WILLIAMS v. RICCI et al
Filing
47
OPINION. Signed by Judge Dickinson R. Debevoise on 12/14/12. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JERMAINE A. WILLIAMS,
Petitioner,
v.
MICHELLE R. RICCI, et al.,
Respondents.
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Civil Action No. 09-1822 (DRD)
O P I N I O N
Debevoise, District Judge:
This matter comes before the Court upon: (a) receipt of
Petitioner's counseled brief, which arrived accompanied by
exhibits filed in support of Petitioner's Ground One challenges;
(b) Respondents' filing of a letter, formal brief and supporting
exhibits opposing Petitioner's Ground One claims raised in the
Petition and elaborated upon in Petitioner's counseled brief; and
(c) Petitioner's submission of his pro se brief and pro se
traverse, filed seemingly with the goal to cure what Petitioner
perceived as shortcomings in the brief submitted by his appointed
counsel.
See Docket Entries Nos. 37-39, 41-44 and 46.
For the reasons detailed below, Petitioner's Ground One
challenges will be dismissed, as not warranting habeas relief.
Respondents will be directed to answer the remainder of
Petitioner's Grounds.
The limited appointment of Petitioner's
counsel will be terminated, with renewal of the same reserved.
I.
INTRODUCTION
Typically, a judicial decision examining habeas challenges
opens with a discussion of the underlying facts, proceeds to
briefly summarizing the standard of review and concludes with
application of substantive tests to the claims raised by the
habeas litigant.
at bar.
However, little has been typical about the case
Therefore, assessing the relevant legal considerations
and dense factual predicate underlying Petitioner's claims, it
appears warranted to alter the usual continuum by: (a) opening
with a summary of procedural history accrued in this matter; then
(b) summarizing just a few key aspects of the standard of review;
(c) upon carefully detailing the underlying facts, (d) addressing
the latest legal position taken by Respondents; and (e) closing
by examining the factual predicate present here under the
governing substantive test.
II.
PROCEDURAL HISTORY
This matter was commenced upon the Clerk's receipt of
Petitioner’s pro se petition seeking habeas relief pursuant to 28
U.S.C. § 2254.
See Docket Entry No. 1.
Yet, shortly after
initiation of this action, Petitioner filed an application
requesting stay of the instant matter to accommodate his intent
to exhaust his unexhausted claims in state fora.
Entry No. 4.
See
Docket
The Court, thus, issued an order granting
Petitioner the requested stay.
See Docket Entries Nos. 5 and 6.
2
However, shortly thereafter, Petitioner filed a motion
requesting reopening of this matter and notifying the Court that
he elected to seek habeas relief solely on his already exhausted
claims.
See Docket Entry No. 8.
This Court, therefore, provided
Petitioner with notice, pursuant to Mason v. Meyers, 208 F.3d 414
(3d Cir. 2000), and directed him to submit his amended pleading
stating only the claims he wished to litigate.
See Docket Entry
No. 11.
Petitioner responded by filing his amended petition and a
brief elaborating on his claims.
14.
See Docket Entries Nos. 13 and
That brief indicated his intent to raised four umbrella-type
challenges, with the fourth challenge consisting of the "a" to
"o" claims, i.e., effectively asserted fifteen different grounds.
See id.
The Court, thus, directed Respondents to answer the
amended petition.
See Docket Entry No.
Respondents, being then
represented by counsel who later withdrew, filed an answer and
exhibits, see Docket Entries Nos. 19 and 20, but that answer
insufficiently addressed Petitioner's challenges.
The Court, hence, subdivided Petitioner's challenges into
two groups: the first group consisted solely of Petitioner's
Ground One, while the second group embraced Petitioner's
remaining fourteen claims.
See Docket Entry No. 23.
With regard to the former, the Court: (a) directed the Clerk
to appoint a federal public defender to represent Petitioner; and
3
(b) ordered the parties to re-brief Petitioner's Ground One.1
See id.
Both sides complied.
See Docket Entries Nos. 29 and 30.
Having examined the re-briefing submissions, the Court: (a)
noted that the parties were not in dispute as to the substantive
legal principle governing Petitioner's right-to-presence
challenges raised in his Ground One; but (b) the parties omitted
to address how these principles applied to Petitioner's rather
unique circumstances.
See Docket Entry No. 31.
Thus, the Court
directed the parties to supplement their re-briefs by stating
their positions on that issue.
See id.
Since the Court's order to that effect was not immediately
complied with, the Court granted a sua sponte extension of time
to supplement the parties' re-briefs.2
Both sides duly made their filings.3
39, 41-43.
See Docket Entry No. 33.
See Docket Entries Nos. 38-
However, shortly thereafter, being seemingly
unsatisfied with two rounds of counseled briefs filed by his
appointed counsel, Petitioner filed his own supplement.
See
1
As to the second group of Petitioner's challenges, the
Court directed stay, upon expiration of which Respondents would
be directed to file a new answer: addressing these fourteen
challenges, and Petitioner would be allowed to traverse.
2
At this point, Respondents' prior counsel was
substituted by current counsel. See Docket Entries Nos. 34-36.
3
The Court already noted the thoroughness of submissions
filed by Petitioner's appointed counsel and of Respondents'
original counsel's re-brief, and takes this opportunity to
reiterate the same praise.
4
Docket Entry No. 44.
Since that filing was neither provided for
nor envisioned in the Court's order directing supplemental rebriefing, the Court offered Respondents an opportunity to file a
sur-reply to Petitioner's submission and, if such sur-reply were
filed, allowed Petitioner's appointed counsel an opportunity to
traverse.
See Docket Entry No. 45.
Although neither
Petitioner's counsel nor Respondents took advantage of the
Court's offer, standing on the arguments raised in their prior
filings, see, generally, Docket, Petitioner -- seemingly
misreading the Court's directive -- filed yet another supplement,
effectively reiterating and elaborating on the arguments already
raised in his prior filings.
See Docket Entry No. 46.
The substantial mass of these filings is presently before
the Court.
To the degree it appears feasible, the Court will
address the parties' positions seriatim.
III. KEY LEGAL PRINCIPLES
The general standard of federal habeas review is longestablished, and it sets forth a narrowly-tailored test.
See
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) ("As amended
by AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a
federal court to grant an application for a writ of habeas corpus
on behalf of a state prisoner").
Thus, Section 2254(a) permits a
federal court to entertain only claims alleging that a person is
held in state custody "in violation of the Constitution or laws
5
or treaties of the United States."
28 U.S.C. § 2254(a).
The
AEDPA further limits a federal court's authority to grant habeas
relief by providing that, when a state court has adjudicated a
petitioner's federal claim on the merits, a district court "has
no authority to issue the writ of habeas corpus unless the [state
court's] decision 'was contrary to, or involved an unreasonable
application of, clearly established Federal Law, as determined by
the Supreme Court of the United States,' or 'was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.'"
Parker v. Matthews,
132 S. Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)).
Consequently, the starting point of federal habeas review
under § 2254(d)(1) analysis is to determine the relevant law
clearly established by the Supreme Court.4
Alvarado, 541 U.S. 652, 660 (2004).
See Yarborough v.
Clearly established law
"refers to the holdings, as opposed to the dicta, of [the Supreme
Court's] decisions [entered by] the time of the relevant
4
The only federal law that qualifies as clearly
established is Supreme Court precedent interpreting the
Constitution. Federal courts sitting in habeas review may not
rely upon non-constitutional Supreme Court decisions to determine
whether § 2254(d) relief is appropriate, since precedents not
based on constitutional grounds are "off the table as far as §
2254(d) is concerned." Early v. Packer, 537 U.S. 3, 10 (2002)
(per curiam). Correspondingly, the courts conducting federal
habeas review cannot look to decisions interpreting federal
common law. See id. (holding inapplicable precedents "based on
[the Supreme Court's] supervisory power over the federal courts,
and not on constitutional grounds").
6
state-court decision."
Williams v. Taylor, 529 U.S. 362, 412
(2000); accord Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
A decision is "contrary to" a Supreme Court holding, within
the meaning of 28 U.S.C. § 2254(d)(1), if: (a) the state court
outright "contradicts the governing law set forth in [the Supreme
Court] cases"; or (b) the state court "confronts a set of facts
that are materially indistinguishable from a decision of th[e
Supreme] Court and nevertheless arrives at a [different] result."
Williams, 529 U.S. at 405-06.
Under the "'unreasonable application' clause of §
2254(d)(1), a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from
th[e Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case."
U.S. at 413.
Williams, 529
Paramount here, under § 2254(d)(1), "an
unreasonable application of federal law is different from an
incorrect application of federal law."
Harrington v. Richter,
131 S. Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at 410).
Correspondingly, the standard posed by federal habeas review "is
. . . difficult to meet, [since it is a] highly deferential
standard for evaluating state-court rulings, [and that standard]
demands that state-court decisions be given the benefit of the
doubt."
Cullen, 131 S. Ct. at 1398 (citations and internal
quotation marks omitted).
Moreover, review under § 2254(d) is
7
limited to the record that was before the state court that
adjudicated the claim on the merits.
IV.
See id.
EVENTS RELEVANT TO PETITIONER'S GROUND ONE CHALLENGES
A.
