WALLACE v. GLOVER et al
Filing
25
OPINION. Signed by Judge Esther Salas on 4/2/13. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SEAN WALLACE,
Petitioner,
v.
LARRY GLOVER,
Respondent.
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Civil Action No. 09-4494 (ES)
OPINION
Salas, District Judge:
Petitioner Sean Wallace (“Petitioner”) filed a petition for a writ of habeas corpus
(“Petition”), pursuant to 28 U.S.C. § 2254(a), challenging a judgment of conviction rendered by
the Superior Court of New Jersey. (D.E. No. 1, Petition for Writ of Habeas Corpus (“Pet.”)).
Petitioner was provided with Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000) notice, and
Respondents were directed to file their answer to the Petition. (D.E. Nos. 2, 5). Respondents
duly complied. (D.E. No. 9, Response to Petition for Writ of Habeas Corpus (“Resp. to Pet.”) at
20). Petitioner elected not to traverse. For the reasons expressed below, this Court will dismiss
the Petition and will decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c),
2254(a), (b), (c).
I.
BACKGROUND
Petitioner’s legal challenges, while numerous, raise issues that are not complex. In
contrast, the factual underpinnings of Petitioner’s challenges are as dense as they are convoluted.
The Court, therefore, finds it prudent to begin this Opinion with a detailed discussion of the
relevant factual matter.
The events underlying Petitioner’s conviction began to unfold during late evening/night
of January 6, 2003, and involved an armed robbery of Miguel Valente Tursty (“Tursty”). (Ex.,
D.E. No. 9-1 at 4); see also State v. Wallace (“Wallace-I”), No. A-6260-03T4, 2005 WL
3676807, at *1 (N.J. Super. Ct. App. Div. Jan. 19, 2006).
The record accumulated during Petitioner’s trial established that, on that evening, Tursty
was invited by Petitioner, whom Tursty knew and presumed to be Tursty’s friend, and by two
Petitioner’s acquaintances, Orlando Richardson (“Richardson”) and Zachary Elhamri
(“Elhamri”), to visit a certain apartment complex in South Brunswick, New Jersey. Wallace-I,
2005 WL 3676807, at *1. Tursty accepted the invitation and stopped by at Red Roof Inn,
located, too, in South Brunswick, in order to pick up Tursty’s girlfriend, who was to accompany
Tursty for this outing. Id. When Tursty went with Petitioner, Richardson and Elhamri into the
apartment complex, Petitioner “robbed Tursty at gunpoint, taking one-hundred dollars,” i.e., the
entirety of funds Tursty had on him.1 Id. During the robbery, Elhamri “hit Tursty in the head
with a gun, causing Tursty's ear to swell,” while Richardson participated by threatening to “shoot
Tursty in the foot,” apparently to supply the threat element to the statement Petitioner made to
Tursty, i.e., “[W]e come here for the money.” Id.
Thereafter, Elhamri and Petitioner,
brandishing guns, along with Richardson, forced Tursty to travel with them by car
to a Red Roof Inn, where Tursty and his girlfriend had taken a room, “in order to
obtain additional money.” Threats were uttered by Richardson during the course
of the ride. After Tursty unsuccessfully attempted to contact a friend allegedly
1
Alternative testimony in the record suggested that the amount was $102.
2
possessing cash named Jean Carlos Abreu [(“Abreu”), who was lodging] in an
adjoining room [in the Red Roof Inn], Tursty was taken from the [Red Roof Inn]
back to the car . . . being driven by Richardson for some distance with [Elhamri
and Petitioner’s] guns held to his sides, [but] he was returned to the [Red Roof
Inn] following receipt of a call from Abreu [to] Tursty [indicating that Abreu was
willing to assist Tursty].
Id. at *2.
Upon returning to the Red Roof Inn, “Richardson remained in the car, while [Elhamri and
Petitioner] accompanied Tursty to his [and Julie’s] room.” Id. There, they were met by Abreu
who was awaiting for Tursty. Id. At that point, Elhamri and Abreu “scuffled over a gun.” Id.
At the end of that scuffle, Elhamri and Petitioner ran to the car, where Richardson was awaiting
for them, and the three drove away. Id.
Police officers, who had been summoned to the Red Roof Inn, “spotted and pursued the
vehicle” in which Richardson, Elhamri and Petitioner were trying to escape. Id. However, by the
time the police officers succeeded at stopping the car, it contained only Richardson and Elhamri.
Id. “No weapons or money were found in the car. An abandoned gun [was] found elsewhere by
the police [but it] was not dispositively linked to the crime or its participants” since no ballistic
expertise was applicable due to no shooting. Id. “Tracks in the snow” from the car in which
Elhamri and Richardson were apprehended “led the police to a gas station, where they were
informed that a man had just left in a cab.” Id. After a week of police investigation, Petitioner
was identified and arrested. Id. During his trial, Petitioner maintained that, at the time of the
aforesaid events, he was “at a recording studio in Brooklyn” and “knew nothing” about the
offense. Id.
3
In addition, during the course of his trial, Petitioner maintained that he did not know
either Tursty or any other person involved in the events: he kept denying Tursty and all other
witnesses’ testimonies that they all actually knew Petitioner and that he was known to them
under a nick-name which they pronounced as “Bubalis”; he maintained that his only nick-name
was “Fabulous” and that he had used this “Fabulous” nick-name for the nine years preceding the
events at issue. (Exs., D.E. Nos. 9-3, 9-4) (replicating the same document); see also State v.
Wallace (“Wallace-II”), No. A-1601-07T4, 2009 WL 790527, at *1-2 (N.J. Super. Ct. App. Div.
Mar. 17, 2009). Petitioner also testified “that he had never driven a[ny] motor vehicle except for
one test drive in Brooklyn, and that he had never owned a car.” Wallace-II, 2009 WL 790527, at
*2.
Following a jury trial, Petitioner was convicted of an armed robbery, conspiracy to
commit a robbery, aggravated assault, possession of a handgun for an unlawful purpose, unlawful
possession of a handgun, criminal restraint, and resisting arrest. Wallace-I, 2005 WL 3676807,
at *1.
On direct appeal, Petitioner’s appellate counsel raised six various grounds, and Petitioner
submitted his pro se brief, asserting that his trial counsel, William Fetky (“Fetky”), was
ineffective by failing to provide him with a Jamaican-English interpreter; no other challenges
against Fetky’s performance were mounted during that direct appeal.2 Id. at *2-3. Following the
2
There is no such thing as official “Jamaican” language. See https://www.cia.gov/library/
publications/the-world-factbook/geos/jm.html (clarifying that Jamaican population speaks “Jamaican English” and/or
“English patois”). “Jamaican English” could be defined as a mix between American English and British English,
with predominance of British English spellings. See ANDREA SAND, LINGUISTIC VARIATION IN JAMAICA (1999).
“Jamaican Patois,” formally known as “Jamaican Creole,” presents a mix of English and African terms. See LARS
HINRICHS, CODESWITCHING ON THE WEB: ENGLISH AND JAMAICAN CREOLE IN E-MAIL COMMUNICATION (2006).
Standard British English is used as Jamaica’s official language, and the bulk of written materials, official and not, is
produced also in standard British English. See id.
4
Appellate Division’s affirmance of Petitioner’s conviction and sentence, id. at *5, Petitioner
initiated post-conviction relief (“PCR”) proceedings.
Wallace-II, 2009 WL 790527, at *1.
While Petitioner’s PCR application raised numerous challenges to Fetky’s performance, the key
point of these challenges was that Fetky failed to investigate and present what Petitioner
maintained was his alibi. Id. at *2. These PCR proceedings: (a) resulted in evidentiary hearings;
and (b) yielded denial of Petitioner’s PCR application. Id. at *1.
Perhaps in light of both oddity and factual incoherence of Petitioner’s PCR position, the
Appellate Division’s decision in Wallace-II was drafted in such a fashion that the factual pattern
relevant to these PCR hearings is somewhat hard to follow. Therefore, this Court finds it useful
to systemize, below, the PCR facts detailed in the Appellate Division’s opinion.
A.
Statements About the Alibi Issue Made During Petitioner’s Trial
The initial issue of alibi defense was briefly touched during Petitioner’s trial, when
Petitioner testified that, on the night at issue, he was in Brooklyn, at a recording studio. “After a
side-bar conference during which [Fetky] stated that he had not asserted an alibi defense and that
no alibi witnesses had been identified, the prosecutor cross-examined [Petitioner] with respect to
differences between [Petitioner’s] statement to the police and the testimony that he had just
provided regarding his presence at the recording studio.” Id. at *2. In response, Petitioner
asserted that – even though he was advised by the police that he was being charged with an
armed robbery committed during at the first minutes of January 7 – Petitioner did not make any
statement to police about his alibi because, in his opinion, the police officer interrogating him
asked about his whereabouts in the terms that Petitioner considered generic, rather than asking
5
him about his whereabouts during certain specific hours of the January-6-to-January-7 night. Id.
at *2-3
B.
