LOCUST v. RICCI et al
Filing
31
OPINION. Signed by Judge Stanley R. Chesler on 12/12/11. (dc, )
UNITED ST
ATES DIS
TRICT COU
DISTRICT
RT
OF NEW JE
RSEY
DONYELLE
LOCUST,
Civil Ac
tion No.
Petitione
r,
v.
MICHELLE
R.
RICCI,
:
08—2713
(SRC)
OPINION
et al.,
Responde
nts
.
APPEARANC
ES:
DONYELLE
LOCUST, P
etitioner
#41093 /
pQ
SBI# 67
New Jerse
y State
Prison
P.O. Box
861
Trenton,
New Jerse
y 08625
CAREY JEAN
NE HUFF,
ESQ.
MONMOUTH
COUNTY PR
OSECUTOR’S
Monmouth
OFFICE
County C
ourthouse
71 Monum
ent Park
Freehold,
New Jerse
y 07728
Counsel fo
r Respond
ents
CHESLER,
District
Judge
This matt
er is be
fore the
court pu
rsuant to
writ of h
a petitio
abeas corp
n for a
us under
28 U.S.C.
§ 2254, fi
Donyelle
led by p
Locust, c
etitioner
hallengin
g his 20
00 New Je
convictio
rsey state
n.
court
For the
reasons s
tated belo
w, this
the habea
Court wil
s petitio
l deny
n for lac
k
of merit.
I.
ND
Donyelle Locust
(“Locust”), was
indicted by a
Monmouth County
grand jury on
August 23, 1999,
on charges of
first degree murder,
first degree robbery,
possession of a weapon
for an unlawful
purpose and third
degree theft.
Before trial in
the Superior
Court of New
Jersey, Law Division
Monmouth County,
Locust’s counsel
brought a motion
to suppress
LOcust’s
statements
The Honorable
Patricia Del Bueno
Cleary, J.S.C.,
heard argument
and testimony
on the motion
on March 28, 29,
30
and April 11,
2000.
The motion was
denied
Thereafter, trial
was held on June
1, 6, 7, 8, 12,
13, 14, 15 and
16, 2000, before
Judge Cleary and
a jury.
On June 16, 2000,
the jury found
Locust
guilty of all
charges in the
indictment
Petitioner,
On August 8,
2000,
a sentencing
hearing was
conducted before
Judge Cleary.
Judge Cleary merged
counts three and
four
(Possession of a weapon
and theft,
respectively> into
count three
(first degree
robbery>
Judge Cleary also
grantee the State’s
motion to sentence
Locust under the
No Early Release
Act (“NERA”)
and sentenced
ocust tu a prison
term of 75 years
with a 63 year
parole bar on count
one (first degree
murder> and a
consecutive
term of twenty
years in prison
with a 17
—year paro. e bar
on the
robbery count,
Accordingly Locust
was sentenced
to an aggregate
term of 95 years
in prison with
an 85% parole
disqualifj
2
On Septeer
20, 2000,
Locust filed a
direct appeal
Superior Court
with the
of New Jersey,
Appellate Division.
by counsel,
In his brief
Locust alleged
that the trial
judge erred by
admitting an
inculpatory
statement, refusing
to permit
from a defense
testimony
expert, and imposing
an illega’
and excessive
sentence. Locust
also argues
that his
confession should
been suppressed
have
on the following
.
5
groun Cl)
reque to
that petitioners
see his mother
was an
invocation of his
silence, which
right to
should have been
scruPulously
he had not accompafl
observed; (2)
that
the Officers
to the Police
voluntarily and
station
his arrest was
without probable
sentence unattenuated
cause, making
his
as a result
of the illegal
his statement
arrest; (3)
was involuntary
that
because his will
to the fact
was overborne
that he was
due
exhausted and
hungry during
0
interroga
an
where the
Police Officers
lied to him.
2003, the
On May 1,
conviction was
affirmed, but
the sentence
because NEM
remanded
did not apply
to murders
committed before
The Supreme
June 2001.
Court of New
Jersey denied
certification on
2uj.
(Petition at 11
July 21,
1—9). At
the re_sentencing
85% parole
hearing, the
di5qualjf
under NEM was
deleted. In
the sentence
addition,
on the robbery
count was made
to run
the sentence
concurrent with
on the murder
count.
Locust then
filed a petition
S
for
Postconviction relief
(“PCR”) before
the Superior
Court of New
Jersey, Monmouth
County.
3
Locust asserted
a claim of
ineffective
assistance of
follows. (1)
counsel as
trial counsel
failed to object
to the jury
composition
in particular
to the fact
that a former
employee of
the Prosecutor,
Office was a
member of the
panel; (2)
counsel failed
trial
to raise
that Locust’s
confession was
trial counsel
coerced; (3)
failed to raise
that unkno
DNA was found
Clothing; (4)
on his
trial counsel
failed to raise
the
setup by
POSsibility of a
Detective Seitz,
a former
POlice Officer
Long Branch
in the City
where Locust’
of
5 mother
had filed
a lawsuit again
City of Long
5 the
Branch; and
(5) trial
counsel failed
two witnesses,
to investigate
Brian Pisano
and Barbara
Latham
c•lajmed that
Locust also
thecumulati
effect of these
counsel errors
warranted a new
trial
StatevLO
2007 WL 2274949, *3
(N.J. App. Div.
May 30, 2007)
195 N.j.
(2008)
420
The state PCR
petition was
denied on
November 18, 20o
Locust appealed
the decision
to the
Appellate Division
brief on appeal,
In the
in addition
to the argume
5
raised in the
Petition, t1e
PCR
tOjiowing argumy
5
were rais
concerning
ineffective
assistance of
counsel:
A.
Trial counsel
failed to
white jury
challenge and
seated in a
object to
an all
matter in whic.h
Black male,
was charged
the appellant
know±ng that
with killing
a.
a white
appellantrs
victim
l1t1ga a
moth.er had
racial harassment
successfully
Officer in
claim against
Monmouth County
POlice
4
I,
1I
B.
Counsel was
the Nirand ineffective for his
failure to ra
hearing that
ise during
confession,
prior to the
the detectives
appellant’s
floor.
kept him ba
refoot on a
cold
C.
Counsel was
in
jury’s attent effective for his
ion that
fa
there was DN ilure to bring the
appellant’s
A fou
clothes that
him or Mr.
could not ha nd on
Amison.
ve origina
from
D.
Counsel was
in
show Possible effective for his
failu
mo
frame appellant tive on the part of re to adequately
the detectives
because hi
Previously su
to
ed the Long s mother, Gloria Lo
racial disc
cust,
Branch Police
rimination
Departme
and was su
for
ccessful.
E.
Trial counsel
appellant when was ineffective for ign
oring the
he told him
about seeing
that the
blood on his
de
it was not
clothes and tectives lied
until 5:00
to highlight
inforied the
p.m. that
that
Detective Se
detectives,
itz
appellant, th
who initially
at he notic
met with
ed blood at
10:50 a.m.
F.
Trial counsel
was ineffect
investigate
ive for hi
Brian Pisano
s
made a plea
timely since failure to
deal with th
he had
counsel’s
e State pr
investigator
ior to spea already
to meeting
king with
as well as
with the
Barbara Latha
Prosecutor.
m, prior
G.
Trial counsel
was ineffe
that the St
ate falsified ctive for his failure
typed statem
to argue
information in
ents.
his formal
H.
Trial counsel
was ineffe
motion to
suppress the ctive for his failure
request a
ap
probable cause pellant’s clothes an to file a
d to
hearing.
I.
Counsel was
in
appellant with effective for his
failure to arg
his dimini
believing th
ue that
at he would shed capacity was
police his
tricked into
be released
clothes.
if he gave
the
J.
Counsel was
ineffective fo
to why ap
pellant’s inve r his failure to
0
stigaj
rights were
inquire as
an
not videotaped
, if so, d waiving of his
to disclose
a tape.
5
K.
Counsel was
Pictures of ineffective for his
the appellant
failure to
Produce
Condition as
depicting his
aPpearing high,
gener
L.
Counsel was
ineffective for
independent areas
his failure
of investig
to pursue
0
defense strategy
any
in developing
his
i,
P5ychiatri
and Substance
ii. Scie
Abuse Experts
Experts
CR3, Brief
of Petitioner
A
0511, at
No,
pp, 2336,
dated April
28, 2006)
signed and
In a
Certification
dated April
24, 2006,
Locust affirms
counsels brief
that he had
and that
read
the allega
03
were true.
SPecifically, he
alleges in
his
Certification the
raised in the
same Points
brief on PCR
appeal, as
well as adding
claims:
three more
6.
Knowing that
i Was a
drug addict,
Prolonged their
they
0
investig
false confession
to force Purposely
10.
out of
me to give
One of the
a
frustration and
5
juror and
used to work
the forewoman,
desperatio
13.
Mrs. Reynolds,
My indictment in the prosecutor,
Office.
based on lies should have been
dismissed
and twisted
jury.
facts presented because t waS
to the grand
CR3, Locust
Certification at
fl 4,5, 79,
10, and lJ)
11, 12,
14lg and
The StaLe
fl 6,
aoaressed al±
of these
briefly, in
claims, aJLt
5
i response
on PCR
appeal
CR4)
The Appellate
Division affirmed
the denial
peti
of the Pcp
on ugus
10, 2307
‘Substantjali
stated ir
for the
Judge De
reasons
Bueno Cleary’s
1
thougf
oral Opinion
and comprehensi
of November
18, 2005
“
cust
2QQ7 WL
.
j
•.:i I.