Facts Underlying Petitioner's Conviction
The state courts summarized the events underlying
Petitioner's conviction as follows:
[On] the afternoon of September 26, 1999, [Petitioner]
and two of his friends, Stuart Jones and Jahkeam
Francis, gathered in Newark. They decided to travel by
taxi to the home of Jahkeam's cousin, Althea Cummings,
in Paterson. [Petitioner] was in possession of a
silver hand gun. [He] said that he needed money and
would rob someone if he had the opportunity to do so.
Late in the afternoon, [Petitioner], Jones and Francis
took a taxi to East Orange, and there they got into a
livery cab that was driven by another man.
[Petitioner] was seated in the rear with Jones.
Francis sat up front, alongside of the driver. The cab
stopped at Cummings' mother's home and then proceeded
to the intersection of North Fourth Street and Haledon
Avenue in Paterson. There, at approximately 5:30 p.m.,
[Petitioner] observed Miguel “Danny” Mercado on the
sidewalk in front of his father's grocery store.
Mercado, who was sixteen-years old, was talking to a
friend, Gregory Brown. Mercado was wearing a thick,
gold chain around his neck. The car stopped and
[Petitioner] got out. He grabbed Mercado from behind,
placed the gun to the right side of Mercado's neck and
demanded that Mercado give him the chain. Mercado
resisted and attempted to extricate himself from
[Petitioner's] grip. [They] struggled [and Petitioner]
shot Mercado in the abdomen, took the necklace, and got
back into the cab, which then drove off. Mercado died
the following day as a result of the internal
hemorrhaging caused by the gun shot wound in his
abdomen. After the robbery, . . . [Petitioner] told
Jones that he wanted to get rid of the gold chain. They
sold the chain in New York City, two days later. . . .
In October of 1999, Jones was arrested. . . . Francis
was arrested in March of 2000. On June 16, 2000,
[Petitioner] was arrested in York, Pennsylvania. The
jury found [him] guilty [on the charges of felony8
murder, robbery, aggravated manslaughter and weaponrelated offenses. He] was sentenced to an aggregate
term of life plus five years of imprisonment . . . .
State v. Williams, 2008 WL 4345452, at *1-2 (N.J. Super. Ct. App.
Div. Sep. 25, 2008).
B.
Petitioner's Voir Dire Proceeding
Petitioner's Ground One is based on his voir dire proceeding
that was affected by the tragic events of September 11 (since the
second day of Petitioner's three-day jury selection process
coincided with that day of national tragedy and prompted the bulk
of in camera conferences during which Petitioner was absent).
Petitioner's appointed counsel and Respondents' original and
current counsel invested admirable efforts into detailing and
sorting out the facts of Petitioner's voir dire, providing the
Court with narratives, statistical charts and tables stating the
facts in support of their respective positions.
Since the relevant factual predicate is dense, and it
features a massive cast of characters,5 accord Murakush Caliphate
of Amexem Inc. v. New Jersey, 790 F. Supp. 2d 241 (D.N.J. May 13,
2011) ("To put the [list of characters] in perspective, it is
5
Unfortunately, counsels' discussions are somewhat hard to
follow because: (a) some narratives are organized in terms of
chronological developments, on day-by-day basis, with a multitude
of characters -- whose names the reader might have a problem
committing to his/her memory -- appearing, disappearing and
reappearing again; (b) other narrative and statistical accounts
focus on the issues seemingly favorable to a party's position
but, in actuality, having no relevance to the issues at bar; and
(c) the tables composed, while useful, are not easy to digest.
9
much like [an alternative] version of Leo Tolstoy's 'War and
Peace'") (quoting Mann v. GTCR Golder Rauner, L.L.C., 483 F.
Supp. 2d 884, 891 (D. Ariz. 2007)), it appears warranted for the
Court to systemize the relevant facts in the record into an
account allowing the reader an opportunity to navigate through
events.
Hence, examining the voir dire transcripts, see Docket
Entries Nos. 29-2, 29-3, 29-4 and 29-5, the charts composed by
counsel, see Docket Entry No. 30-1, and the narratives they
offered, see Docket Entries Nos. 29, 30, 38 and 42, this Court
reduced the relevant record to the account below.6
1.
Physical Setting
Throughout the entire process, as during his trial,
Petitioner was free of shackles and handcuffs, wore plain
clothing and was in constant and close communications with his
counsel.
The entire process occurred at the Passaic County
courthouse, which has a circular courtroom design that places the
jurors virtually next to the bench.
Since, due to that design,
all side-bar discussions audible to the court reporter are
inevitably audible to voir dired/impaneled jurors, the resort to
in camera conferences is frequent.
6
If a criminal defendant, like
There were occasional discrepancies in spellings of the
venire persons' names and an incoherence between some venire
persons' names and the gender of pronouns used to designate those
venire persons. However, granted the magnitude of the task
performed by counsel on both sides, these occasional typos are
understandable.
10
Petitioner, were to attend an in camera conference, security
concerns would require a sheriff's officer to accompany the
defendant to ensure the safety of the judge, counsel and
attending venire persons.
2.
Pretrial Conference
Petitioner's pretrial conference was held on September 10,
2001.7
Petitioner was present at the entire pretrial conference.
Multiple issues concerning interactions with venire persons and
impaneled jurors were addressed, including such subjects as the
scope of each form of communication, procedures to be employed
during the jury selection, evidentiary and jury charge aspects,
etc.
Special considerations were given to two concerns: (i) the
expected extensive length of the trial; and (ii) the likelihood
that the trial would continue during the Jewish High Holidays.
Petitioner was present at all these exchanges between the judge
and counsel, and these discussions expressly put Petitioner on
notice that in camera conferences were possible in certain
circumstances and particularly likely in light of the length of
the upcoming trial and the High Holidays: since the trial judge
was willing to address venire persons' concerns on these issues
in chambers.
7
The pretrial conference was followed by voir dire that
began on the same day.
11
3.
Voir Dire, Overview
a.
September 10, 2001
Following the pretrial conference, the entire venire was
brought in.
The trial judge explained the voir dire process to
the venire, pointing out that the potential jurors feeling
obligated to share private concerns or seeking to be excused on
the basis of personal information that might be too embarrassing
to state in public forum could detail the same to the trial judge
in camera, in presence of both counsel.
Upon hearing that,
Petitioner did not make any statement indicating his desire to
accompany his counsel for such in camera proceedings had they to
take place.
The voir dire began with fourteen venire persons
called for questioning.
Petitioner observed side-bar discussions
taking place, but did not make any statements.
At the end of
that day, twelve venire persons were selected, with two more were
yet to be impaneled.
The trial judge closed by making additional inquiries,
stressing the length of the trial.
In response, many of the
selectees asserted concerns related to this issue, but -- at that
juncture -- no selectee was excused on that ground, and the trial
judge offered his assurances that the court would reach out to
the jurors' employers to resolve any problem associated with the
length of the trial.
12
b.
September 11, 2001
Terrorists crashed American Airlines Flight 11 into the
North Tower of the World Trade Center at 8.46 a.m., shortly
before the court convened.
Seventeen minutes later, at 9:03
a.m., a second group of terrorists crashed United Airlines Flight
175 into the South Tower of the World Trade Center.
That act
confirmed that a terrorist attack, rather than merely a tragic
accident, was underway.
The smoking ruins of the towers were
seen from the trial judge's chambers, and -- by the time court
convened and the venire persons were brought in, everyone in the
court and the courtroom was aware of the events unfolding.
After
the questioning of the venire persons resumed, the selectees
began reflecting on the events unfolding, and the trial judge and
both counsel held an in camera discussion concerning the South
Tower of the World Trade Center, which collapsed at 9.59 a.m.
Immediately thereafter, the trial judge informed, in Petitioner's
presence, the selectees and the remainder of the venire persons
that one of the World Trade Center towers had collapsed and that
the Pentagon had been attacked.
In conjunction with that
announcement, the trial judge inquired whether any selectee or
venire person awaiting voir dire had relatives or friends in the
World Trade Center or in the Pentagon.8
8
In response, some already-impaneled selectees stated
relevant concerns and were excused, either on September 11, or on
the third day of voir dire, that is, on September 13.
13
At mid-day, a half-hour recess was allowed by the trial
judge, so those who were worried about their family members and
friends could reach out and make sure their loved ones were safe.
It was during that recess, when the trial judge learned that the
Passaic County courthouse complex, as all other judicial and
state offices in New Jersey, were ordered closed due to the World
Trade Center and Pentagon events, and the crash of the hijacked
jet in Pennsylvania.
By that time, twenty-nine venire persons
were voir dired in open court.
Of these twenty-nine, six were
subjected to supplemental interviews in camera.
Out of those
six, four were dismissed for cause, while two were dismissed upon
exercise of peremptory challenges.
Thus, none of the venires
questioned in camera on September 11 was impaneled on
Petitioner's jury.
c.
September 12, 2001
The Passaic County courthouse was closed.
No voir dire
proceedings took place.
d.
September 13, 2001
The voir dire proceedings resumed.
The trial judge,
realizing the gravity and the impact of the September 11 events
and, specifically, the fact that many people were so affected by
those events that they might have problem serving on the jury,
made an in-court statement clarifying that he would entertain the
selectees and venire persons' every request to talk to him and
14
the attorneys.
To narrow the pool of venires to those persons
who did not have apparent September-11-tragedy-based problems
preventing their service on the jury, the trial judge began prescreening the entire pool of venire persons, who were not yet
assigned a prospective juror number, in camera, formally
verifying, in the midst of that pre-screening process, that
Petitioner's counsel had no objection to this process.
(Petitioner's counsel expressly confirmed lack of objections.)
