WALKER v. RICCI et al
Filing
28
OPINION. Signed by Judge Esther Salas on 6/25/13. (jd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JERMAINE WALKER,
Petitioner,
v.
MICHELLE RICCI, et al.,
Respondents.
:
:
:
:
:
:
:
:
:
No. 09-5325 (ES)
OPINION
APPEARANCES:
JERMAINE WALKER, Pro Se Petitioner
# 280752/SBI # 949141B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
JOHN EDWIN ANDERSON, ESQ.
ESSEX COUNTY PROSECUTOR’S OFFICE
50 West Market Street
Newark, New Jersey 07601
Counsel for Respondents
SALAS, District Judge
Petitioner
Jermaine
Walker
(“Petitioner”),
a
convicted
state prisoner presently confined at the New Jersey State Prison
in Trenton, New Jersey, has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New
Jersey state court judgment of conviction entered on or about
April 23, 1996.
For the reasons stated herein, the Petition
will be denied for lack of substantive merit.
I.
A.
BACKGROUND
Procedural History
On
or
indicted
about
June
Petitioner
27,
and
1995,
an
Essex
co-defendant
County
Andre
sixteen-count (16) indictment as follows:
Grand
Williams,
Jury
on
a
(Count One) second-
degree conspiracy to commit robbery, in violation of N.J.S.A.
2C:5-2 and N.J.S.A. 2C:15-1; (Counts Two through Five) firstdegree robbery, in violation of N.J.S.A. 2C:15-1; (Count Six)
first-degree
3a(3);
felony
(Count
murder,
Seven)
in
violation
first-degree
of
murder,
N.J.S.A.
in
2C:11-
violation
of
N.J.S.A. 2C:11-3; (Count Eight) first-degree attempted murder,
in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; (Count
Nine) second-degree aggravated assault, in violation of N.J.S.A.
2C:12-1b(1);
possession
(Counts
(Counts
of
a
Eleven
Ten
firearm,
and
and
in
Twelve)
third-degree
violation
Thirteen)
of
unlawful
N.J.S.A.
second-degree
2C:39-5b;
possession
of
a
weapon for an unlawful purpose, in violation of N.J.S.A. 2C:394a;
(Count
firearm,
in
third-degree
Fourteen)
third-degree
violation
of
possession
N.J.S.A.
of
a
possession
2C:39-5f;
controlled
of
an
(Count
dangerous
assault
Fifteen)
substance
(“CDS”)(cocaine), in violation of N.J.S.A. 2C:35-10a; and (Count
Sixteen)
possession
distribute,
in
of
violation
a
CDS
of
(cocaine)
N.J.S.A.
2
with
the
intent
to
2C:35-5b(2).
State
v.
Walker, No. 95-06-2295-I, 2007 WL 4258335, at *1 (N.J. Super.
Ct. App. Div. Dec. 6, 2007).
Counts One through Twelve were tried before the Honorable
Harold W. Fullilove, J.S.C., and a jury, in March 1996.
Id.
During trial, Judge Fullilove dismissed Count Four (the charge
of robbery of victim Darlene Pollenitz), and based the felony
murder charge on the robbery of Alberdeen Allen (Count Five of
the Indictment), pursuant to the motion of the State.
Id.
The
jury acquitted Petitioner on Counts Seven and Eight (murder of
Pollenitz and attempted murder of Alford), and found Petitioner
guilty
of
the
remaining
counts.
Id.
Pursuant
to
a
plea
agreement, Petitioner pled guilty to Counts Twelve, Fourteen and
Fifteen, and the court dismissed Counts Thirteen and Sixteen.
Id.
Petitioner was sentenced to an aggregate term of 45 years,
with
30
years
parole
ineligibility.
Id.
A
conviction was entered on or about April 23, 1996.
judgment
of
(Resp’t Ex.
3).1
Petitioner thereafter filed a direct appeal.
June
30,
1999,
the
Superior
Court
of
New
On or about
Jersey
reversed
Petitioner’s convictions for the robbery and aggravated assault
1
The State provided the relevant state court record with a list
of exhibits. (See D.E. No. 18).
3
counts of Paula Alford (Counts Two and Nine), but otherwise
affirmed the judgment of conviction.
(D.E. No. 18-6, State v.
Walker, No. A–2465–96T4, slip op. at 26 (N.J. Super. Ct. App.
Div. June 30, 1999)).
The Supreme Court of New Jersey denied
certification on November 9, 1999.
Petitioner
filed
his
first
(D.E. No. 19-2, Dec.).
state
petition
for
post-
conviction relief (“PCR”) on or about December 27, 1999.2
A
hearing on the PCR petition was conducted on January 6, 2006.3
Walker, 2007 WL 4258335, at *2.
On March 8, 2006, the state PCR
judge denied the PCR petition without granting an evidentiary
hearing.
Id.
Petitioner appealed from denial of his state PCR
petition.
On December 6, 2007, the Appellate Division affirmed.
Id. at 3.
The Supreme Court denied certification on March 25,
2008.
(D.E. No. 20-2, Dec.).
2
There appears to be a discrepancy in the date that Petitioner
filed his first state PCR petition. The Appellate Division had
mentioned a June 3, 2000 date as the filing date in its Opinion
on appeal from denial of the first PCR petition.
See Walker,
2007 WL 4258335, at *2.
However, in his response to Judge
Sheridan’s January 4, 2011, Order to Show Cause, Petitioner
attached a copy of his first state PCR petition which is stamped
received on December 27, 1999. (D.E. No. 9). It is likely that
the June 3, 2000 date refers to the filing of briefs in the
state PCR proceeding.
In any event, the critical date for
statute of limitations purposes in this case is December 27,
1999.
3
There is no explanation in the state court record regarding the
5½ year delay between the filing of the PCR petition and the
oral argument on January 6, 2006.
4
On or about October 2, 2008, twelve years after entry of
the
judgment
petition.
of
conviction,
Petitioner
filed
his
second
PCR
In an oral decision rendered on October 31, 2008, the
court denied the PCR petition as time-barred under N.J. Ct. R.
3:22-12 and for lack of merit.
Tr. of Dec. 4).4
PCR petition.
(D.E. No. 23-4, Oct. 31, 2008
Petitioner appealed from denial of his second
(D.E. No. 20-1, Jan. 21 2008 Letter Pet. for
Certification & App. on Behalf of Def.-Pet’r (“Letter Pet.”) 27).
The
Appellate
Division
affirmed
conviction relief on January 6, 2010.
the
denial
of
post-
(D.E. No. 20-5, Op. 2-3).
4
The transcripts of the state court proceedings are identified
as follows:
Ex. 22: D.E. No. 20-6, Mar. 12, 1996 Miranda Hearing/Jury
Selection (“1T”).
Ex. 23: D.E. No. 21-1, Mar. 13, 1996 Trial Tr. (“2T”).
Ex. 24: D.E. No. 21-2, Mar. 14, 1996 Trial Tr. (“3T”).
Ex. 25: D.E. No. 21-3, Mar. 15, 1996 Trial Tr. (“4T”).
Ex. 26: D.E. No. 21-4, Mar. 18, 1996 Trial Tr. (“5T”).
Ex. 27: D.E. No. 21-5, Mar. 19, 1996 Trial Tr. (“6T”).
Ex. 28: D.E. No. 21-6, Mar. 20, 1996 Trial Tr. (“7T”).
Ex. 29: D.E. No. 22-1, Mar. 21, 1996 Trial Tr. (“8T”).
Ex. 30: D.E. No. 22-2, Mar. 22, 1996 (A.M.) Trial Tr. (“9TA”).
Ex. 31: D.E. No. 22-3, Mar. 22, 1996 (P.M.) Trial Tr. (“9TB”).
Ex. 32: D.E. No. 22-4, Mar. 25, 1996 Trial Tr. (“10T”).
Ex. 33: D.E. No. 22-5, Mar. 26, 1996 Trial Tr. (“11T”).
Ex. 34: D.E. No. 22-6, Mar. 27, 1996 Trial Tr. (“12T”).
Ex. 35: D.E. No. 23-1, Mar. 28, 1996 Trial Tr. (“13T”).
Ex. 36: D.E. No. 23-2, Apr. 22, 1996 Plea & Sent’g Hearing Tr.
(“14T”).
Ex. 37: D.E. No. 23-3, Jan. 6, 2006 PCR Proceeding Tr. (“15T”).
Ex. 38: D.E. No. 23-4, Oct. 31, 2008 Order Denying PCR Tr.
(“16T”).
5
Also on October 2, 2008,5 Petitioner filed a petition for
habeas relief under 28 U.S.C. § 2254 in No. 08-5064.
1-1, No. 08-5064, Pet.).
(D.E. No.
On March 5, 2009, a Notice and Order
pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), was
sent to Petitioner.
(D.E. No. 2, No. 08-5064, Notice & Order).
On or about March 18, 2009, Petitioner wrote to the Court to
inform that he wished to withdraw his § 2254 habeas petition
because he had filed a second state PCR petition, which was
pending
on
appeal.
further
stated
that
(D.E.
he
No.
wished
3,
to
No.
08-5064).
withdraw
so
that
Petitioner
he
could
exhaust his state court remedies on all claims so that he could
later
file
one,
all-inclusive
5
habeas
petition.
(Id.).
Pursuant to the “prison mailbox rule,” a habeas petition is
deemed filed on the date the prisoner delivers it to prison
officials for mailing, not on the date the petition is
ultimately filed with the court. See Houston v. Lack, 487 U.S.
266, 270-71 (1988); see also Burns v. Morton, 134 F.3d 109, 11213 (3d Cir. 1988) (applying prison mailbox rule set forth in
Houston, which dealt with filing of an appeal, to a pro se
prisoner’s filing of a habeas petition). Often times, when the
court is unable to determine the exact date that a petitioner
handed his petition to prison officials for mailing, it will
look to the signed and dated certification of the petition. See
Henderson v. Frank, 155 F.3d 159, 163-64 (3d Cir. 1988) (using
date prisoner signed petition as date he handed it to prison
officials for purposes of calculating timeliness of habeas
petition).
In his first § 2254 habeas petition, No. 08-5064,
Petitioner signed his petition, saying that he placed it in the
prison mailing system on October 2, 2008. Therefore, the Court
will use that date for statute of limitation purposes, as the
date the No. 08-5064 habeas action was filed, rather than the
date the petition was received by the Clerk’s Office, which was
October 14, 2008.
