HOLMES v. HOLMES et al
Filing
14
OPINION. Signed by Judge Faith S. Hochberg on 2/6/14. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STANLEY L. HOLMES,
Petitioner,
v.
CHRISTOPHER HOLMES, et al.,
Respondents.
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Civil Action No. 11-4617 (FSH)
OPINION
APPEARANCES:
STANLEY L. HOLMES, Petitioner pro se
# 512307/792348C
New Jersey State Prison
2A-Cell # 46
P.O. Box 861
Trenton, New Jersey 08625
CATHERINE ANTOINE FODDAI, ESQ.
BERGEN COUNTY PROSECUTOR’S OFFICE
10 Main Street
Hackensack, New Jersey 07601
Counsel for Respondents
HOCHBERG, District Judge
Petitioner Stanley L. Holmes (“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
January 28, 2005.
I.
A.
BACKGROUND
Procedural History
On January 3, 2003, a Bergen County grand jury indicted
Petitioner and three co-defendants on the following counts: 1
(Count Two) murder, in violation of N.J.S.A. 2C:11-3a(1) and
(2); (Counts Three and Four) first degree robbery, in violation
of N.J.S.A. 2c:15-1; (Count Five) conspiracy to commit firstdegree robbery, in violation of N.J.S.A. 2C:15-1 and 2C:5-2;
(Count Six) felony murder (robbery), in violation of N.J.S.A.
2C:11-3a(3); (Count Seven) second degree burglary, in violation
of N.J.S.A. 2C:18-2; (Count Eight) conspiracy to commit
burglary, in violation of N.J.S.A. 2C:18-2 and 2C:5-2; (Count
Nine) felony murder (burglary), in violation of N.J.S.A. 2C:113a(3); (Counts Ten and Eleven) first degree kidnapping, in
violation of N.J.S.A. 2C:13-1b; (Count Twelve) felony murder
(kidnapping), in violation of N.J.S.A. 2C:11-3a(3); (Count
Thirteen) possession of firearms for an unlawful purpose, in
violation of N.J.S.A. 2C:39-4a; and (Count Fourteen) unlawful
1
Petitioner was tried as an accomplice and was not named in
Count One of the indictment, which charged own-conduct murder
against co-defendant Darryl Bozeman, and Counts Fifteen and
Sixteen, which charged co-defendant Gina Bozeman with hindering
apprehension. (Ra1, Def./App. Brief on Direct Appeal at 1, fn.
1.) Co-defendants Darryl and Gina Bozeman were severed for
purposes of trial. Co-defendant Terrence Terrell pled guilty
before trial pursuant to a plea agreement that recommended
Terrell be sentenced to 30 years in prison with a 30-year parole
disqualifier. (Ra7, Pet. Brief on PCR Appeal at 1, 2.)
2
possession of firearms, in violation of N.J.S.A. 2C:39-5b.
(Ra1, 2 Def./App. Brief on Direct Appeal at 1.)
An initial trial was held before a jury and the Honorable
Donald B. Venezia, J.S.C., and concluded on June 17, 2004.
The
jury had acquitted Petitioner on Counts Two (murder), Five
(conspiracy to commit robbery), Six (felony murder – robbery),
Eight (conspiracy to commit burglary), Nine (felony murder –
burglary), Twelve (felony murder – kidnapping), and Thirteen and
Fourteen (weapons offenses), but could not reach a unanimous
verdict on Counts Three and Four (first degree robbery), Seven
(burglary), Ten and Eleven (kidnapping).
(Id.)
Petitioner
moved to dismiss the indictment on Counts Three, Four, Seven,
Ten and Eleven, based on double jeopardy.
Judge Venezia denied
the motion for acquittal on September 7, 2004.
(Ra15, 2T 11:18-
20.)
A second trial followed, between November 10, 2004 and
December 8, 2004, on those counts in which the jury failed to
reach a verdict.
The jury convicted Petitioner on all remaining
counts on December 8, 2004.
(Ra24, 11T 83:18-88:25.)
2
“Ra” denotes the appendix or record of the state court
proceedings as submitted by Respondents with their answer to
this habeas petition. (See ECF Nos. 8, 8-1 through 8-27.) A
description or identification of the exhibits comprising the
appendix is set forth in a letter from Respondents docketed at
ECF No. 8.
3
On January 28, 2005, Judge Venezia sentenced Petitioner to
an aggregate prison term of 35 years, subject to the No Early
Release Act’s 85% parole ineligibility.
(Ra4, App. Div. Op. at
2.)
Petitioner filed a direct appeal from his conviction and
sentence on March 16, 2005, before the Superior Court of New
Jersey, Appellate Division.
(Ra1.)
On August 1, 2007, the
Appellate Division affirmed the convictions and sentences.
(Ra4.)
Petitioner filed a motion for reconsideration, which the
Appellate Division denied on September 12, 2007.
(Ra7 at 3, 4.)
On February 4, 2008, the Supreme Court of New Jersey denied
certification.
State v. Holmes, 194 N.J. 268 (2008).
On or about September 3, 2008, Petitioner filed a petition
for post-conviction relief (“PCR”) in state court.
Judge
Venezia denied the PCR petition on January 27, 2009, after a
non-evidentiary hearing was conducted that same date.
(Ra26.)
Petitioner thereafter appealed from denial of his state PCR
petition.
On November 3, 2010, the Appellate Division affirmed
the decision denying the PCR petition.
(Ra11.)
The New Jersey
Supreme Court denied certification on March 16, 2011.
State v.
Holmes, 205 N.J. 273 (2011).
On July 22, 2011, Petitioner filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, before this Court.
4
On October 18, 2012, the State filed an answer, together with
the relevant state court record.
27.)
Petitioner filed his traverse or reply on November 28,
2012. 3
B.
(ECF Nos. 8, 8-1 through 8-
(ECF No. 11.)
Factual 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), will simply
reproduce the recitation as set forth in the published opinion
of the Superior Court of New Jersey, Appellate Division, decided
on August 1, 2007, with respect to Petitioner’s direct appeal:
On June 25, 2002, there was a home invasion at the
residence of Nathan and Mary Johnson in Englewood. Shortly
after 10:30 p.m., two armed men burst through a connecting
door from the garage to the family room. After assaulting
Mr. Johnson, the men made both him and his wife lie on the
floor while they handcuffed them. When the men demanded
the location of a safe, Mrs. Johnson told them that there
was a portable lockbox in another room. She said that when
the box was found to be empty, one of the men fired a shot,
stating, “the next one is going to count.” He then
declared he was going to “shoot that motherfucker.” Mrs.
Johnson then heard two shots. One of the men yelled at
3
Petitioner also requested that the State provide copies of all
transcripts regarding his first trial. Only the May 25, 2004
Transcript of the first trial was provided by the State as that
transcript dealt with the agreement between co-defendant Terrell
and the federal government, which is a claim at issue in this
habeas proceeding. The State has objected to producing the
transcripts from the first trial as they are not relevant. (ECF
No. 12.) The Court finds no reason for the State to incur
additional costs in providing the transcripts of the first trial
because they serve no relevant purpose for this Court’s habeas
review in this matter.
5
her, “Where’s the money?” She directed him to a bedroom
closet where her furs were hung. After a few minutes and
she believed the men had left, she freed herself by sliding
her right hand out of the handcuffs. When she got up, she
saw her husband’s body slumped against a bookcase. He did
not respond to her cries and she fled to a neighbor’s house
where the police were called.
At about 11 p.m. Englewood Police Officer Thomas Greeley
and his partner were dispatched to the Johnson home after a
report of an armed robbery. After no one answered the
door, the officers walked through the garage and saw that
the door to the family room had been forced open. Inside
they saw Mr. Johnson’s body. Paramedics were called but
were unsuccessful in resuscitating him. Mr. Johnson was
pronounced dead by the medical examiner at 12:15 a.m. The
cause of death was gunshot wounds to the head and abdomen.
Before the Englewood police arrived at the Johnson
residence Erico Pulice, a passing motorist, saw two people
run from a house into the van that was parked with the
motor running and the lights off. Sensing that something
untoward was going on, Pulice impulsively followed the van
as it sped away. From his car he called Lieutenant Thomas
Bauerschmidt of the Englewood Cliffs Police Department, who
was a personal friend. By this time Bauerschmidt had
received a report of an armed robbery in progress. He
asked Pulice to try to get the license plate number and
Pulice continued to follow the van at speeds of sixty-five
to seventy miles per hour and was able to report the
license plate number to Bauerschmidt. An immediate
computer check disclosed that the vehicle was a maroon
Dodge Caravan registered to Gina Bozeman. Bauerschmidt
radioed the Tenafly Police Department that Pulice was
following a suspicious van that may have been involved in
an armed robbery.