Ii
I’
11
2274949
*7
(N,j,
Super A..
Aug. io, 2007),
a oetj
Locust then
for certificatio
filed
with the New
Jersey Supreme
On or about
Court,
April 8,
2008, the New
Jersey Supreme
certificati
Court denied
(Petition at
¶ lO-llj;
420 (2008),
195 N.J,
Locust fil
a moti
for reconsiderat.
May 30, 2008,
and on
the Supreme
Court of New
Jersey denied
same.
Thereafter on
or about May
27, 2008,
Locust filed
habeas petition
this
under 28 U.S.C
§ 2254,
His petition
the following
sets forth
5
groun for
habeas relief:
(I)
The trial
court erred
in denying
5
petitioner,
suppression of
inculpatory
Police did not
statements both
honor his regue
because the
5 to
counsel and to
invoke his
remain silent,
right to
statements were
and because
the
the
illegal arrest
unattenuated,,
product of an
and involuntary
circumstances,
under the
totality of
A.
The trial
court erred
in its evident
of credibility
B.
determination
The Police
failed to
scrupulously honor
defendant,s
invocation of
the
silent.
his right to
C.
remain
The defendant
Was arrested
and his
Without probable
inculpatory
cause,
statement Was
result of the
the unattenuated
illegal arrest.
D.
The purported
confession Was
overbearing of
the result
the defendant,s
of an
accordingly must
be suppressed will and
(II) The trial
court erred
in refusing
to add a
to allow
witness during
his right to
petitioner
trial, resulting
a fair trial
in a denial
and due
of
process of law,
counsel was
ineffective in
Properly investjg5
that he
failed to
or adeguatey
prepare for
A.
trial.
Trial counsel
failed to object
jury.
to an all_white
I
7
I
I’
.I
I
B.
Trial coun
sel was in
effective fo
object abou
r failing
t a juror
to
who once
Prosecutor’s
worked for
Office.
the
C,
Trial counse
l was in
effective fo
the Miranda
r not rais
hearing that
ing at
petitioner
the detectiv
barefooted
es kept th
on a cold
e
confession.
floor prior
D.
to the
Trial counse
l was in
effective fo
petitioner
r ignoring
when he was
the
told by the
the detectiv
es are ly
petitioner
ing about
that
clothes
seeing blood
F.
on his
Trial counse
l was in
effective fo
the possib
r failing
ility of a
to argue
setup by
that the vi
Detective S
ctim’s DNA
eitz and
could have
the petition
been planted
er’s clothe
s by the
on
of the law
detectives
suit agains
t the Long
because
the petition
Branch poli
er’s mothe
F.
ce by
r.
Trial counse
l was in
effective fo
that there
r failing
was DNA on
to raise
the petition
which could
er’s clothe
not have
s
originated
petitioner
from the
or the vict
im accordin
by the Sta
g to the
te’s own DN
G.
report
A expert.
Trial coun
sel was in
effective fo
timely inve
r failing
stigate Bria
to
n Pisano
Latham.
and Barbara
(IV) The ac
cumulation
of errors
retried.
demand that
defendant
be
However, in
a separate
motion subm
itted with
Locust aske
his petition
d that this
,
Court stay
the habeas
he could
proceedings
exhaust eigh
so that
t claims
in state
court, which
raised by
were not
petitioner’s
trial and
appellate
counsel in
court proc
his state
eedings.
These new
claims furt
her asserted
of ineffect
instances
ive assist
ance of
counsel as
follows:
I.
Trial coun
sel was in
effective fo
motion to
r failina
suppress cl
to file a
othes which
illegal sear
were the
ch and se
2.
product of
izure.
Trial coun
an
sel
to petitioner was ineffective for
’s clot
his failure
3.
hes being
to object
Trial coun
admitted in
sel was in
to evidence
effective
a probable
.
for failing
cause hearin
to put in
g.
for
*
8
4.
Trial counsel
w
investigate w as ineffective for fail
hy the inte
ing to
rr
his rights w
ere not vide ogation and the waiving
5.
o-taped.
Trial counsel
of
that as a ro was ineffective when he
utine practi
ce the police failed to argue
signing pre—
typed statem
trick people
ents with
included in
into
falsified wor
the confession
ds
the signatory
that falsely
read the stat
happened in
ement, which indicates that
petitioner’s
is what
6.
Trial counsel
case
was ineffectiv .
motion to have
e for failin
based on lies the indictment dismisse g to put a
d
and twisted
jury.
facts presente because it was
d to the gr
7.
Trial counsel
and
was ineffectiv
expert witness
e for his
es to counte
witnesses whe
r the State failure to hire
’s expert
re the State
psychiatric an
d scientific introduced their own
8.
Trial counsel
ex
was ineffectiv pert.
the jury in
e for failin
st
g to object
where the tr ructions the trial judg
to
e gave to th
ial judge to
e jury
ld the jury
vote unanimou
they have to
sly either
guilty or no
trial judge
all
t
went on to
vote 8 to 4
teu the jury guilty and the
or
th
jurors can vo 7 to 5. That was inco at they can’t
te 8 to 4 or
rrect, becaus
disagreement
e
7 to 5 and
with other
remain in
they are bein
jurors. But
g told. If
th
given these
jurors in ge at’s not what
lim
neral were on
hung-jury beca ited instructions ther
e would neve ly
use they are
r be a
not given th
at option.
(Petition, D
ocket entry no
. 1-5 at pg
. 3).
On January 9,
2009, this
Court issued
an Ordek to
directing Lo
Show Cause
cust to show
cause why his
habeas petiti
stayed. Locu
on should
st replied to
be
the Order to
Show Cause an
Notice and O
d the Mason
1
rder, on or
about January
27, 2009.
Locust’s resp
Upon review
onse, on Aug
of
ust 11, 2009
, this Court
the State re
directed that
spond to Loc
ust’s motion
for a stay an
his federal
d abeyance
habeas action
of
.
(Docket entry
no. 7). On
September
Mason v. Mey
ers, 208 F.3d
414 (3d Cir.
2000).
9
28,
2009,
the State
filed a response
tOgeth with
a limited
state court recc
rd relevant to
the issues
asserted by
in his motion
petitioner
for a stay and
abeyance
(Docket entry no,
16),
Locust filed a
reply on Noveer
6, 2009,
(Docket entry no,
On February 24,
17),
2010, Locust
also submitted
documents concerning
his allegat
0
that the Police
detectives falsified
statements
in particular,
witness Brian
Pisano’s statement
(Docket entry
no, 19)
*
On April 13,
2010,
this Court
entered an Order
denying
Locust’s motion
for a stay and
abeyance of
his habeas
Proceedings.
The Order also
dismissed Locust’s
supplemental
claims #3 and
#8, and directed
the State to
file an answer
to the
petition
The State filed
an answer to
the petition,
toget
with the relevant
state court record,
on May 28,
2010.
filed his reply
Locust
or traverse on
November 4, 2010
I I.
The facts of
this case were
recounted below
and this Court,
affording the
state court’s
factual determinations
the
dppropriate Oeferenc,
28 U.S,, §
2254(e) (1),
W1j simply
reproduce the
factual recitation
as set forth
in the unpublished
opinion of the
Su.perior Court
of New Jersey
Appellate Division,
decided on May
1, 2003, with
respect to
Petitioners direct
appeal from his
judgment of
conviction and
sentence:
The State
charged that
defendant robbed
Joseph ison,
in ison’s
seventytwo year
Asbury Park
old
home, after
striking
10
him several times in
the head with a hamm
er, shattering his
skull. Amison died ab
out an hour after the
attack.
Defendant was friend
s with Amison who paid
defendant for odd
jobs and oral sex, ofte
n loaned defendant ad
ditional money
and permitted defend
ant to stay at his ho
me.
I.
The Confession
Shortly after Amison’s
body was discovered,
investigation led to
the police
defendant as someone
who had been in
Amison’s house before
the murder. The Stat
e’s evidence
revealed that at 10:3
0 a.m., on the morning
of the murder,
investigators locate
d defendant and his gi
rlfriend Bernice
Tolbert outside Tolb
ert’s apartment build
ing. While
defendant was holding
a bottle of beer, he
did not appear to
the officers to be un
der the influence of ei
ther drugs or
alcohol.
After initially giving
a false name to the po
agreed to speak to th
lice, defendant
e officers back at th
e station
regarding an unspecifi
ed investigation. Up
station, the officers
on arrival at the
placed defendant in
training/conference
a large
roo
Monmouth County Pros m and Detective Paul Seitz of the
ecutor’s Office read
defendant his
rights, obtained a w
ritten waiver from de
fendant, and then
around 11:00 a.m. be
gan questioning defend
ant regarding his
relationship with Am
ison.
He informed defendan
t that someone had se
riously injured
Amison and noticed th
at defendant did not
exhibit any
emotion nor ask abou
t Amison’ s condition
. Settz and another
officer also noticed
that defendant’s pant
s and sneakers
were bloodstained. D
ef
two year old unemploye endant revealed that he was a thirtyd drug addict with
a tenth grade
education.
During questioning ov
er the next four hour
defendant was given
s,
several breaks, as w
ell as food and
drink.
Defendant insisted th
at he had last seen Am
before when he stopp
ison the night
ed by to borrow mone
y for more drugs.
He claimed to have sm
oked some crack and
drank some beer
before leaving with tw
o fifty dollar bills
given to him by Amiso
that had been
n. Defendant further
contended that,
after buying more crac
k and beer, he went
to Tolbert’s
apartment, where he
remained for the re
st of the night,
except for brief perio
ds when he went ou
t to buy more drugs.