Kampf’s Testimony During the PCR Hearings
As noted supra, the alibi issue resurfaced when Petitioner filed his PCR application. In
that application, Petitioner alleged that he spent the evening and night at issue with a certain
Dawn Kampf (“Kampf”), and Kampf could have been his alibi witness whose testimony Fetky
failed to investigate and present during Petitioner’s trial. Id. at *3. An evidentiary hearing
resulted, during which Kampf testified that she resided in Somerset, New Jersey, and – at the
time of the events at issue – “had an intimate relationship” with Petitioner. See id. She also
testified that, on January 6, 2003, Petitioner “called her, suggesting that she meet him in New
York,” and she agreed, “arriving at Penn Station in New York at approximately 4:00 p.m., where
she was met by [Petitioner] who drove her in his jeep to the Don Juan Studios.” Id. Kampf
testified that, there, she and Petitioner “met Barrington McCain,” whom Petitioner introduced to
her as his “best friend,” and “the studio's owner, Don Moody, as well as a number of other
persons whose names Kampf could not recall.” Id. She also testified that, at midnight, Petitioner
drove her in his jeep “to Africa House, a club, where they remained until 4:00 a.m.” Id. In
addition, she testified that, after the club, Petitioner drove her “in his jeep to [an] apartment in
Brooklyn,” where they spent the remainder of the night together “until early afternoon.” Id. She
also testified that, upon conclusion of that rendezvous, Petitioner drove her “back to Penn
Station, and she returned to New Jersey.” Id.
She continued by testifying that, approximately one week after the robbery had occurred,
she was informed that Petitioner was arrested and, consequently, spoke to Petitioner’s sister,
6
“who was trying to raise bail money, and then to [Petitioner’s] mother, who informed Kampf of
the [specific] date of the incident.” Id. at *4. According to Kampf, she “stated to the mother that
[Petitioner] was with Kampf at the time, and the mother responded that Kampf would be
contacted by . . . Fetky,” whom Kampf apparently knew as a result of a prior legal action:
because Kampf herself had a criminal record. Id. Knowing that Petitioner was being prosecuted
for a serious offense and being well familiar with Fetky, Kampf nonetheless did not contact
Fetky regarding Petitioner’s alleged alibi: she maintained she was simply awaiting for Fetky to
call her. Id. Asked, during Petitioner PCR proceedings, why she had not called Fetky herself,
she responded, “Well, because I didn't really know what was going on with the case, and
[Petitioner] and I had gotten into a big argument, so I was [waiting for] somebody . . . to send me
something in the mail or, you know, contact me in some kind of way, and nobody ever did. I
didn't know if they needed me or not.” Id. Being asked about that “big argument” between her
and Petitioner, Kampf testified that this dispute arose when the woman with whom Petitioner had
a daughter allegedly learned about Petitioner’s relationship with Kampf, and it somehow caused
a dispute between Petitioner and Kampf “on [the] Memorial Day.” Id. In her testimony, Kampf
did not explain her inaction during the four-month period, which took place between her learning
that Petitioner was charged with an armed robbery and her alleged Memorial Day “big argument”
with Petitioner. Id.
Being told that Petitioner’s alleged “best friend,” Barrington McCain, also did not even
attempt to inform anyone about Petitioner’s alleged alibi, and asked why she did not step forward
with her information, Kampf stated, “[W]hen you’re not from this country, . . . you don’t want to
7
get involved in legal matters.”3 Id. During Kampf’s testimony, it came out that Petitioner was
released on pre-trial bail and remained out of custody for six and a half months (until being
rearrested for failure to appear in court for a scheduled hearing), and that Kampf met with him
seven or eight times, but, apparently, at no time Petitioner took her to Fetky so she would provide
him with an alibi statement. Id.
C.
Petitioner’s Mother’s Testimony During the PCR Hearings
Petitioner’s mother, Yvonne Meyers (“Meyers”), testified during Petitioner’s PCR
hearings that she did not have “direct knowledge” of Petitioner’s alibi, but stated that she was
told by Petitioner that “at the time of the crime, he was in New York with Kampf.”4 Id.
However, even though Meyers frequently met and talked to Fetky during Fetky’s preparation for
Petitioner’s trial, Meyers never even mentioned to Fetky the fact that Petitioner, allegedly, had an
alibi. Id.
D.
Petitioner’s Testimony During the PCR Hearings
Petitioner, too, testified at his PCR hearings. Id. Unlike during his trial, Petitioner
“conceded that he had been known” by a nick-name other than “Fabulous”: at his PCR hearings,
he alleged that he was also known under the nick-name sounding like “Bubbleous.”5
3
Id.
Neither McCain nor Moody’s testimony was proffered during Petitioner’s PCR. This Court was unable to locate,
in the massive transcripts of Petitioner’s proceedings, any statement suggesting that McCain and/or Moody were
“foreigners,” either in the sense of being foreign-born and duly naturalized (or holding legal alien status) or even in
the sense of being illegal aliens.
4
That statement was inconsistent with Kampf’s testimony that Kampf, rather than Petitioner, informed Meyers of
Petitioner’s alibi.
5
The Court was unable to locate, in Petitioner’s transcripts, any statement by Petitioner or State witnesses suggesting
that Petitioner actually spelled his nick-name to State witnesses (indeed, Petitioner asserted that he did not even
know State witnesses at all). Moreover, since only the phonetics of Petitioner’s nick-name were used in Petitioner’s
street interactions, some witnesses testified that they understood it as sounding as “Bubalis” while others understood
it as sounding as “Boboloo.” (Ex., D.E. No. 17-1 at 1) (testimony of Abreu). Therefore, it is not entirely clear as to
how substantially the phonetics of “Bubalis” (i.e., the pronunciation utilized by the State) differ from phonetics of
“Bubbleous” (i.e., the pronunciation utilized by Petitioner).
8
However, he maintained that he had changed his name to “Fabulous” in 2000, that is, about two
years prior to the robbery, when he concluded that “Bubbleous” was a nick-name “too commonly
used” and inconsistent with Petitioner’s intent to stress his individuality, which – he felt – would
have been emphasized far better by his use of the nick-name “Fabulous.” Id.
In addition, addressing the inconsistency between his own trial testimony (to the effect
that he never drove any car, except for a single test-drive, and that he never owned any car) and
the testimony provided by his alleged alibi witness, Kampf (regarding his extensive driving of
her on January 6 and January 7, and regarding his car ownership of a jeep), Petitioner stated that
his trial testimony was merely meant to indicate that he had a permit to drive a vehicle, rather
than a driving license, and – although he did actually own an Isuzu SUV – that vehicle was
somehow registered by a certain friend. Id. at *2, *4.
Moreover, during his PCR hearings, Petitioner alleged that, on the night of the robbery,
he took Kampf to spend the night in the Brooklyn apartment where the mother of his daughter
resided, but he did not elaborate on whether the mother of his daughter was present at that
apartment during the night at issue and what her reaction was to the fact of Petitioner’s bringing
his new girlfriend to that apartment to spend the January-6-to-January-7 night (even though
Kampf testified that her alleged Memorial Day “big argument” with Petitioner occurred exactly
because the mother of Petitioner’ daughter reacted explosively when she eventually found out
that Petitioner was having an intimate relationship with Kampf). Id. at *4.
9
E.
Fetky’s Testimony During the PCR Hearings
Fetky, too, testified during Petitioner’s PCR hearings.6 Id. at *5. He stated that, “as a
matter of [his] standard practice,” he discussed with all his clients, Petitioner included, each
potential defense available to all criminal defendants, including the alibi defense. Id. Fetky
recalled that Petitioner had indicated that “at the time of this incident, he was at a recording
studio somewhere.” However, Fetky testified that he was “never able to substantiate the alibi.”
Id. Petitioner’s PCR attorney, questioned Fetky as follows: “In this case, did, to the best of your
memory, [Petitioner] ever bring you, to your office, anybody whom he described as someone
who could provide an alibi for him?”
Id.
