REID v. BARTKOWSKI et al
Filing
11
OPINION. Signed by Judge Jose L. Linares on 11/15/2012. (nr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PAUL REID,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
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Civil Action No. 11-4048 (JLL)
OPINION
APPEARANCES:
PAUL REID, Petitioner pro se
SBI # 830759C/5
New Jersey State Prison
P.O. Box 861
Trenton, N.J. 08625
STEPHANIE PAIGE DAVIS-ELSON, Counsel for Respondents
Hudson County Prosecutor’s Office
595 Newark Avenue
Jersey City, NJ 07306
LINARES, District Judge
Petitioner Paul Reid (“Petitioner”), a prisoner currently
confined at 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.
Dow.
The respondents are Greg Bartkowski and Paula
For the reasons stated below, the Petition will be denied.
I. BACKGROUND
The facts of this case were recounted below and this Court,
affording the state court's factual determinations the
appropriate deference, see 28 U.S.C. § 2254(e)(1)1, will simply
reproduce the recitation as set forth in the unpublished opinion
of the Superior Court of New Jersey, Appellate Division:
Defendant and one of his co-defendants, Tariq
Maqbool, were involved in the sale of cellular
telephones and prepaid calling cards at a
discount. Jawad “Jay” Mir was the roommate of
Amit “Andy” Vishal, who was involved in the
same business.
With the assistance of Mir and Vishal,
defendant and Maqbool arranged for the sale of
a large number of prepaid calling cards and
cellular telephones, purportedly at a steep
discount, to Joong “John” Ahn and Mun “Mike”
Ahn. The buyers arrived at the location where
the sale was to take place, carrying with them
a substantial amount of cash that they had
brought in order to consummate the deal.
Because they had been involved in bringing the
parties together, Mir and Vishal were also
there to help finalize the transaction.
However, defendant, Maqbool and two other
co-defendants, Zaid Tariq and Steven Reid,
overpowered the buyers, and also overpowered
Mir and Vishal.
The four co-defendants bound the four others
with duct tape and took the money that the
buyers had brought with them for the purchase.
Defendant and the three co-defendants then
forced Mir and Vishal to assist them in taking
Joong Ahn and Mun Ahn from the location where
the transaction was to have taken place and to
drive them to a remote location. Mir and
Vishal were later left in a motel room and
were eventually permitted to leave. The two
Ahns were killed, and their bodies were left
in a vehicle that was set afire in a bus
1
Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding instituted by an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.”
2
company's parking lot. The medical examiner
determined that one died from strangulation
and one from blunt trauma to the brain and
smoke inhalation.
State v. Reid, 2005 WL 3747511, at * 1 (N.J. Super. Ct. App. Div.
February 09, 2006).
Following a jury trial, Petitioner was found
guilty of two counts of felony murder, N.J.S.A. 2C:11-3a(3), one
count of first-degree kidnapping, N.J.S.A. 2C:13-1b, and one count
of second-degree armed robbery, N.J.S.A. 2C:15-1.
Id.
The jury
acquitted him of two counts of murder, N.J.S.A. 2C:11-3a(1); 3a(2),
but found him guilty of two lesser included charges of aggravated
manslaughter, N.J.S.A. 2C:11-4a.
Id.
The jury acquitted him of
two additional counts of first-degree kidnapping, but found him
guilty of two lesser included charges of third-degree criminal
restraint,
N.J.S.A.
2C:13-2a.
Id.
The
jury
also
acquitted
Petitioner of an additional count of aggravated assault, N.J.S.A.
2C:12-1b(4), and acquitted him of unlawful possession of a weapon,
N.J.S.A. 2C:39-5b, possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4a, and conspiracy to commit robbery, N.J.S.A.
2C:5-2.
Id.
Petitioner was sentenced to consecutive thirty-year terms of
imprisonment on each of the felony murder counts, to be served
without
parole,
and
to
two
concurrent
five-year
terms
of
imprisonment for the two criminal restraint counts, with all other
counts being merged into the felony murder counts for sentencing
purposes.
Id.
3
Petitioner filed an appeal and on February 9, 2006, the
Appellate
Division
upheld
his
conviction
and
sentence.
Id.
Thereafter, the New Jersey Supreme Court denied certification.
State v. Reid, 902 A.2d 1237 (N.J. July 19, 2006).
2006,
Petitioner
(“PCR”).
filed
a
petition
for
On November 20,
post-conviction
relief
(Resp’t’s Br., Ex. 16, Pet’r’s Pro Se PCR Mem.)
On
December 14, 2007, the state court entered an opinion and order
denying PCR.
(Id. at Exs. 66-67.) Petitioner appealed and on July
9, 2010, the Appellate Division affirmed the decision of the lower
court.
State v. Reid, 2010 WL 4054277 (N.J. Super. Ct. App. Div.
July 09, 2010).
Petitioner filed a petition for certification
which was denied by the New Jersey Supreme Court on January 7,
2011.
State v. Reid, 12 A.3d 209 (N.J. January 07, 2011).
Thereafter, Petitioner filed the instant petition with this
Court.
(Docket Entry No. 1.)
He raises the following grounds:
1. The state court’s ruling that trial
counsel’s dual representation was not a
conflict of interest, and counsel was not
ineffective
was
contrary
to
clearly
established federal law and United States
Supreme Court precedence under ineffective
assistance of counsel violated Petitioner’s
rights under U.S. Const. Amend Sixth and
Fourteenth.