Despite defendant’s re
velation that he was
had smoked crack coca
a drug addict and
ine and consumed alco
hol the day
11
0
adjudicatj of
the claim, either
involved an unreasonable
app. ication of
clearly establis.hed
federal law, or was
based on
unreasonable determination
of the facts in
ight of the evidence
before the state court.
.e 28 U.S.C. § 2254(d).
.
The unreasonableness
standards of § 2
254(d) govern only
claims that were “adjudica
on the merits in
State Court
Proceedings.”
28 U.S.C. § 2
254(d),
“An ‘adjudicati
0 on
the
merits’ has a well
settled meaning: a
decision finally
resolving
the parties’ claims,
with res ata
effect, that is based
on
the substance of the
claim advanced, rather
than on a procedural,
or other, ground.”
355 F.3d 233, 247
(3d Cir.
2004) (citations and
internal quotation
marks omitted),
sed
on
Qs sub nom.
Rompjl1avea 545
U.S. 374
(2005); see also
445 F.3d 671, 678
(3d Cir.
2006).
A state court may
render an adjudicatj
0 on
the merits of
a federal claim by
rejecting the claim
without any discussion
whatsoever
See rnlla, 355
F.3d at 247.
See also Chadwick
v.
312 F.3d 597, 605Q6
(3d Cir. 2002), cert.
denied, 538
U.S. 1OUC (2003)
(in ee
ngeio, 528 U.S.
225, 237
(2000) (even a summary
0
adjudicat by
the state court on
the
merits of a claim is
entitled to § 2254 (d)
deference>>
On the
other hand, “fiji the
petitioner’s legal claims
were presented
but not add.ressed
by the state courts,
28 U.S.C. § 2
254(d) does
not apply.”
445 F.3d at 678.
See also ameeflv
State of
212 .F.3d 226, 248
(3d Cir. 2000) (with
re spent to claims
16
presented to,
but unadjudica by,
the state courts,
however, a
fedei.al court may exercise
pre-AEDpA independer.
judgment), •t,
532 U.S. 924 (2001);
Purneljv, bndricics,
2000 WL
1523144, *6 n.4 (D,N.J,
2000).
If the New Jersey courts
adjudica the
petitioner’s claims
on the merits, this
Court may not grant
relief unless either
§
2
254(d) (1) or § 2254(d)
(2) is satisfied
See 28 U.S.C. §
2254 (d),
Accordingly, this Court may
not grant habeas relief
to
the petitioner unless
the adjudica of a
0
federal claim by the
New Jersey courts
involved an unreasonable
application of clearly
established Supreme Court
law, see 28 U.S.C.
§ 2 (1), or was
254(d)
based on an unreasonable
determination of the facts
in light of
the evidence presented
in the State court
Proceeding and Adamson
is in custody in
violation of the Constitution
or laws or
treaties of the United
States.
See 28 U.S.C. § 225
4(a), (d) (2)
When the grounds raised
in the petition are
governed by 28
U.S.C. § 2254(d) (1),
the court must begin
its analysis by
determining the relevant
law clearly established
by the Supreme
Uourt.
See X)uh v.
Ivaracio, 541 U.S. 652,
660 (2004)
Clearly established law
“refers to the holdings,
as opposed to
the dicta, of [the
Supreme Court’sj decisions
as of the ti.me of
the re.levant statecourt
decision.”
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
17
time the state
court renders its
decision”
538 U.S.. 63, 71,
72 (2003),
5
Lockyerv
A decision is
“contrary to” a
Supreme Court holding
within
28 U .S,C, §
254(d)(1),
2 if the
state court “contradicts
the
governing law set
for.th in [the Sup reme
Court’s) cases” or
if it
“confronts a set of
facts that are
materially
from a decision of
th[e Supreme) Court
and nevertheless
arrives
at a [different)
result,” ims,
529 U.s. at 405—06,
Under
the “‘unreasonable
applications clause
of § 2 (1),
254(d)
a federal
habeas court may
grant the writ if
the state court
identifies the
correct governing
legal principle from
thEe Supreme) Court’s
decisions but unreasonbly
applies that principle
to the facts of
the prisoner’s case,”
at 413, Whether
a state court’s
application of federal
law is “unreasonable!!
must be judged
objectively; an
application may be
incorrect
but still not
2
unreasonable
See id. at 409—b
“The unreasonable
application
test is an objective
one-a federal court
may not grant
habeas
relief merely because
it concludes that
the state court
applied
lederal ±aw erroneously
or incorrectly,!
ThomasvvaLner
428
F.3d 491, 497 (3d
Cir. 2005) (quoting
Jcobsv
395 F.3
92, 100 (3d Cir,
2005)),
.
2
See
MarshallvHendrj,
Cir, 2002)
307 F,3d 36, 71
(“[Diecisions of federal
n. 24 (3d
courts below the
United States Supreme
level of the
Court may be helpful
ascertaining the
to [a court) in
reasonableness of state
clearly established
courts’ application
United States
of
Supreme Court
well as helpful
precedent
amplifications of that
as
internal quotation
Precedent,”> (citations
marks Omitted),
and
18
Finally,
federal courts are
require to apply
a “presumption
of correctness
to factual
determinations made
by the state
court.”
Id,; see
28 U.S.C. §
4(e)
225 (1),
The
Thirc. Circuit
has ru.le d that this
presumption of correctness
based upon state
court factual findings
can only be
overcome by clear and
convincing evidence
See
256 F,3d at 196
(citing 28
U.S.C. § 22 (1)).
S4(e)
Consequently a
habeas petitioner
“must
clear a high hurdle
before a federal
court will set aside
any of
the state court’s
factual findings”
tracchjo
274
F,3d 590, 59798
(1st Cir. 2001).
Iv.
A.
zxIS
fitioner’s co jq
In his first claim
for habeas relief,
Locust asserts that
the trial court
erred in denying
suppression of Locust’s
inculpatory statements
on three grounds,
First, Locust contends
that the police did
not honor his
request to invoke
his right to
counsel and his right
to remain silent.
Second, the statements
were the “unattenuated!
product of an illegal
arrest without
plobable case.
Third, the statejneits
were tie result of
an
overbearing of his
will, and consequently,
his confession was
involuntary un der the
totality of the
circumstances.
These claims were
raised on direct
appeal.
19
I.
1.
Right to Counsel
and Right to
Silence Claim
On direct appe
al, the Appella
te Division
rejected Locust’s
claim that the
police did not
scrupulously hon
or his right to
counsel and his
right to remain
silent.
Locust contends
that his
request to speak
with his mother
was an invocati
on of these
rights,
The Appellate
Division found:
In general, the
police must “‘s
crupulously honor’
suspect’s right
” a
to silence.
SLate v. New Jer
117, 221 (1997)
sey, 151 N.J.
(quoting State v.
Johnson, 120 N.J
(1990)), cert.
. 263, 282
denied, 528 U.S.
1085, 120 S.Ct.
L.Ed.2d 683 (20
00)
811, 145
A request to
member may be
speak with a clo
“tantamount” to
se family
an invocation
silence under som
of the right to
e circumstances
contends his req
Id. at 222.
uest to speak
Defendant
with his mother
invocation of the
was an
right to silence
the questioning
and that by co
ntinuing
the police “v
iolated the bri
of State v. Ha
ght-line rule”
rtley, 103 N.J.
252, 267 (1986)
statement must be
, and his
suppressed as
compelled.
unconstitutionally
Stte v. Harvey,
supra, 151 N.J.
at 223.
However, not eve
ry request by
a defendant or
questioning is an
break in
invocation of the
at 222.
right to silence
In order to inv
.
oke the brigh
scrupulous adhere
t-line rule and
nce to defenda
require
nt’s request
family member,
to speak with
the request mu
a
st be made for
obtaining advice
the purpose of
from a trusted
family member.
oks, 309 N.J.
Super. 43, 56—57
te v.
denied, 156 N.J.
(App. Div.), ce
rtif.
386 (1998).
In other words,
must be the eq
the request
uivalent of a
direct statement
does not wish
that defendant
to continue spe
aking with the
to obtaiii advice
police or wishes
from the family
member before any
interrogation co
ntinues.
at 56.
the request must
Stated another way
be the equivale
,
nt of a reque
questioning.
st to halt the
.
.
.
.
If the police
are unsure wheth
er defendant
right to silence
is asserting a
, they must
either stop the
entirely or “ask
interrogation
only questions
narrowly directed
determining wheth
er defendant
to
was willing to
continue.”
supra, 151 N.J.
at 221, quoting
Johnson, pra,
120 N.J. at 284
Statev.
,
20
In assessing w
hether the po
lice scrupulo
defendant’s ri
usly honored
ght to silence
a
, a reviewing
consider not m
court must
erely the words
spoken by defe
full context in
ndant, but th
which they wer
e
e spoken.
131 N.J. 176,
State v. Mar
231—32 (1993)
tini,
; State v, Bro
N.J. Super. at
oks, supra, 30
55.
Circumstance
9
(1) whether de
s to be consid
fendant had ev
ered include:
er expressed
unwillingness
or exhibited
to speak with
any
police; (2) w
indicated or
hether defend
implied in so
ant
me way that he
advice; and
or she wanted
(3) whether defe
ndant had sign
See Id. at 55—
ed a waiver fo
56.
rm.