In response, Fetky stated: “I don't recall that
happening. All I can say is that if I had a viable alibi defense in this matter or in any other
matter, I can not [sic] conceive of any reason why I wouldn't follow it up. I just can’t . . . . I just
don’t know why I wouldn’t follow that up.” Id. Fetky also testified that, had Petitioner had
given him even only a name of the person who could have served as a viable alibi witness, Fetky
would have “absolutely” investigated such lead and every bit of information ensuing from such
lead. Id. at *6. Specifically, Fetky stated: “If Dawn Kampf ever contacted me or [even if her
name] was provided to me and [I would have been informed that she] was able to testify in
[Petitioner’s] trial that she was with [Petitioner] on the night of this incident, I can not [sic]
conceive of any reason on this planet why I would not call her [as Petitioner’s defense witness].”
Id. Fetky also confirmed that Petitioner’s mother never provided him with any hint about the
alibi or even with a statement suggesting existence of any alibi. Id. Fetky's file composed in
6
Because Fetky, being a pool attorney rather than a permanently State-employed public defender, had to return his
file to the Public Defender's office at the conclusion of Petitioner’s trial, his testimony was based solely on his
recollection.
10
connection with Petitioner’s defense was produced and examined; that examination confirmed
that no notice of alibi had been filed by Fetky. Id.
F.
Petitioner’s Other Testimony During the PCR Hearings
In contrast, during his PCR hearings, Petitioner kept maintaining that he “had discussed
his alibi with Fetky, eventually identifying Kampf, McCain and Moody as persons who could
confirm it, and providing the telephone numbers for Kampf and Moody.” Id. at *5. Petitioner
also testified during his PCR hearings that, when he was released from jail on bail, he states to
both Kampf and Moody that “they would be contacted by Fetky,” but he conceded that he “did
nothing more to insure that the statements of those witnesses or of other persons present at the
studio would be taken.” Id. Petitioner claimed that, initially, he was unable to utilize the
telephone at the jail “to contact the people present at the studio” because the jail telephone was
“blocked.” Id. He, however, failed to explain why he did not telephone or personally contact
them after he made bail and remain at large for many months. Id.
According to Petitioner, he had a “very rocky relationship” with Fetky, and so Petitioner
claimed that Fetky was just “brushing” Petitioner off when he was attempting to discuss his alibi;
in connection with that assertion, Petitioner alleged that Fetky was, generally, refusing to
communicate with him.7 Id. Being confronted with Fetky’s time sheets, which showed eight
pre-trial conferences between Fetky and Petitioner, Petitioner responded by stating that Fetky
was “refus[ing] to listen” to Petitioner’s evidence regarding his alibi. Id.
Since the version of events asserted by Petitioner on PCR was ridden with a multitude of
logical flaws, he was asked during his PCR hearings: “You were out on bail for quite a while.
7
Petitioner did not explain why, having such a “rocky relationship” with Fetky, he nonetheless did not make an
application to the State’s Office of Public Defender to have another counsel assigned in place of Fetky during the
11
Did you ever go get any of these people and drag them over to Mr. Fetky's office and [at least]
show them to him?” Id. To that Petitioner responded that he did not, explaining his absolute
lack of action with the puzzling statement, “People in New York, they don't really like New
Jersey.” Id. Then, elaborating on his failure to bring Kampf to Fetky’s office, Petitioner stated
that, first, he did not ask Kampf to contact Fetky because he had a fight with Kampf in January
(rather than on Memorial day, as Kampf claimed), all while he was still in jail, pre-bail, and after
his release on bail, he elected to avoid contacting Kampf because, at that time, she was already
dating another man, and Petitioner “did not wish to cause [her] a problem” or, in alternative,
because “she had gone to Canada.” Id.8
G.
PCR Judge’s Findings as to Kampf’s Testimony
At the conclusion of the above-detailed PCR hearing, the state judge summarized the
evidence provided by Kampf and observed:
I don't find her testimony to be credible at all. . . . [B]asically[,] her demeanor was
that this was sort of a joke, that she was here to testify, and she kept on saying, I
guess, I guess, and her story is just not credible. It's preposterous. By that I mean
here's a woman who knows the criminal justice system [because she had been
found guilty of the offense of passing bad checks, and she herself received a
probationary sentence]. She’s a mature woman in her 40s, and she has crucial
information allegedly about her lover being charged with an armed robbery, and
she never ever goes to see Mr. Fetky, never ever calls Mr. Fetky, and she knows
who Mr. Fetky is. She could even look him up in the phone book, William Fetky,
Kirkpatrick Street, New Brunswick. And then conveniently she gets into a spittyspat with [Petitioner], so that’s an excuse for her not to talk to him so he can tell
her, go see Mr. Fetky. It's just totally preposterous testimony.
many months of preparation for the trial.
8
The Court notes, in passing, that Petitioner’s statements to that effect are hard to reconcile with the relevant
Kampf’s statements, since: (a) Kampf at no point asserted that she was unavailable due to her being in Canada
(indeed, she did not state she was in Canada altogether); (b) it is unclear why Petitioner was concerned about
“causing a problem” to Kampf by asking her to meet with Fetky if Petitioner was meeting with Kampf seven or eight
times for other reasons during the period when Kampf, allegedly, was dating another man; and (c) it is equally
unclear why the mother of Petitioner’s child had a reaction during the Memorial Day holiday if Kampf was already
involved with another man.
12
Id. at *6.
H.
Other Findings Made by the PCR Judge
The PCR judge also did not find credible the testimony of Petitioner’s mother when the
judge addressed her statement that, despite her knowledge of her son’s alibi, she still elected to
never even mention that alibi to Fetky. Id. Then, turning to Petitioner’s PCR testimony, the
judge found it “totally incredible.”
Id.
Specifically, the judge noted multiple substantive
inconsistencies between Petitioner’s trial and PCR testimonies and concluded that the version of
events proffered by Petitioner during his PCR was wholly unbelievable. Id. In contrast, the PCR
judge found Fetky’s testimony credible. The PCR judge ruled:
I find in this post-conviction relief [matter] that there's no ineffective assistance of
counsel by Mr. Fetky . . . . [T]he mistake that [Petitioner] is saying was made in
this case by Mr. Fetky would be a colossal series of mistakes bordering on not
ineffective assistance of counsel, but bordering on criminality. And it’s totally
incomprehensible, totally without basis, totally without fact.
Id.
Therefore, the PCR judge denied Petitioner relief, and the Appellate Division affirmed.
Id. at *7. Petitioner’s applications for certification to the New Jersey Supreme Court were denied
with respect to both his appellate and PCR proceedings. State v. Wallace, 199 N.J. 544 (2009);
State v. Wallace, 187 N.J. 80 (2006). The instant habeas action followed.
II.
PETITIONER’S CHALLENGES
A.
Grounds Raised
Petitioner raised the following grounds in his instant Petition:
GROUND ONE:
The trial court erred in denying [Petitioner’s] motions for
acquittal judgment notwithstanding the verdict.
13
GROUND TWO:
The trial court erred in refusing to grant [Petitioner] a new
trial after detective Varga told the jury that [Petitioner] had
been arrested at the courthouse on a separate charge.
GROUND THREE: The trial court erred in charging sua sponte second-degree
robbery.
GROUND FOUR:
The prosecutor’s comments during trial denied [Petitioner]
a fair trial.
GROUND FIVE:
The trial court infringed upon [Petitioner’s] right to crossexamination.
GROUND SIX:
The failure of [Petitioner’s] counsel to provide an
interpreter during trial and the failure of the court to assure
the presence of an interpreter denied [Petitioner] a fair trial
in violation of the U.S. Const[itution], and N.J.
Const[itution]. . . .
GROUND SEVEN: [Petitioner] received [in]effective assistance of counsel.9
(Pet. 18-19).
B.
Exhaustion
Petitioner asserts that all his Grounds were duly exhausted in state courts for the purposes
of this Court’s federal habeas review. This is incorrect.
A state prisoner applying for a writ of habeas corpus in federal court must first “exhaust[]
the remedies available in the courts of the State,” unless “there is an absence of available State
corrective process[] or . . . circumstances exist that render such process ineffective.” 28 U.S.C. §
2254(b)(1); Rose v. Lundy, 455 U.S. 509, 515 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d
Cir. 1993); Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996); see also Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001) (finding that
9
Ground Seven raised five different sub-claims, each qualifying as a separate Ground and, hence, effectively raising
the total number of Petitioner’s Grounds to eleven.
14
“Supreme Court precedent and the AEDPA mandate that prior to determining the merits of [a]
petition, [a court] must consider whether [petitioner] is required to present [his or her]
unexhausted claims to the [state’s] courts”).