6
Accordingly, on March 23, 2009, the Honorable Faith S. Hochberg,
U.S.D.J., entered an Order deeming the matter withdrawn.
(D.E.
No. 4, No. 08-5064, Order).
On October 2, 2009, Petitioner filed the instant petition
for
habeas
relief
under
§
2254,
under
cover
of
a
letter
referring to his first § 2254 habeas action, No. 08-5064, which
he had withdrawn pursuant to the March 5, 2009 Mason Order, and
asked that his habeas action be “re-filed” as his one, allinclusive petition.
opening
the
(D.E. No. 1, Pet. 2-9).
earlier-filed
habeas
action,
Rather than reNo.
08-5064,
the
Clerk’s Office opened this habeas action under a new docket
number, No. 09-5325.6
On May 3, 2010, the Honorable Peter G. Sheridan, U.S.D.J.,
dismissed the habeas petition for non-exhaustion of state court
remedies, namely, because Petitioner’s second state PCR petition
was still pending at that time on state court review.
2,
Op.
5;
D.E.
No.
3,
Order).
Petitioner
(D.E. No.
moved
for
reconsideration of the dismissal, informing the Court that he
wished to abandon his claims raised in the second state PCR
petition and proceed only on his originally asserted claims in
his first § 2254 petition in No. 08-5064.
6
(D.E. No. 4, Notice
On June 21, 2011, this matter was reassigned from Judge
Sheridan to the undersigned.
(D.E. No. 10, Order of
Reassignment).
7
of Mot. for Recons. (“Mot. for Recons.”)).
Order
entered
on
January
4,
2011,
Judge
In an Opinion and
Sheridan
granted
Petitioner’s motion for reconsideration and re-opened the case.
(D.E. No. 7, Op.; D.E. No. 8, Order).
However, Judge Sheridan
directed Petitioner to show cause in writing why his petition
should not be dismissed as time-barred.
(D.E. No. 7, Op. 2, 13;
D.E. No. 8, Order).
On or about January 28, 2011, Petitioner responded to the
Court’s Order to Show Cause, alleging that his petition was
filed in a timely manner.
(D.E. No. 9, Resp. to Order to Show
Cause Why Pet. for a Writ of Habeas Should Not Be Dismissed as
Time-Barred
(“Resp.
to
OTSC”)
1-4).
This
Court
directed the respondents to answer the petition.
thereafter
(D.E. No. 11,
Order 2).
The State filed an answer to the petition, together with
the relevant state court record on March 27, 2012.
(D.E. No.
17, Answer to Pet. for Writ of Habeas Corpus (“Answer to Pet.”);
D.E. Nos. 18-23, Resp’t Exs.).
Petitioner filed a traverse or
reply in support of his habeas petition on or about May 16,
2012.
(D.E. No. 27, Traverse to Answer to Pet. for a Writ of
Habeas Corpus (“Traverse to Answer to Pet.”)).
8
B.
Factual Background
The facts of this case were recounted below and this Court,
affording
appropriate
the
state
deference,
court’s
factual
see
U.S.C.
28
determinations
§
2254(e)(1),
the
will
reproduce the recitation as set forth in the published opinion
of the Superior Court of New Jersey, Appellate Division, decided
on June 30, 1999, with respect to Petitioner’s direct appeal:
Defendant and codefendant Andre Williams were
indicted for second degree conspiracy, in violation
of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; four counts
of first degree robbery, in violation of N.J.S.A.
2C:15-1; felony murder during the commission of a
robbery, in violation of N.J.S.A. 2C:11-3a(3);
purposeful or knowing murder, in violation of
N.J.S.A. 2C:11-3; attempted murder, in violation of
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; aggravated
assault, in violation of N.J.S.A. 2C:12-1b(1);
possession of a handgun without a permit, in
violation of N.J.S.A. 2C:39-5b; and possession of a
handgun with the purpose to use it unlawfully
against the person of another, in violation of
N.J.S.A. 2C:39-4a.
The indictment also charged
defendant alone with additional weapons and drug
offenses which were severed before trial.
At
trial,
the
State
presented
evidence
concerning four incidents involving a small red car
that allegedly occurred in the same general area of
Newark within an hour and a half time span in the
early morning hours of May 8, 1994.
The State’s
theory was that defendant, codefendant Williams and
several other unidentified persons committed a
series of robberies during this period, one of which
resulted in Darlene Pollenitz’s death.
The first robbery, which the State theorized
occurred between 12 and 12:30 a.m., was committed
upon Paula Alford, who was walking along a Newark
street when a car occupied by four men stopped next
9
to her. Two men carrying guns jumped out and asked,
“You got any money?” Alford said no and ran across
the street.
As she ran, Alford heard a man in the
car say, “Shoot the bitch!” One of the perpetrators
then shot Alford in the buttocks. More than a year
later,
Alford
identified
defendant
from
a
photographic array as one of the perpetrators.
However, Alford was unable to identify defendant at
trial, and she repeatedly expressed substantial
uncertainty concerning her prior identification of
his photograph . . . .
The second robbery occurred around 12:35 a.m.,
as Willie McClendon was walking home after eating at
a local restaurant.
When a small red car stopped
near him, two men stepped out and demanded his
wallet. After McClendon complied with this command,
the
men
took
his
wallet
and
drove
away.
Approximately a month and a half after the crime,
McClendon identified both defendant and codefendant
Williams from a photographic array.
McClendon also
positively identified both defendants at trial.
Less than a half hour later, Yamina Brown’s car
was struck by a small red car. After the accident,
the car turned, hit Brown’s car a second time and
then drove away.
This accident occurred at a
location only five or six blocks from the site of
the Pollenitz murder.
The third robbery,
which resulted in the
Pollenitz murder, occurred between 1:00 and 1:30
a.m.
As Pollenitz, Alberdeen Allen and two other
women approached Pollenitz’s car, a red four-door
sedan with a dent on the passenger side pulled in
front of them and stopped.
Two men, armed with
handguns, got out of the car.
The man Allen later
identified as defendant pointed his pistol at her
and one of the other women, and said, “Empty your
pockets.”
The women complied with this directive,
and Allen threw her purse on the ground.
At this
point, the other robber’s gun went off, firing a
fatal shot into Pollenitz’s face. After picking up
Allen’s purse and the contents of the victims’
pockets, the men got back into their car and drove
away.
10
The police’s initial investigation of the murder
did not produce any useful information concerning
the perpetrators.
However, after Brown saw an
article in a newspaper which described the small red
car
involved
in
the
crime,
she
called
the
investigating officer and told him that a similar
car had collided with her car the night of the
murder. She also told the officer that the license
plate number of the car was either 195-4851 or 1954841.
These license plate numbers together with
Brown’s description of the car eventually led the
police to identify defendant and Williams as
suspects.
In addition, several weeks after the murder,
Allen received the items taken from her in the
robbery wrapped in a newspaper.
McClendon’s wallet
was included with Allen’s property. When Allen gave
McClendon’s wallet to the police, this alerted them
to the possible connection between the Pollenitz
felony-murder
and
the
McClendon
robbery.
Thereafter,
McClendon
identified
defendant
and
Williams from a photographic array as the persons
who had robbed him. Allen identified defendant from
the same photographic array as one of the persons
involved in the Pollenitz felony-murder, but she was
unable to identify Williams.
Defendant testified in his own defense and also
presented various alibi witnesses.
At the close of the State’s case, the trial
court dismissed a count of the indictment which
charged defendant with the robbery of Pollenitz.
However, the jury subsequently found defendant
guilty of Pollenitz’ felony murder.
The jury
acquitted defendant of purposeful or knowing murder,
but found him guilty of the lesser-included offense
of reckless manslaughter.
In addition, the jury
acquitted defendant of the attempted murder of
Alford and found him guilty of second degree robbery
of Alford rather than the first degree offense.
Defendant was found guilty of all remaining charges,
including the McClendon robbery.
However, the jury
11
was unable to reach a verdict with respect to any of
the charges against codefendant Williams.
(D.E. No. 18-6, Walker, slip op. at 2-5).
II.
STATEMENT OF CLAIMS
Petitioner asserts the following claims in his petition for
habeas relief:
GROUND
I:
The
jury
Petitioner of due process.
GROUND II:
identification
deprived
(D.E. No. 1, Pet. 5).
(Id. at 6).
Trial counsel was ineffective for delaying his
investigation of Petitioner’s alibi.
GROUND IV:
on
Trial counsel was ineffective for failing to
challenge the indictment.
GROUND III:
charge
(Id.).
Trial counsel was ineffective for failing to
challenge the State’s improper cross-examination and comments on
the pretrial silence of alibi witnesses and for not requesting a
specific alibi instruction.
GROUND V:
(Id. at 7).
Trial counsel was ineffective for failing to
call two favorable witnesses.
GROUND VI:
(Id.).
The cumulative effect of trial counsel’s errors
amounted to ineffective assistance.
GROUND VII:
(Id. at 8).
Counsel on direct appeal was ineffective.
The State essentially contends that the petition is without
merit,
or
fails
to
raise
a
claim
12
of
federal
constitutional
dimension that would entitle Petitioner to habeas relief.
The
State also raises the affirmative defense that the action is
time-barred.
(Id. at 8-9).
III.
STANDARD OF REVIEW
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-21
(1972).
A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United
States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Thus, because
Petitioner is proceeding as a pro se litigant in this matter,
the
Court
will
accord
his
habeas
petition
the
liberal
construction intended for pro se petitioners.
Section 2254(a) of title 28 of the United States Code gives
this
Court
jurisdiction
to
entertain
a
habeas
petition
follows:
[A] district court shall entertain an
for a writ of habeas corpus in behalf of
custody pursuant to the judgment of a
only on the ground that he is in
violation of the Constitution or laws or
the United States.
28 U.S.C. § 2254(a).
13
application
a person in
State court
custody in
treaties of
as
“As amended by [the Antiterrorism and Effective Death
Penalty Act of 1996 (“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.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
Section
2254(a) permits a court to entertain only claims alleging that a
person is in state custody “in violation of the Constitution or
laws 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 when a state court has adjudicated petitioner’s
federal claim on the merits.7
See 28 U.S.C. § 2254(d).
If a
claim has been adjudicated on the merits in state court
proceedings, this Court has “no authority to issue the writ of
habeas corpus unless the [state c]ourt’s decision ‘was contrary
to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of
7
“[A] claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that finally
resolves the claim based on its substance, not on a procedural,
or other, ground.”
Lewis v. Horn, 581 F.3d 92, 100 (3d Cir.