Here, the circ
umstances ind
icate that de
fact, invoking
fendant was no
his right to si
t, in
lence.
denied that he
Defendant ex
needed the as
pressly
sistance of co
implied that
unsel and ther
his call to h
eby
is mother wou
obtaining advi
ld not be for
ce but for som
e other purp
willingly agre
ose.
ed to postpone
Defendant al
so
his call and
bolster his cl
appeared eage
aim of innoce
r to
nce.
officers, defe
Indeed, accord
ndant did no
ing to the
t exhibit any
speak with po
unwillingness
lice at any ti
to
me during th
Moreover, defe
e interrogatio
ndant signed
n.
several waive
waiving the as
r forms, expre
sistance of an
ssly
attorney and
silence.
Consequently,
his right to
we reject th
is argument.
In addition, de
fendant has ar
gued here an
contentions th
d in other
at the police
testimony was
belief that w
so unworthy of
e should reje
ct the judge’
largely accept
findings, whi
ed the State’s
ch
account.
merely note th
In response,
at the judge’
we
s findings w
sufficient, cr
ere based on
edible eviden
ce present in
an appellate
the record an
court we are
d as
bound by thes
Locurto, 157
e findings.
N.J. 463, 472—
State v.
74 (1999)
(Re 29, May 1,
2003 Appellate
Division Opini
on at pp 8—
10,
.
uocket entry
no. l66)
The Fifth Amen
dment provides
,
in part, that
no person “s
hall
be compelled
in any criminal
case to be a
witness agai
nst
himself.”
U.S. Const. am
end. V.
The Fourteent
h Amendment
incorporates
the Fifth Am
endment privil
ege against
self
“Re” denotes
Respondents’
reievant state
Exhibits, whi
court record
ch encompass
in this matte
the
r.
21
incrimination
ndavAriz
378 U.5
384 U.S.
436
(1966),
1,
8
(1964)
In
the Court held
“without proper
that
5
safeguar the
process of
incustody
0
interroga
contains inherently
Compelling
work to
Pressures which
undermine the
5
individual, will
to resist and
him to speak
to compel
where he wou
not otherwise
do so freely”
U.S. at 467,
384
When Police
ask questio
5 of
a Suspect in
without
custody
administering the
required
warnings,
nda dictates
that the answers
received be
presumed compelled
and that they
excluded from
be
evidence at trial
in the State’s
case in chief.
See
2JEl5td
470 U.S. 298,
317 (1985)
Thus, a
confessiontak
during a
custodial interroga
0
without the
provision of
nda warnings
violates the
Privilege again
self_incriminati
See
516 U.S. 99
“To safegu
(1995)
the uncounseled
5
individual, Fifth
Privilege against
Amendment
self_incrjmjnati
the Miranda
Court held,
suspects interrog
while in Police
custody must
be told that
they have a
right to remain
silent, that
anything they
used again
say may be
them in court,
and that they
are entitled
presence of an
to the
attorney, either
retained or
appointed at
interrQgatio,,
the
IQson
516 U.S. at
107; Nnda,
384 U.S. at
The jran
Court outlined
the procedures
to be followed
after the
Police provide
these warnings
If the accused
counsel
5
regues
then “interrog
0
must cease
until an attorney
present”
is
384 U.s, at
474.
...
22
The Supreme Court
has not held
that the request
to speak to
a parent or grandpare
is tantamount
to a request for
counsel,
so as to render
statements made
following such a
request per
se inadmissible
under the Fifth
and Fourteenth
endments
See
442 U.S. 707,
719 (1979) (“The
per se aspect
of anda
based on the
unique role the
lawyer plays in
the adversary
system of criminal
justice in the
country.”);
ribner, 384 Fed.
Appx, 672, 2010
WL 2545679 (
th
9
Cir, June
21, 2010), cert,
denied, 131 S.Ct.
526 (Nov. 1, 2010);
United
sexrelile
653 F.2d 1153,
1158-62 (7
Cir,) (per curiam)
(“[WJe do not believe
that [the minor
suspect’s]
request for his
father constituted
an invocation
either of his
right to silence
or of his right
to counsel”),
cert.
454
U.S. 1067 (1981).
any
was
...
In his petition,
Locust essentially
argues that his
version
of the facts are
correct and that
the trial court
erred in
finding the Police
testimony more
credible
He contends that
he
repeated asked to
speak with his
mother.
He also “vehemently
maintains Lhat e
did in fact make
a reque for
an
(Petitioners Traverse
at pg. 50).
However as pointed
out by
respondents, and as
demonstrated by the
state court record,
Locust’s version
of the facts
were repeatedly
tested against
the
State’s evidence
in the origin
motions to
at trial,
direct appeal and
on state collateral
review.
The trial court
reject Locust’s
5
argume In
the suppression
mot.ions, crediting
attorney.”
suppress,
on
23
the State’s
Witnesses
Similarly,
contentions
the uy reject
t’
5
LOCu
finding him guilty
on all c.ounts
On direct
the Appellate
appeal
DIvision deferred
to the factual
findings of t.he
trial cou
and the jury,
holding that
they were
Supported by
sufficient credible
evidence in the
record
(RE 29, May
Appellate Division
1, 2003
Opinion at
pg. 10).
In the state
Proceedings
PCR
the trial
court again
rejec
Locust’s version
facts and the
of
Appellate Division
affirmed based
on its prior
recitation of
facts
Thus,
Locust’s factual
5
n
0
allega
in this regard
supported by the
are not
record and must
be reject
As stated
presumption of
above, a
correctness applies
to the trial
court’s fact
finding and a
habeas petitioner
has the burden
of rebutting
presumption by
this
clear and
convincing evidence
See 28 U.S.a,
2254 (e) (I).
§
Federsi courts
must give
deference to the
findings and
factual
legal determination
of the state
trial and
appellate courts
L.Cllera
247 F.3d 450,
457 (3d Cir.
2001).
oreover,
4
r
the record
clearly shows
that Locust
advised of his
had been
Miranda righ.ts
and understood
that he had
right to counsel
the
He did not
ask for an
attorney. and
that he wa.nted
did not say
to speak to
his mother
to ask her
to Obtain
counsel for him,
Locust was not
a minor at
the time of
0
interrog
his
Under the
facts of this
case, and the
circum5ances as
totality of
discussed more
fully below,
Locust’s requE.
sts to
24
call his mother
did not Constitute
an invocation of
his right to
remain silent or
his right to counsel,
Consequently
after careful review
of the record,
this Court
cannot conclude that
the determination
of the trial court
in
admitting petitioner’s
confession resulted in
a decision that
was
contrary to, or
involved an unreasonable
application of clearly
established federal law,
or 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.
Williams y.
The state courts
applied the correct
law and
facts in reaching its
determination that there
was no per se
Miranda violation in
this regard.
Petitioner has failed
to
demonstrate that the
state court Opinions,
when evaluated
objectively and on the
merits, resulted in
an outcome that
cannot
be reasonably justified
171 F.3d at 891.
Therefore,
the Cout will deny
federal habeas relief
on this claim
because
the alleged violation
of petitioner’s
Fifth and Fourteenth
Amendment rights is
substantively meritless
2.
0
Confess Was the
Unattenuated Result
of an Illegal
Arrest Made Without
Probable Cause
Locust next contends
that his confession
was unlawfully
obtained as a result
of an illega.l
arrest without
probable cause,
This claim was
raised on direct
appeal, and the
appellate court
ruled as follows:
Defendant claimed
that he only agreed
to accompany the
officers back to the
station after they
confirmed that the
25
matter would no
t take too long
.
According to de
once he agreed
fendant,
, one of the de
tectives grabbe
back of his pa
d him by the
nts and forced
him into the ba
police car, thou
ck seat of the
gh he was not
handcuffed.
that his forcef
Defendant argu
ul placement in
es
the police car
unlawful arrest
was an
and that his in
culpatory statem
tainted by the
ent was
initial illegal
arrest.
Generally, evid
ence obtained
following a vi
defendant’s fe
olation of
deral or state
constitutional
excluded as pr
rights will be
oof against de
fendant unless
that it was ob
it can be show
tained in a “suf
n
ficiently indepe
to “dissipate th
ndent” manner
e taint” of th
e prior illega
State v. Johnso
l conduct.
n, 118 N.J. 63
9, 651—53 (199
confession obta
0).
“[A}
ined through cu
stodial interrog
illegal arrest
ation after an
should be exclud
ed unless the
causation betwee
chain of
n the illegal
arrest and the
sufficiently at
confession is
tenuated so th
at the confessi
‘sufficiently an
on was
act of free w
ill to purge the
taint.’” State
primary
v. Chippero, 16
4 N.J. 342, 35
State v. Worlock
3 (2000) (quoting
, 117 N.J. 596,
621 (1990)).
Here, the trial
judge concluded
that defendant’
in the police
s apparance
station was vo
luntary.
notwithstandin
She also noted
g the police po
that
sition that de
to leave until
fendant was fr
he made his ad
ee
mission, it was
that they would
“inconceivable
have actually
”
let him leave on
his bloodstained
ce they viewed
clothes and lear
ned of his lies
Nonetheless, th
.
e judge opined
that though th
formally arrest
e police did no
defendant unti
t
l 8:30 p.m., de
knowledge of th
fendant’s
e victim, init
ial denial of
subsequent lies
his involvemen
and evasions,
t,
and bloodstained
would have give
clothes,
n them suffic
ient probable
arrested him pr
cause to have
ior to his adm
ission.
concluded that
Accordingly, th
defendant was
e judge
properly in cu
he made his incr
stody at the tim
iminating stat
e
ement.
