk shall reopen this matter for entry of this Order; and
it is further
ORDERED that Respondents’ motion to stay pending appeal pursuant to
Federal Rule of Appellate Procedure 23(c) (Docket No. 29) is GRANTED; and it is
further
ORDERED that the Clerk shall serve a copy of this Order and the
accompanying Opinion on Petitioner by regular U.S. mail; and it is further
ORDERED that the Clerk shall close this matter.
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

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