VELEZ v. LAGANA et al
Filing
16
OPINION fld. Signed by Judge Dickinson R. Debevoise on 5/14/15. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSE VELEZ,
Civil Action No. 12-0430 (DRD)
Petitioner,
v.
OPINION
PAUL K. LAGANA, et al.,
Respondents.
APPEARANCES:
JOSE VELEZ, 925538B
Northern State Prison
168 Frontage Road
Newark, New Jersey 07114
Petitioner Pro Se
CHRISTOPHER W. HSIEH, ESQ.
PASSAIC COUNTY PROSECUTOR
401 Grand Street
Paterson, New Jersey 07505
Attorneys for Respondents
Debevoise, Senior U.S. District Judge
Jose Velez filed an Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. ' 2254
challenging a judgment of conviction filed in the Superior Court of New Jersey, Passaic County,
on April 4, 1997, imposing a life sentence, subject to a 30-year period of parole ineligibility, for
first-degree murder, second-degree possession of a weapon for an unlawful purpose, third-degree
unlawful possession of a weapon, and third-degree hindering apprehension. The State filed an
Answer with the record. After carefully reviewing the arguments of the parties and the state court
record, this Court will dismiss the Petition with prejudice and deny a certificate of appealability.
I. BACKGROUND
A. The Crime
The Appellate Division of the Superior Court of New Jersey described the facts
surrounding the murder as follows. In 1994 Jose Lopez (the victim) told Lisa Dagle (Velez’s
girlfriend) that Petitioner Velez had been unfaithful to her. Velez was angry and asked Lopez
why he was creating problems between Velez and Lisa; the men agreed to meet at a park in Passaic
to have a fistfight. That night, Lopez went to the park with four friends and Velez went there with
four of his friends. Conflicting accounts were given at trial as to what occurred, with Velez and
his friend testifying that Lopez or one of his friends shot a gun, and Angel Diaz (the brother of
Lopez) testifying that he knocked on the car window where Velez sat to talk with him but the car
drove away. In any event, a car chase occurred and
[t]he next day, Velez bought a gun. While on his way to visit his friend, Velez and
Louie Valasquez noticed [Lopez’s] car on Monroe Street. Diaz, Comedy, and
[Lopez] were waiting at a traffic light when they noticed Velez and Louie Lou,
wearing dark hooded sweatshirts, exit a van and walk towards them. As he
approached the car, Velez saw [Lopez] in the passenger’s seat. He said he believed
[Lopez] was trying to take something from his waistband. Velez shot [Lopez]
once. Diaz said that they were not armed and neither had reached for a weapon.
Realizing what happened, Diaz left the car and hid behind the fender. Velez then
ran into an alleyway and threw his gun to the ground. The police later recovered
that gun.
Diaz jumped back in the car and sped to the hospital where [Lopez] was pronounced
dead. He informed the police at the hospital that the shooter was “Pito, a Hispanic
male about six feet tall, dark skinned, with a teardrop tattoo under his left eye.”
Diaz later selected Velez’ photo from a photo book at headquarters and gave a
statement about the shooting. The next morning the police found Velez in the
staircase of a friend’s apartment in Elizabeth trying to hide. Velez was arrested,
advised of his Miranda rights, and taken to the station where he was re-read his
Miranda rights. Velez gave a tape-recorded statement to the Passaic police but he
did not mention that [Lopez] or his friends fired upon him.
2
State v. Velez, Docket No. A-5443-96T4 sl. opinion (N.J. Super. Ct., App. Div., Nov. 9, 1999)
(footnotes omitted) (ECF No. 12-14 at 6-7).
B.
The State Court Proceedings
A jury found Velez guilty of first-degree murder, second-degree possession of a weapon
for an unlawful purpose, third-degree unlawful possession of a weapon, and third-degree hindering
apprehension. By judgment entered April 4, 1997, the trial judge imposed a life sentence with 30
years of parole ineligibility. Velez appealed and on November 9, 1999, the Appellate Division
affirmed.