2. Trial counsel’s failure to object and move
to have the juror who claims that he was
threaten [sic] by Petitioner’s brother along
with the juror whom he shared this information
with dismissed and replaced, was ineffective
assistance of counsel. Counsel’s actions were
contrary to the United States Supreme Court
ruling in Strickland v. Washington and clearly
4
established federal law.
3. The state court’s ruling that the state did
not violate a rule of law adopted in State v.
A.G.D., 178 N.J. 56 (2003), grounded in the
United States Constitution, was contrary to
clearly established federal law, and an
unreasonable application thereof, as well as
an unreasonable determination in light of the
evidence presented violating Petitioner’s
Fifth and Sixth Amendment [sic] of the United
States Constitution.
4. Petitioner contends that his conviction
should be vacated as the trial court’s
instruction to the jury on the theory of
accomplice liability did not enunciate the
shared intent requirement, nor did the trial
court
adequately
repeat
the
charge
of
accomplice liability in the content of the
lesser included offenses.
Trial counsel’s
failure to object to trial court’s erroneous
instructions on accomplice liability was
ineffective
assistance
of
counsel,
and
rendered Petitioner’s trial fundamentally
unfair in violation of his right to a fair
trial and due process under the United States
Constitution Amendments Fifth, Sixth and
Fourteenth.
5. Trial and appellate counsels failure to
protect Petitioner’s constitutional rights to
due process of law and a fair trial when they
failed
to
challenge
and/or
argue
that
Petitioner was illegally arrested and that the
subsequent alleged consent to search was
fruits of said illegal arrest was ineffective
assistance of counsel, contrary to clearly
established federal law, or an unreasonable
application of federal law, or an unreasonable
application of federal law and so is not
procedurally barred, therefore a writ should
issue.
6. The conviction was obtained and/or sentence
imposed in violation of the Fifth and
Fourteenth Amendment to the Constitution of
the United States, the right to a fair trial
5
free from prosecutorial misconduct. A.) The
record overwhelmingly establishes that the
state regularly vouched for the credibility of
its witnesses, and stated numerous time [sic]
that Petitioner was a liar.
Using perjured
testimony to secure Petitioner’s convictions.
B.) Detective Diaz’s testimony before the
grand jury, and the petit jury was false. C.)
The false testimony renders Petitioner’s trial
fundamentally unfair requiring that a new
trial be granted.
D.) The need for an
evidentiary hearing is warranted here.
7.
The state court’s ruling that appellate
counsel’s failure to raise any of the issues
mounted herein on direct appeal, and to
adequately consult with Petitioner prior to
submitting
Petitioner’s
brief
was
not
ineffective
assistance
of
counsel,
was
contrary to the United States Supreme Court
ruling in Strickland v. Washington and clearly
established federal law. Therefore, the writ
should
issue.
(B).
PCR
counsel
was
ineffective for failing to secure an affidavit
or certification to support a deposition taken
from a witness by a state investigator from
the public defender’s office.
(Pet., Docket Entry No. 1.)
Respondents filed an answer,
arguing that Petitioner is not entitled to habeas relief.
(Docket Entry No. 10.)
Petitioner did not submit a reply.
II. DISCUSSION
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 now provides, in
pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application
for a writ of habeas corpus in behalf of a person in
6
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.
...
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the 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
(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.
A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases,” or “if the
state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [the Court's] precedent.”
Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
A state court
decision “involve[s] an unreasonable application” of federal law
“if the state court identifies the correct governing legal rule
from [the Supreme] Court's cases but unreasonably applies it to
the facts of the particular state prisoner's case,” and may
involve an “unreasonable application” of federal law “if the
state court either unreasonably extends a legal principle from
7
[the Supreme Court's] precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a
new context where it should apply,” (although the Supreme Court
expressly declined to decide the latter). Id. at 407–09.
To be an “unreasonable application” of clearly established
federal law, the state court's application must be objectively
unreasonable.
Id. at 409.
In determining whether the state
court's application of Supreme Court precedent was objectively
unreasonable, a habeas court may consider the decisions of
inferior federal courts.
890 (3d Cir. 1999).
Matteo v. Superintendent, 171 F.3d 877,
Even a summary adjudication by the state
court on the merits of a claim is entitled to § 2254(d)
deference.
Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002)
(citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)).
With
respect to claims presented to, but unadjudicated by, the state
courts, however, a federal court may exercise pre-AEDPA
independent judgment.
See Hameen v. State of Delaware, 212 F.3d
226, 248 (3d Cir. 2000); Purnell v. Hendricks, 2000 WL 1523144,
*6 n. 4 (D.N.J. 2000).
In such instances, “the federal habeas
court must conduct a de novo review over pure legal questions and
mixed questions of law and fact, as a court would have done prior
to the enactment of AEDPA.”
Appel v. Horn, 250 F.3d 203, 210 (3d
Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d
Cir. 1999)).
“However, § 2254(e)(1) still mandates that the
8
state court's factual determinations are presumed correct unless
rebutted by clear and convincing evidence.”
Appel, 250 F.3d at
210.
The deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal caselaw, “as long as the reasoning of the state court
does not contradict relevant Supreme Court precedent.”