Shortly after receiving the radio alert, Tenafly Police
Officer Columbia Santarpia saw the van. She gave pursuit
and activated her overhead lights. The van stopped, and
two men ran out of the van, each in a different direction.
Tenafly Officer Michael DeMoncada saw a man running from
the bushes of an apartment complex near Tenafly Road and
through a parking lot. He cornered the man, ordered him to
the ground, and handcuffed him. Patting the man down for
6
weapons, Officer DeMoncada found several pieces of jewelry
and a watch later identified as having been taken from the
Johnson home. The man was later identified as Terrence
Anthony Terrell. He was transported to the Englewood
police headquarters where Mrs. Johnson was being
interviewed. Terrell was brought into the room, and she
immediately identified him as one of the robbers.
At about the same time, Detective Mark Bendul of the Bergen
County Prosecutor’s Office was looking through the open
passenger door of the van with the aid of his flashlight
and saw a .9mm handgun, rolls of duct tape, and an empty
jewelry box. He examined a wallet containing
identification of Darryl Bozeman as well as business cards
for Gmade Hair Studio in Englewood with the inscription
“Gina Bozeman, Stylist.” When the .9mm handgun was
subsequently test fired, the test cartridges matched the
bullets retrieved from Johnson.
Later that night, Terrell was interviewed by Captain Joseph
Hornyak of the Bergen County Prosecutor’s office. Given
his Miranda 4 warnings, he agreed to give a statement. At
that time he said that he participated in the armed robbery
with Darryl Bozeman and a man named Stan but only as the
driver, denying the [sic] he went into the Johnson house.
However, in his trial testimony Terrell changed his
testimony to admit that he entered the house with Bozeman
while Stan remained in the car. He explained that he
initially lied because he believed that he would get a
lighter sentence if he said he was only the driver.
At or about the time that Terrell was captured by the
police, Englewood Cliffs Officer Scott Mura was assisting
in the search for the men observed running from the van.
He saw a man, later identified as defendant, walking about
500 feet from the van. Mura stopped him and requested
identification. Defendant gave his name and showed his
driver’s license. He explained that he was on foot because
he had taken a cab from New York City to pick up his
mother’s car but had gone to get out after a dispute with
the driver about the fare. He added that he worked at a
nightclub on Tenafly Road and lived in New York City.
Officer Mura said that defendant was calm, polite and
courteous. He sat in the police car while Mura ran a
4
Miranda v. Arizona, 384 U.S. 436 (1966).
7
computer check on his driver’s license number. When a
radio transmission broadcast that the home invasion in
Englewood involved a “DOA” and suspects were armed and
dangerous, defendant joked that he was safer living in the
Bronx than in New Jersey. Officer Mura accepted
defendant’s explanation as to his presence in the area and
told him he was free to go.
Later that night defendant called Mohammed Nofal, a friend
in New York, and asked him for a ride. When Nofal arrived,
defendant directed him to a red Ford Taurus parked a short
distance away, which he drove across the George Washington
Bridge to his parents’ home in the Bronx, arriving at about
1 a.m. He then called Terrell’s sister, Ashley Jones, and
insisted on meeting her immediately. Jones had rented the
burgundy Taurus that afternoon and let the defendant use it
that night. Defendant gave Jones her brother’s wallet,
which he said was left in the Taurus. He said he drove
Terrell and Bozeman to a house in New Jersey. When they
went inside he drove around waiting for them. After some
time, they ran out of the house and into the van, screaming
at each other and saying that a man inside was bleeding to
death. The following day investigators were able to put
together Terrell’s statement about the involvement of a man
named Stan [with] Officer Mura’s report that he saw
defendant a short distance away from the van. Two New York
detectives located defendant at his job site. Later he was
taken to the Bergen County Prosecutor’s Office and given
his Miranda warnings. He agreed to make a statement and
told Detective Hornyak the same story he told Officer Mura
about taking a cab from New York to pick up his mother’s
car and being told to get out of the cab by the cabdriver.
He said he knew nothing about a robbery and denied knowing
either Terrell or Bozeman.
Detective Hornyak placed defendant under arrest and had him
taken to a detention cell. Hornyak then told Terrell, who
was also in custody, that defendant denied any involvement.
Terrell agreed to confront the defendant. He stood outside
defendant’s cell and repeated what he had told the police
earlier about defendant’s participation. Shortly
thereafter, defendant confessed that he was the driver of
the van. He said that Bozeman had called him at about 7:30
the night before and asked to see him. He picked up
Bozeman and Terrell and drove the burgundy Dodge Caravan to
8
Englewood. During the trip Terrell said that he and
Bozeman had handguns, handcuffs and latex gloves. At first
defendant said he had no idea what they were going to do.
Later he admitted that Bozeman told him that his wife Gina
said she was Mrs. Johnson’s hairdresser and had seen a lot
of cash and jewelry at her home. Following Bozeman’s
directions, defendant drove Terrell and Bozeman to a house
in Englewood where Bozeman told him to pick him up at 11.
He drove around until he saw Terrell waving his hand and
yelling at him. Terrell and Bozeman jumped into the van
and began screaming at each other about someone being shot.
As he drove away, defendant noticed a car following the van
and tried to lose it. When a police car approached with
its flashing lights on, defendant stopped the van, and
Bozeman and Terrell ran off. Defendant watched the police
follow them while he remained in the van. After a few
minutes, he walked away and encountered Detective Mura a
short distance from the van.
The State’s case centered on defendant’s confession and
Terrell’s testimony following his guilty plea to felony
murder and kidnapping pursuant to a plea agreement
recommending a sentence of thirty years parole
ineligibility. Terrell testified on June 25, 2002, he
received a call at his Baltimore home from Bozeman, who
said he was going to pick him up and take him back to New
York so that he could collect the $25,000 owed to him by
Bozeman and defendant. During the ride, Bozeman told him
of a plan to rob the house of a seventy-year-old man who
controlled an illegal numbers operation and kept between
$100,000 to $250,000 in a safe. The plan was to grab the
wife, tie her up, wait for the husband to come home and
then make him open the safe. At first they agreed that
Terrell was to be the driver while Bozeman and the
defendant were to go inside and get the money. But Bozeman
decided to change the plan, saying that he had lost
confidence in the defendant, and Terrell agreed that he
would go into the house with Bozeman. Later that day he
and Bozeman met defendant who was driving a red Taurus
rental car. When it was discovered that the interior light
was slow to turn off, they decided to use Gina Bozeman’s
burgundy caravan instead. Terrell said he left his wallet
in the Taurus to avoid any chance of dropping it at the
scene of the crime. He said Bozeman brought a bag
9
containing duct tape, latex gloves, two sets of handcuffs
and two handguns.
Terrell testified that after they saw Mr. Johnson come home
at about 10:30, he and Bozeman forced their way in,
assaulted Mr. Johnson and handcuffed the victims. When Mr.
Johnson would not tell him where the safe was located,
Bozeman fired a warning shot. Mrs. Johnson then said there
was money in the bedroom along with jewelry and furs, and
Terrell went to find it. He found some jewelry and two fur
coats but no money. When he returned to the family room,
he saw Mr. Johnson standing with a ceramic statue. Two
shots were fired by Bozeman. Terrell said he dropped the
furs and ran out of the house into the waiting van followed
by Bozeman. After they heard police sirens, defendant
stopped the van. Terrell then ran away but was soon
apprehended by police.
Defendant testified on his own behalf. He denied knowing
that Bozeman and Terrell intended to commit a robbery. He
admitted driving them to Englewood and said he heard them
talking about guns. He also saw handcuffs but said he was
not troubled because they were “kiddie cuffs.” He said
after he dropped the two off, he drove around until they
ran back to the van. It was only when they began screaming
at each other that he became aware that there had been a
serious incident inside the Johnson home.
In addition to his testimony, the defendant presented
numerous character witnesses, all of whom attested to
defendant’s honesty and his propensity to drive others
around when requested to do so.