Out of twenty-two so-pre-screened venires, eighteen were excused,
while the remaining four underwent a following full voir dire in
open court, that is, in Petitioner's presence.
This last day jury selection process proved particularly
complex logistically, since it was affected by at least one
evacuation of the entire courthouse (resulting from what appeared
to be a bomb threat).9
Petitioner's jury was fully selected by close of business.
4.
Individual Venire Persons10
9
Petitioner is of impression that he was removed from the
court no less than three times and returned to Passaic County
Jail, instead of being moved to a holding cell in the courthouse.
Although this Court is not entirely clear as to how such
transfers could have been possible, in terms of the time
constraints, this aspect has no bearing on the analysis at hand.
10
As noted supra, the following summary traces the
developments that took place over the entire three days voir
dire. Hence, numerous venire persons who were not excused prior
to the September 11 tragedy were, nonetheless, excused posttragedy, since the events of September 11 amplified their
personal and/or employ-related problems to such level that the
15
a.
•
Chain of Venire Persons Yielding Juror # 1
Robert Brown, acting as the first prospective juror # 1, was
initially impaneled but was eventually excused and did not
serve on Petitioner's jury.
Thus, his post-September 11 in
camera statements are of no relevance to the inquiry at
bar.11
Upon his excuse, he was substituted by Martha
Farmiga.
•
Martha Farmiga, acting as the second prospective juror # 1,
was selected as a member of Petitioner's jury.
Although she
stated that her house was broken into about twenty years
prior to Petitioner's trial, that statement was offered in
open court and, thus, could not raise any right-to-presence
concerns.
b.
•
Chain of Venire Persons Yielding Juror # 2
Regina Somma, acting as prospective juror # 2, was impaneled
as a member of Petitioner's jury.
Her questioning did not
trial court found excusing them warranted.
11
Petitioner's Ground One position is limited to the claim
that some jurors, who were in fact impaneled, should not have
been on the jury. In other words, Petitioner maintains that his
rights were violated because, had he partaken in side-bar and/or
in camera conferences, the jurors who were actually impaneled
would not be on his jury. Correspondingly, the issue of why some
venire persons were excused, rather than impaneled, falls outside
the scope of Petitioner's Ground One. Correspondingly, all in
camera statements made by those venire persons who were not
impaneled is of no relevance to the inquiry at hand.
16
raise any concerns.12
c.
•
Chain of Venire Persons Yielding Juror # 3
Anthony Mayer, acting as the first prospective juror # 3,
was not impaneled, but his questioning did not raise any
concerns.
•
He was substituted by Eric Monroe.
Eric Monroe, acting as the second prospective juror # 3, was
also not impaneled.
concerns.
•
His questioning, too, did not raise any
He was substituted by Mary Patterson.
Mary Patterson, acting as the third prospective juror # 3,
was analogously not impaneled.
raise any concerns.
•
Her questioning also did not
She was substituted by Brian Eitel.
Brian Eitel, acting as the fourth prospective juror # 3, was
impaneled as a member of Petitioner's jury.
Although he
stated that he had acquaintances in law enforcement, that
statement was made in open court, in Petitioner's presence
and could not raise any right-to-presence concerns.
d.
•
Chain of Venire Persons Yielding Juror # 4
Juliana Brown, acting as the first prospective juror # 4,
was excused after she stated her belief that her sibling
12
The Court's resort to the phrase "did not raise any
concerns" (or analogous phraseology) indicates that: (a) neither
Petitioner's appointed counsel nor Respondents reflected on the
statements made by the particular venire person; and (b) this
Court's examination of voir dire transcript did not indicate a
statement warranting a discussion in this Opinion.
17
might have been criminally prosecuted.
She was substituted
by James Simpson.
•
James Simpson, acting as the second prospective juror # 4,
was also not impaneled.
His responses provided in open
court resulted in further in camera questioning, where he
stated that he was familiar with the case after reading a
newspaper article.
He was removed upon Petitioner's
counsel's exercise of a peremptory challenge.
Thus, his in
camera statements are of no relevance to the Court's inquiry
at hand.
•
He was substituted by Matthew Zimmer.
Matthew Zimmer, acting as the third prospective juror # 4,
was impaneled as a member of Petitioner's jury.
Although he
acknowledges that he was a member of a certain grand jury
panel and had acquaintances in the police force, those
statements were made in open court.
Thus, they could not
raise any right-to-presence concerns.
e.
•
Chain of Venire Persons Yielding Juror # 5
Karen Challice, acting as the first prospective juror # 5,
made in-court statements about her husband's employ as a
police officer and offered an unsolicited praise to one of
Petitioner's arresting officers.
in her disqualification.
Those statements resulted
She was substituted by Fred
Nazare.
18
•
Fred Nazare, acting as the second prospective juror # 5,
made in-court and in camera statements reflecting on the
issues of his employment situation and the likely length of
the trial.
Since he was not impaneled, these statements are
of no relevance to the Court's inquiry at hand.
He was
substituted by Liliethia Johnson.
•
Liliethia Johnson, acting as the third prospective juror #
5, made an in-court statement indicating that she knew a
witness in Petitioner's case.
She was excused and
substituted by Wilsonia Thomas.
•
Wilsonia Thomas, acting as the fourth prospective juror # 5,
was impaneled as a member of Petitioner's jury.
Her
questioning did not raise any concerns.
f.
•
Chain of Venire Persons Yielding Juror # 6
Phyllis Hanrahan, acting as the first prospective juror # 6,
stated in-court that her employer would be displeased with
her long absence due to the trial and got excused.
She was
substituted by Joseph Feliciano.
•
Joseph Feliciano, acting as the second prospective juror #
6, was peremptory challenged and removed.
He was
substituted by McArthur Williams.
•
McArthur Williams, acting as the third prospective juror #
6, was analogously peremptory challenged and removed.
was substituted by Gregory Gunther.
19
He
•
Gregory Gunther, acting as the fourth prospective juror # 6,
made an in camera statement confessing his inability to be
an impartial juror and was excused.
He was substituted by
John Pescatore.
•
John Pescatore, acting as the fifth prospective juror # 6,
was impaneled as a member of Petitioner's jury.
in camera statements.
He made two
One related to his family member, who
was a firefighter missing after the September 11 tragedy
(and whose funeral Pescatore feared he had to attend); the
trial court declined excusing Pescatore on that ground due
to the speculative nature of his fears.
The second in
camera statement indicated that Pescatore had an uncle who
was criminally prosecuted in error and who, eventually, got
the record of that prosecution expunged.
g.
•
Cindy Woods, acting as the first prospective juror # 7, was
excused.
•
Chain of Venire Persons Yielding Juror # 7
She was substituted by Peroida Torres.
Peroida Torres acted as the second prospective juror # 7.
She, too, was excused; she was substituted by Pamela Mossa.
•
Pamela Mossa, acting as the third prospective juror # 7, was
also not impaneled.
Although she stated, in camera, that
her father was injured as a result of a robbery, she was
peremptorily challenged by Petitioner's counsel and removed.
She was substituted by Irlanda Velasquez.
20
•
Irlanda Velasquez, acting as the fourth prospective juror #
7, was, too, not impaneled.
Her in camera statements
related to her employment situation, while her statements
made in open court disclosed that her family member was a
probation officer.
She was also peremptorily challenged by
Petitioner's counsel and removed.
She was substituted by
Beverly Dargis.
•
Beverly Dargis, acting as the fifth prospective juror # 7,
was also not impaneled.
Her in camera statements indicated
that her son was scheduled to undergo juvenile proceeding
the next day in the same court.
She was peremptorily
challenged by the State and removed, being substituted by
Wayne Vanostenbridg.
•
Wayne Vanostenbridg, acting as the sixth prospective juror #
7, was not impaneled either, being removed upon the State's
challenge.
•
He was substituted by Jacqueline Vasquez.
Jacqueline Vasquez, acting as the seventh prospective juror
# 7, was also not impaneled.
She made two in camera
statements, one reflecting on her financial concerns and
another disclosing that she had a family member employed as
a probation officer.
She was removed upon Petitioner's
defense counsel's peremptory challenge and substituted by
Robert Doormany.
21
•
Robert Doormany, acting as the eighth prospective juror # 7,
was analogously not impaneled as a member of Petitioner's
jury.
While his in camera statements raised no concerns,
his statements made in open court indicated that his
judgment was likely to be affected by a certain prior
criminal act.
Therefore, he was excused and substituted by
Miguel Lugo.
•
Miguel Lugo, acting as the ninth prospective juror # 7, was
too not impaneled as a member of Petitioner's jury, since
his in-court statements prompted Petitioner's counsel to
exercise a peremptory challenge.
He was substituted by
Scott Suralik.
•
Scott Suralik, acting as the tenth prospective juror # 7,
was also not impaneled as a member of Petitioner's jury.
After Suralik declared in open court that he could not be
impartial, the trial judge excused him.
He was substituted
by Gregory Curry.
•
Gregory Curry, acting as the eleventh prospective juror # 7,
was impaneled to sit as a member of Petitioner's jury.
In
his in camera statement, Curry disclosed that he had a
relative who was criminally prosecuted and held in custody,
being seemingly a pre-trial detainee.
22
h.
•
Chain of Venire Persons Yielding Juror # 8
Cecil Matthews, acting as the first prospective juror # 8,
stated in court that his long absence due to the trial would
result in lay-off of his colleagues and was excused.