The courts of a state must be afforded an
“opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”
Wilwording v. Swenson, 404 U.S. 249, 250 (1971); Picard v. Connor, 404 U.S. 270, 275 (1971);
Evans v. Court of Common Pleas, Del. Cnty., Pa., 959 F.2d 1227, 1230 (3d Cir. 1992), cert.
dismissed, 506 U.S. 1089 (1993). Exhaustion is not a jurisdictional requirement; rather, it is
designed to allow state courts the first opportunity to pass upon federal constitutional claims, in
furtherance of the policies of comity and federalism. See Granberry v. Greer, 481 U.S. 129
(1987); Rose, 455 U.S. at 516-18; Evans, 959 F.2d at 1230; O’Halloran v. Ryan, 835 F.2d 506,
509 (3d Cir. 1987). Exhaustion also has the practical effect of permitting development of a
complete factual record in state court, to aid the federal courts in their review. See Rose, 455
U.S. at 519; Castille v. Peoples, 489 U.S. 346, 349 (1989).
A petitioner must exhaust state remedies by presenting his federal constitutional claims to
each level of the state courts empowered to hear those claims, either on direct appeal or in postconviction proceedings. See Ross v. Petsock, 868 F.2d 639 (3d Cir. 1989); see also O’Sullivan
v. Boerckel, 526 U.S. 838 (1999) (“requiring state prisoners [in order to fully exhaust their
claims] to file petitions for discretionary review when that review is part of the ordinary appellate
review procedure in the State”); 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State, within the meaning of this section, if
he has the right under the law of the State to raise, by any available procedure, the question
presented”). Only if a petitioner’s federal claims have been fairly presented to the state’s highest
15
court, the exhaustion requirement is satisfied. See Picard, 404 U.S. at 275; Castille, 489 U.S. at
350. The petitioner generally bears the burden to prove all facts establishing exhaustion. See
Toulson, 987 F.2d at 987. This means that the claims heard by the state courts must be the
“substantial equivalent” of the claims asserted in the federal habeas petition. Picard, 404 U.S. at
275. Reliance on the same constitutional provision is not sufficient; the legal theory and factual
predicate must also be the same. See id. at 277 (emphasis added). Where any available
procedure remains for the applicant to raise the question presented in the courts of the state, the
applicant has not exhausted the available remedies. See 28 U.S.C. § 2254(c). Federal courts
have consistently adhered to the exhaustion doctrine “for it would be unseemly in our dual
system of government for a federal district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional violation.” Picard, 404 U.S. at 275
(citations and internal quotation marks omitted).
Here, as Respondent points out – and as the record substantiates – the claims
corresponding to Petitioner’s instant Grounds One, Two, Three and Four raised solely state law
challenges during Petitioner’s state proceedings. His Ground Five raised also only state law
challenges, but was reviewed by the Appellate Division on, inter alia, federal grounds.
Petitioner’s Ground Six (the basis of which cannot be determined for the purposes of his appeal
to the Appellate Division due to loss of state records as to this part of his brief and the Appellate
Division’s dismissal of that Ground without any elaboration) was withdrawn from Petitioner’s
challenges presented for review by the Supreme Court of New Jersey, i.e., it too remained
unexhausted. Thus, only Petitioner’s Ground Seven was properly raised before all three levels of
state court and asserted federal grounds.
16
Hence, the Petition is subject to dismissal as a “mixed” petition (or Petitioner should be
allowed to withdraw all his grounds except Grounds Five and Seven). However, under 28 U.S.C.
§ 2254(b)(2), “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.” See also Lambert, 134 F.3d at 515 (district court may deny an unexhausted petition on
the merits under § 2254(b)(2) “if it is perfectly clear that the applicant does not raise even a
colorable federal claim”).
Since, here, it is apparent from the face of the Petition and the record docketed in this
matter that each of Petitioner’s above-quoted seven Grounds does not raise even a colorable
federal claim, the Court finds it warranted to address the merits of Petitioner’s claims and
dismiss them under its § 2254(b)(2) power.
III. STANDARD OF REVIEW
Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to
entertain a habeas petition challenging a state conviction or sentence only where the inmate’s
custody violates federal law:
[A] district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254(a).
“In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen Cnty. Prob. Dep’t, 128 F.3d 152,
17
159 (3d Cir. 1997). “Federal courts hold no supervisory authority over state judicial proceedings
and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455
U.S. 209, 221 (1982). “If a state prisoner alleges no deprivation of a federal right, § 2254 is
simply inapplicable.
It is unnecessary in such a situation to inquire whether the prisoner
preserved his claim before the state courts.” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982).
“[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process
Clause.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, “it is well
established that a state court's misapplication of its own law does not generally raise a
constitutional claim.” Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citation omitted); see
also Smith v. Zimmerman, 768 F.2d 69, 71 (3d Cir. 1985).
A district court must give deference to determinations of state courts. See Duncan v.
Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 534 U.S. 919 (2001); Dickerson v. Vaughn, 90
F.3d 87, 90 (3d Cir. 1996). Federal courts “must presume that the factual findings of both state
trial and appellate courts are correct, a presumption that can only be overcome on the basis of
clear and convincing evidence to the contrary.” Stevens v. Del. Corr. Ctr., 295 F.3d 361, 368 (3d
Cir. 2002). Where a federal claim was “adjudicated on the merits”10 in state court proceedings, §
2254 does not permit habeas relief unless adjudication of the claim
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal Law, as determined by the
Supreme Court of the United States; or
10
“An ‘adjudication on the merits’ has a well settled meaning: a decision finally resolving the parties' claims, with
res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other,
ground.” Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d
Cir. 2001)), rev’d on other grounds Rompilla v. Beard, 545 U.S. 374 (2005). A state court may render an
adjudication or decision on the merits of a federal claim by rejecting the claim without any discussion whatsoever.
Rompilla, 355 F.3d at 247.
18
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A decision is contrary to a Supreme Court holding if the state court “contradicts the
governing law set forth in [the Supreme Court's] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a
[different] result.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the “‘unreasonable application’ clause, 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.” Id. 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 unreasonable. Id. at 409-10.
A court begins the analysis by determining the relevant clearly established law. See
Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law “refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams, 529 U.S. at 412. A court must look for “the governing
legal principle or principles set forth by the Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
IV. DISCUSSION
A.
Ground One – Denial of Judgment of Acquittal
In his Ground One, Petitioner asserts that his “trial court erred in denying [Petitioner’s]
motions for acquittal judgment notwithstanding the verdict.” (Pet. 17). Petitioner maintains that,
19
because the evidence submitted during his trial was “largely circumstantial,”11 and because
testimonies of State witnesses were incoherent in some peripheral respects, “the State’s proofs
were insufficient to sustain [Petitioner’s] convictions.” Id.
A claim that the verdict is against the weight of the evidence is essentially a matter of
state law, and does not raise a federal constitutional question unless the record is completely
devoid of evidentiary support of the inmate’s guilt.12 See Cunningham v. Maroney, 397 F.2d
724, 725 (3d Cir. 1968), cert. denied, 393 U.S. 1045 (1969) (emphasis added). Only where no
rational trier of fact could have found proof of guilt beyond a reasonable doubt should a writ be
issued. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Singer v. Court of Common Pleas,
Bucks Cnty., 879 F.2d 1203, 1206 (3d Cir. 1989). Factual issues determined by a state court
(jurors included) are presumed to be correct, and the petitioner bears the burden of rebutting this
presumption by clear and convincing evidence. See Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.
2000) (citing 28 U.S.C. § 2254(e)(1)).
Here, the record is heavily laden with evidence of Petitioner's guilt.
Conversely,
Petitioner fails to offer the Court any evidence – and, certainly, he offers no clear and convincing
evidence – that any reasonable triers of fact would be unable to find Petitioner guilty on the basis
11
This Court is not entirely clear as to the basis for Petitioner’s argument that Tursty’s testimony and other eyewitnesses’ testimonies of Petitioner robbing Tirsty at gunpoint qualify as “circumstantial.” Since, under the law of
evidence, such testimonies qualify as direct evidence, the Court presumes Petitioner was merely aiming to assert that
Petitioner was inviting the Court to find this evidence insufficiently credible. However, all factual findings made at
state courts, be they with regard to actual events, as occurred, or with regard to credibility of witness testimony, can
be called into question on habeas review only by the petitioner offering clear and convincing evidence to the
contrary. See Stevens, 295 F.3d at 368. Moreover, the Court sitting in habeas review is limited to consideration of
the record that was before the state court which adjudicated the claim on the merits and, thus, cannot expand the
record. See Cullen v. Pinholster,
U.S. , 131 S. Ct. 1388, 1398-1401 (2011).
12
Alternatively, a federal court may grant federal habeas relief where a state court's error in interpreting or applying
state law was so erroneous that it rendered the trial fundamentally unfair within the meaning of due process
guarantees. See McGuire, 502 U.S. at 67-68. However, as Respondent’s answer details, no state provision or
precedent was applied during Petitioner’s proceedings in a fashion meriting, even remotely, a consideration of
habeas relief. (D.E. No. 9 at 19-24) (detailing the state law aspects).