2009)(quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
“Section 2254(d) applies even where there has been a summary
denial.” Cullen, 131 S. Ct. at 1402. “In these circumstances,
[petitioner] can satisfy the ‘unreasonable application’ prong of
§ 2254(d)(1) only by showing that ‘there was no reasonable
basis’ for the [state c]ourt’s decision.”
Id. (quoting
Harrington v. Richter, 131 S. Ct. 770, 784 (2011)).
14
the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.’”8
Parker v. Matthews, 132 S. Ct.
2148, 2151 (2012)(quoting 28 U.S.C. § 2254(d)).
A
court
begins
the
analysis
under
§
2254(d)(1)
by
determining the relevant law clearly established by the Supreme
Court.
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.”
U.S. 362, 412 (2000).
Williams v. Taylor, 529
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.”
Andrade, 538 U.S. 63, 71-72 (2003).
Lockyer v.
“[C]ircuit precedent does
not constitute ‘clearly established Federal law, as determined
by
the
Supreme
Court,’”
Parker,
132
S.
Ct.
at
2155,
and
“therefore cannot form the basis for habeas relief under AEDPA.”
Parker, 132 S. Ct. at 2155 (quoting 28 U.S.C. § 2254(d)(1)).
A decision is “contrary to” a Supreme Court holding within
28 U.S.C. § 2254(d)(1), if the state court “contradicts the
8
However, “when the state court has not reached the merits of a
claim thereafter presented to a federal habeas court, the
deferential standards provided by AEDPA . . . do not apply.”
Lewis 581 F.3d at 100 (quoting Appel v. Horn, 250 F.3d 203, 210
(3d Cir. 2001)).
15
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.”
the
‘unreasonable
federal
habeas
identifies
Supreme]
the
application’
court
may
correct
Court’s
Williams, 529 U.S. at 405–06.
clause
grant
the
governing
decisions
but
[of
writ
§
legal
if
2254(d)(1)],
the
application
federal
application of federal law.”
(quoting
Williams,
529
U.S.
different
from
court
from
th[e
that
Williams, 529
However, under § 2254(d)(1), “an
is
a
applies
unreasonably
U.S. at 413.
law
state
principle
principle to the facts of the prisoner’s case.”
of
“Under
unreasonable
an
incorrect
Harrington, 131 S. Ct. at 785
at
410).
As
the
Supreme
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 . . . . [E]valuating
whether a rule application was unreasonable requires
considering the rule’s specificity.
The more
general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly
established Federal law for a state court to decline
to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
16
Court
Harrington, 131 S. Ct. at 786 (citations & internal quotation
marks omitted).9
“This
is
a
difficult
to
meet,
and
highly
deferential
standard for evaluating state-court rulings, which demands that
state-court
decisions
be
given
the
benefit
of
the
doubt.”
Cullen, 131 S. Ct. at 1398 (citations & internal quotation marks
omitted).
The
petitioner
carries
the
burden
of
proof,
and
review under § 2254(d) is limited to the record that was before
the state court that adjudicated the claim on the merits.
9
Id.
See also 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 Federal law.”)(citation & internal quotation marks
omitted).
17
IV.
A.
ANALYSIS
Statute of Limitations Defense Claim
The State raises the affirmative defense that Petitioner’s
habeas action should be dismissed as time-barred.
(D.E. No. 17,
(Answer to Pet.) 48-50).
The limitation period for a § 2254 habeas petition is set
forth in 28 U.S.C. § 2244(d),10 which provides in pertinent part:
(1) A 1-year period of limitations shall apply to an
application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State
court.
The limitation period shall run from the
latest of–
(A) the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such review;
. . .
(2)
The
time
during
which
a
properly
filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this section.
Pursuant to § 2244(d), evaluation of the timeliness of a
§ 2254 petition requires a determination of: first, when the
pertinent judgment became “final;” and, second, the period of
time
during
which
an
application
for
state
post-conviction
relief was “properly filed” and “pending.”
10
Section 2244(d) became effective on April 24, 1996 when the
AEDPA was signed into law.
See Burns v. Morton, 134 F.3d 109,
111 (3d Cir. 1998); Duarte v. Hershberger, 947 F. Supp. 146, 147
(D.N.J. 1996).
18
A state-court criminal judgment becomes “final” within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the
ninety-day period for filing a petition for writ of certiorari
in the United States Supreme Court.
See Swartz v. Meyers, 204
F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337
n.1 (3d Cir. 1999); Sup. Ct. R. 13.
When a conviction becomes final under § 2244(d), a state
prisoner has a one-year grace period within which to file his
one
all-inclusive
habeas
petition
challenging
that
judgment.
However, that limitations period is tolled during the time a
properly filed application for state post-conviction relief is
pending.
28 U.S.C. § 2244(d)(2).
post-conviction
meaning
of
relief
is
§ 2244(d)(2),
statutorily
tolled,
from
An application for state
considered
and
the
the
time
it
“pending”
within
limitations
is
period
“properly
the
is
filed,”11
during the period between a lower state court’s decision and the
filing
of
a
notice
of
appeal
to
a
higher
court,
Carey
v.
Saffold, 536 U.S. 214, 223 (2002), and through the time in which
11
An application is “properly filed” if it was accepted for
filing by the addressee court and such acceptance occurred
within the time limits prescribed by the governing state.
See
Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005); see also Artuz v.
Bennett, 531 U.S. 4, 8-10 (2000); Merritt v. Blaine, 326 F.3d
157, 168 (3d Cir. 2003); Darden v. Sobina, No. 10-3390, 2012 WL
1418168, at *917-18 (3d Cir. Apr. 25, 2012).
19
an appeal could be filed, even if the appeal is never filed,
Swartz, 204 F.3d at 420-24; see also Evans v. Chavis, 546 U.S.
189,
191
(2006)(“The
time
that
an
application
for
state
postconviction review is ‘pending’ includes the period between
(1)
a
lower
prisoner’s
court’s
filing
of
adverse
a
determination,
notice
of
appeal,
and
provided
(2)
the
that
the
filing of the notice of appeal is timely under state law.”).
Nevertheless, § 2244(d)(2) does not toll the one-year statute of
limitations during the pendency of a state prisoner’s petition
for writ of certiorari in the United States Supreme Court.
Lawrence v. Florida, 549 U.S. 327, 332-33 (2007);
See
Stokes v.
Dist. Att’y of the Cnty. of Pa., 247 F.3d 539, 542 (3d Cir.),
cert. denied, 534 U.S. 959 (2001).
Here,
Petitioner’s
judgment
after the enactment of AEDPA.
of
conviction
became
final
The judgment of conviction was
entered on or about April 23, 1996, and Petitioner filed his
direct
appeal
shortly
thereafter.
On
June
30,
1999,
the
Appellate Division affirmed the conviction,12 and the New Jersey
Supreme
Court
denied
certification
12
on
November
9,
1999.
As stated previously, the Appellate Division reversed the
convictions for the robbery and aggravated assault counts with
respect to victim Paula Alford (Counts Two and Nine), but
otherwise affirmed the conviction on the remaining counts that
were not otherwise dismissed by the trial court or by which
Petitioner was acquitted by the jury.
(D.E. No. 18-6, Walker,
slip op. at 2-5).
20
Petitioner did not file a petition for a writ of certiorari with
the Supreme Court of the United States.
Therefore, Petitioner’s
judgment of conviction became final 90 days after November 9,
1999, or on February 9, 2000.
See Swartz, 204 F.3d at 419;
Morris, 187 F.3d at 337 n.1; Sup. Ct. R. 13.
Accordingly, Petitioner had one year from the date on which
his judgment of conviction became final under § 2244(d)(1)(A),
February 9, 2000, or until February 9, 2001, to timely file his
federal habeas petition under § 2254.
To permit tolling of the one-year limitations period under
28 U.S.C. § 2244(d)(2), Petitioner would have had to file his
state PCR petition before the one-year period had expired, or
before February 9, 2001.
Otherwise, the state PCR petition
would not serve to toll the statute of limitations.
In this
case, Petitioner filed his first state PCR petition before his
judgment of conviction had become final, and thus, his one-year
statutory period did not begin to run and was statutorily tolled
during the pendency of his first state court PCR proceedings,
and remained tolled until March 25, 2008, when the Supreme Court
of New Jersey denied certification on appeal from denial of the
first state PCR petition.
At that point, on March 25, 2008, the one-year statutory
period began to run, and Petitioner had one year from that date,
21
or
until
March
petition.
25,
2009,
to
timely
file
his
federal
habeas
On October 2, 2008, 189 days after the statute of
limitations
began
to
run,
Petitioner
simultaneously
filed
a
second state PCR petition and his initial § 2254 habeas petition
in this district court, in No. 08-5064.
5064, Pet.).
(D.E. No. 1, No. 08-
However, on March 23, 2009, an Order was entered,
deeming the initial § 2254 habeas petition withdrawn pursuant to
Petitioner’s request because his second state PCR petition was
pending
review
in
state
court.
court
review
(D.E.
No.
4,
No.
08-5064,
second
PCR
petition
Appellate
Division
post-conviction
relief,13
Order).
Before
concluded
affirmed
state
on
the
January
PCR
6,
court’s
2010,
denial
in
when
of
the
the
Petitioner filed this § 2254 habeas petition on or about October
2, 2009.
Specifically, in his cover letter to the petition,
Petitioner referenced the docket number in his earlier action,
No.
08-5064,
relief.
and
asked
to
re-file
his
petition
(D.E. No. 1-1, Oct. 8, 2009 Cover Letter).
for
habeas
By mistake
or oversight, the Clerk’s Office docketed the re-filed petition
under a new docket number, namely, the instant case, No. 095325.
13
Petitioner did not seek certification to the New Jersey
Supreme Court with respect to his second state PCR petition.
22
Thus, the questions for this Court to determine in this
statute of limitations analysis is whether this habeas petition,
filed on October 2, 2009, relates back to the initial habeas
petition withdrawn for exhaustion of state court review, and/or
whether the filing of the second PCR petition served to toll the
statutory period until its review had concluded on January 6,
2010.
A negative finding on both questions would render this
petition untimely and subject to dismissal.
The Court first deals with the second question, that is,
whether the second state PCR petition tolled the limitations
period.
Petitioner filed his second state PCR petition on or
about October 2, 2008 (the same date that he filed his first
§ 2254 habeas petition,
No. 08-5064).
However, that second
state PCR petition was dismissed as untimely because it was not
filed within the five-year period allowed under
3:22-12(a).
N.J.
Ct.