(ECF No. 12-14.)
On March 22, 2000, the New Jersey Supreme Court denied
certification. See State v. Velez, 163 N.J. 396 (2000) (table).
On May 23, 2000, Velez filed his first petition for post-conviction relief. After conducting
an evidentiary hearing, the trial judge denied relief on November 5, 2001. Velez appealed and on
November 6, 2003, the Appellate Division affirmed.
(ECF No. 12-15.)
The New Jersey
Supreme Court denied certification on March 2, 2004. See State v. Velez, 179 N.J. 369 (2004)
(table). Velez filed his second post-conviction relief petition on June 15, 2004. After conducting
an evidentiary hearing, the trial judge denied the second post-conviction relief petition on August
22, 2006. Velez appealed, and on October 13, 2009, the Appellate Division affirmed. See State
v. Velez, 2009 WL 3459864 (N.J. Super. Ct., App. Div., Oct. 13, 2009). On September 9, 2011,
the New Jersey Supreme Court denied certification. See State v. Velez, 208 N.J. 337 (2011)
(table).
C. Procedural History of § 2254 Petition
On December 6, 2011, Velez signed a declaration in support of a Petition for a Writ of
Habeas Corpus and handed it to prison officials for mailing to the Clerk. (ECF No. 1-1.) Velez
3
attached to his declaration opinions and other documents from the state court criminal proceeding.
By Order filed February 16, 2012, the Court notified Velez that the pleading he filed did not
comply with Rule 2(c) of the Rules Governing Section 2254 Cases and gave him an opportunity
to file an amended petition on the form required by Rule 2(d). (ECF No. 2.)
Velez dated his Amended Petition as December 6, 2011, the date he signed his initial
pleading, but the Clerk did not receive the Amended Petition until June 15, 2012. (ECF No. 5 at
26.) The Amended Petition raises four grounds, which are the same grounds Velez presented on
direct appeal:
Ground One:
THE PROSECUTOR IMPROPERLY INTRODUCED
EVIDENCE SUGGESTING THAT DEFENDANT HAD COMMITTED PRIOR
CRIMES, AND ERRONEOUSLY SUGGESTED THAT HE HAD MURDERED
SOMEONE IN THE PAST; THIS AND THE TRIAL COURT’S FAILURE TO
GIVE LIMITING AND CURATIVE INSTRUCITONS TO THE JURY
DEPRIVED DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMENDS. V, VI,
XIV[.]
A. EVIDENCE THAT DEFENDANT’S MUGSHOT WAS ON FILE AT
POLICE HEADQUARTERS, AND TESTIMONY SUGGESTING THAT
HE HAD MURDERED BEFORE, WERE INADMISSIBLE BECAUSE
THEY WERE NOT PROBATIVE OF ANY GENUINE FACT ISSUE
BUT WERE HIGHLY PREJUDICIAL TO DEFENDANT.
B. THE PROSECUTOR’S INCESSANT USE OF DEFENDANT’S
ALIAS THROUGHOUT THE TRIAL IMPROPERLY SUGGESTED
THAT DEFENDANT WAS A MEMBER OF THE CRIMINAL CLASS
AND FORTIFIED THE IMPROPER SUGGESTION OF CRIMINALITY
ENGENDERED BY THE MUGSHOT AND TATTOO EVIDENCE.
C. THE TRIAL COURT GAVE NO CURATIVE INSTRUCTIONS TO
THE JURY AND IN ANY EVENT, THE PREJUDICE TO DEFENDANT
WAS NOT SUSCEPTIBLE TO CURE BY CORRECTIVE JURY
INSTRUCION.
4
Ground Two: THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY
ON IMPERFECT SELF-DEFENSE AND PASSION\PROVOCATION
MANSLAUGHTER DENIED DEFENDANT A FAIR TRIAL.
Ground Three: SINCE THE STATE HAD NOT ESTABLISHED THAT
DEFENDANT HAD DESTROYED OR CONCEALED THE GUN TO HINDER
HIS APPRE[HEN]SION BY THE POLICE; THE TRIAL COURT SHOULD
HAVE GRANTED DEFENDANT’S MOTION FOR ACQUITTAL.