The judge furt
her ruled that
, even if defend
at headquarters
ant’s presence
could be constr
ued as an unlaw
his confession
ful arrest,
was ultimately
an act of free
taint purged
will and any
by intervening
events.
that the atmosph
The lodge emph
ere during the
asized
detention was
onerous, defend
not especially
ant was not ha
ndcuffed or othe
physically rest
rwise
rained, and th
e police did no
conduct design
t engage in an
ed to frighten
y
or confuse defe
Additionally,
ndant.
the judge note
d that defend
admissions af
ant made his
ter being confro
nted with not
inconsistencies
only the
in his statemen
t but also the
that there was
supposed proof
blood on his cl
othes.
Moreover, defe
ndant’s
26
statement came after
he had been properly
three Occasions
Mir andized on
We agree fully with
the judge and reject
this argument
substantially for the
reasons she articulated
(RE 29, May 1, 2003
Appellate Division
Opinion at pp. 10-12).
Locust’s claim
essentially asserts a
Fourth Amendment
violation
A Fourth Amendment
claim must be assessed
by
reference to the
Supreme Court’s decision
in Stonev
Powell, 428
U.S. 465 (1976),
which precludes
habeas review of Fourth
Amendment claims that
have been litigated
in state court.
LW) here the State
has provided an
opportunity for full
fair litigati of
and
a Fourth Amendment
claim, a state
prisoner may not be
granted federal
habeas corpus relief
the ground that
on
evidence obtained in
an unconstitutional
search or seizure was
introduced at his trial.
context the contribution
In this
of the exclusionary
to the effectuation
rule, if any,
of the Fourth
Amendment is minimal
the substantial
and
societal Costs of
application of the rule
persist with special
force.
Powell,
428 U.S.
at 494-95
However, if the state
does
not provide any
corrective process to
redress alleged Fourth
Amendment violations,
or where the state
does offer a
corrective
process and defendant
is precluded from
using it, federal
habeas
review may be warranted
ates v. Hen
rson
568 F.2d 830, 840
d dir. ±97),
434 U.S. 1038 (1978).
Here, it would appear
that Locust did
raise this Fourth
AmE.ndmepi claim on
direct appeal in
state court,
The state court
addressed t.he merits
of petitioner’s
claim on direct
rev••iew, but
rejected it for
the reasons set
forth above.
Thus, it is fair
to
say that petitioner’s
Fourth Amendment
claim concerning
the
procurement of Locust’s
confession after an
allegedly illegal
27
arrest was fully and
fairly l±ti..gated at
that stage• of the
app.eai
Process, and habeas
review now would
be rec1uded under
.onev
However,
even if this Court
were to assume
ndo that
Locust’s Fourth
Amendment claim is
not precluded
from habeas
review under
v Powell because
it was never
litigated, this
Court also finds
that the claim
lacks merit.
4
The Fourth Amendment
is applicable to
the States through
the
Fourteenth Amendment
A seizure of a
person within the
meaning
of the Fourth
Amendment Occurs when,
“taking into account
all of
the circumstances
surrounding the
encounter, the
Police conduct
would ‘have communated
to a reasonable
person that he was
not
at liberty to
ignore the Police
presence and go about
his
business’”
Texas, 538 U.S. 626,
629 (2003) (quoting
vBostick
501 U.S. 429, 437
(1991) and
chiganv
esternut
486 U.S. 567, 569
(1988)).
The Supreme Court
has
articulated several
examples of circumstances
that might indicate
a seizure under
the Fourth
Amendment, even where
the person did
not attempt to
leave, including
“the threatening
preseno ot
several officers,
the display of a
weapon by an officer,
some
physicai touching
of the person of
the citizen, or
the use of
language or tone of
voice indicating
that compliance
with the
In determining
the merit, there
evidentiary hearing
is no need to
on the matter
conduct an
because the state
contains the facts
court record
ne... cessary in making
a determination
purported Fourth
on any
Amendment violation.
28
officer’s request
might 1.e compelled”
(quoting
ted5tateSvMedh
u
538 U.S.
at 630
446 U.s,
554 (l98O).
the Supreme Court
observed that while
certain
seizures may be jU5tifie
on something
less than probable
cause
as enunciated in
0
,Oj
392 U.s. 1 (1968),
“we have never
‘sustained against
Fourth Amendment
challenge the
involuntary
removal of a suspect
from his home to
a police station
and his
detention there for
investigaj
purposes
absent probable
cause or judicia’
authorization.,,,
(quoting
470 U.s. 811,
815 (1985))
Thus, “involuntary
transport
to a Police
station for questioning
is “sufficiently
like
arresit) to invoke
the traditional
rule that arrests
may
constitutionally be
made only on
probable cause.”
(quoting
Jjy, 470 U.s. at
816)
In
...
.
In
Illinois
422 U.s.
590
(1975), the Supreme
Court
held that a confession
obtained through
custodial interroga
0
after an illegal
arrest should be
excluded unless
intervening
events break the
causal connection
between the illegal
arrest and
the confession
so that the
confession is
‘sufficiertj an act
of
free will to purge
the Primary taint”
of the illegal
arrest,
422
U.S. at 602.
The Court observed
that:
[ijf Miranda
warnings, by themselves,
the taint of an
were held to
attenuate
unconstitutional arrest,
wanton and purposeful
55
regardl of
how
the Fourth Amendment
effect of the
violation, the
exclusionary rule
would be substantially
diluted
See
3ippj, 394 U.s.
89 5,Ct, 1394,
721, 726-727,
1397, 22 L.Ed.2d
676 (1969)
without warrant or
Arrests made
without probable
cause, for questioning
.
29
or ‘investigation,’
would be encouraged
by the knowledge
that evidence derived
therefrom could well
be made
admissible at trial
by the simple expedi
ent of giving
Miranda warnings.
Any incentive to avo
id Fourth Amendment
violations would be
eviscerated by making
the warnings, in
effect, a ‘cure-all,’
and the constitutiona
l guarantee
against unlawful sea
rches and seizures
could be said to be
reduced to ‘a form
of words.’
See Map v. Ohio, 367
[643] at 648, 81 S.C
U;S.
t. [1684] at 1687.
Brown, 422 U.S. at
602—03.
The Court further hel
d that the giving
of Miranda warnings,
although an important
factor, is not the
only factor to be
considered in determini
ng whether the con
fession was obtained
by
exploitation of an
illegal arrest.
The voluntariness
of the
statement is a threshold
requirement, but the
court must consider
the temporal proxim
ity of the arrest and
the confession, the
presence of intervening
circumstances, and the
“purpose and
flagrancy of the off
icial misconduct.”
Brown, 422 U.S. at
603—
04.
Similarly,
442 U.S.
200
the Supreme Court
held in Dunaway v.
(1979):
New York,
“[T]o argue that the
Fourth Amendment doe
s not apply to the
investigatory stage
is fundamentally to
misconceive the
purposes of th Fourt
h Amendment.
investigatory seizures
would subject unlim
ited numbers of inn
ocent persons to the
harassment and ignominy
incident to involunta
ry detention.
Nothing is more cle
ar than the Fourth
Amendment was meant
prevent wnoesaie int
to
rusions upon the
personal security of
our citizenry, whether
these intrusions be
termed ‘arrests’
or ‘investigatory
detentions.’” [Oavis
v. Mississippi, 394
u.S. 721, 726—27 (19
69)].
Brown v. Illinois,
[422 rJ5
590 (1975)], similar
disapproved arrests
ly
made for “investigato
ry” purposes on
less than probable
cause.
Although Brown’s arr
est had more
30
of the trappin
gs of a tech
nical formal
petitioner’s,
arrest than
such difference
s in form m
over substanc
ust not be ex
e.
Once in the
alted
police station,
to an interrog
ation room,
Brown was take
and his experie
n
indistinguishable
nce was
from petition
er’s.
the police co
Our condemnatio
nduct in Brown
n of
fits equally
in this case:
the police co
nduct
“The improprie
ty of the ar
rest was obviou
fact was virtua
s; awareness
lly conceded
of the
by the two de
repeatedly ac
tectives when
knowledged, in
they
their testimon
purpose of thei
y, that the
r action was
‘for investigat
‘questioning.’
ion’ or for
The arrest, bo
execution, was
th in design
investigatory.
and in
this expeditio
The detectives
n for evidence
embarked upon
in the hope
might turn up
that something
.” [Brown v.
Illinois, 422
u.s. at 605]
These passages
from Davis an
d Brown reflec
that detention
t the conclusi
for custodial
on
interrogation
its label
intrudes so se
regardless of
verely on inte
the Fourth Am
rests protecte
endment as ne
d by
cessarily to
traditional sa
trigger the
feguards agains
t illegal ar
rest.
Dunaway v. New
York, 442 u.s.
200, 215—16 (1
979).
In yet anothe
r case, Taylor
v. Alabama, 45
7 u.s. 687 (1
982),
the Supreme Co
urt held that
a confession
obtained throug
h a
custodial inte
rrogation of
the petitioner
after he had
been
illegally arre
sted without
a warrant or
probable cause
should
have been su
ppressed.
The Court foun
d that the in
tervening
events did not
break the caus
al connection
between the
arrest and
the confession
.
Specifically,
the Court reje
cted the Stat
e’s
argument that
petitioner had
been given M
iranda warnings
three
times, based
on its rulings
i Brown and
unaa’.