He was
substituted by William Larrinaga.
•
William Larrinaga acted as the second prospective juror # 8.
He was excused and substituted by Alice Stanley.
•
Alice Stanley, who acted as the third prospective juror # 8,
was impaneled to sit as a member of Petitioner's jury.
Her
statements were made in open court, indicating her concerns
about family member with mental incapacity; she also
disclosed that she served on jury in manslaughter, murder,
and drug cases.
In addition, she disclosed that her other
family member's house had been robbed, and that her friend's
spouse was a retired police captain.
All these statements
were made in open court and could not raise any right-topresence concerns.
i.
•
Chain of Venire Persons Yielding Juror # 9
Rebecca Bertram, acting as the first prospective juror # 9,
was impaneled as a member of Petitioner's jury.
Her
questioning did not raise any concerns.
j.
•
Chain of Venire Persons Yielding Juror # 10
Bruce Demore, acting as the first prospective juror # 10,
was excused.
He was substituted by Diane Butler.
23
•
Diane Butler acted as the second prospective juror # 10.
She was impaneled as a member of Petitioner's jury.
Being
pre-screened in camera and, later on, additionally
questioned in camera, she made the same statements as those
she made later in open court, i.e., she reflected on her
concerns about her employ.
k.
•
Chain of Venire Persons Yielding Juror # 11
Jose Jiminez, acting as the first prospective juror # 11,
made in-court statements asserting financial hardship
associated with the length of the trial and followed the
same with an in camera clarification that financial
considerations were paramount to him because he was
supporting his sick wife in a foreign country.
He was not
impaneled, being substituted by Albert Campbell.
•
Albert Campbell, acting as the second prospective juror #
11, was also excused.
•
He was substituted by Celia Smith.
Celia Smith acted as the third prospective juror # 11.
was impaneled as a member of Petitioner's jury.
She
Being pre-
screened in camera, she made no statements related to her
ability or inability to be an impartial juror.
Later on, in
open court, she disclosed that her former spouse was a
criminal defendant represented by Petitioner's defense
counsel.
That in-court statement, however, could not raise
any right-to-presence concerns.
24
l.
•
Chain of Venire Persons Yielding Juror # 12
Ruth McKoy, acting as the first prospective juror # 12,
stated in-court that she had knowledge of the case; that
response resulted in her being questioned in camera.
There,
she detailed her familiarity with the families of the victim
and one of the witnesses.
She was not impaneled, being
substituted by Andrew Kadin.
•
Andrew Kadin, acting as the second prospective juror # 12,
was excused for reasons associated with the September 11
tragedy, which he disclosed in open court.
He was
substituted by Rajesh Mehta.
•
Rajesh Mehta, acting as the third prospective juror # 12,
was excused in light of the concerns caused by the fact of
his self-employ.
•
He was substituted by Damian Navarette.
Damian Navarette, acting as the fourth prospective juror #
12, first made in camera statements reflecting on the unique
demands and responsibilities of his employ; he then recited
the same in open court.
He was removed upon the State's
election to exercise a peremptory challenge, being
substituted by George Golflech.
•
George Golflech acted as the fifth prospective juror # 12.
He made in-court statements disclosing his propensity to
accept police officers' statements as true and, thus, was
excused.
He was substituted by Wayne Bush.
25
•
Wayne Bush, acting as the fifth prospective juror # 12, made
in-court and in camera statements.
The former indicated
that he had acquaintances in law enforcement, while his in
camera statements disclosed that his son was charged with a
criminal offence and sentenced to probation.
He was removed
upon Petitioner's counsel's election to exercise a
peremptory challenge, being substituted by Christine Elliot.
•
Christine Elliot, acting as the sixth prospective juror #
12, also made in-court and in camera statements.
In court,
she indicated that her daughter was a victim of mugging; in
camera, she disclosed that her ex-spouse was charged with an
aggravated manslaughter, and that she had been a victim of
domestic violence.
Those statements caused Petitioner's
counsel to exercise a peremptory challenge, and Elliot was
removed.
•
She was substituted by Maureen O'Farrill.
Maureen O'Farrill, acting as the seventh prospective juror #
12, was impaneled as a member of Petitioner's jury.
In
camera, she made a statement indicating that her son was
charged with and convicted on drug-related offenses.
m.
•
Chain of Venire Persons Yielding Juror # 13
Frederick Ackerly, acting as prospective juror # 13,
provided in-court testimony that raised no concerns.
He
was, therefore, impaneled as a member of Plaintiff's jury.
However, two days after that impaneling, that is, on
26
September 13, he made a number of statements in camera.
Specifically, he stated that he had spoken to his mother,
who reminded him certain facts that, initially, escaped his
recollections.
Those facts included: (i) him being a
juvenile criminal defendant in a proceeding that, seemingly,
yielded no prison term; (ii) his friend being arrested,
prosecuted and convicted on murder charges that yielded a
twenty-five-year prison term; and (iii) his uncle being
erroneously charged with a criminally offense (the record of
that offense was eventually expunged).
Having reiterated
his certainty as to his ability to act as an impartial
juror, Ackerly remained on the jury.
n.
•
Chain of Venire Persons Yielding Juror # 14
Kenneth Bergen, acting as prospective juror # 14, was
impaneled as a member of Petitioner's jury.
His questioning
did not raise any concerns.
5.
In Camera Statements by Impaneled Jurors
As the foregoing illustrates, Petitioner's counsel actively
challenged venire persons, peremptorily and for cause, on the
basis of statements the venires made in open court and in camera.
Those venires who: (i) made in camera statements; and yet (ii)
were impaneled, provided information either suggesting their
inclination to be sympathetic to Petitioner or having, seemingly,
no direct impact on their ability to be impartial.
27
Specifically:
•
Pescatore's in camera statement indicated that his uncle was
criminally prosecuted in error and had to get his record
expunged.
•
Curry's in camera statement indicated that he had a relative
who was, at that time, criminally prosecuted and held in
custody.
•
Butler's in camera statement reflected solely on her
concerns about employ.
•
O'Farrill's in camera statement indicated that her son was
convicted on drug-related offenses.
•
Ackerly's in camera statements disclosed his own juvenile
criminal conviction, his friend's adult conviction on murder
charges, and his uncle's erroneous prosecution which, too,
necessitated expungement of the record.
V.
WAIVER ASPECT
A.
Respondents' Latest Legal Position
Respondents, in their supplement (filed by Respondents'
current counsel) raised an aspect not asserted in their original
answer and re-brief (filed by Respondents' original counsel).
Specifically, Respondents now hold the position that Petitioner's
Ground One challenges do not warrant habeas relief because he
implicitly waived his objections to being present at side-bar and
in camera portions of his voir dire.
28
1.
Factual Predicate Relied Upon by Respondents
Respondents' current position could, effectively, be reduced
to an argument that "Petitioner [is, now,] essentially playing
'Monday morning quarterback,'" Wester v. Ricci, 2011 U.S. Dist.
LEXIS 80246, at *23 (D.N.J. July 22, 2011) (citations and
original brackets omitted).
Specifically, Respondents point out
that, in his counseled direct appellate brief filed with the
Superior Court of New Jersey, Appellate Division, as well as in
his two pro se supplements to the same, and in his counseled
application for certification to the Supreme Court of New Jersey
(and in his two pro se supplements to that filing), Petitioner
did not raise any challenges based on his voir dire proceeding,
see Docket Entry No. 42, at 16-17 (elaborating on the same in
great detail and citing to Docket Entries Nos. 39-1 to 39-5), and
asserted his first jury-selection-based challenge, which was
different from the Ground One at bar, only in his application for
post-conviction relief ("PCR") filed three years after his
conviction.13
See id. at 19-20.
13
In that PCR application, Petitioner asserted that he
"was not involved in the selection process and parts of the voir
dire took place in chambers outside his presence [therefore,]
several jurors were impaneled [even though he would have
preferred to] have [them] excluded because of their criminal
victimization had relative in law enforcement or other potential
bias." Docket Entry No. 42, at 21 (quoting Docket Entry No. 398); accord Docket Entry No. 39-10 (stating effectively the same).
29
The trial court conducted a hearing, the record of which
contains the following exchange between Petitioner and his trial
judge:
Petitioner:
I sat at the defense table writing notes down
and telling my lawyer certain things that he
didn’t even bring to the Court’s attention,
he just ignored me. I asked him could I
personally be there . . . in chambers, [and]
at sidebar, and he just ignored what I told
him. I asked him to remove juror number 11
and he just ignored what I told him.[14] I
wasn’t saying any of these things verbally
but I just jotted them down as notes and
[was] sliding the paper over to him. He just
ignored everything I [wrote to] him.
Trial court:
[Did] you ever bring any of that to my
attention during the course of the trial?
Petitioner:
To your attention? [No.] At the time I
didn’t know, I was very incompetent to the
law, I didn’t know . . . I would waive my
right.
. . .
I had no idea at all that he waived my
appearance way back then. After, after I
actually asked him could I be present. There
was numerous jurors on the bench that I
actually wanted excluded due to the fact they
had, you know, recent victimized, you know,
been recent victims of crime and I’m sitting
on trial for a robbery homicide and - and 80
percent of my jury has been affected . . . .
Trial court:
Eighty percent?
Petitioner:
I’m just saying if it’s 12 on there after the
two alternatives were taken off, at least
14
Petitioner was referring to Celia Smith who stated, in
open court, that her former spouse was a criminal defendant
represented by Petitioner's defense counsel.