Priester
v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19
(2002)).
B.
Analysis
1.
Ineffective Assistance of Counsel
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 of the right by failing to render adequate
legal assistance.
See Strickland v. Washington, 466 U.S. 668,
686 (1984).
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.
First, the defendant must “show that counsel's representation
9
fell below an objective standard of reasonableness.”
687-88.
Id. at
“[C]ounsel should be ‘strongly presumed to have 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, 104 S.Ct. 2052).
“To overcome that presumption, a
defendant must show that counsel failed to act ‘reasonabl[y]
considering all the circumstances.’” Id. (citing Strickland, 466
U.S. at 688).
Further, a “convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment.”
Id. at 690.
The court must
then determine whether, in light of all the circumstances at the
time, the identified errors were so serious that they were
outside the wide range of professionally competent assistance.
Id.
To satisfy the prejudice prong, the defendant must show that
“there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
Id. at 695.
“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 v. Richter,
10
131 S.Ct. 770, 788 (2011)(citing Strickland, 466 U.S. at 687, 104
S.Ct. 2052).
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 “if the
defendant makes an insufficient showing on one.”
U.S. at 697.
Strickland, 466
“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”
a.
Id.
Ground One
In Ground One, Petitioner argues that the state court erred
when it failed to find that his trial counsel was ineffective for
11
not informing him that he was also representing Efrain Diaz, the
arresting officer.
petition.
Petitioner raised this issue in his PCR
The state court denied his claim:
In this matter, Petitioner alleges he received
ineffective assistance of counsel due to the
fact that counsel had a concurrent conflict of
interest, specifically that trial counsel
represented both Petitioner and Detective
Efrain Diaz. The record, however, indicates
no such conflict and is devoid of any
suggestion of dual representation. Petitioner
argues that his sister became aware of the
dual representation, confronted trial counsel
about it, and counsel failed to disclose the
nature of the representation.
Thereafter,
counsel asked whether petitioner had a problem
with him representing Mr. Diaz.
Petitioner
admits he replied that he did not have an
issue with this.
As an explanation to his
response, petitioner states that he felt too
invested with trial counsel at that stage of
the proceedings to withdraw, however, fails to
provide facts sufficient to support their
claim.
At no time did petitioner include
affidavits
or
certifications
of
said
statements.
Moreover, petitioner’s argument fails under
the Strickland test.
Applying the first
prong, petitioner has not demonstrated that
counsel’s representation deviated from the
standard norm or failed to act as a
“reasonable professional.”
In order to
establish a prima facie case, evidence must be
submitted in the form of an affidavit or
certification by someone who possesses first
hand knowledge of the statements attested
thereto. State v. Cummings. As noted above,
no affidavits or certification were provided
to the court indicating such by petitioner.
Therefore, petition has failed to satisfy the
first prong of the Strickland test and cannot
make a prima facie showing of ineffective
counsel.
12
The
State,
however,
has
submitted
a
supplemental
brief
which
includes
a
certification by Efrain Diaz whereby he
certifies that he has never been represented
by Anthony Peduto, Esq. or Genesis Peduto
Esq., nor has any member of his family,
friends, or co-workers.
In light of this
information, clearly petitioner has failed to
make a prima facie claim because he has failed
to provide the requisite evidence needed to
sustain a claim of ineffective assistance of
counsel.
(Resp’t’s Br., Ex. 67, PCR Opinion 7-8.)
The Appellate Division affirmed that holding, stating:
Additionally,
defendant
asserts
that
an
evidentiary hearing should have been conducted
so that Peduto could have testified regarding
his
alleged
representation
of
Diaz.
Essentially, other than the unembellished
assertion that defendant established a prima
facie case which warranted an evidentiary
hearing, no specific evidence has been brought
to our attention which required it. More is
necessary. Given Diaz's certification, and the
court's reliance upon it, defendant simply did
not present a prima facie case of ineffective
assistance
of
counsel.
Therefore,
no
evidentiary hearing was required. See State v.
Preciose, 129 N.J. 451, 462-63, 609 A.2d 1280
(1992); State v. Cummings, 321 N.J.Super. 154,
169-70, 728 A.2d 307 (App.Div. 1999) (citation
omitted). The motion judge's decision not to
grant an evidentiary hearing is therefore also
affirmed.
State v. Reid, 2010 WL 4054277, at *2 (N.J. Super. Ct. App.
Div. July 09, 2010).
The foregoing shows that the New Jersey courts reasonably
applied the Supreme Court's holding in Strickland and its
progeny.
Petitioner has demonstrated neither that counsel's
13
performance was deficient, nor that the results of the trial
would have been different.
Specifically, the New Jersey courts
found that Petitioner had not provided sufficient support for his
contention that trial counsel represented both Mr. Diaz and him
and as such, failed to meet the first prong of Strickland.
Appellate Division agreed.
The
This Court finds that the state
courts’ holdings did not result in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law 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 proceeding.
Therefore,
habeas relief is denied on this ground.
b.
Ground Two
In Ground Two of the petition, Petitioner argues that his
trial counsel failed to move to have two jurors removed from the
jury after it was discovered that one of the jurors was allegedly
threatened by an individual who claimed to be Petitioner’s
brother.
The juror who was approached told another juror about
the incident.