The Court also
found that the
six hours be
tween petition
er’s arrest
and
confession and
his visit with
his girlfriend
and male com
panion
for five to te
n minutes ou
tside the inte
rrogation room
was not
.
..
—
-
31
sufficient to constitute
an i.ntervening
event r.hat would
have
contributed to petitioner’s
ability to Objectively
consider his
options and exercise
his free will in
giving a confession
Further, the fact
that an arrest warrant
was filed, based
on a
comparison of fingerprn
5
did not remove the
taint because the
initial fingerpri
05 were
themselves the fruit
of the illegal
arrest and were used
to extract the
confession
Finally, the
Court found that the
lack of flagrant or
purposeful Police
conduct did not cure
the illegality of
the initial arrest.
The
Supreme Court expressly
declined to adopt a
“good faith”
exception to the
exclusionary rule.
Ir, 457 U.S. at 691-93.
In this case, the
trial court ruled
that Locust’s custodial
interrogation did not
constitute a seizure
Without probable
cause.
The trial court
found that while the
police did not
formally arrest
petitioner until 8:30
p.m., Locust’s
knowledge of
the victim, his
initial denial of his
involvement, his
subsequent
lies and evasions,
and the bloodstained
clothes would have
given
the police probable
cause to have arrested
Locust before his
00tession
0
Morever,
the trial court
concluded that,
even if Locust’s
presence at pol.ice headquar
5 could
be construed as.
an unlawful
arrest, Locust.’s
confession was “ultimately
an act of free
will
and any taint purged
by intervening
events.”
(P629),
The trial
judge had observed
that petitioner was
not handcuffed or
otherwise Physically
restrained
The Police d...id not
engage in
32
any unlawful or
reprehensible ccnduct
in their interroga
0
of
Locust,
IndeEd,
Locust made his
admission not after
being
confronted with the
inconsistencie
between his
statements and
his girlfrie
5
or the Supposed
proof of blood
on his Clothes,
but after the
police detective
stated that the
he knew Locust
did
it and Wanted
to know why
because Locust
and the victim
were
friendly and the
victim should
not have died
the way he did.
CR529 at pg. 6)
Finally
this Court finds
Locust’s claim
fails on
attenuation groun
5
In this regard,
the relevant
constitutional
question becomes
“whether the
connection between
the lawless
conduct of the
Police and the
discovery of the
challenged
evidence has become
so attenuated
as to dissipate
the taint.”
435 U.S. 268, 273-74
(1978).
As
set forth above,
the Supreme Court
delineated four
factors
relevant to an
attenuation analysis:
(1) the administration
of
nda warnings;
(2) “{tjhe
temporal Proximity
of th arrest
and
the confession;
(3) “the presence
of intervening
circumstances!,;
and (4)
“Particularly, the
purpose and flagrancy
of the official
misconducts!
422 U.S. at 603—Q4,
Here, the Police
administered iranda
warnings three
times.
There also is no
evidence that the
police conducted
the
0
interrogaj in
an unconstitutional
manner
The Police did
not
Physically abuse
or mistreat
petitioner
Locust was given
several breaks, and
was offered
food and drinks
during the
33
0
interroga
process.
There was a signif.
gap of more than
8 hours from when
Locust arrived at
the police station
and when
he ultimately
gave his confession
at about 8:30
p.m.
Locust was
given dinner before
he was arrested
and gave his
formal
Statement
In contrast,
Locust argues that
he was kept
barefoot and he
was tricked by
‘officiallooking
scientific evidence.”
The
record and testimony
confirms, however,
that Locust was
without
his shoes for
less than an hour.
Such a short
period of time
without other
onerous conditions
does not constitute
an
unreasonable form of
physjca coercion
capable of overcoming
petitionerls free
will.
Moreover, a trick
or misrepresentation
by the Police
will not, on its
own, invalidate
an otherwise
voluntary confession
See erjCu
394 U.S. 731
(1969) (confession
held admissible
where the Police
falsely
informed the defendant
that the co-defendant
had confessed>;
Millerv Fenton
796 F.2d 598, 609
(3d Cir. 1986) (a
Police
misrepresentation of
fact does not
oer se render a
confession
involuntary),
479 U.s. 989
(I96);
.
578 F,2d 194
(7th
Cir.), cert
denied,
(1978) af..firming
district court’s
conclusion that
the effects on
defendant of
misstatements by
Police did not
render his confession
involuntary);
2005
L 3406434
*8 (D,N,j
Dec. 13,
5);nv,3eer
200
1988 WL
52249 (D..j May
5, 1988).
439 U.S.
959
34
Therefore
this Court finds
that any taint
from the seizure
of petitioner
for questioning
was sufficiently
purged based on
the factors as
discussed above.
without merit and
will be denied
3.
The Fourth
Amendment claim is
PetjtjonerFs Wi]J
Was Not Overborne
Locust also argues
that his confession
should have been
suppressed because
his free will
was overborne
and his statement
was not given
Voluntarily, in
Violation of the
Fifth Amendment
Locust raised this
argument on
direct appeal,
insisting that the
record shows that
he was exhausted
hungry, impaired
and
frighten at
the time he made
his admissions
Furthermore, he
claims that Captain
George’s
misrepresentation about
blood being
found on petitioner!
5 clothes
was flagrantly
decepti conduct”
that had the
capacity to Overbear
his will.
The Appellate
Division rejectee
Locust’s claim.
The court
found:
“A suspect’s waiver
of his [or her]
silence is valid
Fifth Amenent
only if made
right to
‘voluntarily, knowingly
intelligently,,!
and
127 N.j. 438,
(1992) (quoting
447
da [1)
To determine
courL must ass
55 tile
voluntariness
totality of the
a
surrounding the giving
circumstances
of the statement
146 N.j. 208, 227,
v.Roach,
cert,
519 U.s. 1021
(1996)
“The fact that
the p01 ice lie
to a Suspect
itself, render a.
does not, by
confession involuntary!!
llowa’, 133 N.j.
ev.
631, 655 (1993)
“WIse of a
technique during
inherently coercivef;]
questioning is
not
[tjhe real issue
person’s decision
is whether the
to confess results
rather than from
from a change of
an overbearing
mind
of the suspect’s
at 654-55
in order to render
will.”
a confessIon
involuntary, the
.
•,.
,
35
suspect must have
been subjected to
“very substantial”
psychological pressu
re.
at 656.
That is not what
happened here. De
fendant, who had
intelligence, had
normal
prior experience wit
h
comprehended his sit
uation, as evidenced the police and fully
lies. Additionally,
by his initial
there was testimony
judge was fully en
on which the trial
titled to rely, ind
was provided with
icating that defend
food, drink, and
ant
cigarettes while at
station, that he
appeared alert, tha
the
t he was Mirandized
least three times,
and that he was not
at
way. The lie by
mistreated in any
Captain George did
not have the capacit
overbear defendant’s
y to
It seems more lik
defendant simply rea will.
ely that
with the crime and lized that he was not going to get
away
we see no basis to decided to unburden himself. There
fore,
suppress defendant’s
statement.
inculpatory
.
(RE29 at pp. 12—13).
Pursuant to the Fifth
Amendment right ag
ainst selfincrimination and the
Due Process Clause
of the Fourteenth
Amendment, a confes
sion must be vol
untary to be admitte
d into
evidence. See Dicker
son v. United State
s, 530 U.s. 428,
433
(2000). Miranda
provides that the
accused may waive
his rights,
but must do so “v
oluntarily, knowingly
and intelligently”.
Miranda, 384 U.S.
at 475.
To summarize, we
hold that when an
individual is taken
into custody or
otherwise deprived
of his freedom by
the authorities in
any significant way
to questioning, the
and is subjected
incrimination is jeo privilege against selfpardized. Proced
ural
must be employed to
protect the privileg safeguards
other fully effectiv
e means are adopte e and unless
d to notify the
person of his right
of silence and to
exercise of the rig
ht will be scrupu assure that the
lously honored,
following measures
the
are required. He
prior to any questio
must be warned
ning that he has
remain silent, that
the
anything he says can right to
against him in a
be used
court of law, that
the presence of an
he has the right
to
afford an attorney attorney, and that if he cannot
one will be appoin
ted for him prior
to any questioning
if he so desires.
Opportunity to
36
. .. r.
...
h.—a:..a—t
1-
S..”.
exercise these rights
must be afforded
to him
throughout the interrogat
0
After such warnings
been given, and
have
such OPPortunity
afforded him, the
individual may knowingly
and intelligently
rights and agree to
waive these
answer questions or
statement
make a
But unless
waiver are demonstrated and until such warnings and
by the prosecution
evidence obtained as
at
a result of interrogat trial, no
0
used against him,
can be
384 U.S.
at 478—79,
constitutional requireme
The anda warnings
are a
csn
530 U.s. at 444,
“The
requirem that
nda warnings be
given does not, of
course,
dispense with the
voluntariness inquiry.
But
‘{cjases in
which a defendant
can make a colorable
argument that a
selfincriminating statement
was ‘compelled’
despite the fact
that the
law enforcement
authorities adhered
to the dictates
of randa
are rare,’”
ç
530 U.S. at 444,
“[TJhe ultimate issue
of ‘voluntariness,
is a legal question
requiring independent
federal determination,i,
and is thus not
subject to the §
254(d)
2 presumption
of correctness
erv
474 U.S. 104,
l09-1i (1985)
.
.