30
seven of them. At least seven of them either
had their homes broken into, they been robbed
or they family been robbed or something
dealing with robbery or burglary or
something.[15]
Docket Entry No. 29-6, at 12, 16.
Addressing Petitioner's voir dire challenges, the trial
court ruled:
Petitioner contends that his constitutional rights were
violated when portions of the jury voir dire took place
in chambers outside his presence. . . . However, the
[relevant law] provides that . . . this right is not
absolute and may be waived by a defendant. . . . [The]
New Jersey Supreme Court expressly addressed the issue
of whether a defendant must affirmatively assert a
right to sidebar presence or be deemed to have waived
it. The Court held that, a defendant who does not
affirmatively request the right to participate in voir
dire sidebars should be considered to have waived the
right . . . . Here, the record does not reflect nor
does the Petitioner suggest that he ever affirmatively
requested to be present during the portions of the jury
voir dire that took place in chambers. As a result, the
Petitioner is deemed to have waived that right.
Docket Entry No. 29-7, at 27.16
2.
Respondents' Conclusions and Petitioner's Position
15
It appears that Petitioner was referring solely to the
statements made in open court, since the voir dire record does
not indicate that any impaneled juror made an in camera statement
about him/her being victim of a violent crime or any crime.
16
It appears that Petitioner's PCR appellate filings,
which included a counseled brief and two pro se applications, did
not raise a voir dire challenge, see State v. Williams, 2008 WL
4345452, at *3-4 (listing all Petitioner's appellate PCR
challenges); rather, he noted his voir dire claim only in his pro
se traverse to the State's opposition filed on appeal. See
Docket Entry No. 39-13, at 11-14 (relying on state law).
31
Respondents' supplement to re-brief builds on the position
taken by the state courts, focusing solely on the waiver
aspect.17
Respondents' legal position is presented as a survey of
the law of waiver, as it was tackled in federal and state fora.
Specifically, Respondents' point out that:
a.
New Jersey state courts found implied waiver where a
criminal defendant did not seek being present during sidebar and/or in camera portions of voir dire, holding that
such implied waiver could be negated only if the presiding
judge actively discourages the defendant from exercising his
right to presence.
See Docket Entry No. 1, at 32-33
(detailing the procedural history, facts and holding of
State v. W.A., 184 N.J. 45 (2005));
b.
federal courts, including circuit courts, analogously held
that failure to actively assert one's right to presence
yields an implied waiver.
See id. at 33-34 (citing Cardinal
v. Gorczyk, 81 F.3d 18 (2d Cir. 1996), and United States v.
Sherwood, 98 F.3d 402 (9th Cir. 1996), and discussing United
States v. Washington, 705 F.2d 489 (D.C. Cir. 1983), at
17
To Respondents' credit, Respondents outright announced
their change in legal position. See Docket Entry No. 42, at 1.
The fact of Respondents' current counsel being forthcoming with
the Court is, indeed, commendable. However, Respondents'
election not to address the issue directed for supplemental rebriefing is regretful, notwithstanding the excellent examination
of Respondents' waiver-based position.
32
length, as well as the Washington court's reliance on United
States v. Ridley, 412 F.2d 1128 (D.C. Cir. 1983));18
c.
the Supreme Court of the United States recognized, if not de
facto endorsed, implied waiver of the right to presence in
United States v. Gagnon, 470 U.S. 522 (1985), since the
Court's ruling hinged on the unique facts of Gagnon which,
effectively, precluded any possibility of implied waiver.
See Docket Entry No. 1, at 35-37 (providing a careful and
thoughtful discussion of Gagnon); and
d.
the Court of Appeals for the Third Circuit issued a number
of decisions well in line with Gagnon and the conclusions
reached by other federal courts, by invariably finding that
the failure of a criminal defendant to actively and
contemporaneously assert his/her right to presence with
regard to side-bar and/or in camera portions of voir dire
proceeding results in an implied waiver.
See id. at 37-39
(discussing United States v. Bertoli, 40 F.3d 1384 (1994)
(where the Court of Appeals observed that, under "[the]
contemporaneous objection rule, [a criminal defendant's]
failure contemporaneously to assert a right constitutes a
waiver of [the] right" in light of Gagnon and the holding of
18
The Washington court examined an unusual twist on an
implied waiver, i.e., it addressed the position that a criminal
defendant might still implicitly waive his right to presence even
if the defendant's counsel makes a request for the defendant's
presence in side-bar conferences.
33
United States v. Brown, 923 F.2d 109, 112 (8th Cir.) (one's
right to presence during the in camera portions of jury
selection is deemed waived by failure to actively and
contemporaneously assert that right), cert. denied, 502 U.S.
833 (1991)), and citing United States v. Alessandrello, 637
F.2d 131 (3d Cir. 1980)).19
Upon so surveying the above-cited decisions, Respondents
enter their position that Petitioner's Ground One merits no
habeas relief because: (a) Petitioner had abundant time and a
multitude of ample opportunities to request his trial judge to
include him in in camera and side-bar portions of the voir dire;
(b) the voir dire record is unambiguous as to Petitioner silence
with regard to his right to presence, and Petitioner does not
dispute the same; and (c) Petitioner's defense counsel, being
asked on the record by the trial judge as to any objections,
expressly stated that there were no objections to how the voir
dire process was performed.20
Petitioner's counseled position focused, mainly, on the core
question posed by this Court (that is, the below-discussed issue
19
The Alessandrello decision, however, appears more
pertinent to the question posed by the Court in connection with
its order to file supplemental re-briefs. Therefore, it will be
discussed in the next part of this Opinion.
20
In alternative, Respondents asserts that, even if
Petitioner's trial court committed an error, that error was
harmless.
34
of whether Petitioner's absence at the side-bar and in camera
conferences violated his rights) and, for the purposes of the
waiver inquiry, could effectively be reduced to: (a) a
reiteration of the undisputed fact that Petitioner made no
express waiver on the record; and (b) arithmetical calculation
and statistical analysis of all statements made in camera, even
if those statements were made by the jurors who were excused
during post-September-11 pre-screening, or excused in connection
with personal post-September-11 hardships conveyed to the trial
judge outside such pre-screening, or the jurors who were removed
for cause or peremtorily, and even the statements made in camera
by the trial judge and the attending counsel on both sides.21
See, generally, Docket Entries Nos. 30 and 38.
Petitioner's supplement to the briefs filed by his appointed
counsel, as well as Petitioner's two supplements volunteered in
lieu of his counseled traverse, asserted a legal argument
mirroring that raised during his PCR proceedings, i.e.,
Petitioner maintained that he could not have entered an implied
waiver because, at the time of his voir dire proceedings, he was:
(a) neither expressly warned that his failure to raise the issue
with his trial judge would amount to such implied waiver; nor (b)
21
Since it is equally undisputed that Petitioner made no
request for presence on the record, Petitioner's counseled
position is inapposite to the implied waiver inquiry.
35
was he as knowledgeable about law as he believes he is now. See,
generally, Docket Entries Nos. 22, 44 and 46.
B.
Respondents' Position Is Well Merited
Respondents' position, being exhaustively detailed in their
supplement, Docket Entry No. 42, sufficiently establishes that
Petitioner's right to presence was implicitly waived in light of
Supreme Court and inferior-level precedent.
There is no reason
for this Court's reiteration of the same. However, two additional
observations appear warranted.
1.
Reliance on Gagnon, Circuit-Level and State Law
The holding of Supreme Court's decision in Gagnon was not
rendered on the factual predicate materially indistinguishable
from the facts at bar: as Respondents detailed, the facts of
Gagnon were, in many respects, virtually opposite.
Hence, the
Gagnon Court's acknowledgment of implied waiver was dictum.
That
adds a wrinkle to this Court's inquiry, since circuit-level
decisions and New Jersey Supreme Court's rulings cited by
Respondents cannot operate as a substitute for Supreme Court
precedent.
See Yarborough, 541 U.S. at 660.
That being said,
Respondents' position, which relies on circuit-level and state
law precedent, and builds on the overall rationale of Gagnon, is
appropriate.
A district court sitting in habeas review may consider
circuit-level and highest state courts' decisions since such
36
determinations "may be informative to the extent [they] have
already reviewed and interpreted the relevant Supreme Court case
law to determine whether a legal principle or right had been
clearly established by the Supreme Court."
Hill v. Hofbauer, 337
F.3d 706, 716 (6th Cir. 2003); see also Matteo v. Superintendent,
SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) ("in certain cases
it may be appropriate to consider the decisions of inferior-level
federal courts as helpful amplifications of Supreme Court
precedent").
Therefore, Respondents' reliance on the Court of
Appeals' precedent in Bertoli, 40 F.3d 1384, and Brown, 923 F.2d
109, as well as on Second and Ninth Circuits' decisions in
Cardinal, 81 F.3d 18, and Sherwood, 98 F.3d 402, and on New
Jersey Supreme Court's ruling in W.A., 184 N.J. 45, was
appropriate.
See Williams, 529 U.S. at 407 (where a Supreme
Court holding espouses merely a general standard, circuit court
precedent is helpful in illuminating and interpreting that
general standard to particular factual circumstances and
providing evidence of the clarity of the law).
Additionally, a habeas ruling does not necessarily turn on a
factually identical Supreme Court precedent.