(Ra4, August 1, 2007 App. Div. Op. at 2-11.)
II.
STATEMENT OF CLAIMS
Petitioner asserts the following claims in his petition for
habeas relief:
Ground One:
Petitioner’s prosecution violated his
constitutional right against double jeopardy.
10
Ground Two:
The State’s proofs failed to support
Petitioner’s conviction for kidnapping and should have been
vacated.
Ground Three:
The trial court erroneously allowed
testimony at trial indicating that Petitioner had engaged in
criminal conduct previously, which “greatly prejudiced”
Petitioner and warranted a reversal.
Ground Four:
The trial court erred in admitting extensive
evidence at trial concerning the murder, including photographs
of the body and bullets, as well as weapons offenses, for which
Petitioner was not being tried, making the trial so prejudicial
as to warrant reversal of the conviction.
Ground Five:
The state court improperly imposed
consecutive sentences.
Ground Six:
Petitioner is entitled to a new trial because
he was denied crucial exculpatory impeachment evidence
concerning Terrell’s dealings with the U.S Attorney’s Office.
Ground Seven:
Petitioner was denied effective assistance
of appellate counsel because counsel failed to raise on appeal
the issue of the trial court’s denial of a motion for acquittal.
Ground Eight:
Petitioner’s trial counsel also was
ineffective in failing to request case specific instructions on
accomplice liability.
Likewise, appellate counsel was
11
ineffective for failing to raise the claim on direct appeal, and
the trial court erred in its failure to give the tailored
instructions.
Ground Nine:
The state court erred in denying Petitioner’s
PCR petition because, even if non-disclosure of Terrell’s
dealings with the U.S. Attorney’s Office was not a Brady 5
violation, the prosecutor’s misrepresentation violated
Petitioner’s right to due process and a fair trial under the
Fourteenth Amendment, and his Sixth Amendment right to
confrontation.
Ground Ten:
The order denying the PCR petition and
Petitioner’s conviction should be reversed because, as a result
of the prosecutor’s misrepresentations, trial counsel rendered
ineffective assistance of counsel during his opening statement
and summation, and his cross-examination of Terrell.
Ground Eleven:
The order denying the PCR petition violated
Petitioner’s right to effective assistance of trial and
appellate counsel as guaranteed under the Sixth Amendment.
(ECF No. 1, Petition at 4-12, ¶ 12.)
The State essentially contends that the petition is without
merit, or fails to raise a claim of federal constitutional
5
Brady v. Maryland, 373 U.S. 83 (1963).
12
dimension that would entitle Petitioner to habeas relief.
(ECF
No. 8.)
III.
STANDARD OF REVIEW
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub.L. No. 104–132, 110 Stat. 1214 (1996),
28 U.S.C. § 2254 now provides, in pertinent part:
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 custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits in
state court proceedings, the writ shall not issue 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(d); see also Parker v. Matthews, --- U.S. ----,
----, 132 S. Ct. 2148, 2151, 183 L.Ed.2d 32 (2012).
“Clearly established Federal law” should be determined as
of the date of the relevant state court decision and is limited
to the record that was before the state court that adjudicated
13
the claim on the merits.
Greene v. Fisher, –––U.S. ––––, 132 S.
Ct. 38, 181 L.Ed.2d 336 (2011); Cullen v. Pinholster, --- U.S. –
–––, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).
A state-
court decision is “contrary to” clearly established federal law
if the state court (1) contradicts the governing law set forth
in Supreme Court cases or (2) confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a different result.
Williams
v. Taylor, 529 U.S. 362, 405–06 (2000); Jamison v. Klem, 544
F.3d 266, 274 (3d Cir. 2008).
The state court judgment must
contradict clearly established decisions of the Supreme Court,
not merely law articulated by any federal court,
Williams, 529
U.S. at 405, although district and appellate federal court
decisions evaluating Supreme Court precedent may amplify such
precedent, Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir.
2004) (citing Matteo v. Superintendent, SCI Albion, 171 F.3d
877, 890 (3d Cir. 1999)).
“[C]ircuit precedent does not
constitute ‘clearly established Federal law, as determined by
the Supreme Court,’ [and] therefore cannot form the basis for
habeas relief under AEDPA.”
Parker, 132 S. Ct. at 2155.
The
state court is not required to cite or even have an awareness of
governing Supreme Court precedent “so long as neither the
reasoning nor the result of [its] decision contradicts them.”
14
Early v. Packer, 537 U.S. 3, 8 (2002); Jamison, 544 F.3d at 274–
75.
Few state court decisions will be “contrary to” Supreme
Court precedent.
The federal habeas court more often must determine whether
the state court adjudication was an “unreasonable application”
of Supreme Court precedent.
A state-court decision involves an
“unreasonable application” of clearly established federal law if
the state court (1) identifies the correct governing legal rule
from the Supreme Court’s cases but unreasonably applies it to
the facts of the particular case; or (2) unreasonably extends a
legal principle from Supreme Court 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.
U.S. at 407.
Williams, 529
A showing of clear error is not sufficient.
Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003).
Nor is habeas
relief available merely because the state court applied federal
law erroneously or incorrectly.
See Harrington v. Richter, ---
U.S. ––––, ––––, 131 S. Ct. 770, 785, 178 L.Ed.2d 624 (2011)
(Under § 2254(d)(1), “an unreasonable application of federal law
is different from an incorrect application of federal law.”
(quoting Williams at 410)); see also Metrish v. Lancaster, --U.S. ----, 133 S. Ct. 1781, 1786–87, 185 L.Ed.2d 988 (2013);
Thomas v. Varner, 428 F.3d 491, 497 (3d Cir. 2005); Jacobs v.
15
Horn, 395 F.3d 92, 100 (3d Cir. 2005).
“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.”
Harrington, 131 S.
Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
Accordingly, “[a]s a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fair-minded disagreement.”
Ct. at 786–87.
Harrington, 131 S.
See also Metrish, 133 S. Ct. at 1787.
The Supreme Court repeatedly has reiterated the deference
that the federal courts must accord to state court decisions.
See Felkner v. Jackson, –––U.S. ––––, 131 S. Ct. 1305, 1307, 179
L.Ed.2d 374 (2011) (“AEDPA imposes a highly deferential standard
for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.”); Cullen v.
Pinholster, 131 S. Ct. at 1398; Eley v. Erickson, 712 F.3d 837,
845 (3d Cir. 2013).
See also Harrington, 131 S. Ct. at 786 (“We
must use habeas corpus as a guard against extreme malfunctions
in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.”); Renico v. Lett, 559
16
U.S. 766, 773 (2010) (“whether the trial judge was right or
wrong is not the pertinent question under AEDPA”); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA
is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable-a substantially higher threshold.”); Lockyer, 538
U.S. at 75 (“it is not enough that a federal habeas court, in
its independent review of the legal question, is left with a
‘firm conviction’ that the state court was erroneous.”).
Further, AEDPA’s standard applies even where “the state court
analyzed and rejected a habeas petitioner’s federal claims on
the merits but gave ‘no indication of how it reached its
decision.’”
Grant v. Lockett, 709 F.3d 224, 230 (3d Cir. 2013)
(quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.
2012)).
A state court decision is based on “an unreasonable
determination of the facts” only if the state court’s factual
findings are “‘objectively unreasonable in light of the evidence
presented in the state-court proceeding.’”
Miller–El v.
Cockrell, 537 U.S. 322, 340 (2003) (citing, inter alia, 28
U.S.C. § 2254(d)(2)).
Moreover, a federal court must accord a
presumption of correctness to a state court’s factual findings,
which a petitioner can rebut only by clear and convincing
17
evidence.
28 U.S.C. § 2254(e); see also Rice v. Collins, 546
U.S. 333, 339 (2006) (petitioner bears the burden of “rebutting
the presumption by ‘clear and convincing evidence.’” (quoting 28
U.S.C. § 2254(e)(1)); Duncan v. Morton, 256 F.3d 189, 196 (3d
Cir. 2001)(factual determinations of state trial and appellate
courts are presumed to be correct).
Where a state court’s
factual findings are not made explicit, a federal court’s “duty
is to begin with the [state] court’s legal conclusion and reason
backward to the factual premises that, as a matter of reason and
logic, must have undergirded it.”
280, 289 (3d Cir. 2000).
Campbell v. Vaughn, 209 F.3d
In determining what implicit factual
findings a state court made in reaching a conclusion, a federal
court must infer that the state court applied federal law
correctly.
Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433
(1982)).
Even if the petitioner is entitled to habeas relief under
AEDPA, the court may grant the writ only if the error was not
harmless.
Under the harmless error standard, the court must
“assess the prejudicial impact of [the] constitutional error in
[the] state-court criminal trial.”
121 (2007).
Fry v. Pliler, 551 U.S. 112,
The court should hold the error harmless unless it
led to “actual prejudice,” in the form of a “substantial and
injurious effect or influence in determining the jury’s
18
verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quotation omitted); Eley v. Erickson, 712 F.3d at 847.
Finally, 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 (1972).
A pro se habeas petition and any
supporting submissions must be construed liberally and with a
measure of tolerance.
See Rainey v. Varner, 603 F.3d 189, 198
(3d Cir. 2010) (citing United States ex rel. Montgomery v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969)); Royce v. Hahn, 151
F.3d 116, 118 (3d Cir.1998).
IV.
A.
DISCUSSION
Double Jeopardy Claim
Petitioner claims that his second prosecution violated his
constitutional right that protects him from double jeopardy.
In
Petitioner’s first trial, the jury acquitted him of murder,
conspiracy to commit robbery, felony murder – robbery,
conspiracy to commit burglary, felony murder – burglary, felony
murder – kidnapping, and weapons offenses), but could not reach
a unanimous verdict on those counts charging him with first
degree robbery, burglary, and kidnapping.
Petitioner argues
that “well established principles of double jeopardy” rendered
his retrial on those remaining counts “improper,” and requires
19
that his conviction be vacated and the indictment dismissed.
He
raised this claim on direct appeal.
Relying on federal precedent regarding the constitutional
principle of double jeopardy, the Appellate Division found no
merit to Petitioner’s claim.
The state court succinctly opined:
The defendant’s double jeopardy claim lacks the essential
predicate because the original jeopardy never concluded.
Put another way, this was not a plural attempt by the State
to expose defendant to trial but the continuation of its
attempt to convict defendant in the same trial on the
charge. There was no double jeopardy and no collateral
estoppel.
(Ra4, App. Div. Op. at 13.) (emphasis in original)
The Double Jeopardy Clause forbids that “any person be
subject for the same offence to be twice put in jeopardy of life
or limb.”
U.S. Const. amend. V.
The Double Jeopardy Clause
“protects against three distinct abuses: a second prosecution
for the same offense after acquittal, a second prosecution for
the same offense after conviction; and multiple punishments for
the same offense.”
(1989).
United States v. Halper, 490 U.S. 435, 440
See also Oregon v. Kennedy, 456 U.S. 667, 671 (1982)
(holding that the Double Jeopardy Clause “protects a criminal
defendant from repeated prosecutions for the same offense.”).
“The Double Jeopardy Clause, however, does not offer a guarantee
to the defendant that the State will vindicate its societal
20
interest in the enforcement of the criminal laws in one
proceeding.”
Kennedy, 456 U.S. at 672.
Moreover, the Supreme Court has long held that double
jeopardy is not implicated in cases retried after a hung jury
because there is no termination of the original jeopardy in
those cases.
See Richardson v. United States, 468 U.S. 317,
323-24 (1984) (citing United States v. Perez, 9 Wheat. 579, 6
L.Ed. 165 (1824)).
The Court has “constantly adhered to the
rule that a retrial following a ‘hung jury’ does not violate the
Double Jeopardy Clause.
Richardson, 468 U.S. at 324 (citing
Logan v. United States, 144 U.S. 263, 297-98 (1892)).
In this case, the state courts properly applied federal
precedent on this issue, likewise citing to Perez, Logan and
Richardson for the principle that double jeopardy was not
implicated in Petitioner’s case following his retrial after the
jury could not reach a verdict in his first trial.
Therefore,
Petitioner is not entitled to habeas relief on his double
jeopardy claim because he has not shown that the New Jersey
courts’ adjudication of the claim was based on an unreasonable
determination of the facts in light of the evidence presented,
or was contrary to, or an unreasonable application of,
longstanding Supreme Court precedent.
21
B.
Insufficient Proofs to Support Kidnapping Conviction
Petitioner next claims that the State’s proofs at trial
“fail[ed] to demonstrate that the handcuffing of the victims,
which was the sole basis for the kidnapping charges, was
anything more than ‘incidental to the underlying crime.’”
Petitioner also raised this claim on direct appeal.
The
Appellate Division ruled that the claim was “without merit to
warrant discussion in a written opinion.”
(Ra4 at 15.)
Petitioner sought partial reconsideration before the
Appellate Division regarding this claim, believing that the
court had not considered the issue on first appeal.
However, in
its Order dated September 12, 2007, the Appellate Division
denied reconsideration with the supplemental notation that the
factual recitation in the August 1, 2007 opinion included the
observation that “the victims were required to lie on the floor
while handcuffed.”
(Ra8.)
The Due Process Clause of the Fourteenth Amendment
“protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime for with which he is charged.”
U.S. 358, 364 (1970).
In re Winship, 397
There is sufficient evidence to support a
conviction, if “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
22
have found the essential elements of the crime beyond a
reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319
(1979); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010).
A
petitioner raising an insufficiency of the evidence claim faces
a “‘very heavy burden’ to overturn the jury’s verdict for
insufficiency of the evidence.”
United States v. Root, 585 F.3d
145, 157 (3d Cir. 2009) (citing United States v. Dent, 149 F.3d
180, 187 (3d Cir. 1998)).
“When assessing such claims on a petition for habeas relief
from a state conviction, the sufficiency of the evidence
standard ‘must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state
law.’”
Robertson v. Klem, 580 F.3d 159, 165 (3d Cir. 2009)
(quoting Jackson, 443 U.S. at 324 n. 16).
In New Jersey, the
crime of kidnapping is defined as follows:
. . . A person is guilty of kidnapping if he unlawfully
removes another from his place of residence or business, or
a substantial distance from the vicinity where he is found,
or if he unlawfully confines another for a substantial
period, with any of the following purposes:
(1) To facilitate commission of any crime or flight
thereafter;
(2) To inflict bodily injury on or to terrorize the
victim or another; ...
N.J.S.A. 2C:13-1b.
The Court finds that Petitioner has failed to establish
that he is entitled to federal habeas relief on this
23
insufficiency of evidence claim.
As observed above, the
Appellate Division, in rejecting Petitioner’s motion for
reconsideration on this claim of insufficiency, referenced its
recitation of the facts regarding the evidence at trial, which
showed that the victims had been forced to lie on the floor
while handcuffed.
Thus, the Appellate Division found that this
evidence was sufficient support in affirming the kidnapping
convictions.
This Court likewise finds that the evidence at
trial, showing that the victims were unlawfully confined to the
floor of their home while handcuffed for a period of time, for
the purpose of a robbery and to force information from the
victims to facilitate the robbery, establish the requisite
elements of a kidnapping offense as defined by the statute.
Petitioner’s contention that there was no increased risk of
danger and unlawful confinement because the handcuffs were
“kiddie handcuffs” that came undone easily was presented to the
jury at trial, and the jury obviously rejected it and determined
that the evidence was sufficient to prove the necessary elements
of kidnapping.
Therefore, in light of the evidence adduced at trial, which
support the necessary elements of a kidnapping charge, and
particularly when this evidence is viewed in the light most
favorable to the prosecution, Jackson, 443 U.S. at 319, 326, the
24
Court finds that a rational trier of fact could have found
Petitioner guilty of kidnapping.
Accordingly, this claim does
not warrant granting federal habeas relief and it will be
denied.
C.
Prejudicial Trial Testimony and Evidence
Petitioner next asserts that the trial court erred in
allowing prejudicial testimony at trial, which suggested that
Petitioner had engaged in similar criminal conduct in the past.
Specifically, on direct examination of co-defendant Terrell, the
State had asked Terrell whether there had been a discussion
concerning Petitioner wanting to go into the house.
Terrell
responded “yes,” and further replied:
A. He was saying that Darryl he can do it, he can do it,
he can do it this time.
(Ra20, 7T 46:8-13.) (emphasis added)
Defense counsel objected and moved for a mistrial, arguing
that the remark indicated that Petitioner had been involved in
other crimes.
(Id., 7T 46:14-25.)