20
of the record presently before this Court. All that Petitioner offers the Court is his self-serving
assertion that the State’s case against him was not flawless. However, the Due Process Clause
does not avail Petitioner to a perfect trial. See Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986); see also Shelly v. Beyer, No. 87-969, 1988 U.S. Dist. LEXIS 17328, at *5 (D.N.J. Nov.
17, 1988) (state evidence proffered at trial are viewed in their entirety, regardless of whether they
are direct or circumstantial); accord United States v. Miller, 688 F.2d 652, 662 (9th Cir. 1982)
(“The distinction between direct evidence and circumstantial evidence no longer has any basis in
law”). Hence, Petitioner's claims asserting wrongful denial of a verdict of acquittal or his
entitlement to a conclusion that the jurors entered their decision against the weight of evidence
are without merit and warrant no habeas relief. Petitioner’s Ground One will, therefore, be
dismissed for not presenting even a colorable claim.
B.
Ground Two – “Appeared for Court” Statement
In his Ground Two, Petitioner alleges that his “trial court erred in refusing to grant
[Petitioner] a new trial after detective Varga told the jury that [Petitioner] had been arrested at the
courthouse on a separate charge.” (Pet. 17).
The relevant trial facts were as follows: before Detective Varga’s testimony (about his
arrest of Petitioner), a side bar conference was held regarding Fetky’s concerns that Varga would
state that Petitioner was arrested in the courthouse (Fetky was concerned that the jury might
presume, from that testimony, the fact that Petitioner had an additional criminal charge –
unrelated to the cluster of charges ensuing from armed robbery of Tursty). The prosecutor,
accommodating Fetky’s concerns, expressed willingness to try to question Varga in a fashion
striving to omit identification of the locale where Petitioner was arrested.
21
[Varga’s] testimony [took place after that conference and] was as follows:
Q.
Detective, was [Petitioner] arrested in New Brunswick at a later date?
A.
He was. He appeared –
Q.
Just –
A.
He appeared for court in New Brunswick.
Q.
You could say [just] “yes” or “no.”
A.
For our charge or for a separate charge? He was –
Q.
If you can just stop for one minute. The question is was [Petitioner]
arrested?
A.
Yes.
The court denied a mistrial, noting that any implication that [Petitioner] had
committed a prior crime could be eliminated by asking [Petitioner], who was
expected to testify, whether he had a prior record. [Indeed, Petitioner] did testify
on his own behalf, and he denied any prior convictions. Further, at the time of
[Detective Varga’s testimony, Fetky] specifically stated that he did not wish a
curative instruction [noting his concern that belaboring this point might only
cause additional undue inferences on the part of the jurors].
Wallace-I, 2005 WL 3676807, at *3.
The Appellate Division dismissed Plaintiff’s claim that Detective Varga’s comment
should have resulted in mistrial, noting, “[i]n the circumstances, we find no reversible error. The
comment was brief [especially in comparison with 60 pages of Varga’s testimony] and
ambiguous at best, and any negative import was diluted by [Plaintiff’s] unchallenged testimony
that he lacked a prior record. We thus find that it was not clearly capable of producing an unjust
result warranting reversal.” Id. (internal citation omitted).
The Supreme Court explained, in a case also involving the denial of a motion for a
mistrial that
[i]t is important at the outset to define the question before us. That question is not
whether the trial judge should have declared a mistrial. It is not even whether it
was an abuse of discretion for [him/]her to have done so – the applicable standard
on direct review.
The question under AEDPA is instead whether the
determination of the [highest state court] that there was no abuse of discretion was
“an unreasonable application of . . . clearly established Federal law [relating to
the underlying conduct].” § 2254(d)(1).
22
Renico v. Lett, __ U.S.___, 130 S. Ct. 1855, 1862 (2010).
This Court, therefore, agrees with Petitioner’s trial judge’s determination that Detective
Varga’s slip-of-tongue statement that “[Petitioner] appeared for court in New Brunswick” was
evidence admission which would not warrant mistrial.
“[F]ederal habeas corpus relief does not lie for errors of state law,” Estelle v. McGuire,
502 U.S. 62, 67 (1991), such as evidentiary rulings, unless the rulings rendered the trial so
fundamentally unfair that a denial of constitutional rights results. The admission of evidence
violates due process only if an evidentiary ruling is so egregious that it results in a denial of
fundamental fairness. However, courts “have defined the category of infractions that violate
'fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990).
Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless
they “offend[] some principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.” Montana v. Egelhoff, 518 U.S. 37, 43 (1996). Thus, unless
Petitioner can demonstrate that the introduction of this evidence denied him his right to a fair
trial or due process, habeas relief is not warranted.
Here, Petitioner’s Ground Two invites this Court to grant him habeas relief on a
technicality. The Court declines this invitation: the fundamental fairness test, as detailed in
Dowling and Egelhoff, focuses this Court’s attention not on the technicality but on the overall
fairness of Petitioner’s proceedings. Petitioner’s Ground Two unduly tries to capitalize on an
ambiguous statement with regard to which Petitioner declined curative instructions and, in
addition, which – to the degree it could have prejudiced Petitioner – was fully neutralized by
23
Petitioner’s testimony that he had no prior record. In light of Petitioner’s inability to even
articulate – moreover establish – any actual prejudice, this Court will dismiss Petitioner’s Ground
Two as not presenting even a colorable claim.
C.
Ground Three – Sua Sponte Charge of Second-Degree Robbery
In his Ground Three, Petitioner, being convicted of first-degree robbery, asserts that his
trial court erred by also providing, sua sponte, the jurors with a charge of second-degree robbery
(hence, allowing the jurors an opportunity to convict Petitioner of a lesser offense).
Generally, a jury instruction – even if it is inconsistent with state law – does not merit
federal habeas relief. Where a federal habeas petitioner challenges jury instructions given in a
state criminal proceeding,
[t]he only question for us is “whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.” It is well
established that the instruction “may not be judged in artificial isolation,” but
must be considered in the context of the instructions as a whole and the trial
record. In addition, in reviewing an ambiguous instruction . . . , we inquire
“whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution. And we also bear in mind our
previous admonition that we “have defined the category of infractions that violate
'fundamental fairness' very narrowly.”
“Beyond the specific guarantees
enumerated in the Bill of Rights, the Due Process Clause has limited operation.”
Estelle, 502 U.S. at 72-73 (citations omitted).
Thus, the Due Process Clause is violated only where the erroneous instructions have
operated to lift the burden of proof on an essential element of an offense as defined by state law.
See Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (to prevail in a jury-instruction
challenge, a petitioner must establish both that the instruction was ambiguous, inconsistent, or
deficient, and that there is a reasonable likelihood that the jury applied the instruction in a
24
manner that relieved the state of its burden to prove every element of the crime beyond a
reasonable doubt); In re Winship, 397 U.S. 358, 364 (1970) (“the Due Process Clause protects
the accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged”); Sandstrom v. Montana, 442 U.S.
510, 523 (1979) (jury instructions that suggest a jury may convict without proving each element
of a crime beyond a reasonable doubt violate the constitutional rights of the accused).
Here, Petitioner complains of jury instructions which highlighted to the jurors the burden
the State had to meet with regard to each element of the crime of which Petitioner was actually
convicted (by charging the jury with both first-degree robbery and second-degree robbery and,
hence, by providing a comparison between these two offenses). No due process violation could
be fancied on the basis of such facts. Therefore, Petitioner’s Ground Three will be dismissed for
not presenting a colorable claim.
D.
Ground Four – Prosecutorial Comments
Reflecting on Petitioner’s Ground Four challenges, the Appellate Division observed:
[Petitioner] argues that prosecutorial misconduct occurred, consisting of the
following: (1) characterizing the events as a “betrayal of friendship” in her
opening statement; (2) . . . allegedly lowering the State's burden of proof by
stating during closing that there was “no question that [Petitioner] and . . .
Richardson's purpose along with [Elhamri] was to promote and facilitate the
commission of that armed robbery”; and ([3]) inappropriately vouching in closing
argument for . . . Abreu, a witness involved in the fighting that occurred at the
[Red Roof Inn], by stating that Abreu had “no ax to grind” and “came here and . . .
was honest. He told you exactly what happened.”