"Rather, the
critical question is whether a Supreme Court rule -- by virtue of
its factual similarity (though not necessarily identicality) or
its distillation of general federal law precepts into a channeled
mode of analysis specifically intended for application to variant
37
factual situations -- can fairly be said to require a particular
result in a particular case."
omitted).
Matteo, 171 F.3d at 888 (citation
Therefore, Respondents' reading of Gagnon as precedent
providing "a channeled mode of analysis" for assessment of
Petitioner's three-day silence throughout the entire voir dire
process, was appropriate.
In fact, the Court of Appeals recently
entered a decision employing a mode of analysis analogous to that
utilized by Respondents.
See United States v. Johnson, 677 F.3d
138 (3d Cir. 2012).
In Johnson, a convicted criminal defendant asserted that the
district court's "individual voir dire procedure violated his
constitutional rights" because the judge was "questioning
prospective jurors at sidebar outside his presence."
41.
Id. at 140-
Specifically,
[during] jury selection, the District Court followed
the customary procedure of questioning prospective
jurors first in open court and later individually at
sidebar. Johnson remained at the defense table during
the sidebar proceedings, which were on the record. The
District Court ruled on challenges for cause at
sidebar, and thereafter counsel returned to their
tables to mark their peremptory challenges.
[On the basis of these facts,] Johnson [argued] that
this procedure violated his constitutional right to be
present at all stages of his trial. [The Court of
Appeals disagreed pointing out that] neither Johnson
nor his counsel objected to the procedure during jury
selection, even when [the district court asked whether
there were objections]. The decision not to object to
voir dire conducted at sidebar and outside the presence
of the defendant [was] a tactical decision similar to
the one at issue in Gonzalez v. United States, 553 U.S.
242 (2008). In Gonzalez, the Supreme Court held that
38
"express consent by counsel suffices to permit a
magistrate judge to preside over jury selection in a
felony trial." Id. at 250. Noting that "acceptance of
a magistrate judge at the jury selection phase is a
tactical decision that is well suited for the
attorney's own decision," the Court explained that
[a] magistrate judge's or a district judge's
particular approach to voir dire both in substance
-- the questions asked -- and in tone -- formal or
informal -- may be relevant in light of the
attorney's own approach. The attorney may decide
whether to accept the magistrate judge based in
part on these factors. As with other tactical
decisions, requiring personal, on-the-record
approval from the client could necessitate a
lengthy explanation the client might not
understand at the moment and that might distract
from more pressing matters as the attorney seeks
to prepare the best defense.
Id.
An attorney's obligation to consult with his client
"does not require counsel to obtain the defendant's
consent to 'every tactical decision.'" Florida v.
Nixon, 543 U.S. 175, 187 (2004) (quoting Taylor v.
Illinois, 484 U.S. 400, 417-18 (1988)). As with the
choice to proceed before a magistrate judge during voir
dire, the decision to have a criminal defendant present
-- and in close proximity to individual jurors -during individual voir dire conducted at sidebar is
tactical and does not require the defendant's express
consent. Like counsel in Gonzalez, Johnson's lawyer
consented to the jury selection procedures and thereby
waived his client's right to challenge them. See
United States v. Sherwood, 98 F.3d [at] 407 . . .
("Sherwood waived his right to be present during the
attorney-conducted voir dire at sidebar] by failing to
indicate to the district court that he wished to be
present at side bar"); Cardinal v. Gorczyk, 81 F.3d
[at] 20 . . . ("Cardinal waived his Sixth Amendment
right to observe the individual voir dire by failing to
assert that right") . . . .
Johnson, 677 F. 3d at 141-42; accord Williams v. State, 438 A.2d
1301, 1308-09 (Md. 1981) (establishing prospective rule that
39
defendant's right to be present can be waived by action or
inaction of counsel).
Hence, while Respondents' argument might have been stronger
had it read Bertoli, Brown, Sherwood, Cardinal and W.A. in light
of Gonzalez, Nixon and Taylor, rather than correlating those
decisions to Gagnon, Respondents' reading of these circuit-level
opinions as interpretations of the overall analytical model
offered by the Supreme Court (which model was applied in Gagnon)
provides sufficient support to Respondents' position.22
This Court, therefore, agrees that Petitioner's invariable
three-days silence resulted in an implied waiver.
2.
Petitioner's Lack-of-Legal-Savvy Position
Petitioner attempted to distinguish his circumstances from
those examined in the above-discussed decisions by asserting
that, at the time of his voir dire, he "was very incompetent to
the law, [and] didn’t know [he] would waive [his] right [to
presence]."
Docket Entry No. 29-6, at 12; accord Docket Entries
Nos. 22, 44 and 46.
Petitioner, seemingly, tried to buttress the
same by alleging that, during the voir dire, he was passing his
22
The Court notes, in passing, that some cases related to
the analysis at hand focused on Rule 43 of the Federal Rules of
Criminal Procedure. However, as the Court already explained, the
precedents reflecting on Rule 43 are constructions of
constitutional safeguards, since the Rule, on its own, was a
partial embodiment of the Constitution and prior Supreme Court
precedent. See Williams v. Ricci, 2011 U.S. Dist. LEXIS 51959,
at *19-20 (D.N.J. May 13, 2011).
40
counsel written notes where, in alternation with directives to
obtain dismissal for cause or peremptorily challenge certain
venire persons, he also requested to be present at side-bar and
in camera conferences.
See id.
Petitioner's position is unavailing.
"What suffices for
waiver depends on the nature of the right at issue . . . .
For
certain fundamental rights, the defendant must personally make an
informed waiver.
For other rights, however, waiver may be
effected by action of counsel."
New York
v. Hill, 528 U.S. 110,
114 (2000) (citations omitted).
As the Court of Appeals
explained in Johnson, 677 F. 3d at 142, decisions pertaining to
the conduct of the trial belong to the attorney, see also Hill,
528 U.S. at 114, as do those that "concern strategic and tactical
matters."
1999).
United States v. Plitman, 194 F.3d 59, 63 (2d Cir.
Hence, even if this Court were to credit Petitioner's
assertion that some of Petitioner's written notes passed to his
defense counsel contained requests to be present during side-bar
conferences and in camera questioning, those notes did not strip
Petitioner's counsel of the right to decide this tactical issue.
Analogously, Petitioner's claim that his implied waiver
could not have been entered because, at the time of his voir
dire, he had less legal savvy than he believes he has now, is
without merit.
As the Court of Appeals' explained in Bertoli, 40
F.3d 1384, while relying on Brown, 923 F.2d at 112, an implied
41
waiver comes about if a criminal defendant fails to actively and
contemporaneously state his/her objections to the presiding
court.
The defendant's legal savvy is not factored into that
equation since the consequences of his/her silence immediately
put the defendant on notice as to the workings of the waiver.
While there is no dispute that a waiver of one's
constitutional right must be informed, knowing and voluntary, see
United States v. Brady, 397 U.S. 742, 748 (1970) ("Waivers of
constitutional rights . . . must be voluntary [and] knowing,
intelligent acts"), the rationale of that rule turns on the goal
of ensuring the litigants "sufficient awareness of the . . .
likely consequences."
Id.
For instance, an alien defendant's
waiver of his right to trial by jury (and acceptance of a guilty
plea upon advice of counsel who omits to inform the alien that,
years in the future and after the alien's prison term is served,
the criminal charge he/she pled to might result in deportation)
cannot be voluntary, knowing and intelligent if, at the time of
the plea, there is nothing to warn the alien of such future risk.
See Padilla v. Kentucky, 130 S. Ct. 1473, 1476-77, 1486 (2010).
That is why, a waiver so deficient warrants habeas relief: the
alien lacks "sufficient awareness of the likely consequences."
Brady, 397 U.S. at 748; accord Padilla, 130 S. Ct. at 1487.
In contrast, the consequences of a criminal defendant's
waiver of his/her right to presence do not develop years in the
42
future: these consequences are, by definition, immediate.
Here,
Petitioner physically witnessed his trial judge conducting sidebar conferences and taking prospective jurors for in camera
examinations.
Yet, hour after hour, and day after day, he
remained invariably silent.
He saw the immediate effect of his
silence materializing in front of his eyes, when some in-cameraquestioned jurors were, in fact, getting impaneled.
Therefore,
he needed no legal savvy to appreciate what was taking place: the
developments he was witnessing were putting him on notice about
the consequences of his silence "in real time."
Hence, Petitioner cannot viably claim he did not know he was
waiving his right to presence.
was unambiguous.
While his waiver was implied, it
See Cohen v. Senkowski, 290 F.3d 485, 491-92
(2d Cir. 2002) ("a defendant may expressly or effectively waive
the right") (citation omitted); United States v. Riddle, 249 F.3d
529, 533-34 (6th Cir. 2001) (declining to require colloquy of
defendant before voluntary absence from voir dire).
3.
Dismissal of the Ground One on the Waiver Basis
As this Court noted at the outset of its discussion, for the
purposes of § 2254(d)(1), an "unreasonable application" of
Supreme Court precedent can arise in two ways: either the state
court identifies correct Supreme Court precedent but unreasonably
applies it to facts of particular state prisoner's case, or the
state court unreasonably extends legal principle from Supreme
43
Court precedent to new context where that principle should not
apply (or unreasonably refuses to extend that principle to new
context where it should apply).
See, e.g., Swartz v. Mathes, 291
F. Supp. 2d 861 (N.D. Iowa 2003) (reflecting on the same at
length), aff'd, 412 F.3d 1008 (8th Cir. 2005).