The trial judge overruled
the objection and denied the application for a mistrial,
stating:
I allowed it and I’m not going to touch it because it’s
nothing more than a comment.
(Id., 7T 47:6-8.)
25
On direct appeal, Petitioner argued that the phrase “this
time” plainly suggested that Petitioner had been involved in
similar crimes with co-defendants, Bozeman and Terrell.
He
further claimed that the remark was “extremely prejudicial,
especially since his defense was based on the fact that he had
no criminal record and the testimony of his character witnesses
that he was law abiding.”
(Ra4, App. Div. Op. at 14.)
The
Appellate Division rejected Petitioner’s claim, deferring to the
sound discretion of the trial judge.
The court stated:
“While
a cautionary instruction would have been appropriate, we find
that the fleeting, isolated and unsolicited comment by Terrell
was not of such dimension to warrant reversal of the trial
judge’s decision to deny a mistrial.”
(Id. at 15.)
Petitioner also contends that the trial court erred in
admitting photographs of the body, guns and ammunition at trial
because the photos were prejudicial and related to murder and
weapons charges for which Petitioner had been acquitted earlier.
Defense counsel initially objected to admission of the gun
photos because Petitioner had been acquitted of the murder and
weapons offenses and was being tried as an accomplice on armed
robbery and kidnapping charges only.
Counsel also objected to
photographs of the body offered by the State regarding the
murder charge, with the exception of a photo showing the
26
handcuff on the victim’s wrist.
(Ra17, 5aT 14:18-15:3.)
The
trial judge allowed the photos of the gun, ruling that “the gun
is part of the case in terms of the fact that he’s an accomplice
[] that’s the State’s theory.”
(Id., 5aT 15:5-8.)
Judge Venezia had instructed the prosecutor to limit
evidence depicting the victim’s body.
The prosecutor indicated
that he wanted to use two of six photographs offered.
Judge
Venezia excluded the photograph that depicted the victim’s head
and blood and shelves where items had been removed, finding that
its potential for prejudice outweighed its probative value.
Namely, the judge noted that the victim’s wife could testify
about stolen items from the shelves.
However, the court did
allow one photograph that depicted only part of the victim’s
body.
(Id., 5aT 15:10-16; 20:3-25.)
Defense counsel further objected to the admission of
photographs regarding ammunition found at the scene.
The trial
judge allowed only one of two photographs offered by the State
concerning bullets, shells and bullet holes.
depicted the victim’s body and shell casings.
16; 18:7-10.)
The admitted photo
(Id., 5aT 16:9-
On the third day of trial, defense counsel
renewed his objection to the admission of photographs depicting
the bullet holes and shell casings on the ground that Petitioner
was not charged with a shooting and thus, the State did not need
27
to prove that a gun was used to prove armed robbery.
Judge
Venezia overruled the objection, finding the photographs
relevant.
Judge Venezia limited the State, however, to two
photographs showing the handcuffs and excluded one that showed
too much blood.
(Ra21, 8T 3:10-5:10; 6:2-19; 7:10-18; 9:19-
11:1.)
Finally, the trial court agreed to limit the medical
examiner’s testimony.
Specifically, the medical examiner could
testify that the victim had bullet wounds and he had died from
bullet wounds, but she could not identify which wounds were
fatal or go into detail about the autopsy.
She was allowed to
testify that she gave a bullet found in the victim’s body during
the autopsy to a detective.
(Id., 12:18-15:19.)
Petitioner raised all of these grounds on direct appeal,
and the Appellate Division found the claims were “without
sufficient merit to warrant discussion in a written opinion.”
(Ra4.)
It is well-established that the violation of a right
created by state law is not cognizable as a basis for federal
habeas relief.
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)
(“We have stated many times that ‘federal habeas corpus relief
does not lie for errors of state law.’”) (quoting Lewis v.
Jeffers, 497 U.S. 764, 680 (1990)).
28
Thus, Petitioner cannot
obtain relief for any purported errors in the state law
evidentiary rulings at his criminal trial, unless they rise to
the level of a deprivation of due process.
Estelle, 502 U.S. at
70 (“[T]he Due Process Clause guarantees fundamental elements of
fairness in a criminal trial.”) (quoting Spencer v. Texas, 385
U.S. 554, 563–64 (1967)).
For a habeas petitioner to prevail on
a claim that an evidentiary error amounted to a deprivation of
due process, he must show that the error was so pervasive as to
have denied him a fundamentally fair trial.
Keller v. Larkins,
251 F .3d 408, 413 (3d Cir. 2001) (holding that admission of
evidence may violate due process where the evidence is so
inflammatory as to “undermine the fundamental fairness of the
entire trial”).
See also Cox v. Warren, Civil Action No. 11-
7132 (FSH), 2013 WL 6022520, *8 (D.N.J. Nov. 13, 2013).
Here, the state courts have determined that there were no
evidentiary errors under state law.
This Court also finds that
the evidentiary issues raised by Petitioner did not deprive him
of a fundamentally fair trial.
The trial judge carefully
reviewed the proffered photographs and eliminated those he
deemed to be prejudicial or inflammatory without any probative
value, such as those depicting too much blood.
The several
photographs admitted were plainly relevant to prove the elements
of the offenses charged, namely, armed robbery and kidnapping.
29
Finally, the Appellate Division found that Terrell’s testimony
as to Petitioner’s involvement “this time,” was fleeting and not
of sufficient constitutional dimension to warrant a mistrial.
These decisions by the trial and appellate state courts are
neither contrary to nor an unreasonable application of Supreme
Court precedent.
Accordingly, Petitioner is not entitled to
habeas relief on these evidentiary claims.
D.
Sentencing Claim
Petitioner next asserts that the trial court failed to find
the relevant statutory aggravating and mitigating factors and
thus improperly imposed consecutive sentences.
Petitioner also
argues that his aggregate term of 35 years in prison subject to
the No Early Release Act was excessive.
sentencing claim on direct appeal.
He raised the
The Appellate Division found
this claim to be “without sufficient merit to warrant discussion
in a written opinion.”
(Ra4.)
The State argues that this claim
fails to raise a constitutional issue.
A federal court may review a state sentence only where the
challenge is based upon “proscribed federal grounds such as
being cruel and unusual, racially or ethnically motivated, or
enhanced by indigencies.”
See Grecco v. O'Lone, 661 F. Supp.
408, 415 (D.N.J .1987) (citation omitted).
Thus, a petitioner’s
challenge to a state court’s discretion at sentencing is not
30
reviewable in a federal habeas proceeding unless it violates a
separate federal constitutional limitation.
See Pringle v.
Court of Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984).
See
also 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67
(1991).
In this case, Petitioner does not assert an Eighth
Amendment violation regarding his sentence.
“The Eighth
Amendment, which forbids cruel and unusual punishments, contains
a ‘narrow proportionality principle’ that ‘applies to noncapital
sentences.’”
Ewing v. California, 538 U.S. 11, 20 (2003)
(citations omitted).
The Supreme Court has identified three
factors to be applied in determining whether a sentence is so
disproportionate to the crime committed that it violates the
Eighth Amendment: “(1) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other
jurisdictions.”
Solem v. Helm, 463 U.S. 277, 292 (1983).
Petitioner utterly fails to establish that his sentence is
grossly disproportionate to the crimes for which he was
convicted.
Thus, the state court decisions are neither contrary
to nor an unreasonable application of controlling Supreme Court
precedent.
Further, the sentencing transcript plainly shows
31
that the court considered both the aggravating factors presented
by the State, and mitigating factors argued by defense counsel
regarding Petitioner’s lack of a prior criminal history and his
role as accomplice.
35:9.)
(Ra25; Sentencing Transcript 12T 12:18-
Finally, the imposition of consecutive sentences was
proper under State v. Yarborough, 100 N.J. 627, 643-44 (1985),
cert. denied, 475 U.S. 104 (1986), because the sentencing court
based the consecutive sentence on the fact that there were two
different victims.
Therefore, where Petitioner was properly
sentenced in accordance with state law, and where he has not
provided this Court with any justification to grant habeas
relief with respect to his sentence on federal constitutional
grounds, this claim for habeas relief is denied.
E.
Claims Regarding Alleged Exculpatory Impeachment Evidence
In Ground Six, Petitioner argues that the State failed to
reveal the extent of Terrell’s communications with the U.S.