R.
Indeed, the second state PCR petition was filed
twelve years after entry of the judgment of conviction in this
case, and Petitioner had “failed to show either the ‘excusable
neglect’ or ‘exceptional circumstances’ required to justify an
extension of [the five-year] period.”
Consequently,
“properly
because
filed”
it
the
does
second
not
state
serve
23
(D.E. No. 20-5, Op. 3).
to
PCR
petition
statutorily
was
not
toll
the
limitations in this case.
See Pace, 544 U.S. at 413; Darden,
2012 WL 1418168, at *916-17.
However, in Pace, the Supreme Court observed that, in the
event a state prisoner is “reasonably confused” as to whether
his
state
PCR
petition
would
be
timely,
protective § 2254 habeas petition.
he
could
file
a
Pace, 544 U.S. at 416-17.
“A prisoner . . . might avoid [dismissal of his federal habeas
petition
on
the
grounds
of
untimeliness]
by
filing
‘protective’ petition in federal court . . . .”
Id. at 416
(citing Rhines v. Weber, 544 U.S. 269, 278 (2005)).
appear
in
this
case
that
Petitioner
sought
a
to
It would
file
a
“protective” § 2254 habeas petition as contemplated in Pace,
when he filed his second state PCR petition and the § 2254
habeas petition (No. 08-5064) on the same date, October 2, 2008,
in
the
event
that
the
second
PCR
petition
was
dismissed
as
untimely, which it was.
As noted above, Petitioner’s first § 2254 habeas petition
was timely filed on October 2, 2008, with 176 days remaining on
his one-year statute of limitations.
Petitioner nevertheless
voluntarily withdrew his federal habeas petition on March 24,
2009, so as to exhaust his state court remedies.
Hindsight on
Petitioner’s part suggests that he should not have withdrawn his
petition, but rather, he should have asked for a stay of the
24
petition while the second state PCR petition was pending if he
was concerned about protecting his rights as the simultaneous
filing of the second PCR petition and initial § 2254 habeas
petition implies.
Indeed, the Court points out that the state
PCR court already had denied the second PCR petition by an oral
decision rendered on October 31, 2008, before Petitioner sought
to withdraw his § 2254 habeas petition.
Accordingly, because
the second PCR petition did not serve to toll the limitations
period, the Court now must determine whether equitable tolling
would
apply
to
allow
Petitioner’s
“re-filed”
§
2254
habeas
petition submitted on October 2, 2009.
To overcome the statutory time bar, as explained above,
Petitioner
would
have
to
provide
relevant
facts
relaxation of the time bar by equitable tolling.
to
support
Courts have
recognized only rare situations for equitable tolling to apply.
Sistrunk
v.
Rozum,
674
F.3d
181,
190
(3d
Cir.
2012)(citing
Holland v. Florida, 130 S. Ct. 2549, 2560 (2010); Miller v. N.J.
State Dep’t of Corr., 145 F.3d 616, 617 (3d Cir. 1998)); see
also Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied,
534 U.S. 944 (2001); Jones v. Morton, 195 F.3d 153, 159 (3d Cir.
1999).
Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
25
circumstance
stood
in
his
way
and
prevented
timely
filing.”
Lawrence, 549 U.S. at 336; Pace, 544 U.S. at 416-17; Merritt v.
Blaine, 326 F.3d 157, 168 (3d Cir. 2003); see also Holland, 130
S. Ct. at 2562 (holding that the one-year limitations period
under
AEDPA
is
subject
to
equitable
tolling
“in
appropriate
cases,” where the petitioner demonstrates (1) “that he has been
pursuing
his
“extraordinary
rights
diligently,”
circumstance
stood
in
and
(2)
his
way
that
and
some
prevented
timely filing” (quotation marks omitted)).
The
Third
appropriate
Circuit
when
instructs
“principles
of
that
equity
equitable
would
tolling
make
the
is
rigid
application of a limitation period unfair, such as when a state
prisoner faces extraordinary circumstances that prevent him from
filing a timely habeas petition and the prisoner has exercised
reasonable diligence in attempting to investigate and bring his
claims.”
“There
LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005).
are
no
bright
lines
in
determining
tolling is warranted in a given case.”
F.3d 385, 399 (3d Cir. 2011).
courts
should
use
the
whether
equitable
Pabon v. Mahanoy, 654
However, the court cautioned that
equitable
tolling
doctrine
sparingly,
“only in the rare situation where it is demanded by sound legal
principles as well as the interest of justice.”
F.3d at 275; see also Sistrunk, 674 F.3d at 190.
26
LaCava, 398
A mere showing
of “excusable neglect is not sufficient” to warrant equitable
tolling.
LaCava, 398 F.3d at 276; Miller, 145 F.3d at 618-19;
Jones, 195 F.3d at 159.
Extraordinary
circumstances
have been found where:
permitting
equitable
tolling
(1) the petitioner has been actively
misled; (2) the petitioner has been prevented from asserting his
rights
in
some
extraordinary
way;
(3)
the
petitioner
timely
asserted his rights in the wrong forum, see Jones, 195 F.3d at
159, or (4) the court has misled a party regarding the steps
that the party needs to take to preserve a claim, see Brinson v.
Vaughn, 398 F.3d 225, 230 (3d Cir.), cert. denied, 546 U.S. 957
(2005).14
Even where extraordinary circumstances exist, however,
“[i]f the person seeking equitable tolling has not exercised
reasonable
diligence
in
attempting
to
file
after
the
extraordinary circumstances began, the link of causation between
the
extraordinary
circumstances
and
the
failure
to
file
is
broken, and the extraordinary circumstances therefore did not
prevent timely filing.”
Brown v. Shannon, 322 F.3d 768, 773 (3d
14
The Third Circuit has expressly held that, in non-capital
cases, attorney error, miscalculation, inadequate research, or
other mistakes are not the extraordinary circumstances necessary
to establish equitable tolling. Johnson v. Hendricks, 314 F.3d
159, 162-63 (3d Cir. 2002), cert. denied 538 U.S. 1022 (2003);
Fahy, 240 F.3d at 244.
27
Cir.) cert. denied, 539 U.S. 948 (2003) (quoting Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
In his response to this Court regarding the possibility of
a
time-bar,
Petitioner
explains
that
he
believed
that
the
issuance of the Mason Order in his earlier case, No. 08-5064,
served
to
through
toll
April
the
22,
limitations
2009,15
and
period
from
from
that
October
point
he
2,
2008
had
the
remaining time on his limitations period, 176 days, to re-file
his § 2254 habeas petition.
Petitioner
added
the
176
(D.E. No. 9, (Resp. to OTSC) 2-3).
days
from
April
22,
2009,
which
extended the time to re-file his one all-inclusive petition to
October 15, 2009.
(Id.).
He filed the instant petition on
October 8, 2009, when he handed to prison officials for mailing.
(Id.).
Considering
the
above
factors,
this
Court
finds
that
Petitioner has exercised reasonable diligence in pursuing his
habeas claims.
For instance, Petitioner filed his first state
PCR petition before the one-year statutory time period began to
run.
His first state PCR proceedings concluded on March 25,
15
Petitioner explains that the March 5, 2009 Mason Order issued
in No. 08-5064 tolled the limitations period from October 2,
2008 until 45 days after the date of that Order, or April 19,
2009. However, by virtue of the prison mailbox rule, the period
was tolled for three days until April 22, 2009, when Petitioner
actually received the Mason Order by mail.
28
2008, and Petitioner had one year from that date within which to
file his § 2254 habeas petition.
Petitioner timely filed his §
2254
months
habeas
petition
about
six
(189
days)
later
on
October 2, 2008, well within the one-year limitations period,
with 176 days remaining on his statutory period.
Moreover,
Petitioner simultaneously filed his second state PCR proceeding,
which
again.
would
otherwise
So,
it
is
serve
plain
to
toll
that
the
limitations
Petitioner
was
period
diligent
in
protecting and pursuing his rights.
The more thorny issue for the Court, however, is whether
there were exceptional circumstances present to permit equitable
tolling, such as whether Petitioner had been actively misled,
prevented from filing his petition in some extraordinary way, or
had timely asserted his rights in the wrong forum.
In this
regard, the Court necessarily questions Petitioner’s assumption
about
the
further
tolling
of
his
limitations
period
after
receipt of the Mason Order issued in the first action, No. 085064.
Petitioner alleges that he misunderstood from that Mason
Order that his statute of limitations was tolled until April 22,
2009,
which
includes
the
45
days
after
the
Mason
Order
was
issued, even though Petitioner had responded to the Mason Order
on or about March 18, 2009, asking that his matter be withdrawn
so he could file his one all-inclusive habeas petition.
29
Thus,
while the Mason Order cannot be said to have actually misled or
tricked Petitioner from timely pursuing his rights, Petitioner
did operate on the belief that he still had 176 days remaining
on his limitations period because his filing of the first § 2254
petition
would
have
stopped
the
running
of
the
limitations
period until it was withdrawn.
Generally,
remaining
time
miscalculation
on
a
of
limitations
the
limitations
period
does
not
or
constitute
extraordinary circumstances to permit equitable tolling.
240
F.3d
at
244;
see
also
Johnson,
314
F.3d
the
at
Fahey,
161,
163.
Moreover, “ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.”
Fisher v.
Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 531
U.S.
1164
(2001).
filings
simply
Delaney
v.
judges
are
Constitution
Courts
because
Matesanz,
264
generally
does
a
not
have
pro
been
se
F.3d
lenient
require
loathe
prisoner
7,
15
with
(1st
pro
courts
excuse
misreads
Cir.
se
to
to
the
late
law.
2001)(“While
litigants,
undertake
the
heroic
measures to save pro se litigants from the readily foreseeable
consequences of their own inaction.”); see also Schlueter v.
Varner, 384 F.3d 69, 76 (3d Cir. 2004)(“attorney error is not a
sufficient basis for equitable tolling of the AEDPA’s one-year
period of limitation” in a non-capital case); Jones, 195 F.3d at
30
159-60.
Thus, Petitioner’s own ignorance of the law normally
would be unavailing to warrant equitable tolling.
Nevertheless, to his detriment, Petitioner relied on the
fact that his initial timeliness in filing the first § 2254
petition would have protected his rights while he exhausted his
state
court
remedies.
Under
Rhines
v.
Weber,
544
U.S.
269
(2005), had Petitioner asked to stay his first petition while he
exhausted his state court remedies, he would have protected his
rights and avoided a time-bar ruling.