Here, the state courts' decisions did not endeavor to
identify the governing Supreme Court precedent.
Rather, the
state courts dismissed Petitioner's right-to-presence challenges
relying predominantly on state law, which had been fashioned to
accord with the gist of Gagnon and Gonzalez.
Therefore, the
appropriate analysis is whether the state court unreasonably
extended the overarching legal principle of Gonzalez and Gagnon
to Petitioner's circumstances.
"The federal habeas court should not grant the petition
unless the state court decision, evaluated objectively and on the
merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent.
In making this
determination, mere disagreement with the state court's
conclusions is not enough to warrant habeas relief."
Matteo, 171
F.3d at 890; accord Harrington, 131 S. Ct. at 785 ("an
unreasonable application of federal law is different from an
incorrect application of federal law").
Here, even if this Court
were to second-guess the approach employed by Petitioner's trial
judge during his September 11 and post-September 11 voir dire
44
sessions (the task this Court does not endeavor to undertake),
this Court would be constrained to conclude that the state
courts' dismissal of Petitioner's right-to-presence challenges on
the implied waiver ground was not an unreasonable application of
Supreme Court precedent.
Therefore, Petitioner's Ground One
challenges fail on the waiver basis alone.
VI.
SUBSTANTIVE INSUFFICIENCY ASPECT
This Court's prior order, directing both counsel to file
supplements to their re-brief, stated, in relevant part, as
follows:
the Court notes that the parties do not appear in
dispute as to the core legal principle governing rightto-presence claims, i.e., that, while the circumstances
where the defendant was absent during a relatively
small, substantively minor, portion of his/her voir
dire lend credence to finding of a harmless error, the
circumstances where the defendant was involuntarily
absent from all or the overwhelming majority of his/her
jury impaneling, lend credence to finding of a
reversible error. Here, however, [the submissions
filed by the parties thus far suggest that Petitioner's
voir dire] falls neither within the definition of
"minor portion of voir dire" nor within the
circumstances that could be qualified as absence from
"all or the overwhelming majority of the jury
impaneling." Rather, . . . Petitioner's circumstances
seem to fall somewhere between the two aforesaid
extrema. The uniqueness of this case highlights a
rather substantial gray area of the right-to-presence
law associated with such "in-the-middle" circumstances
that are rarely visited by the judicial decisions
examining this constitutional right. Since the
scenario triggering a criminal defendant's right-topresence claim occurs in state and federal courtrooms
unfrequently, the right to presence is often treated as
an orphan of constitutional law: while it cannot be
said that there is dire scarcity of case law on this
issue, there certainly have been no abundance of
45
judicial review associated with the finer aspects and
gray areas of this right.
Docket Entry No. 31, at 3-5 and n. 2 (footnote incorporated in
the main text).
The Court, therefore, directed the parties to state "their
legal positions as to: (a) the habeas policies associated with
challenges arising from the "in-the-middle" circumstances; and
(b) applicability of such policies to Petitioner's circumstances.
See id. at 5.
As noted supra, Respondents' elected to refocus
their answer, limiting it solely to the issue of waiver.
Docket Entry No. 42, at 1.
See,
Petitioner's counseled supplement,
somewhat analogously did not inform the Court of Petitioner's
position on the question posed.
See Docket Entry No. 38.
Rather, it asserted that Petitioner "was excluded from a
sufficiently significant part of jury selection" governed by the
precedent examining those scenarios which could be qualified as
illustrative of a defendant's absence from an "overwhelming
majority" of his/her jury selection process.23
A.
See id. at 1.
Disconnect Between Ground One and Petitioner's Position
As noted supra, Petitioner's counseled position built on the
23
Petitioner's pro se submissions, while seemingly aiming
to cure what Petitioner perceived as deficiencies of his
counseled brief, asserted effectively a position substantively
indistinguishable from that offered in his counseled supplement.
See, generally, Docket Entries Nos. 44 and 46.
46
statistical assessment of the entire voir dire transcript.24
See
Docket Entry No. 38, at 9-11 (equating Petitioner's circumstances
with those examined in Gagnon, Faretta v. California, 422 U.S.
806 (1975), and Snyder v. Massachusetts, 291 U.S. 97 (1934)).25
So asserted, Petitioner's legal position correlates to a
claim that his absence at side-bar and in camera conferences
prevented him from having an "opportunity to give advice or
suggestions to his lawyer concerning potential jurors."
Entry No. 38, at 10 (citation omitted).
Docket
However, there is a
logical disconnect between the so-asserted legal position and
24
For instance, Petitioner's counseled submission asserted
that: (a) out of 67 venires "questioned in some manner by the
trial court [during the three days], 38 were questioned at some
point in chambers, [and thus] means . . . nearly 57%"; (b)
eighteen venires were excused upon being pre-screened on
September 13, which amounted to 27% of the total pool of 67
venires; (c) twenty venires out of the forty-nine who were not
excused immediately after pre-screening, were questioned in open
court and in camera, and those twenty amounted to 41% of the
forty-nine; and (d) the transcripts of the in toto dialogue
between those jurors who were impaneled and examined both in open
court and in camera amounted to 992 lines, out of which 504 lines
reflected in camera dialogue. See Docket Entry No. 38, at 9-10
25
The holding of Faretta appears inapposite to the issue
at bar. In Faretta, the Supreme Court held that the state could
not constitutionally force a lawyer upon a criminal defendant
because the defendant was literate, competent, and understanding,
and voluntarily exercised his informed free will in waiving his
right to the assistance of counsel. Therefore, the reasons for
Petitioner's reliance on Faretta is not immediately obvious to
this Court. Analogously, the rationale of Petitioner's reliance
on Snyder is not immediately apparent to this Court: in Snyder,
the petitioner's conviction was affirmed upon finding that denial
of the petitioner's request to be present when the jury viewed
the crime scene did not amount to denial of due process.
47
Petitioner's Ground One, which alleged that, had Petitioner been
present at side-bar and in camera conferences, those impaneled
jurors who, he believes, were not impartial triers of fact, would
not have been impaneled.
Correspondingly, Petitioner's focus on
the in toto statistics is unwarranted.
The only in camera
statements relevant to Petitioner's Ground One are those made by
the jurors who were, in fact, impaneled.
Hence, a relevant
statistical analysis cannot be conducted by a mechanical line
count of the transcribed lines reflecting dialogue between the
trial judge and venires, since: (a) the explanations and
questions posed by the trial court had no impact on Petitioner's
"opportunity to give advice or suggestions to his lawyer
concerning potential jurors"; and (b) the statements made by the
venires who were excused during post-September-11 pre-screening,
or excused upon sharing their post-September-11 hardships, or
removed for cause or peremptorily did not contribute an iota to
what Petitioner believes to be a biased composition of his jury.
Here, as the Court already detailed, the jurors who were
both impaneled and questioned in chambers, either during the prescreening or as part of voir dire, made in camera statements
disclosing nothing but: (a) these jurors' prior criminal
convictions; (b)
relationships to other people who were
criminally prosecuted, convicted or wrongly accused of crime; or
(c) employment concerns.
Paramountly here, all jurors'
48
statements relied upon by Petitioner, that is, the statements
disclosing that some impaneled jurors were victims of crimes,
were invariably made in open court.
B.
"Middle-Ground" Scenario Does Not Warrant Habeas Relief
As the foregoing illustrates, a close examination of
Petitioner's voir dire establishes his absence only from a very
minor portion of the jury selection process relevant to his
Ground One challenges.
However, being mindful of Petitioner's
counseled position that he was excluded from twenty to fifty
percent of his gross total voir dire, the Court now turns to the
question the parties left unanswered, that is, the effect of
habeas policies on a right-to-presence claim based on the factual
predicate depicting absence from a portion of voir dire falling
between the "minor" and "overwhelming majority" extrema expressly
addressed by the Supreme Court.
As it has been stressed time and again, habeas relief is
appropriate only upon finding of an unreasonable application of
Supreme Court precedent.
"The 'unreasonable application' clause
requires the state court decision to be more than incorrect or
erroneous."
Lockyer, 538 U.S. at 75.
"The gloss of clear error
fails to give proper deference to state courts by conflating
error (even clear error) with unreasonableness.
It is not enough
that a federal habeas court, in its independent review of the
legal question, is left with a firm conviction that the state
49
court was erroneous."
Id. (internal citations and quotations
omitted); see also Matteo, 171 F.3d at 890 ("The federal habeas
court should not grant the petition unless the state court
decision, evaluated objectively and on the merits, resulted in an
outcome that cannot reasonably be justified under existing
Supreme Court precedent.
In making this determination, mere
disagreement with the state court's conclusions is not enough to
warrant habeas relief").
Indeed, "even a strong case for relief
does not mean the state court's contrary conclusion was
unreasonable."
Harrington, 131 S. Ct. at 786 (citing Lockyer,
538 U.S. at 75); accord Rountree v. Balicki, 640 F.3d 530 (3d
Cir. 2011) ("Applying AEDPA, we conclude that the New Jersey
court's decision in this case survives review under §2254.
Although certain portions of the record can be argued to support
[the petitioner's position], it is precisely because "fairminded
jurists could disagree" with each other that we must affirm the
state court's holding") (citation and internal quotation marks
omitted).
Moreover,
Where state court decisions are guided only by general
constitutional standards (as opposed to specific,
bright-line rules), the "unreasonable application"
standard is particularly difficult to meet, because
such decisions are given a particularly generous
benefit of the doubt. The Supreme Court has stated
that:
[The] range of reasonable judgment can depend in
part on the nature of the relevant rule. If a
50
legal rule is specific, the range may be narrow.