Attorney, which as “exculpatory impeachment evidence” allegedly
denied Petitioner his Sixth Amendment right to confrontation and
fair trial under Brady v. Maryland, 373 U.S. 83 (1963).
(Petition, Ground Six.)
He raised this claim in his state PCR
proceedings, which the PCR court denied.
In a similar claim
under Ground Nine of the petition, Petitioner asserts that the
trial court erred in denying the PCR petition because the
32
prosecutor’s “misrepresentations” about the federal arrangement
with Terrell violated Petitioner’s right to due process and a
fair trial under the Fourteenth Amendment, and Petitioner’s
Sixth Amendment right to confrontation.
(Pet., Ground Nine.)
Terrell was a co-defendant who had entered into a
“Cooperation Agreement-Memorandum of Agreement/Understanding”
with the State, on February 5, 2004, in which he agreed to plead
guilty to felony murder and kidnapping in exchange for a
recommended sentence of 30 years imprisonment without parole and
dismissal of other counts against him.
In addition, Terrell
agreed to testify at the trial of Petitioner and Darryl and Gina
Bozeman.
However, unbeknownst to Petitioner and his counsel at
that time, Terrell also had an arrangement with the U.S.
Attorney’s office in which he expected to be placed in a federal
witness protection program, and that he would not serve any time
in a New Jersey state facility.
The Appellate Division
memorialized the facts regarding this issue as follows:
The State’s case against defendant relied heavily on the
testimony of Terrell and the decedent’s widow, as well as
defendant’s statement to the police following the incident.
At the commencement of the first trial in May 2004, the
State informed the court that Terrell apparently was a
cooperating witness for the federal government in an
unrelated matter. The prosecutor represented that having
spoken with the U.S. Attorney’s Office, Terrell was not a
defendant in any federal case, no promises had been made to
him by federal authorities, but if Terrell’s safety became
an issue, he would be permitted to request a transfer to “a
33
different facility.” When cross-examined about the terms
of his arrangement with the State at trial, Terrell
repeatedly stated that he would serve no less than thirty
years without parole.
Similarly, during defendant’s second trial in December
2004, Terrell was questioned at length about his plea
bargain and arrangement with the State. Although
repeatedly pressed, Terrell confirmed his understanding
that if he had gone to trial and been convicted, his
sentence would have been life imprisonment. However, the
plea bargain obliged the State to recommend a sentence of
thirty years incarceration, meaning Terrell, who was
thirty-years old at the time of the crimes, would “hit the
parole board at about [sixty-four].”
On April 23, 2006, subsequent to the filing of defendant’s
direct appeal but before the affirmance of his convictions
and sentence, Terrell entered into an “Agreement Not to
Prosecute” with the U.S. Attorney’s Office for the Eastern
District of New York. The agreement stipulated that in
exchange for his cooperation including grand jury
testimony, Terrell would not be prosecuted for federal gun
possession and drug crimes committed between 2000 and 2002,
and could be placed in a “Witness Security Program” at the
discretion of the Department of Justice.
(Ra11, App. Div. Op. at 5-7.)
The PCR court rejected Petitioner’s claim alleging
prosecutorial misrepresentation, finding that no Brady violation
occurred because the State had disclosed all relevant
information known to its agents at the time.
Judge Venezia
further noted that it was not proper to impute the U.S.
Attorney’s knowledge of Terrell’s cooperation agreement to the
State.
(Id. at 7-8.)
Judge Venezia also rejected Petitioner’s
claim of ineffective assistance of counsel, noting that “the
34
jury chose to believe Mr. Terrell based on their assessment of
his credibility and taking into consideration” the details of
the State plea agreement questioned during Terrell’s crossexamination at trial.
(Id. at 8.)
The PCR Court emphasized,
however, that even if the facts regarding Terrell’s agreement
with the U.S. Attorney’s Office were elicited at trial, it would
not have affected the outcome “by virtue of the other facts in
the case.”
(Id.)
On appeal from denial of his PCR petition, Petitioner
argued that the factual misrepresentation concerning the true
nature of Terrell’s arrangement with the U.S. Attorney’s office,
which repeatedly stressed to the jury that Terrell would serve
30 years in prison, prejudiced Petitioner’s Sixth and Fourteenth
Amendment rights to confrontation, a fair trial and effective
assistance of counsel.
Petitioner further argued that, even if
the prosecutor’s misrepresentations were “benign” as found by
the PCR court, such misrepresentations about Terrell’s
arrangement with the U.S. Attorney’s Office “had the capacity to
affect how the jury assessed Terrell’s credibility thereby
rendering the trial unfair.”
(Ra7, Pet. PCR Appeal Brief at
31.)
The Appellate Division affirmed the PCR court’s ruling,
stating that it would be “rank speculation” for the State to
35
presume what Terrell had been told by the U.S. Attorney’s Office
at the time of Petitioner’s trial was other than what the U.S.
Attorney’s Office had told the State.
9.)
(Ra11, App. Div. Op. at
In 2004, the State knew only that Terrell also was serving
as a cooperating federal witness, that he could make an
application for transfer to a different prison facility if his
safety became an issue, and that the U.S. Attorney’s Office
denied that Terrell’s cooperation was in exchange for immunity
from prosecution for other crimes at that time.
(Id.)
Moreover, the Appellate Division noted that the federal
agreement was not reached until April 23, 2006, more than 16
months after Petitioner’s trial concluded, and the State
prosecutor did not learn of the final agreement until June 2006.
Thus, the appellate court concluded that Petitioner had
“received all that he was due pursuant to the Confrontation
Clause and other constitutional principles” at the time of his
trial in December 2004.
(Id. at 9-10.)
Moreover, the Appellate Division observed that, in
determining whether Petitioner’s right to confrontation was
violated, the issue is not whether the outcome of trial would
have been different, but whether Petitioner was thwarted from
“‘engaging in otherwise appropriate cross-examination designed
to show ... bias,’ or challenge the reliability of the testimony
36
and inferences that could be deduced therefrom.”
(Id. at 10.)
(quoting Del. v. Van Arsdall, 475 U.S. 673, 680 (1986)).
Thus,
the court found:
Although it is uncertain what favorable treatment Terrell
unilaterally anticipated from his cooperation with the U.S.
Attorney’s Office, it is undisputed that defense counsel
was not prevented from questioning Terrell about what he
knew as of defendant’s trial. Everything the State learned
from the U.S. Attorney’s Office regarding Terrell was
disclosed during trial and put on the record. Thus, while
defense counsel’s ability to cross-examine Terrell about
his involvement as a witness in another case may have been
stymied by the simple fact that no better information was
available at the time, and did not become available until
more than a year later, neither the prosecution nor the
trial judge prevented defendant’s counsel from exercising
his right to cross-examine Terrell on this or any other
relevant issue.
(Id. at 10-11.)
Finally, the Appellate Division agreed with the PCR court’s
assessment that the inculpatory evidence established at trial
against Petitioner far outweighed the information concerning
Terrell’s future agreement with the U.S. Attorney’s Office,
which did not come to realization until more than a year after
Petitioner’s trial was completed.
Thus, further examination of
Terrell regarding the inchoate arrangement between Terrell and
the U.S. Attorney’s Office at that time would not have affected
the outcome of the trial.
The Appellate Division concluded:
The physical evidence, defendant’s own statement, and the
testimony of the decedent’s widow – who was herself
terrorized by Bozeman and [Terrell] on the night defendant
37
was their getaway driver – sealed defendant’s fate. An
evidentiary hearing would have clarified nothing, and there
was no misapplication of the law in denying defendant’s
application for such a proceeding.
(Id. at 11.)
This Court likewise finds no constitutional violations with
respect to this claim.
First, there was no Brady violation or
prosecutorial misrepresentations because the prosecutor
disclosed all that he knew at the time.
Second, Petitioner was
not denied his constitutional right of confrontation.
The
Confrontation Clause of the Sixth Amendment states that, “[i]n
all criminal prosecutions, the accused shall enjoy the right ...
to be confronted with the witnesses against him.”
amend. VI.
U.S. Const.
In effect, “the Confrontation Clause requires that a
defendant have had ‘a full and fair opportunity to probe and
expose [testimonial] infirmities’” of a government witness for
that witness’s testimony to be admissible.”
Ross v. Dist.
Attorney of Cnty. of Allegheny, 672 F.3d 198, 206–07 (3d Cir.