Petitioner alleges that trial counsel was
ineffective for failing to request that these two jurors be
removed.
Petitioner raised this issue in his PCR petition.
denied that claim:
In the case at bar, Petitioner argues that the
jury was tainted, the result of which lead to
14
The court
an impartial jury and that trial counsel, the
Court, and appellate counsel alike failed to
meaningfully pursue this issue.
The taint
stemmed from an incident involving jury number
three who was approached by a man claiming to
be defendant’s brother and stated “my brother
is not a killer.”
However, it has been
determined that defendant’s brother, as a
matter of fact, was not present in the court
room during this alleged incident. The Court
spoke to the juror in confidence, outside the
presence of the remaining jurors to ensure
that juror number three would not be adversely
affected concerning his ability to serve as a
juror. Juror twelve also inquired as to the
identity of the man who purported to be the
brother of the defendant which prompted the
Court to similarly ensure that said juror
would not be affected as to his duty to be an
impartial juror.
As mentioned above, R. 3:22-4 applies to this
claim which results in barring the claim from
being heard at this juncture.
Clearly this
claim could have been raised within the
prescribed time limitation provided under this
rule, failure to do so will not place
petitioner within one of the enumerated
exceptions
absent
a
showing
of
an
unconstitutional result. As such, Petitioner
has clearly failed to make a showing of an
unconstitutional result because the Court took
proper measures to protect the integrity and
impartiality of the jurors by addressing the
issue in the presence of the counsel and
determined no taint existed.
(Resp’t’s Br., Ex. 67, PCR Opinion 19-20.)
As found by the state court, the Court took proper measures
to ensure the integrity and impartiality of the jurors in the
presence of counsel.
The court questioned the two jurors who
were aware of the comments and the court was satisfied that the
jurors were able to remain impartial.
15
As such, it was
reasonable for counsel not to move to have the two jurors
removed.
Morever, Petitioner has not shown any prejudice and as
such, he has not established either prong of the Strickland
standard.
Petitioner has failed to show that the state courts’
holdings resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law
or that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.
Therefore, habeas relief is denied on this ground.
c.
Ground Five
In Ground Five, Petitioner alleges that counsel’s failure to
argue that Petitioner was illegally arrested and as such, the
consent to the search was “fruits of said illegal arrest,” was
ineffective assistance of counsel.
The state court denied him
relief, finding:
Petitioner argues that his arrest was illegal
because the police failed to inform him of the
charges against him and the issuance of an
arrest warrant before arresting petitioner.
Petitioner further contends that the police’s
conduct resulted in an illegal arrest and the
subsequent evidence acquired was tainted as a
fruit of the poisonous tree. It is important
to note that the merits of this claim were
already heard by the Appellate Division,
nonetheless, Petitioners [sic] advances this
claim again despite already being adjudicated
at the appellate level. In fact, petitioner’s
argument is based largely on the same case law
that was considered by the Appellate Division.
R. 3:22-5 bars assertion of grounds previously
adjudicated.
Petitioner,
undeterred by
16
procedural bars, premises his argument under
the ineffective assistance of counsel again in
an attempt to circumvent the procedural bar.
Specifically, he states that had he been given
the opportunity to testify at the suppression
motion, the results of the motion would have
been different. This assertion, however, is
speculative at best unless petitioner makes a
prima facie showing supported by a factual
basis and satisfies the burdens of the
Strickland test. In this case, petitioner has
failed to do so, thus the Court cannot grant
the relief sought.
Further, R. 3:22-5
controls and ultimately requires the court to
deny the claim.
(Resp’t’s Br., Ex. 67, PCR Opinion 21-22.)
This Court finds that the state court reasonably applied the
Supreme Court's holding in Strickland and its progeny.
Petitioner demonstrated neither that counsel's performance was
deficient, nor that the results of the trial would have been
different.
Specifically, the New Jersey courts found that
Petitioner had failed to show any prejudice as required by
Strickland.
Moreover, “[a]n illegal arrest, without more, has
never been viewed as a bar to subsequent prosecution, nor as a
defense to a valid conviction.”
United States v. Crews, 445 U.S.
463, 474 (1980); see also Gerstein v. Puqh, 420 U.S. 103, 119
(1975).
This Court finds that the state courts’ holdings did not
result in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law nor
did it result in a decision that was based on an unreasonable
17
determination of the facts in light of the evidence presented in
the State court proceeding.
Therefore, habeas relief is denied
on this ground.
d.
Ground Seven
In Ground Seven, Petitioner argues that appellate counsel
was ineffective for failing to raise on direct appeal all claims
which were raised in his PCR petition.
Petitioner further argues
that his PCR counsel was ineffective for failing to obtain a
certification or affidavit regarding the conflict of interest
issue.
The Fourteenth Amendment guarantees a criminal defendant
pursuing a first appeal as of right certain “minimum safeguards
necessary to make that appeal ‘adequate and effective,’”
Evitts
v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois,
351 U.S. 12, 20 (1956)), including the right to the effective
assistance of counsel, Evitts at 396.
The ineffective assistance
of counsel standard of Strickland, 466 U.S. at 686, applies to a
claim that appellate counsel was ineffective.
See Smith v.
Robbins, 528 U.S. 259, 285 (2000); United States v. Cross, 308
F.3d 308, 315 (3d Cir. 2002).