The Supreme Court
has made clear
that a statement
involuntary when the
is
suspectts ‘twill
such a way as to
was overborne in
render his confession
coercionn
the product of
zonavjt
499 U.S. 279, 288,
111 S,ct, 1246,
113 L.Ed,2d 302
(1991), In determining
whether a statement
is voluntary,
Supreme Court
precedent requires
all the surrounding consideration of the totality
of
circumstancesboth the
characteristics of the
accused and the
0
interrogatj
details.. of the
cersonnitdS
428, 434, 120
530 U.S.
S.Ct. 2326, 147
L.Ed,2d 405 (2000)
(quoting
ck1othvB
e, 412 U.S. 218,
93 S.Ct, 2041,
36 L.Ed,2d 854
226,
(1973))
surrounding circumstances
These
Include not only
element of police
the crucial
coercion,
U.S. 157, 167,
doConnell
107 S.Ct. 515, 93
479
L.Ed,2d 473 (1986),’
37
but may also include
the length of the
interrogation,
its location, its
continuity, the defendants
maturity,
education physical condition,
and mental health.1
orowWilljams
507 U.S. 680, 693, 113
S,ct. 1745,
123 L.Ed,2d 407 (1993)
(some internal citations
omitted)
Lam. v.
Kelchner
304 F.3d 256,
264
(3d Cir,
2002).
“[Siubsidiary
such as the length and
circumstances of the
interrogation
the defendant’s prior
experience with the legal
process, and familiarity
with the nda warnings,
often require
the resolution of
conflicting testimony of
police and defendant.
The law is therefore
clear that state—court
findings on such
matters are conclusive
on the habeas court
if fairly supported
in
the record and if the
other circumstances
enumerated in § 2254(d)
are inapplicable.’!
474 U.S. at 117.
In determining whether
there has been a valid
waiver of
nda rights, a court
must conduct a two—part
inquiry under a
totality of the circumstances
standard.
oranv. rbin, 475
U.S. 412, 421 (1986)
First, the court looks
to the
voluntariness of the
statement, and whether
the waiver was freely
and deliberately given
as opposed to being
obtained by coercion,
intimidation, or deception.
Id.
Second, the court must
consider
whether the waiver was
“knowingly and intelligentlyii
made, that
is, whether the
ccused wa s fully aware
“both of the nature of
the right being abandoned
and the consequences
of the decision to
abandon it.”
Id,
questions,
.
.
The “totality of the
circumstanced! approach
is the clearly
established federal standard
applied to determine
whether there
38
has been a Voluntary
waiver of iranda rights
A court must take
into account “both the
characteristi
of the accused and
the
details of the
ogat4on,,
interr
5
eckioth
412
u.s. 218, 226 (1973)
This approach includes
the evaluation of
the subect’s age,
education, experience, backgrofl
and
intel1ig
and whether he has
the capacity to
understand the
gs given him,
warnin
the nature of his
Fifth enent rights,
and
the consequ of
5
ving those rights,
wai
the length of
n
detentio
the repeated and
prolonged nature of questioning
and
the Use of physic
ishment such as the
Pun
deprivation of food or
sleep.
; see also
Id.
revichal
442 u.s. 707, 725
(1979);
15 F.3d 286, 289
(3d Cir. 1994)
It looks to the
person’s familiarity with
the criminal Ustjce
system, the timing of the
da warnings and the
statement
given, and the length
and nature of the interrogaj
0 and
the
accompanying detention
lJd5taevv
885 F.2d
1076, 1086 (3d Cir.
9), cert
198
denied
494 u.s. 1017 (1990);
889 F.
so XorQubVA
1
2151
Supp.
541
171,
177
(M.D.pa
1995).
U.s.
652, 124 S.Ct. 2140,
04) (the
(20
characteristics of the defendant
can include the
In determining the
voluntariness of the
Jersey state courts have
confession
New
traditionally assessed the
the circumstances
totality of
surrounding the arrest and
0
interrogj
including such factors as
the accusedls “age,
tellig
in
education and
advice as to
constitutional rights, length
detention
of
whether the Uestionjng
was repeated and
nature and whether
prolonged in
l punishment
physica
of mental exhaustion
Involved”
was
tev Mill
76 N.J. 392, 402
(1978); see also
163 N.j. 304, 313
(2000)
39
defendant’s age,
prior experienc€.
education,
and intelligence,
as well as his
with law enforcement),
Further,
“coercive police
activity is a recessary
predicate
to the finding
that a confession
is not ‘voluntary’
within the
meaning of the Due
Process Clause of
the Fourteenth
endment”
doConne1l
U.S. 157, 167
(1986); see also
Arizona
minante,
U.s. 279, 288 (1991)
(a statement is
involuntary when the
suspect’s “will was
overborne in such a
way
as to render his
confession the product
of coercion”);
Lam, 304
F,3d at 264.
Absent Police
overreaching, which
is causally
related to the
confession, “there
is simply no basis
for
concluding that a
state actor has
deprived a criminal
defendant
of due process of
law.”
479 U.S. at 164.
Thus, beyond
the necessary and
crucial element of
Police coercion,
courts look
to both the
characteristics of the
accused and the
circumstances
of the interrogatj
0 in
considering whether
a confession is
voluntary,
See, e.g.,
owvWi11i
507 U.S. 680, 693-94
(1993) (concluding
that the voluntariness
of the confession
depends upon the
Lotality ot circumstances
including police
coercion, length and
Place of interrogatj
0
the accus..d’s
matu.rity, education,
physicai condj.ion
intelligence and
mental
health, as wel.l as
‘the failure of
the Police to
advise the
defendant of his
rights to remain
silent and to have
counsel
present during the
custodial interrogatjofl).
Schneckloth
412
U.S. at 226 (the
voluntariness of a
statement nay ofte•n
depend on
40
_______
whether the. accused’s will
as
1 overhoxne,
a question that
logically turns on the
characteristics of the accu.. sed).
The
governme
“need prove waiver only
by a preponderance of
the
evidence,”
connll, 479
at 168.
This Court has carefully
reviewed the record and fir.
ds that
the totality of the
circumstances in this case
clearly weigh in
favor of voluntariness
as determined by the
state courts,
First, there is no evidence
of coercive conduct on
the part of
the police.
Second, as fully discussed
by the Appellate Division
on direct appeal, as set
forth above, the trial
court determined
that petitioner’s confession
was knowingly, intelligently
and
voluntarily made,
Having reviewed the relevant
state court record, in
particular the testimony and
evidence adduced at the
hearing, this Court finds
that petitioner’s statement
was
voluntarily and intelligently
given.
Locust was given iarida
warnings on three occasions
and
stated he understood them
and waived them accordingly
before he
confessed,
His statement was given
after he had eaten dinner.
There was no evidence that
Petitioner was deprived of
food,
sleep, or other physical
needs that wou.ld otherwise
serve to
overbear a person’s will.
Nor is there any evidence
in the recor.d
to show that the police
used unnecessary or
overbearing
psychological tactics
to extract a confession
from petitioner,
41
There also were
no factors
concerning petitioner’s
age and
educaticn, which
wou]d suggest
that he did not
understand his
nda rights or the
consequE.nces of waiving
those rights.
Locust allEges
that he was impaired
but the police
testimony
shows that he was
alert and responsive
Further, this Court
agrees with the
state court that
there was no
overreaching or
objectively coercive
police conduct that
would have overborne
Petitioners will
under the circumstances
here to make
petitionerfs confession
involuntary.
As stated above,
there were
no Physical
punishments inflicted
on petitioner
he was not
deprived of sleep
and food and he
was not Physically
threatened
or harmed.
Nnda warnings were
given and petitioner
waived
those rights
voluntarily and
knowingly.
Consequently
after careful
review of the
record, this Court
cannot conclude
that the determination
of the trial
court in
admitting petitioners
confession resulted
in a decision
that was
contrary to, or
involved an
unreasonable application
of clearly
established federal
law, or 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,
lor,
The state courts
applied the correct
law and
facts in reaching
its determination
that, there was
no iranda
violation
and that the
statement was
voluntarily, knowingly
and
intelligently
given.
Petitioner has
failed to demonstrate
that
the state court
opinion, when
evaluated objectively
and on the
42
me. rits,
resulted in an outcome
that cannot be reasonably
justified
171 F.3d at 891,
Therefore
the Court will
deny federal habeas
relief on this claim
because the alleged
violation of petitioner’s
Fifth and Fourteenth
Amencjmen rights
is substantively
meritless
B
TaiCourtErredjflD.
at pa
Locust next argues
that the trial court
erred in denying
petitioner to add an
exoert witness to the
witness list on the
fourth day of trial.
Locust claims that the
expert would have
testified that Locust
was under the influence
of cocaine during
his custodial
interrogation to contest
the police testimony
that
Locust appeared to be
normal at the time his
statements were
made.
Generally,
issues as to the
admissibi1it of evidence
are
questions of state law
and not subject for
federal habeas review.
See le.McGuire,
502 U.S. 62, 68 (1991);
ohnson y.
eer
117 F.3d 104, 112-15
(3d Cir. 1997)
See also
Ikins, 251 F.3d 408,
416 n.2 (3d Cir.),
cert. denied, 534
U.S. 973 (2001)
Federa± courts must
afrord the states
deference
in its determinations
regarding evidence
and procedure
See
Crane v,entuck. 476
U,5, 683, 690 (1986)
It is
well_establishd that a
state court’s
misapplication of its own
law does not generally
raise a constitutional
claim.
The federal
courts have no supervisory
authority over state
judicial
Proceedings and may
intervene only to correct
wrongs of
.
.
.
43
constitutional
Cir,
dirnension
Ih v.