We find none of these comments sufficient to warrant a retrial. The statement by
the prosecutor in her opening that the events constituted a betrayal of friendship
was premised on evidence to be presented that Tursty was a friend of at least two
of his attackers and was thus proper. Her characterization in closing of defendant's
purpose, although perhaps inartful, clearly related to the charge of conspiracy
against him, and cannot reasonably have been interpreted by the jury as
25
diminishing the State's burden of proof. While the prosecutor's statement with
respect to the truthfulness of Abreu constituted impermissible vouching, no
objection was raised to it at the time it was made. In light of that fact, the brevity
of the comment, and the overall unexceptionable nature of the prosecutor's
closing, we do not find the remark so egregious as to have deprived defendant of a
fair trial.
Wallace-I, 2005 WL 3676807, at *4 (citations omitted).
“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context; only by so
doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.”
United States v. Young, 470 U.S. 1, 11 (1985). The Supreme Court has explained that the proper
standard of review to be applied in a federal habeas proceeding of allegedly improper
prosecutorial statements during a criminal trial is “the narrow one of due process, and not the
broad exercise of supervisory power.” Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974).
For a federal court to grant habeas relief it “is not enough that the prosecutors' remarks were
undesirable or even universally condemned,” rather the appropriate question is whether the
prosecutor's comments “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations & internal
quotation omitted). To demonstrate entitlement to habeas relief, the petitioner must show the
prosecutor engaged in egregious misconduct. See Smith v. Phillips, 455 U.S. 209, 221 (1982).
As the Court of Appeals explained, “improper conduct is not, in itself, sufficient to constitute
constitutional error, even when . . . that conduct is alleged to be both deliberate and pervasive.”
Marshall v. Hendricks, 307 F.3d 36, 67 (3d Cir. 2002). Rather, “[i]mproper conduct only
becomes constitutional error when the impact of the misconduct is to distract the trier of fact and
26
thus raise doubts as to the fairness of the trial.” Id. Moreover, the concept of “fair response”
allows a party to respond to statements made by opposing counsel.
See United States v.
Robinson, 485 U.S. 25, 32 (1988).
Here, this Court agrees with the Appellate Division that the prosecutor’s opening
observation that the events presented by Petitioner’s case were akin to a betrayal of friendship
was proper in light of anticipated (and actually given) Tursty’s testimony that he was a friend of
at least two of his attackers and, hence, this statement could not have infected the trial with
unfairness.
Analogously, this Court agrees with the Appellate Division’s conclusion that the
prosecutor’s closing argument characterizing Petitioner’s purpose was “although perhaps inartful,
[but] clearly related to the charge of conspiracy against him.” Wallace-I, 2005 WL 3676807, at
*4. Thus, this statement also did not infect Petitioner’s trial with unfairness.
Moreover, while the Court agrees with the Appellate Division’s conclusion that the
language of the prosecutor’s comments vouching for Abreu were not ideal for the purposes of a
criminal proceeding, this Court – unlike the Appellate Division – finds the gist of the
prosecutor’s statement permissible: because the prosecutor’s statement presented a joint response
to the attacks defense attorneys made on the credibility of State witnesses.13
13
It appears that State witnesses were all (or mostly) Spanish-American, and the record clearly established that
Abreu was giving his statements to police in Spanish. During Abreu’s cross-examination by Fetky, Fetky called
Abreu’s credibility in question by capitalizing on an inconsistency between the Spanish-to-English translation of the
statement given by Abreu to the police and Abreu’s in-court’s testimony. (D.E. No. 17-1 at 1-2). Fetky’s cocounsel mounted an even more direct attack on the credibility of State witnesses (and on the police reports made by
those witnesses). Specifically, Fetky’s co-counsel stated:
This past Friday . . . I started my day watching . . . the Good Morning America, . . . they have local
news. And the top story . . . was . . . , I think it was St. John’s basketball players, and I guess they
had been accused of some criminal activity or something in Pittsburgh, Pennsylvania. And the
story was, well, there was some investigation by the police, yadda-yadda-yadda. And guess what?
They charged the girl with a false report. And we’re all familiar with the story of the lady, I think
it was in Illinois, she said she had the Powerball or Mega jackpot, some kind of ticket, she had it.
Ultimately that turned out to be a false police report. Two false police reports. So I don’t know if
27
Consequently, Petitioner’s Ground Four will be dismissed for not presenting even a
colorable claim.
E.
Ground Five – Limitation on Cross-Examination
Reflecting on Petitioner’s Ground Five challenges, the Appellate Division stated:
We . . . find that it was within the court’s discretion to instruct [Petitioner’s] codefendant's counsel to “move along” with cross-examination of . . . Tursty and to
limit the length of that cross-examination. The court's actions did not in the
circumstance deprive either defendant of his Sixth Amendment rights. The record
reflects lengthy and unnecessary examination on issues such as the ownership of
Tursty's cell phone, the identity of his phone service, legal responsibility for the
bill, as well as extended examination on peripheral facts associated with the
events at issue. The court did not abuse its wide discretion in imposing
reasonable limits on questions of this sort. The Confrontation Clause of the Sixth
Amendment does not prevent a trial judge from imposing limits on defense
counsel's inquiry into the potential bias of a prosecution witness, and may impose
reasonable limits on cross-examination that is repetitive or only marginally
relevant. State v. Cuni, 303 N.J. Super. 584, 608 ([N.J. Super.] App. Div. 1997)
(quoting Delaware v. VanArsdall, 475 U.S. 673, 679 (1986)) . . . . Further, we
find no evidence that co-counsel was precluded from exploring relevant areas of
inquiry or advancing the defenses of either [Petitioner or his co-]defendant.
Wallace-I, 2005 WL 3676807, at *4.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. CONST. AMEND. VI. The right is secured for defendants in
state as well as federal criminal proceedings by the Fourteenth Amendment. See Pointer v.
that has anything to do with this case, but this is the real world in which we live in. The whole
criminal justice system here is based upon and premised upon . . . credible testimony in court. And
how do you know if it’s credible or not? You don’t really know . . . . Now, [a State witness’]
testimony could have been completely true, could have been completely false, or some – could
have been somewhere in the middle.
(D.E. No. 18-1 at 6-7). In light of the foregoing, it was reasonable for the prosecutor – responding to the totality of
Fetky and Fetky’s co-counsel’s points calling credibility of State witnesses in question – to make a statement
offsetting the prosecutor’s comments, although this Court agrees with the Appellate Division’s position that the
quasi-vouching language selected by the prosecutor was not the best choice for the purposes of a criminal trial.
28
Texas, 380 U.S. at 403. The protections of the Confrontation Clause necessarily include the right
to cross-examination a witness. See Smith v. Illinois, 390 U.S. 129, 131 (1968). The scope of
such cross-examination is, generally, broad and basic information cannot be excluded; for
instance, where credibility is at issue, the trial court cannot ordinarily prohibit the defense from
inquiring into a witness's identity and residence. See id. Such questions are “not only an
appropriate preliminary to the cross-examination of the witness, but . . . [are] an essential step in
identifying the witness with his environment, to which cross-examination may always be
directed.” Id. at 132 (quoting Alford v. United States, 282 U.S. 687, 693 (1931)). In other
words, defense must be able “to make a record from which to argue [that the witness] might have
been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” Id.
However, the right to cross-examination is not without limits, as “the Confrontation
Clause guarantees an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20 (1985). Thus, the scope of cross-examination regarding a particular
line of inquiry falls necessarily “within the sound discretion of the trial court,” and “it may
exercise a reasonable judgment in determining when [a] subject is [inappropriate].” Alford, 282
U.S. at 694. “[T]rial judges retain wide latitude . . . to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of
the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant.”
Van Arsdall, 475 U.S. at 679.
Here, Petitioner fails to assert any point potentially dispositive for Petitioner that was not
elicited during cross-examination of State witnesses. Rather, he asserts his mere dissatisfaction
29
with the fact that State witnesses did not remain on the stand for as long as Petitioner’s codefendant’s counsel desired. Specifically, Petitioner states:
The trial court told co-defendant’s counsel, during cross- examination of Tursty
[that] were not going to do this all day . . . we’re not going to have this man on
cross-examination all day. The court continually sustained “asked and answered”
objections in an obvious attempt to shorten the cross- examination. The trial court
impugned counsel for co-defendant[’s rights] by asking how many times does he
get to tell you he does not know how long [a certain process] takes. The trial
court quested, in front of the jury, the relevance of why counsel was inquiring as
to whether Tursty was wearing earrings on the night in question (which was
relevant to whether he would have sustained more noticeable injury had he been
struck on the ear with the gun as he claimed).
(Pet. 18).