Defense counsel has a
constitutionally imposed duty to consult with the defendant about
whether to appeal when “there is reason to think either (1) that
a rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this
18
particular defendant reasonably demonstrated to counsel that he
was interested in appealing.”
470, 480 (2000).
Roe v. Flores-Ortega, 528 U.S.
The term “‘consult’ convey[s] a specific
meaning-advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable effort
to discover the defendant's wishes.”
Flores-Ortega at 478.
Petitioner raised the issue of ineffective assistance of
appellate counsel in his PCR petition.
The court denied his
claim:
Petitioner argues that appellate counsel was
ineffective for failing to raise the issues
raised in the instant petition.
The two
pronged Strickland standard first requires
that counsel’s performance fell below an
objective standard of reasonableness and, if
that is the case, the defense was prejudiced
by counsel’s action or inaction. Strickland,
supra, 466 U.S. at 693.
The second prong
requires a finding that there was a reasonable
probability
that,
but
for
counsel’s
unprofessional errors, the result of the
proceeding would have been different. Id. at
694.
Counsel argues that had appellate counsel
rendered effective assistance, petitioner may
have
well received
a
reversal
of
his
conviction on appeal.
However, the Court
finds petitioner’s arguments absent of a
specific factual basis demonstrating that
counsel deviated from a professional standard.
More problematic is that petitioner has failed
to specifically outline how the outcome of the
trial would have been more favorable had
counsel raised the claims contained herein
during the appeal. This critical flaw obliges
the court to rule that the Strickland test has
not been satisfied, consequently this claim
must therefore be denied.
19
(Resp’t’s Br., Ex. 67, PCR Opinion 25-26.)
In this case, the New Jersey courts' adjudication of
Petitioner's ineffective assistance of appellate counsel claim
was not contrary to, or an unreasonable application of Strickland
and other Supreme Court holdings.
Specifically, the PCR court
found that Petitioner had not satisfied either prong of
Strickland.
He did not provide any factual basis indicating that
counsel had deviated from the professional standard and moreover,
Petitioner had not shown how the outcome would have been more
favorable had counsel raised said claims.
Therefore, Petitioner
did not meet the requirements for an ineffective assistance of
appellate counsel claim and the petition will be denied on this
ground.
With respect to Petitioner’s claim of ineffective assistance
of PCR counsel, such claim must be dismissed pursuant to 28
U.S.C. § 2254(i), because the “ineffectiveness or incompleteness
of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”
2.
28 U.S.C. § 2254(I).
Confession
In this third ground for relief, Petitioner argues that his
rights pursuant to State v. A.G.D., 178 N.J. 56 (2003) were
violated when the police failed to inform him prior to
questioning that a criminal complaint or arrest warrant had been
20
filed against him.
Petitioner raised this issue in the state court
suppression hearing conducted before the trial began.
So the case here, the A.G.D. case, is easily
distinguished from the case at bar.
I believe what the Supreme Court has said
here,
and
it’s
exactly
right,
a
reinforcemement of Miranda.
And what they
have indicated here is that law enforcement
cannot bamboozle a defendant...
And I think it’s always been the understanding
of Miranda that, you know, to waive one’s
Miranda rights means that one understands
their rights. Okay. But, more importantly,
and I think this case points it out, that they
also understand what they are waiving. What
rights are they waiving in terms of what they
could be facing or what the charge is.
Now the case at bar has two very distinctive
aspects to it.
Number one, there’s no question, and it has
not been refuted in any way, that Mr. Reid was
arrested. That’s number one....
Arrest itself certainly is a form of notice.
You know that you, by virtue of being
arrested, are being at least charged with a
crime.
Now, that being said, Detective testified that
he then, in order to, you know, get him away
from the neighborhood and whatever, put him in
the car, gave him Miranda warnings at that
time and he admitted that he didn’t go into
any specifics with regard to what the, he was
actually being arrested for, but they went at
that time to the Prosecutor’s Office.
Now, he then further testified, and it has not
been refuted, that once they get there, they
start a conversation with him and they tell
21
him that they are investigating a double
homicide that had taken place in Sayreville
and they, according to the Detective, they
also advised him that the arrest was pursuant
to that double homicide.
Now, in my opinion, that is certainly
sufficient notice to this Defendant as to why,
and the circumstances under which he was being
held and the magnitude and possibility of
those circumstances for the future for him, to
indicate
that
he
had
given
Miranda
voluntarily.
Because, clearly, and again it has not been
refuted, I have in front of me the statement
that was given by this Defendant to the
detectives in which it is perfectly clear that
he was, in fact, told, number one, that he was
being asked to give answers concerning his
knowledge of an investigation which is the
death of Joong Ahn and Muni Ahn which occurred
on November the 1st of 2002.
So, clearly, he is put on notice with regard
to the specifics of the investigation, the
death of these two persons. And is also told
that he is going to be answering questions.
And he is asked if he understands and he says
yes.
He tells him you were taken into custody
earlier in Sayreville and I advised you of
your rights?
And he says, “You certainly did.”
So that certainly indicates to me that that
was done.
“And you understood them?”
“Yes.”
And so he tells him, “I’m going to advise you
of your rights again.
Every time, after
every, or when, sir, please answer.
You
understand it, answer it okay?”