Petitioner explains that
this was his purpose in filing both his § 2254 petition and his
second state PCR petition simultaneously.
Moreover, Petitioner expressed the intent that he was “refiling” his § 2254 petition and actually referred to the docket
number
of
his
first
action,
No.
08-5064.
His
petition
was
unchanged from the initial application as the second state PCR
was dismissed as untimely.
Inexplicably, however, despite his
reference to the No. 08-5064 action, the “re-filed” petition was
docketed as a new case.
Thus, the instant petition contains the
same claims, and no new ones, that were included in Petitioner’s
first, timely filed petition in No. 08-5064.
this
Court
finds
that
it
would
be
In this regard,
appropriate
to
rule
the
instant petition as relating back to the initial petition in No.
08-5064,
making
this
matter
timely.
31
Petitioner’s
actions
throughout the review process in both state and federal court
shows his diligent concern for protecting his rights.
Therefore, based on the reasonable confusion engendered by
the Mason Order, the error in docketing this matter as a new
habeas action rather than a re-submission of the earlier action,
No.
08-5064
as
indicated
by
Petitioner,
and
Petitioner’s
diligence in pursuing his claims, the Court finds that equitable
tolling is proper under the circumstances, and this petition
will be deemed as timely filed.
The Court now turns to merits
of Petitioner’s claims for habeas relief.
D.
Jury Charge on Identification
In Ground One of his petition, Petitioner argues that the
jury charge on the issue of identification deprived him of due
process.
(D.E. No. 1, Pet. 5-6).
He argues that, at trial,
identification was a critical issue where the state’s witnesses’
identification testimony conflicted from one another, conflicted
with Petitioner’s physical characteristics, and conflicted with
the
information
that
each
had
given
to
the
police.
(Id.).
Despite these crucial differences or conflicts, the trial court
failed to tailor its instruction to the jury to include the
inconsistencies
in
the
various
(Id.).
32
identification
testimonies.
This issue was raised on Petitioner’s direct appeal.
The
Appellate Division discussed the issue at length in its June 30,
1999 Opinion, and rejected Petitioner’s claim as follows:
. . . because general and special credibility
instructions relate to the jury’s performance of its
fact-finding responsibilities, the prosecutor and
defense counsel may comment at length in their
summations regarding the criteria applicable to the
jury’s evaluation of the witnesses’ credibility.
Therefore, in determining whether a trial court’s
failure to give a special credibility instruction
constitutes reversible error, a reviewing court must
consider not only the entire trial record, including
the cross-examination of any witness whose testimony
calls for a special credibility instruction, but
also
the
prosecutor’s
and
defense
counsel’s
summations. See State v. Harris, 156 N.J. 122, 17882 (1998); see also State v. Morton, 155 N.J. 383,
423 (1998); State v. Cooper, 151 N.J. 326, 380
(1997); State v. Gartland, 149 N.J. 456, 473-74
(1997); State v. Maldonado, 137 N.J. 536, 575-76
(1994).
Due to the significant differences between a
trial court’s roles in explaining the applicable law
and in providing guidance to the jury concerning its
fact-finding responsibilities, and because many of
the legal concepts which a jury is required to apply
are more complicated conceptually than evaluation of
witness credibility, there is a greater need in
explaining the applicable law than in guiding the
jury’s fact-finding to relate jury instructions to
the facts of the case.
For example, in State v.
Concepcion, 111 N.J. 373 (1988), the Court concluded
in a case arising out of an alleged accidental
shooting that “the trial court may have misled the
jury and influenced it to return a guilty verdict”
by simply repeating the model jury charges relating
to reckless manslaughter and referring to only one
aspect of the defendant’s conduct relevant to this
charge.
Id. at 381.
The Court indicated that the
trial court also should have referred to defendant’s
other conduct relevant to his state of mind and
33
instructed the jury “to evaluate the state of mind
defendant possessed throughout the entire sequence
of relevant events.”
Id. at 380.
The Court also
observed that “[o]rdinarily, the better practice is
to mold the instruction in a manner that explains
the law to the jury in the context of the material
facts of the case.”
Id. at 379.
However, even a
trial court’s failure to relate its explanation of
the applicable law to the specific facts of the case
will not be found to be reversible error if a
reviewing court concludes that the model jury
instruction adequately explained the law, especially
in the absence of any objection at trial.
See,
e.g., Morton, supra, 155 N.J. at 421-23; Cooper,
supra, 151 N.J. at 379-81; Maldonado, supra, 137
N.J. at 576-78.
The requirement that a trial court give the jury
a
special
instruction
regarding
identification
16
testimony derives from Green, supra.
The Court in
that case held that because identification was the
key issue, it was reversible error for the trial
court not to give an instruction which specifically
addressed the jury’s evaluation of identification
testimony. 86 N.J. at 291-92. The Court concluded
that the jury should have been instructed that “it
was the State’s burden to prove beyond a reasonable
doubt that it was defendant who had raped [the
victim], that it was not defendant’s burden to prove
that he was elsewhere when the offense occurred, and
that the State’s case depended on the eyewitness
identification by [the victim], setting forth the
respective factual contentions relative to her
descriptions.” Id. at 293. In addition, the Court
noted that the trial court “could have used as a
guide the Model Jury Charge.” Ibid.
In this case, the trial court complied with
Green
by
providing
the
jury
with
a
special
instruction
concerning
the
victim[’s]
identifications of defendant and codefendant which
closely tracked the Model Jury Charge on witness
identification.
The court specifically instructed
16
State v. Green, 86 N.J. 281, 293-94 (1981).
34
the jury, in conformity with Green, 86 N.J. at 293,
that:
Where the identity of the person who
committed the offense is in issue, the
burden of proving that identity is upon
the State.
The State must prove beyond
a reasonable doubt that this particular
defendant is the person who committed
the crime.
The defendant has neither
the burden nor the duty to show that any
crime, if committed, was committed by
someone else, or to prove the identity
of that other person.
The court also informed the jury that in determining
whether the State had proven beyond a reasonable
doubt that a defendant was the person or one of the
persons who had committed the crimes charged:
[Y]ou should consider the testimony of
the witnesses in light of customary
criteria concerning credibility that I
have
explained
to
you.
It
is
particularly
appropriate
that
you
consider the capacity or ability of the
witness
to
make
observations,
or
perceptions as you gauge it to be; and
that you consider the opportunity which
the witness had at the time and under
all the attendant circumstances for
seeing that which he or she says he or
she saw, or that which he or she says he
or she perceived with regard to his or
her identification of the person who
committed the alleged offense.
Unless the in-court identification
results
from
the
observations
or
perceptions of the defendant by the
witness during the commission of the
crime, rather than being the product of
an impression gained at an out-of-court
identification procedure, it should be
afforded no weight.
35
The
only
deficiency
in
the
court’s
identification instruction was its failure to refer
to the specific victim identifications to which the
instructions applied.
The court referred to those
identifications only in general terms, without
indicating which defendant or defendants each victim
had identified:
In order to meet its burden with
respect
to
identification
of
the
culprit, the State has presented the
testimony of the various witnesses with
regard to various counts, that is Paula
Alford,
William
McClendon,
Alberdeen
Allen.
They all testified.
You will
recall
the
witnesses
identified
a
defendant, or both defendants, depending
upon what was said or done here in the
courtroom as the person who committed
the particular offense.
However, defendant did not object to this
omission at trial, and we are satisfied that it did
not constitute plain error. R. 2:10-2; see State v.
Salaam, 225 N.J. Super. 66, 69-72 (App. Div. 1988).
Defense counsel probably concluded that the trial
court’s
failure
to
refer
to
the
specific
identifications to which the victims testified at
trial was inconsequential, because defense counsel
and
the
prosecutor
had
discussed
those
identifications at length in their summations.
Indeed, defense counsel could have concluded that
defendant would benefit from the court’s failure to
remind the jury that two of the three victims who
testified, including Allen, who was one of the
victims in the incident resulting in Pollenitz’
murder, had positively identified him in court. In
any event, it is highly unlikely that a jury which
sat through a two-and-a-half week trial in which the
primary
evidence
was
victim
identification
testimony, and then heard summations which discussed
those identifications at length, was unaware of the
specific
identifications
covered
by
the
identification instruction.
Cf. Maldonado, supra,
137 N.J. at 575.
36
We turn next to defendant’s argument that the
trial court was required not only to give the
special identification instruction approved in Green
but also to summarize the inconsistencies between
the
victims’
in-court
identifications
of
the
defendants
and
their
descriptions
of
the
perpetrators shortly after the crimes.
Defendant
argues that such an instruction was required to
“ensure[] that the jury maintained an inexorable
focus on the description each victim gave the police
immediately after the robberies –- when a witness’
memory would be most vivid” and “would have
automatically illustrated the discrepancies between
the descriptions the victims gave of the men who had
robbed them.”
However, Green does not require a trial court to
comment upon the evidence in the manner urged by
defendant.
There is a significant difference
between a court “explain[ing] the law in the context
of the facts of the case,” Cooper, supra, 151 N.J.
at 380, and a court commenting upon the credibility
of evidence.
In State v. Biegenwald, 106 N.J. 13,
44 (1987), the Court noted that there is “no
authority . . . standing for the principle . . .
that a court is compelled to . . . comment [upon the
evidence], “and that “[o]rdinarily, . . . trial
courts comment on evidence only sparingly, if at
all, the better to assure that the ultimate
determination of facts is made by the jury.”
The
identification instruction which defendant contends
the trial court should have given the jury,
consisting of a discussion of inconsistencies and
other weaknesses in the State’s identification
evidence,
would
have
constituted
a
critical
commentary upon that evidence, rather than simply an
explanation of the law in the context of the facts
of this case.
Furthermore, if the court had
undertaken to point out the inconsistencies between
the
victims’
descriptions
of
the
perpetrators
immediately after the crime and their in-court
identifications, it also would have been required,
in the interests of fairness, to mention the State’s
explanations for those inconsistencies.
37
Although it is extremely important for a jury to
be made aware of any inconsistencies in the State’s
identification
testimony
in
order
to
properly
evaluate
its
reliability,
our
judicial
system
confers this responsibility upon defense counsel
rather than the trial court.
In this case,
defendant’s trial counsel properly discharged this
responsibility by vigorously cross-examining the
victims who identified defendant as one of the
perpetrators as well as the police officers who
interviewed them after the crimes, and carefully
pointing
out
in
summation
the
inconsistencies
between the victims’ initial descriptions of the
perpetrator
later
identified
as
defendant
and
defendant’s actual physical characteristics.