Petitioner has no standing to assert claims of his co-defendant. By the same token,
Petitioner has no constitutional claim on the basis of his mere displeasure with his trial court’s
sustainment of the “asked and answered” objections (or with the trial court’s aim to move along
the proceedings). Finally, the rationale of Petitioner’s interest in having his co-defendant’s
counsel obtain a statement from Tursty as to whether or not Tursty was wearing earrings is
facially meritless, since any admissible testimony as to the comparative magnitude of injury
resulting from “a” victim’s having of an earring during a “hit” on the victim’s ear would require,
at the very least, a medical expert’s opinion correlating the exact location where the ear was
allegedly hit (e.g., in the lobe or in the shell area) to the alleged location and alleged size/shape of
the earring, and then to the magnitude of the alleged blow: to produce a comparative opinion as
to the degree of swelling an average person of Tursy’s age/gender/physical conditions could have
suffered while wearing (and while not wearing) the so-located-and-so-shaped earring as a result
of such particular blow. However, neither Petitioner nor Petitioner’s co-defendant had any
30
medical experts lined up for such testimony.14 In sum, all Petitioner asserts is that his codefendant’s co-counsel was prevented from conducting more fishing expeditions with the goal of
exhausting either Tursty, or the jurors or the trial judge’s patience. However, limitations on
fishing expeditions fall necessarily “within the sound discretion of the trial court,” and it was a
reasonable exercise of that discretion for Petitioner’s trial judge to limit such expeditions.
Alford, 282 U.S. at 694; see also Van Arsdall, 475 U.S. at 679. Thus, Petitioner’s Ground Five
will be dismissed for not presenting even a colorable claim.
F.
Grounds Six and Seven – Assistance of Counsel
A claim that counsel’s assistance was so defective as to require reversal of a conviction
has two components, both of which must be satisfied. See Strickland v. Washington, 466 U.S.
668, 687 (1984).
First, the petitioner must “show that counsel’s representation fell below an
objective standard of reasonableness,” id. at 687-88; “[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. And – even if the first prong of
Strickland is met – the defendant must show that “there is a reasonable probability that, absent
the errors, the fact[-]finder would have had a reasonable doubt respecting guilt.” Id. at 695.
Moreover, a court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action “might be considered sound
trial strategy.” Id. at 689 (citations omitted); see also Virgin Islands v. Weatherwax, 77 F.3d
1425, 1431 (3d Cir.), cert. denied, 519 U.S. 1020 (1996).
14
In addition, there was alternative testimony suggesting that Tursty’s ear was hit not with a gun but with a fist;
however all sides agreed that the injury to Tursty’s ear was relatively minor.
31
1.
Lack of Interpreter
Here, Petitioner’s first challenge to Fetky’s performance is based on Fetky’s alleged
failure to provide Petitioner with a Jamaican-English interpreter. Specifically, Petitioner asserts
that, “[b]ecause of [Petitioner’s] Jamaican language barrier[,] an interpreter should have been
provided to him. [Petitioner now asserts that he] could not assist in his own defense because
[Fetky] was unable to communicate with him.” (D.E. No. 1-1 at 20).
In response to this allegation, the Appellate Division observed:
[Petitioner’s] argument that he required a Jamaican interpreter is raised for the
first time on appeal. Although he now claims that his native language is Jamaican
and that he was unable to speak or understand English at the time of trial, it is
clear from the transcript, including [Petitioner’s] own testimony, that [Petitioner]
possessed a good knowledge of English and a reasonable ability to communicate
in that language. [Petitioner] was articulate in his answers to the questions posed
of him, and he never indicated on the record any difficulty in following what
occurred at trial or in understanding defense counsel.
Wallace-I, 2005 WL 3676807, at *5.
Moreover, as Respondent observed (and as the record substantiates extensively),
[During his criminal trial, n]ot once did [Petitioner] ask to have a question
explained or repeated. Not once did he express an inability to answer the question
in English. Rather, the record shows that [P]etitioner understood and spoke
English well enough to be able to communicate with Fetky. Moreover, Fetky and
[P]etitioner both testified at the PCR hearing. . . . [P]etitioner testified about the
alibi that, according to him, Fetky did not investigate. [At all these instanes,]
Petitioner . . . testified without an interpreter, and, although the PCR hearing was
three years after trial and [P]etitioner could have improved his English skills, . . .
he [did not] testif[y during his PCR proceedings] that [he and Fetky] could not
understand one another.
(Resp. to Pet. at 27).
In sum, the state courts found, as a factual matter, that Petitioner’s English skills were
sufficient to meaningfully participate in his defense. Federal courts “must presume that the
32
factual findings of both state trial and appellate courts are correct, a presumption that can only be
overcome on the basis of clear and convincing evidence to the contrary.” Stevens, 295 F.3d at
368; see also Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (factual issues determined by a
state court are presumed to be correct, and the petitioner bears the burden of rebutting this
presumption by clear and convincing evidence) (citing U.S.C. § 2254(e)(1)).
Here, Petitioner offers the Court no clear and convincing evidence (or no evidence of any
kind) that he could not communicate in English. All he offers the Court is an invitation to
disregard the record and accept Petitioner’s conclusion as evidence. That this Court cannot do.
This Court finds it unwarranted to disturb the state courts’ well-founded conclusion that
Petitioner’s English was fully sufficient for the purposes of his criminal prosecution. Building on
this fact, this Court finds that even the first prong of the Strickland test cannot be met by
Petitioner: indeed, it was not below objective standards of reasonableness for Fetky to omit
obtaining an interpreter for a client who already spoke sufficient English on his own.15 Hence,
the Court need not reach the second prong of Strickland and will dismiss Petitioner’s Ground Six
as failing to amount to a colorable claim or, in alternative, because the Appellate Divisions’
determinations was not an unreasonable application of Strickland and its progeny.16
2.
Failure to Investigate and Produce Kampf as an Alibi Witness
Largely, the same rationale drives this Court’s analysis with regard to Petitioner’s Ground
Seven.
15
See Pabon v. Mahanoy, 654 F.3d 385 (3d Cir. 2011) (holding that the litigant’s inability to speak, read, or write
English might be relevant to the timeliness aspect of a litigant’s Section 2254 challenges, and even that relevance
could exist only if the litigant was either denied all material in his/her native tongue or provided with the material or
lingual assistance so minimal that it rendered the material/assistance de facto absent).
16
As noted supra, Petitioner’s Ground Six challenges were not raised at either the trial court level or to the Supreme
Court of New Jersey. Hence, this Ground, unexhausted for the purposes of habeas review, was addressed solely by
33
At the outset of this final part of discussion, the Court notes a substantial incongruence
between Petitioner’s claims presented to the state courts and for this Court’s habeas review.
Specifically, in his Ground Seven raised here, Petitioner lumps together five challenges, stating
[(1) Fetky] failed to fully investigate [Petitioner’s] alibi and present it at trial.
Alibi witnesses [D]awn Kampf would have testified at trial that defendant
Wallace was with her at the Don Juan Studios in Brooklyn, New York, on the
night of the robbery. [(2) Fetky] failed to check the criminal background of the
accuser who [Petitioner] contends was a known drug dealer. [(3) Fetky] failed to
contact two of [Petitioner’s] alibi witnesses [presumably, McCain and Moody,]
even though the [Petitioner now alleges that he] supplied counsel with the name,
address and telephone numbers of these witnesses. [(4) Fetky] failed to consult
with [Petitioner] in a meaningful manner. [(5) Fetky] failed to properly advise
[Petitioner] during trial of any plea-bargaining.
(Pet. at 19).
However, only two of these challenges were presented to the state courts. In his pro se
PCR brief, Petitioner asserted that Fetky was ineffective for failure to investigate Tursty’s alleged
being a “known drug-dealer,” (D.E. No. 12-1 at 3), and – in his counseled PCR brief – Petitioner
asserted Fetky’s failure to investigate and present Kampf’s testimony. (D.E. No. 12-7 at 11)
(“Defense counsel provided ineffective assistance of counsel by failing to fully investigate
Petitioners alibi and present it at trial. . . . Petitioner’s alibi was that he was at Don Juan’s
Recording Studio in Brooklyn during the evening hours of January 6 to 7, 2003. Post-conviction
relief investigation has discovered a witness [Kampf] who confirms the alibi”). No challenges
based on potential testimonies of McCain or Moody were raised, same as no “failure to consult in
a meaningful manner” or “failure to properly advise about plea-bargaining” claims were ever
mentioned.
a.
Raised Challenges
the Appellate Division.
34
Addressing Petitioner’s challenges, the Appellate Division observed:
[As to Petitioner’s claim that Fetky unduly omitted to investigate Tursty’s alleged
“drug-dealer” status, Petitioner] has offered no evidence that Tursty had a criminal
record . . . . [As to Petitioner’s claim that Fetky ignored Petitioner’s alibi’s
information about him being with Kampf at the night at issue,] the judge found . .