2012) (citing United States v. Owens, 484 U.S. 554, 558 (1988)
(quoting Delaware v. Fensterer, 474 U.S. 15 (1985))).
As
discussed above, neither the trial court nor the prosecutor
prevented Petitioner’s trial counsel from fully cross-examining
Terrell.
Thus, Petitioner’s Confrontation Clause argument is
without merit.
38
Finally, Petitioner has not demonstrated that he was denied
due process and a fair trial.
As the Appellate Division
discussed, the State disclosed everything known about Terrell’s
agreement with the U.S. Attorney’s Office at that time and put
it on the record.
Thus, neither the prosecutor nor the trial
court thwarted Petitioner’s right to fully cross-examine Terrell
on this issue.
Moreover, the evidence of Petitioner’s guilt at
trial was overwhelming such that even if the full extent of
Terrell’s arrangement with the U.S Attorney’s Office had been
made known to defense counsel, such information was
insignificant when weighed against the other inculpatory
evidence.
(Ra11, App. Div. Op. at 10-11.)
Therefore, this Court finds that the state court’s
adjudication of Petitioner’s claims in Grounds Six and Nine of
his petition was not based on an unreasonable determination of
the facts in light of the evidence presented, nor was it
contrary to, or an unreasonable application of, Supreme Court
precedent.
2012).
F.
See Rolan v. Coleman, 680 F.3d 311, 327–28 (3d Cir.
These claims are denied for lack of merit accordingly.
Ineffective Assistance of Counsel
In Grounds Seven, Eight,
and Ten, Petitioner alleges that
he was denied his Sixth Amendment right to effective assistance
of trial and appellate counsel because (1) his appellate counsel
39
failed to raise on appeal the issue of the trial court’s denial
of a motion for acquittal (Ground Seven); (2) trial counsel
failed to request case specific instructions on accomplice
liability and appellate counsel failed to raise the claim on
direct appeal (Ground Eight); 6 and (3) trial counsel was
deficient in his opening statement, cross-examination of
Terrell, and summation due to the prosecutor’s
misrepresentations concerning Terrell’s agreement with the U.S.
Attorney’s Office (Ground Ten).
In Ground Eleven of the
petition, Petitioner generally alleges that denial of his PCR
petition violated his right to effective assistance of trial and
appellate counsel.
To prevail on a claim of ineffective assistance of counsel,
Petitioner must demonstrate that (1) counsel’s performance was
so deficient as to deprive him of the representation guaranteed
to him under the Sixth Amendment of the U.S. Constitution, and
(2) the deficient performance prejudiced the defense by
depriving the defendant of a fair trial.
Washington, 466 U.S. 668, 687 (1984).
Strickland v.
To show prejudice under
Strickland, Petitioner must demonstrate that there is a
“reasonable probability that, but for counsel’s unprofessional
6
In Ground Eight, Petitioner also alleges that the trial court
erred in failing to give tailored jury instructions on
accomplice liability.
40
errors, the result of the proceeding would have been different.”
Rainey v. Varner, 603 F.3d 189, 197–98 (3d Cir. 2010) (quoting
Strickland, 466 U.S. at 694).
“The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.”
Strickland, 466 U.S. at 686; Ross v. Varano, 712 F.3d
784, 797–98 (3d Cir. 2013).
“Since Strickland, the Supreme Court and the Third Circuit
have emphasized the necessity of assessing an ineffectiveness
claim in light of all the circumstances.”
Grant v. Lockett, 709
F.3d 224, 232 (3d Cir. 2013); Siehl v. Grace, 561 F.3d 189, 195
(3d Cir. 2009) (citing cases).
When a federal habeas petition
under § 2254 is based upon an ineffective assistance of counsel
claim, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable,” which
“is different from asking whether defense counsel’s performance
fell below Strickland’s standard.”
Grant, 709 F.3d at 232
(quoting Harrington, 131 S.Ct. at 785).
For purposes of
§ 2254(d)(1), “an unreasonable application of federal law is
different from an incorrect application of federal law.”
(internal quotation marks omitted) (emphases in original).
Id.
“A
state court must be granted a deference and latitude that are
41
not in operation when the case involves [direct] review under
the Strickland standard itself.”
Id.
Federal habeas review of
ineffective assistance of counsel claims is thus “doubly
deferential.”
1403).
Id. (quoting Cullen v. Pinholster, 131 S.Ct. at
Federal habeas courts must “take a highly deferential
look at counsel’s performance” under Strickland, “through the
deferential lens of § 2254(d).”
Id. (internal quotation marks
and citations omitted).
1.
Failure to Request Tailored Accomplice Liability
Instructions.
Petitioner alleges that his trial counsel rendered
ineffective assistance of counsel because he failed to request
specific jury instructions on accomplice liability.
Petitioner
contends that a tailored charge would have informed the jurors
that Petitioner “must have shared the intent of his accomplices
with reference to both the manner and circumstances in which the
victims were restrained and their intent with reference to the
harming of the victims” in order to convict Petitioner on the
kidnapping charge.
(Pet., Ground Eight.)
Petitioner also
asserts that his appellate counsel was ineffective for failing
to raise this claim on direct appeal, and that the trial court
erred in failing to give a tailored jury charge on accomplice
liability.
(Id.)
42
These claims were raised in Petitioner’s PCR proceedings.
At the PCR hearing, Judge Venezia recited his familiarity with
the jury charges, and found that the elements of the offenses
and accomplice liability were fully explained to the jury for
their understanding.
(Ra26, PCR T 26:5-13.)
The PCR court
further found that the jury applied the facts presented at trial
to the charges given and decided based on the evidence that
Petitioner was aware of the circumstances of the criminal
activity conducted by Bozeman and Terrell and that Petitioner
was involved with the co-defendants as an accomplice.
T 26:14-21.)
(Id., PCR
Judge Venezia further found that the jury charge
itself and the verdict sheet were clear and informative, and
that any confusion as to handouts or demonstrative evidence used
during summation was cured by the court’s instructions to the
jury.
Specifically, Judge Venezia stated, “... from a legal
standpoint very frankly the handout or the demonstrative
evidence that was submitted I have a specific recollection of
telling the jury that only my charge controlled and if it’s in
conflict with anything else that was submitted by Counsel in
their summations, what is submitted in the summations is to be
ignored and the charge is to be underscored and that’s what they
did.”
(Id., PCR T 26:22-27:10.)
Thus, Judge Venezia ruled no
error in the jury instructions, and expressly found no
43
deficiency of performance by either trial counsel or appellate
counsel with respect to any of the claims asserted by Petitioner
regarding the jury charge on accomplice liability or with
respect to the jury charges as a whole.
(Id., PCR T 27:11-
28:17.)
On appeal from denial of the PCR petition, the Appellate
Division found that Petitioner’s claims on this issue to be
“without sufficient merit to warrant discussion in a written
opinion.”
(Ra11, App. Div. Op. at 4.)
Generally, a jury instruction does not merit federal habeas
relief merely because it is inconsistent with state law.
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.... “Beyond the
specific guarantees enumerated in the Bill of Rights, the
Due Process Clause has limited operation.”
Estelle, 502 U.S. at 72–73 (citations omitted).
Most
pertinently, the Due Process Clause would be violated if an
erroneous instruction rendered the trial as a whole unfair or
44
“operated to lift the burden of proof on an essential element of
an offense as defined by state law.”
400, 416 (1997).
Smith v. Horn, 120 F.3d
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 ...”);
Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (jury
instructions that suggest a jury may convict without proving
each element of a crime beyond a reasonable doubt violate the
Constitution).
In Waddington v. Sarausad, the Supreme Court rejected a
habeas petitioner’s claim that an accomplice liability
instruction violated due process.
555 U.S. 179 (2009).
In
doing so, the Court summarized the law regarding standards
governing federal court review of the constitutionality of state
court jury 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
[1] that the instruction was ambiguous and
[2] that there was “‘a reasonable likelihood’” that the
jury applied the instruction in a way that relieved the
State of its burden of proving every element of the crime
beyond a reasonable doubt....
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
45
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 ... (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).
Id. at 190–91 (bracketed numbers and line breaks added;
citations and internal quotation marks omitted); Williams v.
Beard, 637 F.3d 195, 223 (3d Cir. 2011) (citing the two-step
test from Waddington, supra, and noting that the due process
analysis “depends as much on the language of the court’s charge
as it does on the particularities of a given case”).