Applications of the rule may be plainly correct or
incorrect. Other rules are more general, and
their meaning must emerge in application over the
course of time. Applying a general standard to a
specific case can demand a substantial element of
judgment. As a result, evaluating whether a rule
application was unreasonable requires considering
the rule's specificity. The more general the
rule, the more leeway [state] courts have in
reaching outcomes in case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. [at] 664 . . . ; see
also Renico [v. Lett, 130 S. Ct. 1855], 1864 [(2010)].
Watson v. Greene, 640 F.3d 501, 508 (2d Cir. 2011).
A district court's leeway to grant habeas relief is even
narrower when the general policies articulated by the Supreme
Court are expressed in the decisions that cannot qualify as a
precedent on point.
As the Supreme Court explained,
A state court's determination that a claim lacks merit
precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state
court's decision . . . . Evaluating whether [the]
application [of a rule ensuing from Supreme Court
precedent] was unreasonable requires considering the
rule's specificity. . . . [Paramountly,] it is not an
unreasonable application of clearly established
[Supreme Court precedent] for a state court to decline
to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Harrington, 131 S. Ct. at 786 (citations and internal quotation
marks omitted).
Consequently, the core policies of habeas law do not allow
this Court to venture into hypothesizing what the Supreme Court
precedent might have been, had the Supreme Court examined a
middle-grounds right-to-presence factual predicate.
51
Imposing a surrogate "unreasonableness" standard at
this time would be a risky proposition, as our
redefinition might prove unfaithful to the Supreme
Court's intended meaning. . . . To the extent that a
nuanced, contextual interpretation of [the issue at
hand] emerges from this process over time, this
elaboration will be more useful and meaningful than any
definition we might choose to impose ab initio.
Neal v. Puckett, 286 F.3d 230, 246 n.14 (5th Cir. 2002).
Thus, even if this Court were to reflect on the factual
predicate prompted by Petitioner (depicting his absence from
twenty to fifty percent of the voir dire process, assessed
wholesale), the Court has no basis to equate these middle-ground
facts with the "overwhelming majority" scenario where the Supreme
Court found habeas relief warranted.
See Wright v. Van Patten,
552 U.S. 120, 126 (2008) ("Because our cases give no clear answer
to the question presented, let alone one in [petitioner's] favor,
it cannot be said that the state court unreasonabl[y] appli[ed]
clearly established [Supreme Court precedent]") (citation and
internal quotation marks omitted).
A fortiori, this Court has no
basis to equate Petitioner's absence from the minor portion of
the voir dire relevant to his Ground One with the Supreme Court
precedent Petitioner relies upon.
If anything, both the letter
and spirit of that precedent runs counter to his position.
The Court of Appeals' decision in Alessandrello, 637 F.2d
131, provides a helpful amplification of the relevant precedent.
In Alessandrello, the defendants appealed their judgments of
conviction, arguing that they were improperly excluded from jury
52
selection process.
The Court of Appeals, however, observed that
the matter from which the defendants were excluded covered only
one topic, and their attorneys were present and were free to
consult with their clients, hence diminishing any potential
harm.26
Pointing out that "constitutional rights are subject to
the harmless error doctrine," id. at 138, n. 11 (relying on
Chapman v. United States, 386 U.S. 18, 21-22 (1967)), which holds
that, "[if] there is no reasonable possibility of prejudice from
the error, it is deemed harmless," id. at 139 (citations
omitted), the Court of Appeals found that the trial court's
actions resulted, at most, in a harmless error, because
[the] defendants were not excluded from the entire voir
dire; they were present for all but one small portion
of it. They saw each of the prospective jurors and
26
In Alessandrello, after the in-court portion of voir
dire,
[the] judge . . . retired to [a] small anteroom,
accompanied by the prosecutors and defense attorneys.
He explained that he wished to examine prospective
jurors individually on the matter of pre-trial
publicity [so] to avoid the possibility . . . of having
one person blurt out something prejudicial in front of
the group of prospective jurors, thereby tainting . . .
other prospective jurors. The defense attorneys
objected . . . , stating that the defendants should be
present. The judge responded that the room was so
small [but] the defense attorneys . . . were free to go
out and consult with their clients as often and as long
as they wished. . . . While the defendants remained
in the courtroom approximately 25 feet away, the judge
conducted this portion of the voir dire.
Alessandrello, 637 F.2d at 135.
53
heard each of them respond to questions about personal
and general matters.
Id. at 139.
Here, Petitioner was excluded from a very small portion of
the relevant voir dire (disclosing the jurors' prior criminal
convictions, relationships to other people who were criminally
prosecuted, convicted or wrongly accused of crimes, and
employment concerns), i.e., he did not hear statements that were
either inapposite to the issue of jury bias or indicative of the
jurors' likely propensity to be sympathetic to Petitioner.
In light of the lack of Supreme Court precedent lending
credence to Petitioner's position and under the instructive
guidance provided in Alessandrello, the state courts' decision to
dismiss Petitioner's voir dire challenges cannot qualify as an
unreasonable application of clearly established Supreme Court
precedent.
Therefore, Petitioner's Ground One does not merit
habeas relief.
VII. CERTIFICATE OF APPEALABILITY DETERMINATION
When a state prisoner seeks a writ of habeas corpus, he does
not enjoy the "absolute entitlement to appeal a district court's
denial of his petition."
335 (2003).
Miller-El v. Cockrell, 537 U.S. 322,
Rather, the prisoner must obtain a certificate of
appealability before he may appeal to the court of appeals.
id.
See
Correspondingly, Rule 22.2 of the Local Appellate Rules of
the Third Circuit provides:
54
At the time a final order denying a petition under 28
U.S.C. § 2254 or § 2255 is issued, the district judge
will make a determination as to whether a certificate
of appelability should issue. . . .
Third Circuit L.A.R. 22.2 (emphasis supplied).
Here, the Court's decision resolves solely Petitioner's
challenges raised in his Ground One.
His remaining fifteen
Grounds, stayed thus far, are now subject to adjudication.27
Since the Court's instant decision cannot qualify as a final
order within the meaning of Rule 22.2, the certificate of
appealability issue is reserved, and will be resolved upon final
disposition of Petitioner's challenges.
VIII. CONCLUSION AND OVERVIEW OF THE LITIGATION AHEAD
For the foregoing reasons, Petitioner's application for a
writ of habeas corpus will be denied with regard to his Ground
One.
Petitioner's appointed counsel will be released from his
appointment, with renewal reserved.
Respondents will be directed
to file an answer to Petitioner's remaining challenges.28
27
As
would have
to address
determined
the Court already explained in its prior decision, it
been a waste of the parties and the Court's resources
Petitioner's remaining challenges had the Court
that Petitioner's Ground One merited habeas relief.
28
The brief submitted by Respondents' current counsel was
both thorough and impressively free of "boilerplate" language.
The Court notes its certainty that Respondents' future
submissions would be equally thoughtful and free from the
unfortunate shortcomings that mired the initial filing made by
Respondents' original counsel. See Docket Entry No. 23.
55
Petitioner will be allowed an ample opportunity to traverse.29
The Clerk will be directed to administratively terminate this
matter; the Court will order reopening of this action upon
receipt of Respondents' answer to Petitioner's remaining claims,
and Petitioner's filing of his traverse.
No statement made in this Opinion or in the Order filed
herewith shall be construed as withdrawal of this Court's
jurisdiction over this matter.30
29
Petitioner's, seemingly, has preference for submitting
two pro se briefs, be it to this Court or to state courts. The
Court, therefore, will allow Petitioner additional time to file
his traverse, so to encourage Petitioner's filing of one welldrafted document stating all his arguments.
30
The courts agree that “an administrative closing has no
effect other than to remove a case from the court's active docket
and permit the transfer of records associated with the case to an
appropriate storage repository.” Lehman v. Revolution Portfolio
LLC, 166 F.3d 389, 392 (1st Cir. 1999). The Court of Appeals
also discussed the tool of administrative termination with
approval, noting its use for the purposes of effective case
management. See Penn W. Assocs. v. Cohen, 371 F.3d 118, 126-28
and n. 9 (3d Cir. 2004); see also Mercer v. Allegheny Ludlum
Corp., 132 F.R.D. 38, 38-39 (W.D. Pa. 1990), aff'd, 931 F.2d 50
(3d Cir. 1991) (expressing the same sentiment). Moreover, the
Penn Court: (a) suggested that a district court’s resort to the
tool of administrative termination is indicative of the
district’s tidy docket management, see id. at 128 (noting that
the “Lehman's view of administrative closings has been followed
by the Courts of Appeals for the Tenth and Eleventh Circuits” and
citing, inter alia, the concurrence language in American Heritage
Life Ins. Co. v. Orr, 294 F.3d 702, 715 (5th Cir. 2002), which
observed that “administrative closure reflects nothing more than
the federal courts’ overarching concern with tidy dockets”); and
(b) concluded its assessment of the tool with the following
unambiguous endorsement: “[administrative termination is] a
device that, when used in correct context, enhances a district
court's ability to manage its docket.” Id.
56
An appropriate Order accompanied this Opinion.
s/ Dickinson R. Debevoise
Dickinson R. Debevoise
United States District Judge
Dated:
December 14, 2012
57
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