. credible Fetky's testimony that he would not have neglected to pursue a defense
as important as an alibi defense, and that his failure to present such a defense must
have been the result of [Petitioner’s] failure to provide him with sufficient
evidence to perfect the claim through reasonable investigation. We give deference
to such findings when supported by adequate, substantial and credible evidence,
as here . . . . [W]e also agree with the judge's legal conclusion that Strickland's
standards were not met in this case.
Wallace-II, 2009 WL 790527, at *3 n.1, *7.
With respect to these challenges, the Court’s analysis is substantively the same as that
conducted with regard to Petitioner’s Ground Six. Here, Petitioner did not present this Court
with any verified information, or any information at all, that Tursty had a criminal record
allowing Fetky to mount a credibility attack on Tursty. All Petitioner asserts is that Tursty was
“known” as a “drug-dealer.” However, such evidence could not have been validly proffered by
Fetky even if Fetky could find persons willing to express this opinion. Hence, it was facially
reasonable for Fetky not to pursue the investigation which could not bear a viable fruit. Thus,
Petitioner’s challenge based on the rumors that Tursty was a “known drug-dealer” cannot pass
muster even under the first Strickland prong and will be dismissed for failure to amount to a
colorable claim.
Petitioner’s position as to his argument that Fetky was ineffective by failing to investigate
and present Kampf’s testimony fares no better. The state courts found, as a factual matter, that
Kampf’s testimony (as to what she could have stated during Petitioner’s trial had she been called)
not credible. The same factual finding was made with regard to Petitioner’s own and Petitioner’s
35
mother’s testimonies. Hence, unless Petitioner presents this Court with clear and convincing
evidence that the state court’s factual findings as to credibility were erroneous, these factual
findings cannot be disturbed by this Court on collateral review. See Stevens, 295 F.3d at 368;
Werts, 228 F.3d at 196.
Here, Petitioner offers the Court no evidence of any kind; this silence, in turn, leads the
Court to believe that Petitioner relies on the record, as accrued. The record, however, is replete
with incongruities within – and between – Kampf’s testimony, Petitioner’s testimony and
Petitioner’s mother’s testimony. Indeed, Kampf’s statements that she was “just waiting to
receive something in the mail,” or that she did not want to “get involved in legal matters,” or that
she did not reach out to Fetky (whom she actually knew from prior legal representations), or that
she kept dating Petitioner for months but, somehow, presumed that Petitioner’s armed robbery
prosecution was not serious (despite of Kampf having a criminal record on her own) – all of that
renders the state court’s factual finding as to lack of Kampf’s credibility solidly based. The same
applies to the state court’s factual findings as to Petitioner’s mother who, apparently, could
neither (a) recall whether she learned of Petitioner’s alleged alibi from Kampf or from Petitioner,
nor even (b) bother to mention this so-very-important alibi to Fetky, all despite her being in
constant contact with Fetky.
Finally, Petitioner’s testimony, laden with: (a) his incongruent claims about his extensive
driving experience and driving a car only once for a test-drive, about him never owning a motor
vehicle and about him owning a car; (b) analogously incongruent claims about him never having
any nick-name but “Fabulous” and him still having another nick-name, “bubbleous,” and his
assertion that this peculiar nick-name was, nonetheless, way too common for his taste, while the
36
word “Fabulous” was, apparently, so unique to qualify as an unusual nick-name; (c) the
incongruence in his claims as to the date of Petitioner’s fight with Kampf; (d) the oddity of his
claim that the break-up was, allegedly, based on jealousy of his child’s mother, offered in
conjunction with his statement that he brought Kampf, his new girlfriend, to spend the night with
him in the very apartment that belonged to the mother of his child; (e) Petitioner’s alleged
inability to call his alibi witnesses from the prison and his even more inexplicable inability to call
his witnesses after making bail – for many months; (f) Petitioner’s inexplicable unwillingness to
bring Kampf to Fetky, whom Kampf knew, and even more inexplicable unwillingness to ask
Kampf to contact Fetky about the issue upon which his freedom depended (as well Petitioner’s
inability to explain when Kapf’s travel to Canada worked itself into the picture, and how could
Petitioner possibly learn of this travel if he actually stopped his contacts with Kampf when she
got herself “another boyfriend”); (g) Petitioner’s puzzling testimony that his witnesses declined
to contact Fetky because, as “New Yorkers,” they “did not like New Jersey,” – all these aspects
of Petitioner’s testimony suggests that the trial court’s factual finding (as to lack of credibility
with regard to Petitioner’s PCR testimony) was well rooted in evidence.
Consequently, this Court will not disturb the state court’s factual determination that
“Fetky's testimony that he would not have neglected to pursue a defense as important as an alibi
defense [was credible], and [Fetky’s] failure to present such a defense must have been the result
of [Petitioner’s] failure to provide him with sufficient evidence to perfect the claim through
reasonable investigation.” Wallace-II, 2009 WL 790527, at *7. Petitioner’s challenges fail to
meet even the first prong of Strickland since it was reasonable of Fetky to omit chasing the
theory with regard to which Petitioner failed to furnish Fetky with the building blocks necessary
37
to perfect such theory. Therefore, Petitioner’s two duly exhausted points incorporated in his
Ground Seven will be dismissed, since the state court’s findings were not an unreasonable
application of Supreme Court precedent.
b.
Newly Added Challenges
Petitioner’s remaining three challenges warrant little discussion.
Petitioner’s challenges based on Fetky’s alleged failure to investigate the testimonies of
Moody and McCain cannot meet even the first prong of Strickland since Plaintiff offered this
Court no affidavit of Moody (or of Plaintiff’s “best friend” McCain) as to what these men would
have testified to. Without such proffer, Petitioner’s challenges present solely a self-serving
conjecture: same as Petitioner’s self-serving statement that he provided Fetky with these men’s
contact information and identified them as his alibi witnesses.
Having no facts of Petitioner’s actual offering of this information to Fetky and no
information as to what Moody and/or McCain would have testified to, this Court cannot
conclude that: (a) it was “below an objective standard of reasonableness” for Fetky not to contact
these men (whose very existence might have not been disclosed by Petitioner to Fetky), or (b)
there is a reasonable probability that, had the “we-don’t-know-what-they-would-say” testimonies
of these men been presented, the jurors would have had a reasonable doubt respecting
Petitioner’s guilt. Consequently, these challenges fail to state even a colorable claim.
The same applies to Petitioner’s next expression of displeasure with Fetky’s performance.
While Petitioner asserts that Fetky “fail[ed] to consult [Petitioner] in a meaningful manner,” this
allegation is not based on any facts offered for this Court’s review. Moreover, the record reveals
that, prior to trial, Fetky had eight conferences with Petitioner. See Wallace-II, 2009 WL
38
790527, at *5. Petitioner’s self-serving opinion that the amount (and/or the content) of these
conferences was not meaningful enough to meet Petitioner’s preferences does not indicate that
Fetky’s conduct fell below an objective standard of reasonableness.
Therefore, same as
Petitioner’s exhausted assistance-of-counsel challenges, this allegation fails to meet even the first
prong of Strickland and will be dismissed for failure to amount to even a colorable claim.
Finally, Petitioner’s assertion that Fetky failed to properly advice him about pleabargaining is based on a non-substantiated by any evidence conjecture that “a” plea must have
been offered at all (and the Court has no basis to presume that any plea was declined by
Petitioner on the basis of deficient guidance provided by Fetky). Having no evidence that
Petitioner was offered and willing to accept a particular plea but was advised by Fetky to decline
it (or was provided with a deficient guidance), the Court cannot find Fetky’s assistance in
violation of the Sixth Amendment guarantees. See, e.g., Williams v. Jones, 571 F.3d 1086, 1093
(10th Cir. 2009) (“[A] defendant . . . may be entitled to a remedy [only] if . . . but for his lawyer's
advice, he would have taken the plea offer. This rule is derived from Strickland and Hill[ v.
Lockhart, 474 U.S. 52, 56 (1985)]) (citations omitted). Thus, this final aspect of Petitioner’s
Ground Seven will also be dismissed for failure to amount to a colorable claim.
V.
CERTIFICATE OF APPEALABILITY
The Court denies Petitioner a certificate of appealability because Petitioner has not made
“a substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See
Miller-El v. Cockrell, 537 U.S. 322 (2003).
39
VI.
CONCLUSION
Based on the foregoing, the Court will dismiss the Petition with prejudice and will
decline to issue a certificate of appealability under 28 U.S.C. § 2253(c). An appropriate Order
accompanies this Opinion.
s/ Esther Salas
Esther Salas
United States District Judge
Dated: April 2, 2013
40
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