1997) (citations
omitted)
(1998).
However,
rt.
Horn
120
n.ed,
F.3d
400,
522 U,s,
414
(3d
1109
evidentiary rulings
may violate due
process when
the petitioner
“was denied
fundamental fairness
at trial.”
hinsHundle, 1991 WL
167036 at *4 (jj
Aug 22,
1991) (Wolin, J,)
(citations omitted);
see also
9ntakisvBeyer
19 F,3d 110, 120
(3d Cir. 1994),
cert, denied, 513
U.s, 881
(1994); Liseflav
lif
314 U.s. 219, 228,
236
(1941> (holding that
state court’s
evidentiary rulings
may form
the basis for
habeas relief when
they “so infused
the trial with
unfairness as to deny
due process of law”)
The appropriate
inquiry is “whether
the claimed error
of law
is a fundamental
defect which inherently
results in a complete
miscarriage of justice
or in an omission
inconsistent with the
rudimentary demands
of fair procedure”
hins, 1991 WL 167036
at *4 (citing
d5tte5vDL
889 F.2d 503, 506
(3d
Cir. 1989),
496 U.s. 939
(1990>> (other
citations
omitted)
The Supreme Court
has further
stated that “an
otherwise valid
conviction should
not be set aside
if the
reviewina court may
or.fi..d.eny say
on the whole
record that the
constjtut.icnal error
was harmless
beyond a reasonable
doubt.”
475 U.s. 673,
681 (1986),
An error is
not harmless if
“it aborts the
basic trial process
or denies it
.
44
altogetn
Hutchi, 1991 IlL
167036 at *5 (citing
Roaey
C1a, 478 u.s.
570, 578 n.6
(1986)).
Here, the trial
Court denied
petitionerts request
to add an
expert in the
middle of trial
because Locust
had Coifliflitted a
discovery violation
In particular,
Locust had failed
to comply
with jj,y.
:l3-3(d)
3 (5), which
allows a prosecutor
to apply
to have a defense
expert barred
from testimony
where the expert’s
report is not
provided to the
State within thirty
days of trial.
This Court finds
that the trial
court’s Procedural
ruling did not
unfairly prejudice
Locust. Moreover,
it is plain that
the issue
of petitioners
alleged impaie
during the custodial
0
interrog
was not a new
contention, aná
Petitioner had ample
time before trial
to procure an
expert witness
in this regard
accornce with
in
state court discovery
rules.
Consequent’y
the trial court’s
evidentiary ruling
did not
amount to an error
of constitutional
dimension. Nor
has Locust
shown that the
trial process was
fundamentally unfair.
Locust has not
Further,
demonstrated, as requir
under 28 U.S.C.
§
254(d),
2 thdt the
actions of the
state court in
this regard
resulted in a
decision that was
contrary to, or
involved an
unreasonable application
of, clearly
established federal
law, or
resulted in a
decision based on
an unreasonable
determination of
the facts.
45
C.
fectiveA
Finally,
Locust asserts
numerous claims of
ineffective
assistance of Counsel
in violao of
his Sixth Amendment
rights.
The “clearly
established Federal
law, as determined
by the
Supreme Court of
the United States,”
28 U.S.C. §
54(d)(l),
22 is
the standard for
ineffective assistance
of counsel as
enunciated
in
466 U.S. 668 (1984)
Under
ckland a petitioner
seeking to prove
a Sixth Amendment
violation must
demonstrate that his
counsel’s performance
fell
below an objectiVe
standard of reasonableness
assessing the
facts of the case
at the time of
counsel’s conduct
See id. at
68889; cobs
Horn
395 F.3d 92, 102
(3d Cir. 2005);
251 F.3d 408, 418
(3d Cir.),
534 U.S.
973 (2001)
To meet this
first prong of
deficient performance,
a
“convicted defendant
making a claim of
ineffective assistance
must identify the
acts or omissions
of counsel that
are alleged
not to have been
the result of
reasonable professional
judgment”
Id. at 690.
The court must
then determine
whether, in light
of
all the crcurnstajices
at the time, the
identified errors
were so
serious that they
were outside the
wide range of
Professionally
competent 5istaflce
d.
.
,
.
If able to
demonstrate deficient
performance by counsel,
then the Petitioner
must show prejudice,
there is a
“reasonable Probability
that but for
counsel’s unprofessional
errors, the result
of the Proceed.ing
would have been
different
.,
46
Id,
at 694,
As the Strickland
Court explained,
“[aittorney
errors come in an
infinite variety and
are as likely to
be
utterly harmless
in a particular
case as they are
to be
prejudjciaii
Id. at 693,
Thus, the Court
held that prejudice
is shown if
“there is a reasonabie
Probability that, but
for
Counsel’s unprofessional
errors, the result
of the Proceeding
would have been
different
A reasonable
Probability is a
Probability sufficient
to undermine
Confidence in the
outcome”
at 694.
The reviewing
court must evaluate
the effect of any
errors in light of
the totality of
the evidence
See
at 69596.
Thus, the petitioner
must establish
both deficient
performance and resulting
prejudice in order
to state an
ineffective assistance
of counsel claim,
See id, at 697;
see
also
395 F.3d at 102;
ller, 251 F,3d at
418,
However,
the Supreme Court
further instructed
that a district
court need
not address both
components of an
ineffective assistance
claim
“if the defendant
makes an insufficient
showing on one.”
kland, 466 U.S. at
697.
“If it is easier
to dispose of
an
neifeceiveness claim
on the ground of
lack of sufficient
prejudice, which
we expect will
often be so, that
course should
be followed,”
Id,
.
.
Locust raised his
ineffective assistance
of counsel claims
in his state PCR
Proceedings,
The state PCR
court found that
many of the claims
were Procedurally
barred as Previously
47
a
CD
n i-’- C C 1-1st
D
D hOt fi 0
o DID no OO
Z
C
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m(aD(aon
0.0
I-’
an
00 ftOO”
(relying
on
416 U.S. 637,
643 (1974), cert.
131 .Ct, 2093
(Apr. 18 2011);
IuMulli
422
F.3d 1113, 1137
(10th Cir. 2005)
(similarly relying
on
see
EHorLi, 516 F.3d 169,
205 (3d Cir,
2008) (cumulative
errors are not
harmless if they
had a
substantial and injurio
5 effect
or influence in
determining the
jury’s verdict; a
habeas petitioner
is not entitled
to relief
based on cumulative
errors unless he
can establish
“actual
prejudicen) (citing
htraham
507 U.s. 619,
637
(1993)),
Simply put, only
where the combined
effect of errors
rendE.rs a criminal
defense “far less
persuasive than it
might
[otherwIse) h.ve been”
will the resuitin
conviction violate
due
process,
mber5vMissi.
410 U.S. 284,
302—03 (1973).
Thus, a habeas
petitioner is not
entitled to relief
based on
cumulative errors
unless (s)he
demonstrates “actual
”
0
prejudj
67
See
NjL,
Carrier
47 U.S.
478,
49
(1986);
ahy, 516
(explaining that
“actual prejudici
must be
established by the
Petitioners showing
that the errors
during
the trial
created more than
a hypothetical
poss of
prejudice)
F.3d at 205
Here,
Locust contends
that the alleged
cumulative errors
trial counsel
of
prejudic him.
However, as set
forth above,
Locust has failed
to demonstrate
actual prejudi
with respect
any of his
to
ineffective assistance
of counsel
claims,
After
carefully examining
the underlying
record, this
Court cannot
any aspect of
find
petitioners trial
suggesting Singularly
or
cumulatively anything
more than a hypothe
01
POSsibility of
prejudi at
best,
More significantly
Locust has not
shown that his
trial
counsel’s
performance was
deficient; nor
has he satisfied
burden of Proving
his
that the state
court decisions
regarding
counsel’s
performance was
unreasonable.
As the PCR
court found:
defense counsel
really had a strategicay
out defense,
mapped
[Defense counsel)
examined rigorously
that could shed
as to many Lacts
a negat
light on the
Again during
State’s witnesses
the case in
chief counsel
facts back out
ti brought those
on cross and
tried to establish
perpetrator
So he did what
another
and reasonable
he had
This was a
strategy, especially to do.
sound
overwhelming evidence
in light of
the
Besides the
Overwhelming evidence
confession, there
that the defendant
was
was guilty in
(RE38, November
this.
18, 2005 PCR
Transcript, 20:15_21.3)
Accordingly, this
Court finds that
Locust’s claim
of cumulative
errors does not
merit habeas
relief because
he has not
68
demonstrated cumulative
prejudice,
and because he
has
failed to
make a substantial
showing of the
denial of a
constitutional right,
V.
AL
This Court next
must determine
whether a certificate
of
appealability should
issue,
See
Rule 22.2.
Third Circuit
Local Appellate
The Court may
issue a certificate
of appealability
only if the
petitioner “has made
a substantiai
showing of the
denial of a
constitutional right,”
28 U.S.C. §
3(c)
225 (2).
For
the reasons
discussed above, this
Court’s review of
the claims
advanced by petitioner
demonstrates that he
has failed to
make a
substantial showing
of the denial
of a constitutional
right
necessgf a
certificate of
appealability to issue.
Thus,
this Court declines
to issue a
certificate of
appealability
pursuant to 28
U.S.C. § 225 (2),
3(c)
US ION
For the above
reasons,
this Court finds
that the § 2254
habeas petition
must be denied,
and a certificate
of
appealability will
not issue.
An appropriate
Order follows.
DATED:
United States
District
69
Judge
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