The
trial court was not obligated to supplement this
defense presentation by the form of commentary upon
the evidence as urged by defendant.
Finally, we reject defendant’s argument that
State v. Edmonds, 293 N.J. Super. 113 (App. Div.
1996), certif. denied, 148 N.J. 459 (1997), requires
a trial court to comment upon inconsistencies
between a victim’s in-court identification of a
defendant and his or her prior descriptions of the
perpetrator.
Under the circumstances of that case,
the
court
concluded
that
the
trial
court’s
identification instruction was “misleading” because
it referred to the inculpatory part of the victim’s
identification testimony without also referring to
the exculpatory part.
Id. at 118.
However, the
panel which decided that case did not say that a
trial court is required to comment upon any
inconsistencies
between
a
witness’
in-court
identification of the defendant and any prior
description
or
identification
of
the
alleged
perpetrator.
Moreover, none of this court’s other
decisions
involving
the
special
identification
instruction approved in Green indicate that such an
instruction must include judicial comment concerning
any inconsistencies or other weaknesses in the
State’s identification testimony.
See State v.
Green, 312 N.J. Super. 456, 461-65 (App. Div.),
certif. denied, 156 N.J. 425 (1998); State v.
McNeil, 303 N.J. Super. 266, 271-75 (App. Div.
1997); State v. Middleton, 299 N.J. Super. 22, 32-33
38
(App. Div. 1997); Salaam, supra, 225 N.J. Super. at
69-72; State v. Frey, 194 N.J. Super. 326, 329-30
(App. Div. 1984); cf. State v. White, 158 N.J. 230,
___ (1999)(slip op. at 27-28).
In sum, we conclude that the trial court was not
required to comment upon inconsistencies or other
weaknesses in the State’s identification testimony.
The court was only required to inform the jury of
the recognized problems of eyewitness identification
testimony by giving the standard identification
instruction approved in Green.
We also conclude
that the court’s failure to refer to the specific
identification
testimony
governed
by
this
instruction did not constitute plain error.
(D.E. No. 18-6, Walker, slip op. at 12-19).
Generally,
a
jury
instruction
that
is
inconsistent
state law does not merit federal habeas relief.
with
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.”
39
Estelle
v.
McGuire,
502
U.S.
62,
72-73
(1991)
(citations
omitted); see also Smith v. Spisak, 558 U.S. 139 (2010)(no right
to habeas relief if Supreme Court has not previously held jury
instruction
unconstitutional
for
same
reason);
Waddington
v.
Sarausad, 555 U.S. 179 (2009).
The United States Court of Appeals for the Third Circuit
has observed that a habeas petitioner who challenges state jury
instructions
must
“point
instructions
.
.
demonstrate
defense
.
that
which
to
must
the
federal
include
jury
federal
a
law
requirement
particular
jury
provisions,”
“instructions
deprived
provided
him.”
to
that
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997).
him
of
Johnson
or
a
v.
This is because
district courts do not “sit as super state supreme courts for
the
purpose
correct
under
offense
and
of
determining
state
defenses
law
to
whether
with
respect
it.”
Id.
jury
to
As
instructions
the
the
elements
Third
of
an
Circuit
explained:
In considering whether this case involves a
claim of error under the Constitution, laws, or
treaties of the United States, it is critical to
remember that the Supreme Court has made it clear
that the states define the elements of state
offenses.
Accordingly,
while
there
may
be
constitutionally required minimum criteria which
must be met for conduct to constitute a state
criminal
offense,
in
general
there
is
no
constitutional reason why a state offense must
include particular elements.
See McMillan v.
40
were
Pennsylvania, 477 U.S. 79, 84–86, 106 S.Ct. 2411,
2415–16, 91 L.Ed.2d 67 (1986).
It thus follows that for the error of state law
in the justification instructions, assuming that
there was an error, to be meaningful in this federal
habeas corpus action, there would have to be a body
of federal law justifying the use of deadly force
which is applicable in a state criminal action
charging an offense based on the defendant’s use of
that force. Then the error in the jury instructions
would be significant if the instructions did not
satisfy that body of law.
Put in a different way,
the jury instructions on justification, even if
correct under state law, would need to have relieved
the state of the necessity of proving an element of
the offense as required by federal law or to have
deprived the petitioner of a defense the state had
to afford him under federal law in order to be
significant in a federal habeas corpus action. If we
concluded that a petitioner could obtain habeas
corpus relief without making such a showing, then
district courts in habeas corpus cases would sit as
super state supreme courts for the purpose of
determining whether jury instructions were correct
understate [sic] law with respect to the elements of
an offense and defenses to it.
Id.
However, a jury instruction that “reduce[s] the level of
proof necessary for the Government to carry its burden [of proof
beyond a reasonable doubt] . . . is plainly inconsistent with
the constitutionally rooted presumption of innocence . . . .”
Cool v. United States, 409 U.S. 100, 104 (1972); see also 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
41
crime with which he is charged”); Sandstrom v. Montana, 442 U.S.
510,
523
convict
(1979)
without
reasonable
(jury
instructions
proving
doubt
violate
each
that
element
the
suggest
of
a
a
jury
crime
constitutional
may
beyond
rights
of
a
the
accused); Smith v. Horn, 120 F.3d 400, 416 (1997), cert. denied,
522 U.S. 1109 (1998)(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.”).
“[T]rial courts must avoid defining reasonable doubt so as
to lead the jury to convict on a lesser showing than due process
requires.”
Supreme
Victor v. Nebraska, 511 U.S. 1, 22 (1994).
Court
explained
in
Victor,
“so
long
as
As the
the
court
instructs the jury on the necessity that the defendant’s guilt
be proved beyond a reasonable doubt, the Constitution does not
require that any particular form of words be used in advising
the
jury
of
the
government’s
burden
of
proof”.
Id.
at
5.
Rather, “taken as a whole, the instructions [must] correctly
conve[y] the concept of reasonable doubt to the jury.”
(citations
&
internal
quotation
marks
omitted).
Id.
“[A]
misdescription of the burden of proof . . . vitiates all the
jury’s findings.”
Sullivan v. Louisiana,
(1993) (emphasis in original).
42
508 U.S. 275, 281
Such an error is considered
structural and thus is not subject to harmless error review.
See id. at 280-82.
But see Neder v. United States, 527 U.S. 1,
8-11 (1999) (applying harmless-error analysis where jury was not
instructed on an element of an offense).
In this case, the Appellate Division amply supported its
determination that the jury instruction given by the trial court
regarding
the
identification
testimonies
of
the
witnesses/victims did not constitute plain error.
various
This Court
has carefully reviewed the jury instructions as a whole, as well
as the identification instructions at issue, together with the
trial
record,
and
likewise
dimension in this case.
finds
no
error
of
constitutional
Assessed in its entirety, the language
used by the trial court in its fairly comprehensive charge on
the
applicable
identification
law
and
testimony
credibility
safeguarded,
Petitioner’s due process rights.
criteria
with
concerning
adequate
fairness,
Further, any deficiencies in
the jury instructions as noted by the Appellate Division were
simply
harmless
unjust result.
error
and
were
not
capable
of
producing
an
See, e.g., Williams v. Beard, 637 F.3d 195, 223
(3d Cir. 2011)(“[E]ven if the trial court’s accomplice liability
charge was in some respect ambiguous, there is no reasonable
likelihood that the jury applied the instruction in a manner
that
relieved
the
Commonwealth
43
of
its
burden
of
proof
with
respect
to
first
degree
murder.”).
Additionally,
“[a]n
omission, or an incomplete instruction, is less likely to be
prejudicial
than
a
misstatement
of
Kibbe, 431 U.S. 145, 155 (1977).
the
law.”
Henderson
v.
In short, the trial court’s
charge to the jury on identification testimony was proper and
did
not
have
the
capacity
to
affect
the
verdict
in
any
substantial or injurious way or prejudice Petitioner in any way.
See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Therefore, having carefully reviewed the jury charges as a
whole, this Court finds that Petitioner was not deprived of a
fair trial by the overall jury instructions given, and any error
as asserted by Petitioner in this regard was, at the very most,
plainly harmless in light of the overall record.
Appellate
Division’s
rejection
of
Moreover, the
Petitioner’s
claim
was
not
contrary to, or an unreasonable application of, Supreme Court
precedent.
Accordingly, Petitioner is not entitled to habeas
relief on this claim.
E.
Ineffective Assistance of Counsel
The remaining claims in the petition assert various grounds
of
ineffective
assistance
of
trial
counsel
as
ineffective assistance of appellate counsel claim.
Pet.
6-9).
Specifically,
Petitioner
alleges
well
as
an
(D.E. No. 1,
that
(a)
trial
counsel was ineffective for failing to challenge the indictment;
44
(b) trial counsel was ineffective for delaying his investigation
of Petitioner’s alibi; (c) trial counsel was ineffective for
failing to challenge the State’s improper cross-examination and
comments on the pretrial silence of alibi witnesses and for not
requesting a specific alibi instruction; (d) trial counsel was
ineffective for failing to call two favorable witnesses; and (e)
that the cumulative effect of trial counsel’s errors amounted to
ineffective assistance.
(Id.).
Petitioner also alleges that
his appellate counsel on direct appeal was ineffective because
he
failed
to
challenge
the
trial
court’s
identification
instruction, the prosecutor’s misconduct before the grand jury,
and
the
State’s
improper
cross-examination
and
regarding the pretrial silence of alibi witnesses.
comments
(Id.).
The Sixth Amendment, applicable to states through the Due
Process
Clause
of
the
Fourteenth
Amendment,
guarantees
the
accused the “right . . . to have the Assistance of Counsel for
his defense.”
U.S. Const. amend. VI.
The right to counsel is
the right to the effective assistance of counsel, and counsel
can
deprive
a
defendant
adequate legal assistance.
U.S. 668, 686 (1984).
of
the
right
by
failing
to
render
See Strickland v. Washington, 466
The “clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C.
45
§
2254(d)(1),
is
the
standard
for
ineffective
assistance
of
counsel as enunciated in Strickland.
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, 466 U.S. at 687.
The
defendant must “show that counsel’s representation fell below an
objective
standard
“[C]ounsel
of
should
be
reasonableness.”
‘strongly
Id.
presumed
to
at
have
687–88.
rendered
adequate assistance and made all significant decisions in the
exercise
of
reasonable
professional
judgment.’”
Cullen
v.
Pinholster, 131 S. Ct. 1388, 1403 (2011)(citing Strickland, 466
U.S. at 690).