This Court has examined the jury charges given and agrees
with the State that the jury instructions sufficiently informed
the jury of the requisite elements of each offense and
accomplice liability, and that the jury charge did not in any
way corrupt the trial or violate Petitioner’s right to due
process.
First, the jurors were repeatedly charged that, in
order to find Petitioner guilty of accomplice liability, he had
to have agreed to aid the co-defendants in the commission of the
crime of kidnapping and that he had to possess the requisite
state of mind to commit the crime.
21; 19:15-25; 20:1-17.)
(Ra24, 11T 16:4-20; 17:16-
The charge also informed the jury that
they could find that Petitioner had a different purpose or state
46
of mind than Bozeman and Terrell, and the judge gave specific
and detailed instructions as to the kidnapping offense and its
lesser included offenses.
(Ra24, 11T 21:16-29:5; 49:6-50:25.)
Consequently, taken as a whole, the instructions adequately
conveyed to the jury the law that they were to apply.
The
instructions do not make it past the first prong of Waddington,
as they did not even constitute reversible error.
Petitioner
fails to show that the jury charge, as a whole, or the charge
concerning accomplice liability, constituted a fundamental due
process defect that would give rise to habeas relief.
Nor does
Petitioner point to any Supreme Court holding that would be
violated by the failure of the trial court to deliver, or of the
trial counsel to request, “more specific” jury instructions on
accomplice liability.
Petitioner also fails to show that there
was a reasonable likelihood that the jury applied the
instructions in a way that relieved the state of its burden of
proving the elements of accomplice liability.
Therefore, where the jury instructions were clear and
informative as to accomplice liability, and did not operate in
any way to lift the burden of proof on each element of the
offenses charged, this Court agrees with the state courts that
there was no ineffectiveness of either trial or appellate
counsel in failing to request more specific charges at trial or
47
in failing to challenge the jury charge on appeal.
The Court
concludes that Petitioner has not shown that the state courts’
adjudication of these claims were contrary to, or an
unreasonable application of, Supreme Court precedent.
Accordingly, Petitioner is not entitled to habeas relief on
Ground Eight of the petition.
2.
Failure to Challenge Denial of Motion for Acquittal on
Appeal.
Petitioner also argues that his appellate counsel was
constitutionally ineffective because he did not raise on appeal
the issue of the trial court’s denial of a motion for acquittal
as to the kidnapping counts. (Pet., Ground Seven.)
This claim
was raised by Petitioner in his state PCR proceedings, and the
PCR court denied it summarily.
Specifically, Judge Venezia
found that appellate counsel was a “reasonable and prudent
attorney” under the Strickland standard,
His brief, his argument, his amended brief, everything that
was done here with respect to the argument presented by him
was done not only just in a professional manner but in one
that in my opinion gave Mr. Holmes the benefit of an
attorney who was prudently schooled in appellate argument
and who brought forward arguments that he thought were
arguments that would perhaps hold some weight with respect
to this particular appellate panel.
(Ra26, PCR T 25:12-26:1.)
48
The State argues that appellate counsel did, in fact,
attack the validity of the kidnapping convictions on appeal, as
demonstrated by the arguments raised in Ground Two, supra.
Consequently, there is no merit to Petitioner’s claim in this
regard.
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.
See Jones v. Barnes, 463 U.S. 745, 751–52
(1983) (“Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most
on a few key issues.”).
Thus, demonstrating that a non-
frivolous issue was not raised is insufficient to meet
Strickland’s standard for ineffective assistance.
Petitioner
must show both that appellate counsel was inept and that, but
for counsel’s unprofessional errors, the result would have been
different.
Strickland, 466 U.S. at 687.
49
In short, “claims of
ineffective assistance of appellate counsel are also governed by
the Strickland standard.”
Lusick v. Palakovich, 270 F. App’x
108, 110 (3d Cir. 2008) (citing United States v. Mannino, 212
F.3d 835, 840 (3d Cir. 2000); Lewis v. Johnson, 359 F.3d 646,
656 (3d Cir. 2004).
In this case, Petitioner has not demonstrated deficient
performance by appellate counsel.
The first two issues raised
on direct appeal dealt with dismissal of the indictment or
acquittal based on violation of double jeopardy, and vacation of
the conviction due to lack of proof to support kidnapping
offenses.
Thus, appellate counsel addressed on appeal the very
issues argued by Petitioner in this habeas petition.
Moreover,
as discussed above, the PCR court found that appellate counsel
was able, thorough and professional in raising non-frivolous and
meritorious arguments.
(Ra26, PCR T 25:12-26:1.)
Thus, the Court finds that Petitioner has not met the
Strickland test to establish a claim of ineffective assistance
of appellate counsel.
The state courts’ adjudication of these
claims did not result in a decision that was contrary to, or
involve an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court in Strickland,
nor did it result in a decision that was based on an
unreasonable determination of the facts in light of the evidence
50
presented in the State court proceeding.
Accordingly,
Petitioner is not entitled to relief on this claim.
3.
Trial Counsel Was Ineffective in His Opening Statement,
Cross-Examination of Terrell, and Summation Due to Prosecutor’s
Misrepresentations.
As discussed above, the state courts determined that there
were no misrepresentations by the prosecutor and no Brady
violation that violated Petitioner’s Fourteenth Amendment right
to due process and a fair trial, or his Sixth Amendment right of
confrontation.
For the same reasons, the state PCR court
rejected Petitioner’s ineffective assistance of counsel claim.
Moreover, the PCR court expressly found that Petitioner’s
trial counsel was effective in his cross-examination of Terrell
by putting credibility issues before the jury regarding
Terrell’s plea agreement with the State for a 30 year term
rather than life, as well as Terrell’s cooperation in other
investigations so as to obtain “benefits” for his sentence.
(Ra26, PCR T 13:8-14:16.)
Thus, Petitioner has not shown
deficient performance by counsel in this regard.
Finally, the state courts applied the prejudice prong under
Strickland, ruling that the outcome of the case would not have
changed had trial counsel been armed with information concerning
Terrell’s later cooperation agreement with the U.S. Attorney’s
51
office because that additional information was “insignificant”
and was outweighed by the physical and other testimonial
evidence against Petitioner at trial.
Appellate Division remarked:
Specifically, the
“The physical evidence,
defendant’s own statement, and the testimony of the decedent’s
widow – who was herself terrorized by Bozeman and [Terrell] on
the night defendant was their getaway driver – sealed
defendant’s fate.”
(Ra11, App. Div. Op. at 11.)
Therefore, with regard to this ineffective assistance of
trial counsel claim, as well as all asserted claims of
ineffective assistance of trial counsel raised by Petitioner in
Grounds Seven, Eight and Eleven, this Court finds that
Petitioner has failed to make a prima facie showing of
ineffectiveness of counsel under the Strickland standard.
Further, the Court concludes that the determinations of the
state PCR court and appellate court in denying Petitioner's
ineffectiveness of counsel claims did not result in a decision
that was contrary to, or involved an unreasonable application
of, clearly established federal law under Strickland, 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.
See Parker, 132 S.Ct. at 2151;
Williams, 529 U.S. at 413.
Accordingly, the Court will deny
52
federal habeas relief on Petitioner’s claims of ineffective
assistance of trial and appellate counsel, namely Grounds Seven,
Eight, Ten and Eleven because his claims are substantively
meritless.
V.
CERTIFICATE OF APPEALABILITY
This Court next must determine whether a certificate of
appealability should issue.
Rule 22.2.
See Third Circuit Local Appellate
The Court may issue a certificate of appealability
only if the petitioner “has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
For
the reasons discussed above, this Court’s review of the claims
advanced by Petitioner demonstrates that he has failed to make a
substantial showing of the denial of a constitutional right
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).
53
IV.
CONCLUSION
For the above reasons, this Court finds that the § 2254
habeas petition must be denied, and a certificate of
appealability will not issue.
Finally, Petitioner’s request for
transcripts from his first trial (ECF Nos. 11-1, 13) is denied
as irrelevant for purposes of determining the issues raised in
this habeas petition regarding Petitioner’s conviction in his
second trial, (see fn. 3, supra), and the request is rendered
moot by the denial of habeas relief in this action.
An
appropriate Order follows.
s/ Faith S. Hochberg_ ______
FAITH S. HOCHBERG
United States District Judge
Dated: February 6, 2014
54
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