22
I don’t quite know what that means. And then
he goes specifically into each of the rights.
...
“With the rights in mind, do you still, do you
wish to talk to us now?”
And the answer was, “Yeah.”
...
Certainly this was classic Miranda Rights. I
have no reason to believe at that point that
this Defendant did not understand what was
being done. This was actually the second time
that it was given to him.
He acknowledged
that with, you know, an affirmation.
Number two, I am satisfied that he knew that
he was being questioned with regard to the
death of two people.
Number three, that he had been arrested with
regarding the situation surrounding the death
of these two people.
So, clearly, the new Supreme Court case is not
applicable here....
[T]he Court does find that the Miranda
warnings and the statement given by Mr. Reid
under the circumstances are well within the
law and the Court’s [sic] finds them to be
voluntary and that Mr. Reid was put under no
duress and that he certainly had full
knowledge of what he was facing or at least
what the preliminary charges were with regard
to his detainment by the Prosecutor’s Office
under those circumstances.
(Resp’t’s Br., Ex. 88, Suppress. Mot. Hr’g 39:8-45:19, Oct. 22,
2003.)
The Appellate Division affirmed the trial court’s holding.
23
Defendant's second argument on appeal is that
the pretrial judge erred in denying his motion
to suppress the statements he made to police.
Prior to trial, defendant moved to suppress
all of the statements he made to the police,
arguing that his Miranda rights had been
violated. In particular, he asserted that the
officers who questioned him did not advise him
that there was an arrest warrant or a criminal
complaint against him and did not explain to
him why he was being questioned, in violation
of our Supreme Court's holding in State v.
A.G.D., 178 N.J. 56, 66-68 (2003). The motion
judge heard the testimony of the officers who
were
involved in
questioning
defendant,
concluded that defendant's waiver of his
Miranda rights was both knowing and voluntary,
and
rejected
the
assertion
that
the
then-recent decision in A.G.D., supra, 178
N.J. at 56, required a contrary result. We
agree.
According to the evidence presented at the
suppression
hearing,
defendant
was
apprehended, told that he was under arrest,
placed in handcuffs and transported to the
police station. He was advised of his Miranda
rights both at the time of his arrest and
prior to questioning. He was then advised that
the officers were investigating a double
homicide and asked if he would agree to speak
with them about it. These facts are unlike the
circumstances addressed in A.G.D. In A.G.D.,
the defendant agreed to accompany the officers
to the police station and agreed to speak with
them at a time when he was unaware that there
was already an arrest warrant for him in
connection with the crime. See Id. at 59-61.
Here, when defendant agreed to speak with the
officers, he was already under arrest and was
fully aware of the events that the police
officers were investigating. We therefore find
no merit in his argument that the statements
he gave should have been suppressed or that
the motion judge erred in his analysis.
State v. Reid, 2005 WL 3747511, at * 2 (N.J. Super. Ct.
24
App. Div. February 09, 2006).
At the outset, the Court notes that “[f]ederal 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, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982).
“If a state prisoner alleges no deprivation of a
federal right, § 2254 is simply inapplicable.”
Engle v. Isaac,
456 U.S. 107, 120 n. 19, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
In reviewing a § 2254 petition, a federal court is not permitted
to address a federal constitutional claim pertinent to the facts
of the case unless the petitioner asserts the claim as a ground
for relief.2
Nor may the Court re-characterize a ground asserted
under state law as a federal constitutional claim.3 “[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
2
See, e.g., Withrow v. Williams, 507 U.S. 680, 695-96, 113 S.Ct. 1745,
123 L.Ed.2d 407 (1993) (where habeas petition raised claim that the police had
elicited petitioner's statements without satisfying Miranda, the district
court erred when it "went beyond the habeas petition and found the statements
[petitioner] made after receiving the Miranda warnings to be involuntary under
due process criteria"); Baker v. Barbo, 177 F.3d 149, 156 n. 7 (3d Cir. 1999)
(where petition contains ground asserting the ineffective assistance of
counsel during plea negotiations and trial, court is not permitted to consider
ground, evident from the facts but not raised in the petition, that appellate
counsel was ineffective by failing to advise petitioner that he faced a longer
sentence by appealing the conviction).
3
See Engle, 456 U.S. at 119-20 & n. 19 (insofar as petitioners simply
challenged the correctness of the self-defense instructions under state law,
their petitions alleged no deprivation of federal rights and § 2254 was
inapplicable); Kontakis v. Beyer, 19 F.3d 110, 116-17 & n. 10 (3d Cir. 1994)
(where petitioner asserted in § 2254 petition that the exclusion of testimony
violated his rights under state law, federal court may not consider ground,
not set forth in the petition, that exclusion of the testimony violated his
federal due process rights).
25
(3d Cir. 1997).
And “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, 73 (3d Cir. 1985).
As such, since it appears that
Petitioner relies solely on the state court’s alleged
misapplication of State v. A.G.D., 178 N.J. 56 (2003), this claim
would be dismissed on these grounds alone.
Further, to the extent Petitioner is arguing a violation of
his Miranda rights, that claim would also fail.
Pursuant to the
Fifth Amendment to the United States Constitution, applicable to
the States through the Fourteenth Amendment, “No person ... shall
be compelled in any criminal case to be a witness against
himself....”