“To overcome that presumption, a defendant must
show that counsel failed to act ‘reasonabl[y] considering all
the circumstances.’”
Further,
a
Id. (citing Strickland, 466 U.S. at 688).
“convicted
defendant
making
a
claim
of
ineffective assistance must identify the acts or omissions of
counsel
that
are
alleged
not
to
reasonable professional judgment.”
The
court
must
then
determine
have
been
the
result
of
Strickland, 466 U.S. at 690.
whether,
in
light
of
all
the
circumstances at the time, the identified errors were so serious
that
they
were
outside
competent assistance.
the
wide
Id.
46
range
of
professionally
To satisfy the prejudice prong, the defendant must show
that “there is a reasonable probability that, absent the errors,
the
factfinder
would
guilt.” Id. at 695.
have
had
a
reasonable
doubt
respecting
“It is not enough ‘to show that the errors
had some conceivable effect on the outcome of the proceeding.’
Counsel’s errors must be ‘so serious as to deprive the defendant
of
a
fair
trial,
a
trial
whose
result
is
reliable.’”
Harrington, 131 S. Ct. at 787-88 (2011)(citing Strickland, 466
U.S. at 687, 693).
As the Supreme Court explained:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of
the evidence before the judge or jury. Some of the
factual findings will have been unaffected by the
errors, and factual findings that were affected will
have been affected in different ways.
Some errors
will have had a pervasive effect on the inferences
to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an
isolated, trivial effect.
Moreover, a verdict or
conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support.
Taking the
unaffected findings as a given, and taking due
account of the effect of the errors on the remaining
findings, a court making the prejudice inquiry must
ask if the defendant has met the burden of showing
that the decision reached would reasonably likely
have been different absent the errors.
Strickland, 466 U.S. at 695–96.
The Supreme Court instructs that a court need not address
both
components
of
an
ineffective
assistance
claim
defendant makes an insufficient showing on one.”
47
“if
the
Strickland,
466
U.S.
at
697.
ineffectiveness
“If
claim
it
is
on
the
easier
ground
to
of
dispose
lack
of
of
an
sufficient
prejudice, which we expect will often be so, that course should
be followed.”
Id.
Further,
due
process
requires
that
a
defendant
have
competent representation both at trial and in a first appeal as
of right.
Evitts v. Lucey, 469 U.S. 387, 396 (1985)(“A first
appeal as of right therefore is not adjudicated in accord with
due process of law if the appellant does not have the effective
assistance of an attorney.”).
Appellate counsel, however, is
not required to raise every non-frivolous issue on appeal but
rather can and should make professional judgments regarding the
issues most likely to prevail.
745,
751–52
See Jones v. Barnes, 463 U.S.
(1983)(“Experienced
advocates
since
time
beyond
memory have emphasized the importance of winnowing out weaker
arguments
on
possible,
appeal
or
at
demonstrating
and
most
that
a
meet
focusing
on
a
on
few
non-frivolous
Strickland’s
one
key
issue
central
issue
issues.”).
was
standard
not
for
if
Thus,
raised
is
insufficient
to
ineffective
assistance.
As with trial counsel, Petitioner must show both
that appellate counsel was inept and that, but for counsel’s
unprofessional
errors,
the
result
Strickland, 466 U.S. at 687.
48
would
have
been
different.
In the instant case, Petitioner presented his ineffective
assistance of counsel claims in his first state PCR petition.
A
hearing was conducted before Judge Fullilove on January 6, 2006.
(D.E. No. 23-3, Jan. 6, 2006 PCR Tr.).
In a written decision
and order issued on March 8, 2006, Judge Fullilove rejected
Petitioner’s claims.17
Division
affirmed
Petitioner appealed and the Appellate
denial
of
post-conviction
relief
after
applying the two-part test delineated in Strickland, and adopted
by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42
(1987).
(D.E. No. 19-6, Dec. 6. 2007 Op. 10-11).
The Appellate
Division opined as follows:
Given
the
lack
of
facts
to
substantiate
defendant’s allegations here, we agree with the PCR
judge that an evidentiary hearing was not required.
Defendant’s allegations were for the most part
unsupported and speculative, so as not to constitute
a prima facie claim of ineffective assistance of
counsel to require an evidentiary hearing.
III.
We begin with defendant’s claim that trial counsel
was ineffective for failing to object to the State’s
cross-examination of his alibi witnesses. The State
attacked the witnesses’ credibility based on their
pre-trial silence - their failure to come forward
and provide alibis for defendant sooner than they
did.
An alibi witness’s pre-trial silence may be
17
Inexplicably, the State failed to provide this Court with a
copy of the state PCR court’s March 8, 2006 letter decision and
order.
Reference to the decision was made in the Appellate
Division’s December 6, 2007 Opinion on appeal from denial of the
first state PCR petition.
49
cross-examined by the prosecution as a prior
inconsistent statement after the prosecution lays a
proper foundation.
State v. Silva, 131 N.J. 438,
447 (1993).
A proper foundation is laid where the
witness testifies that he was “aware of the nature
of the charges against the defendant, had reason to
know he had exculpatory information, had reasonable
motive to act to exonerate the defendant, [and] was
familiar with the means to make the information
available to law enforcement authorities[.]” Id. at
447-48 (internal quotations omitted).
It may
generally be inferred that the witness would know
how to report the information to law enforcement
authorities.
See State v. Holden, 364 N.J. Super.
504, 513 (App. Div. 2003)(“seventeen-year-old high
school senior would probably know how to report
police misconduct”).
Here, though the State could
have laid a more concrete foundation for crossexamination of defendant’s alibi witnesses, the
foundation was adequate and defense counsel was not
ineffective for failing to object.
The first alibi witness was Maalika Hudson, a
friend of defendant’s who had known him for two and
one-half years.
She testified she knew about the
charges
against
defendant
approximately
eleven
months before telling his lawyer, even though she
knew she had information that could exonerate him of
the charges.
As defendant’s friend, she had a
motive to exonerate him; she was aware of the
charges against him and she knew of potentially
exculpatory information.
She could have provided
the authorities with that information had she so
desired, before being contacted by defense counsel.
Sandy Lynn was also a friend of defendant; she
had known him for six years.
Within weeks of his
arrest, she knew she had been arrested, and was
aware
that
she
had
potentially
exculpatory
information, yet she failed to come forward.
Similarly, defendant’s girlfriend, Linda Horn,
testified that she had been dating him for three and
one-half years, she was aware that she possessed
potentially exculpatory information, and in fact she
had contacted authorities about defendant’s alibi;
50
specifically, she told the arresting police officer
on the day defendant was arrested, as well as on a
subsequent occasion when the officer came to her
house.
Given this testimony, the foundation for crossexamination of defendant’s alibi witnesses was
adequate.
And significantly, the State could have
cured any deficiencies in its foundation testimony
had defendant made timely objection; thus, the
outcome of the trial would not have changed.
Accordingly, neither trial counsel’s failure to
object
to
the
cross-examination
nor
appellate
counsel’s failure to raise that issue support
defendant’s
ineffective
assistance
of
counsel
claims.
It is also notable that the alibi witnesses were
cross-examined not just on their pre-trial silence,
but also as to their inconsistent testimony.
For
example, in his statement to the police, defendant
stated that Al Tarik Horn was with the group when
they went skating, though none of the alibi
witnesses testified that he was present.
Hudson
testified that a total of six people were in the
group that went skating; Lynn and Linda Horn
testified that there were five.
They were all
cross-examined
on
their
bias
as
friends
of
defendant.
Ultimately, the jury likely found them
not credible in light of the testimony of the
State’s witnesses who identified the defendant.
Defendant also argues that the failure of trial
counsel to contact the alibi witnesses sooner, and
file the notice of alibi earlier, constituted
ineffective assistance of counsel. That argument is
speculation.
Defendant was arrested on June 8,
1994. His attorney’s investigator interviewed three
witnesses on April 4 and 5, 1995, and defendant
provided his notice of alibi to the State on May 4,
1995. Though defendant’s May 23, 1994, statement to
the police mentions the first names of several alibi
witnesses, it does not include their last names or
addresses.
Indeed, nothing in the record indicates
when defendant first notified trial counsel of the
names and addresses of these witnesses.
Thus, the
51
record
does
not
contain
facts
to
support
a
conclusion that trial counsel delayed in contacting
the alibi witnesses.
Defendant claims that trial counsel failed to call
“two other favorable witnesses,” Al Tarik Horn and
Temel Sinclair.
He asserts that their testimony
would have exculpated him and inculpated Andre
Williams, his co-defendant, for the crimes because
it would have linked Williams to the car.18 The PCR
court, directing its discussion to Horn, found that
defendant’s
claims
were
unfounded
because
he
provided no facts to support his claims, just “bare
allegations, unsupported by credible evidence.” The
court also found that the failure of counsel to call
Al Tarik Horn was not deficient because the
witness’s
proposed
testimony
would
only
have
concerned ownership of the car; it would not have
changed the outcome of the trial because the
question the jury was required to determine was
whether defendant was in the car on the night in
question, not whether he owned it.
The same can be said as to the proposed
testimony of Temel Sinclair.
Based on his May 24,
1994 statement to police, his testimony may have
linked Al Tarik Horn and Troy Williams to the car,
but it would not have impacted whether defendant was
in the car during the commission of the crimes.
Defendant claims counsel was ineffective because
he failed to sufficiently communicate with him.
Frequency of communication with defense counsel does
not determine whether a defendant has been denied
effective assistance of counsel; rather, what is
relevant is “whether . . . counsel was able properly
to investigate the case and develop a reasonable
18
On appeal, defendant offers a letter Horn wrote to him dated
with a partially indiscernible postmark in 1994.
The State
asserts that the letter was not part of the record before the
PCR court. Even assuming the letter is part of the record, it
provides no support for defendant’s argument.
The letter is
primarily personal in nature, excepting several inadmissible
hearsay statements regarding his incarceration and guilt.
52
defense.”
(1990).
State
v.
Savage,
120
N.J.
594,
617
Trial counsel met with defendant on several
occasions, and had an investigator take statements
and interview three alibi witnesses whose names were
provided to him by defendant.
Defendant does not
argue that the alibi defense strategy itself was
deficient, but that it was improperly implemented by
counsel not investigating all possible witnesses.
We reject that argument.
Defendant has not
demonstrated that counsel failed to either properly
investigate or provide defendant with a reasonable
defense.
Defendant’s remaining arguments are without
merit to warrant additional discussion.