Ground Four: THE MAXIMUM SENTENCE (LIFE) FOR MURDER WAS
NOT SUPPORTED BY THE PROPER ANALYSIS OF AGGRAVAT[ING] AND
MITIGATING FACTORS.
(ECF Nos. 5 at 13, 15, 16, 18.)
The State filed an Answer arguing that Velez filed the Petition beyond the one-year statute
of limitations and that Velez is not entitled to habeas relief on the merits. (ECF No. 13-1.)
II. STATUTE OF LIMITATIONS
Respondent argues that the § 2254 Petition is barred by the statute of limitations. The AntiTerrorism and Effective Death Penalty Act’s 365-day statute of limitations begins on the latest of
the following dates:
(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence . . . .
28 U.S.C. § 2244(d)(1).
5
Section 2244(d)(2) requires statutory tolling of the statute of limitations under the
following circumstances: “The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.”
28 U.S.C. §
2244(d)(2). An application is “filed” when it “is delivered to, and accepted by, the appropriate
court officer for placement into the official record.” Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(citations omitted). An application is “properly” filed
when its delivery and acceptance are in compliance with the applicable laws and
rules governing filings. These usually prescribe, for example, the form of the
document, the time limits upon its delivery, the court and office in which it must be
lodged, and the requisite filing fee . . . . In some jurisdictions the filing
requirements also include, for example, preconditions imposed on particular
abusive filers, or on all filers generally . . . . But in common usage, the question
whether an application has been “properly filed” is quite separate from the question
whether the claims contained in the application are meritorious and free of
procedural bar.
Artuz, 531 U.S. at 8-9 (citations omitted); see also Allen v. Siebert, 552 U.S. 3 (2007) (petition for
state post-conviction relief that was rejected by the state courts as untimely is not “properly filed”
under § 2244(d)(2)). Thus, the question of the proper filing of a state post-conviction relief
application is a matter of state procedural law governing post-conviction filings. See Artuz, 531
U.S. at 8 (“And an application is ‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings.”) (emphasis in original); see also
Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction relief petition is untimely
under state law, that [is] the end of the matter for purposes of § 2244(d)(2)”) (internal quotation
marks and citation omitted); Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004) (court “must look
6
to state law governing when a petition for collateral relief is properly filed.”) (quoting Fahy v.
Horn, 240 F.3d 239, 243 (3d Cir. 2001)).
In this case, the statute of limitations is governed by § 2244(d)(1)(A). The New Jersey
Supreme Court denied certification on direct review on March 22, 2000, and the time to file a
petition for certiorari in the United States Supreme Court expired 90 days later on June 20, 2000.
See Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012); Wali v. Kholi, 131 S. Ct. 1278, 1282 (2011);
Lawrence v. Florida, 549 U.S. 327, 332-333 (2007); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.
2003). However, because Velez filed his first petition for post-conviction relief in the trial court
on May 23, 2000, and Respondent does not dispute that this first petition was properly filed, the
statute of limitations was tolled from May 23, 2000, until the New Jersey Supreme Court denied
certification on March 2, 2004. See State v. Velez, 179 N.J. 369 (2004) (table). The statute of
limitations picked up the next day, March 3, 2004, at day one.
The limitations period ran until Velez filed his second post-conviction relief petition, which
the trial court received on March 22, 2004 (20 days into the 365-day limitations period), and filed
on June 15, 2004 (106 days into the limitations period), provided the second petition was properly
filed.