In Miranda v. Arizona, the Supreme Court of the
United States held that:
when an individual is taken into custody or
otherwise deprived of his freedom by the
authorities in any significant way and is
subjected
to questioning,
the privilege
against self-incrimination is jeopardized.
Procedural safeguards must be employed to
protect the privilege and unless other fully
effective means are adopted to notify the
person of his right of silence and to assure
that the exercise of the right will be
scrupulously honored, the following measures
are required. He must be warned prior to any
questioning that he has the right to remain
silent, that anything he says can be used
against him in a court of law, that he has the
right to the presence of an attorney, and that
if he cannot afford an attorney one will be
appointed for him prior to any questioning if
26
he so desires. Opportunity to exercise these
rights must be afforded to him throughout the
interrogation. After such warnings have been
given, and such opportunity afforded him, the
individual may knowingly and intelligently
waive these rights and agree to answer
questions or make a statement. But unless and
until
such
warnings
and
waiver
are
demonstrated by the prosecution at trial, no
evidence obtained as a result of interrogation
can be used against him.
384 U.S. at 478–79 (footnote omitted).
A waiver may be made orally or may be implied from a
suspect's conduct.
See North Carolina v. Butler, 441 U.S. 369,
373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); United States v. Cruz,
910 F.2d 1072, 1080 (3d Cir. 1990).
To introduce into evidence a
suspect's statement made during custodial interrogation, the
government must establish, by a preponderance of the evidence, a
voluntary waiver of Miranda rights.
Colorado v. Connelly, 479
U.S. 157, 168–69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
This is
a rule of constitutional dimension, violation of which may
justify issuance of a writ of habeas corpus.
See generally
Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147
L.Ed.2d 405 (2000).
Once warnings have been given, the subsequent
procedure is clear.
If the individual
indicates in any manner, at any time prior to
or during questioning, that he wishes to
remain silent, the interrogation must cease.
At this point he has shown that he intends to
exercise his Fifth Amendment privilege; any
statement taken after the person invokes his
privilege cannot be other than the product of
27
compulsion, subtle or otherwise. Without the
right to cut off questioning, the setting of
in-custody interrogation operates on the
individual
to
overcome
free
choice
in
producing a statement after the privilege has
been once invoked.
Miranda, 384 U.S. at 473–74.
A defendant's right to cut off
questioning must be “scrupulously honored.”
Michigan v. Mosley,
423 U.S. 96, 103–04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
“The requirement that Miranda warnings be given does not, of
course, dispense with the voluntariness inquiry.
But ...
‘[c]ases in which a defendant can make a colorable argument that
a self-incriminating statement was ‘compelled’ despite the fact
that the law enforcement authorities adhered to the dictates of
Miranda are rare.'”
Dickerson, 530 U.S. at 444.
“[T]he ultimate issue of ‘voluntariness' is a legal question
requiring independent federal determination,” and is thus not
subject to the § 2254(d) presumption of correctness.
Miller v.
Fenton, 474 U.S. 104, 109–110, 106 S.Ct. 445, 88 L.Ed.2d 405
(1985).
The Supreme Court has made clear that a
statement is involuntary when the suspect's
“will was overborne in such a way as to render
his confession the product of coercion.”
Arizona v. Fulminante, 499 U.S. 279, 288, 111
S.Ct. 1246, 113 L.Ed.2d 302 (1991).
In
determining whether a statement is voluntary,
Supreme Court precedent requires consideration
of “the totality of all the surrounding
circumstances-both the characteristics of the
accused and the details of the interrogation.”
Dickerson v. United States, 530 U.S. 428, 434,
120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)
28
(quoting Schneckloth v. Bustamonte, 412 U.S.
218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973)).
These surrounding circumstances
include “not only the crucial element of
police coercion, Colorado v. Connelly, 479
U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473
(1986),” but may also include “the length of
the
interrogation,
its
location,
its
continuity,
the
defendant's
maturity,
education, physical condition, and mental
health.” Withrow v. Williams, 507 U.S. 680,
693, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)
(some internal citations omitted).
Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002).
“[S]ubsidiary
questions, such as the length and circumstances of the
interrogation, the defendant's prior experience with the legal
process, and familiarity with the Miranda warnings, often require
the resolution of conflicting testimony of police and defendant.
The law is therefore clear that state-court findings on such
matters are conclusive on the habeas court if fairly supported in
the record and if the other circumstances enumerated in § 2254(d)
are inapplicable.”
Dickerson, 474 U.S. at 117.
Here, the state courts correctly identified the applicable
Supreme Court case law.
The courts properly found that
Petitioner was advised on more than one occasion of his Miranda
rights and that he agreed to speak to detectives.
Further, the
courts properly found that given the totality of the
circumstances, Petitioner was put on notice of the crimes for
which he was arrested and thereafter questioned.
not entitled to relief on this claim.
29
Petitioner is
3.
Jury Instructions
In his fourth ground for relief, Petitioner argues that the
trial court’s instructions to the jury regarding accomplice
liability were insufficient because the court did not “enunciate”
the shared intent requirement and failed to repeat the charge
regarding accomplice liability in the context of the lesser
included charges.
Petitioner raised this claim in his PCR petition and the
court denied him relief.
Petitioner alleges that the Court improperly
instructed the jury regarding accomplice
liability.