R. 2:113(e)(2). We add only the following. The prosecutor
did not commit misconduct by failing to provide
exculpatory testimony.
The grand jury is not an
adjudicative body, but is an accusatory body. State
v. Hoagland, 114 N.J. 216, 235 (1996). The State is
not required to provide exculpatory evidence to the
grand jury unless that evidence is “so clearly
exculpatory as to induce a rational grand juror to
conclude that the State has not made out a prima
facie case against the accused.”
Id. at 236.
No
such exculpatory evidence was extant here.
(D.E. No. 19-6, Dec. 6, 2007 Op. 11-17).
As
the
Strickland
record
standard
counsel claims.
reveals,
in
the
state
evaluating
courts
relied
Petitioner’s
on
the
ineffective
With respect to Grounds Three and Four of the
petition, relating to Petitioner’s claim that trial counsel was
ineffective for delaying his investigation of alibi witnesses
and for failing to challenge that State’s cross-examination and
comments on the pretrial silence of the alibi witnesses, the
53
state courts ultimately ruled that Petitioner failed to show
prejudice, namely, that the outcome of the trial would have been
different.
As noted above, the Appellate Division found that
the State had laid an adequate foundation for cross-examining
the alibi witnesses on their pretrial silence.
Further, the
Appellate Division observed that the alibi witnesses also were
cross-examined
on
their
inconsistent
testimony
and
bias,
and
that ultimately, the jury likely found them less credible than
the State’s witnesses who had identified Petitioner.
The state courts also determined that trial counsel was not
deficient with regard to the alleged delay in investigating the
alibi witnesses, observing that Petitioner’s argument was pure
speculation.
[Appellate
“Speculation is not enough under the AEDPA.
Division’s]
unreasonable.”
2011).
determination
must
necessarily
The
be
Brown v. Wenerowivcz, 663 F.3d 619, 634 (3d Cir.
Further, there was simply no demonstration of deficient
performance by counsel on this claim that would have had any
effect of undermining the verdict.
As to the claim that trial counsel was ineffective for
failing to call two witnesses, Al Tarik Horn and Temel Sinclair,
(Ground
Five),
the
state
courts
again
found
Petitioner’s
arguments to be speculative, and to be just “bare allegations,
unsupported by credible evidence.”
54
(D.E. No. 19-6, Dec. 6, 2007
Op. 15).
The Appellate Division further noted that counsel was
not deficient in failing to call these two witnesses because
their proposed testimony related merely to ownership of the car
and would not have affected the outcome of trial as the crucial
issue was whether Petitioner was in the car on the night in
question, not whether he owned it.
Thus, where State witnesses
identified Petitioner, Petitioner did not prevail in showing the
prejudice prong under
Strickland.
(Id.
at
15-16).
Indeed,
Strickland places the burden on Petitioner, not the State, “to
show a ‘reasonable probability’ that the result would have been
different.”
Here,
Wong v. Belmontes, 130 S. Ct. 383, 390–91 (2009).
Petitioner
has
not
met
that
burden
in
light
of
the
speculative nature of his claims.
As
the
Supreme
Court
has
made
clear,
AEDPA
imposes
a
“highly deferential standard for evaluating state-court rulings,
and demands that state-court decisions be given the benefit of
the
doubt.”
Renico
v.
Lett,
130
S.
Ct.
1855,
1862
(2010)(citation & quotation marks omitted). Accordingly, under
AEDPA, this Court’s task is only to determine whether the state
court’s adjudication of Petitioner’s Strickland claims:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal Law, as determined by the
Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable
55
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
In this case, as demonstrated above, Petitioner has not
shown, as required by 28 U.S.C. § 2254(d), that the actions of
the trial court “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
“resulted
in
a
decision
that
was
based
on
an
unreasonable determination of the facts in light of the evidence
presented
in
Petitioner’s
the
claims
State
of
court
ineffective
proceeding.”
assistance
Therefore,
of
counsel
as
argued in Grounds Three, Four and Five of his petition, will be
denied for lack of substantive merit.
Next, in Ground Two, Petitioner asserts that trial counsel
was ineffective for failing to challenge the indictment on the
argument that the prosecutor failed to present the grand jury
with the statements of Petitioner’s alibi witnesses.
1, Pet. 6).
(D.E. No.
The Appellate Division found this argument to be
without any merit to warrant discussion.
6, 2007 Op. 16-17).
(D.E. No. 19-6, Dec.
This Court further finds that Petitioner’s
argument fails to set forth a claim of a federal constitutional
deprivation.
56
Generally, deficiencies in state grand jury proceedings are
not grounds for relief under § 2254.
F.2d 30, 32 (2d Cir. 1989).
See Lopez v. Riley, 865
This conclusion flows from United
States v. Mechanik, 475 U.S. 66 (1986), in which the Supreme
Court held that a violation of Fed. R. Crim. P. 6(d), which
governs who may be present while the grand jury is in session,
deliberating,
or
voting,
discovered
only
at
trial,
did
not
justify relief after the petit jury had rendered its verdict.
[T]he petit jury’s subsequent guilty verdict means not only
that there was probable cause to believe that the
defendants were guilty as charged, but also that they are
in fact guilty as charged beyond a reasonable doubt.
Measured by the petit jury’s verdict, then, any error in
the grand jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.
Mechanik, 475 U.S. at 70 (footnote omitted); see also United
States v. Console, 13 F.3d 641, 671–72 (3d Cir. 1993)(with the
exception of a claim of racial discrimination in the selection
of grand jurors, a petit jury’s guilty verdict renders harmless
any
prosecutorial
misconduct
before
the
indicting
grand
jury)(citing Vasquez v. Hillery, 474 U.S. 254, 260-62 (1986)).
Thus, to the extent there were any deficiencies in the grand
jury proceedings, they must be considered harmless.
Moreover,
petition,
the
Petitioner’s
as
the
grand
alibi
State
jury
evidence
remarks
was,
but
57
in
in
its
fact,
still
answer
made
chose
to
the
aware
of
to
indict
petitioner.
trial
Further, even if the Court were to assume that
counsel
was
deficient
in
failing
to
challenge
the
indictment on this ground, the trial jury was fully informed at
trial
as
to
determined
Petitioner.
Petitioner’s
that
their
alibi
testimony
witnesses
was
not
and
defense,
credible,
and
convicting
Under these circumstances, Petitioner cannot show
prejudice under Strickland with respect to Ground Two of the
petition.
Therefore, habeas relief on Ground Two likewise will
be denied.
Next, with respect to trial counsel, Petitioner argues that
the cumulative effect of all of the alleged errors deprived him
of a fair trial.
The test for a “cumulative error” claim19 is
whether the overall deficiencies “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.”
See Hein v. Sullivan, 601 F.3d 897, 917 (9th Cir.
2010)(relying on Donnelly v. DeChristoforo, 416 U.S. 637, 643
19
The language of Strickland implies that, while alleged errors
may not individually be deficient performance of counsel or
prejudicial to the defense, the errors may be deficient
performance of counsel or prejudicial when combined.
See
Strickland, 466 U.S. at 687 (referring to analyzing errors, in
plural, in the standard for ineffective assistance of counsel—
showing that counsel’s performance was deficient “requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth
Amendment,”
and
showing
the
deficient
performance
prejudiced the defendant “requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial”
(emphases added)).
58
(1974)); Thornburg v. Mullin, 422 F.3d 1113, 1137 (10th Cir.
2005)(relying on Donnelly, 416 U.S. at 643); see also Fahy v.
Horn, 516 F.3d 169, 205 (3d Cir. 2008)(“Cumulative errors are
not harmless if they had a substantial and injurious effect or
influence in determining the jury’s verdict, which means that a
habeas petitioner is not entitled to relief based on cumulative
errors unless he can establish ‘actual prejudice.’”).
As discussed above, Petitioner raised his cumulative error
claim in his state PCR proceedings.
Because the PCR court found
no
claims
merit
to
any
of
Petitioner’s
for
post-conviction
relief, there is likewise no basis or merit for habeas relief
based upon an alleged accumulation of errors that did not exist.
Finally, this Court finds no merit to Petitioner’s claim
that
appellate
counsel
was
ineffective
(Ground
Seven).
The
issue of the identification instruction was argued and rejected
by the Appellate Division on direct appeal.
pp.
32-44.
counsel
Additionally,
was
concerning
ineffective
the
as
for
prosecutor’s
to
the
failing
failure
to
See supra, at § D,
claims
to
that
raise
present
appellate
the
issues
Petitioner’s
alibi defense to the grand jury and to challenge the State’s
cross-examination of Petitioner’s alibi witnesses, this Court
already
has
ineffective
determined
that
representation
on
trial
these
59
counsel
grounds.
did
not
In
provide
fact,
the
Appellate Division rejected Petitioner’s claims of ineffective
appellate counsel. Therefore, Petitioner’s claim that appellate
counsel was ineffective (Ground Seven) will be denied for lack
of merit.
In
sum,
rejection
claims,
this
of
as
Court
finds
Petitioner’s
set
forth
that
the
ineffective
above,
was
New
Jersey
assistance
not
of
contrary
courts’
counsel
to,
or
an
unreasonable application of Strickland and its progeny, nor did
it
result
in
a
decision
that
was
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the
state
court
demonstrate
that
objectively
and
proceeding.
the
on
state
the
Petitioner
court
merits,
cannot be reasonably justified.
federal
habeas
relief
on
has
opinions,
resulted
in
failed
when
an
to
evaluated
outcome
that
Therefore, the Court will deny
theses
ineffective
assistance
of
counsel claims because they are substantively without merit.
V.
CERTIFICATE OF APPEALABILITY
This Court next must determine whether a certificate of
appealability should issue.
See 3d Cir. LAR 22.2.
The Court
may issue a certificate of appealability only if the petitioner
“has
made
a
substantial
constitutional right.”
showing
of
the
28 U.S.C. § 2253(c)(2).
denial
of
a
For the reasons
discussed above, this Court’s review of the claims advanced by
60
Petitioner demonstrates that he has failed to make a substantial
showing of the denial of a constitutional right necessary for a
certificate
of
appealability
to
issue.
Thus,
this
Court
declines to issue a certificate of appealability pursuant to 28
U.S.C. § 2253(c)(2).
CONCLUSION
For the above reasons, this Court finds that the § 2254
habeas
petition
must
be
appealability will not issue.
denied,
and
a
certificate
of
An appropriate Order follows.
s/ Esther Salas
HON. ESTHER SALAS
United States District Judge
61
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