However, a close examination of
the record indicates the contrary; the Court
gave specific and comprehensive charges on
accomplice liability memorialized on page 74
of the jury charge.
In support of this
finding, the Court notes that the trial court
was guided by the principles established in
State v. Bielkiewicz, 267 N.J. Super 520 (App.
Div.) as he was charging the jury.
Ultimately, this claim is procedurally barred
and therefore relief under this claim cannot
be granted.
(Resp’t’s Br., Ex. 67, PCR Opinion 21.)
The Due Process Clause of the Fourteenth Amendment requires
proof beyond a reasonable doubt of every fact necessary to
constitute the elements of the crime.
See In re Winship, 397
U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Waddington v.
Sauausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009),
the Supreme Court outlined the law regarding the
30
constitutionality of state court instructions:
Even
if
there
is
some
ambiguity,
inconsistency,
or
deficiency
in
the
instruction,
such
an
error
does
not
necessarily
constitute
a
due
process
violation. Rather, the defendant must show
both that the instruction was ambiguous and
that there was “‘a reasonable likelihood’”
that the jury applied the instruction in a way
that [violated the Constitution].
Estelle,
supra, at 72, 502 U.S. 62, 112 S.Ct. 475, 116
L.Ed.2d 385 (quoting Boyde v. California, 494
U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316
... (1990)).
In making this determination,
the jury 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.” Estelle, supra, at 72.
Because it is not enough that there is some
“slight possibility” that the jury misapplied
the instruction, Weeks v. Angelone, 528 U.S.
225, 236, 120 S.Ct. 727, 145 L.Ed.2d 727 ...
(2000), the pertinent question “is ‘whether
the ailing instruction by itself so infected
the entire trial that the resulting conviction
violates due process,’”
Estelle, supra, at
72, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d
385 (quoting Cupp, supra, at 147, 414 U.S.
141, 94 S.Ct. 396, 38 L.Ed.2d 368).
Waddington, 129 S.Ct. at 831–832 (2009) (citations and internal
quotation marks omitted).
The New Jersey courts' adjudication of these claims was not
contrary to, or an unreasonable application of Supreme Court
holdings.
The state courts properly found that the instructions
given by the trial court did not impermissibly shift any burdens
to the defense.
Petitioner has failed to establish that he is
entitled to habeas relief on this ground.
31
4.
Prosecutorial Misconduct
In his sixth ground, Petitioner argues that he was denied a
fair trial because the prosecutor improperly vouched for the
credibility of its witnesses and called into question
Petitioner’s credibility in his closing argument.
It appears that Petitioner raised this claim in his PCR
petition, under the theory of ineffective assistance of counsel.
[A]s mentioned above, this Court finds nothing
in the record to show that any sort of
prosecutorial misconduct occurred, so even if
the Petitioner was not procedurally barred, he
would still have no argument to support this
claim.
Applying the Strickland standards,
trial
counsel
must
show
a
reasonable
likelihood that had counsel objected to the
purported improper statements, the outcome of
the trial would have been different.
Said
statements were not “improper” because New
Jersey case law has stated that prosecutors
are afforded considerable leeway in closing
arguments as long as their comments are
reasonably related to the scope of the
evidence presented.
State v. Timmendequas,
161 N.J. 515, 587 (1999).
The prosecutor
cannot be said to have engaged in comments
that are not reasonably related to the scope
of the evidence presented being that the State
has submitted an overwhelming number of
physical evidence and testimony. Bearing in
mind the great leeway given to the prosecutor
during summation, trial counsel did not
deviate
from
reasonably
professional
misconduct [sic], therefore no evidentiary
hearing should be granted.
(Resp’t’s Br., Ex. 67, PCR Opinion 15.)
When reviewing a prosecutor’s comments in an opening or
closing statement, “[t]he relevant question is whether the
32
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) (quoting Donnelly
v. DeChristoforo, 416 U.S. 637 (1974)).
In evaluating the likely
effect of improper comments, a court may consider whether the
improper comments were invited by or responsive to prior comments
by opposing counsel.
Darden, 477 U.S. at 181–82.
Thus, “Supreme
Court precedent counsels that the reviewing court must examine
the prosecutor's offensive actions in context and in light of the
entire trial, assessing the severity of the conduct, the effect
of the curative instructions, and the quantum of evidence against
the defendant.”
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
Based on a careful review of the entire trial record, this
Court finds that the prosecutor's conduct during trial did not
have the capacity to so infect the trial with unfairness as to
make the resulting conviction a denial of due process.
The trial
court record shows no vouching by the prosecutor for the
witnesses' testimony that would rise to the level of a
constitutional violation.
Therefore, the Court finds no error of
constitutional dimension with respect to Petitioner's claim of
prosecutorial misconduct.
The state court rulings were not
contrary to, and did not involve an unreasonable application of,
clearly established federal law; nor was it based on an
unreasonable determination of the facts presented in the state
33
court proceedings.
Accordingly, this ground for habeas relief
will be denied.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing of
the denial of a constitutional right.
No certificate of
appealability shall issue.
IV.
CONCLUSION
For the above reasons, the § 2254 habeas petition is denied,
and a certificate of appealability will not issue. An appropriate
Order follows.
DATED: Nov. 15, 2012
s/ Jose L. Linares
JOSE L. LINARES
United States District Judge
34
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