Respondent argues that the second petition for post-conviction relief did not toll the federal
limitations period because, according to Respondent, it was not “properly filed” since Velez filed
it more than five years after his conviction was entered.1 The Appellate Division did not find that
N.J. Court Rule 3:22-12(a)(1) provides that “no petition shall be filed pursuant to this rule more
than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is
being challenged unless it alleges facts showing that the delay beyond said time was due to
defendant’s excusable neglect and that there is a reasonable probability that if the defendant’s
factual assertions were found to be true enforcement of the time bar would result in a fundamental
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1
the second post-conviction relief petition was time barred and, although the trial court noted in a
footnote that the second petition was filed beyond the five-year limit of Rule 3:22-12(a)(1), the
trial court did not consider Rule 3:22-12(a)(2)(C). In addition, the trial court appointed counsel
for Velez, conducted an evidentiary hearing, and rendered a merits decision on the claims raised
in the petition. 2 (ECF No. 12-13.) The evidentiary hearing concerned the claims that trial
counsel was ineffective in waiving his right to be present during sidebar and in-chambers
discussions during voir dire and that post-conviction relief counsel was ineffective in failing to
raise this claim on post-conviction relief.
injustice.” Rule 3:22-12(a)(2) provides that “no second or subsequent petition shall be filed more
than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by
the United States Supreme Court or the Supreme Court of New Jersey, if that right
has been newly recognized by either of those Courts and made retroactive by either
of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was discovered, if
that factual predicate could not have been discovered earlier through the exercise
of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for post-conviction
relief where ineffective assistance of counsel that represented the defendant on the
first or subsequent application for post-conviction relief is being alleged.
N.J. Ct. R. 3:22-12(a)(2).
2
Velez argued in the second post-conviction relief petition that (1) trial counsel was
constitutionally deficient (in failing to object to the prosecutor’s introduction of other crimes
evidence, failing to request an instruction on imperfect self-defense, and failing to protect his right
to be present during voir dire; (2) post-conviction relief counsel was ineffective for failing to raise
these issues in the first post-conviction relief petition; and (3) the sentence violated the Sixth
Amendment. See State v. Velez, 2009 WL 3459864 (N.J. Super. Ct., App. Div., Oct. 13, 2009).
8
In the absence of a “clear indication” by the state courts that a post-conviction relief petition
is untimely, the federal court “must itself examine the delay in each case and determine what the
state courts would have held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 198 (2006);
accord Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85-86 (3d Cir. 2013) (“But if
a state court fails to rule clearly on the timeliness of an application, a federal court ‘must . . .
determine what the state courts would have held in respect to timeliness.’”) (quoting Evans, 546
U.S. at 198)). In this case, the Appellate Division did not intimate that the second post-conviction
relief petition was untimely and examined the merits of the claims. This Court finds that, had the
Appellate Division examined timeliness, the court would have found the second post-conviction
relief petition timely under Rule 3:22-12(a)(2)(C). Rule 3:22-12(a)(2)(C) extends the statute of
limitations for a year after the date of the denial of the first petition for post-conviction relief where
ineffective assistance of counsel that represented the defendant on the first petition is being alleged;
Velez claimed in the second petition that post-conviction relief counsel was ineffective in failing
to raise the voir dire claim; and Velez filed his second petition within one year of the New Jersey
Supreme Court’s denial of certification on his first petition. Accordingly, the second petition was
timely under Rule 3:22-12(a)(2)(C) and, had the Appellate Division considered the issue, the court
would have found the petition timely. Thus, the federal statute of limitations was tolled pursuant
to 28 U.S.C. § 2244(d)(2) from the date on which the second post-conviction relief petition was
filed - June 15, 2004 - until the New Jersey Supreme Court denied certification on September 9,
2011.
The limitations period picked up at day 107 on September 10, 2011, the day after the New
Jersey Supreme Court denied certification, and ran for the next 89 days until Velez handed his
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initial habeas Petition to officials for mailing to the Court on December 6, 2011. Because Velez
filed his Petition on the 196th day of the 365-day statute of limitations, the Petition was timely.
III. STANDARD OF REVIEW FOR RELIEF UNDER § 2254
Section 2254 of title 28 of the United States Code sets limits on the power of a federal court
to grant a habeas petition to a state prisoner. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398
(2011). Section 2254(a) permits a court to entertain only claims alleging that a person is in state
custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Where a state court adjudicated petitioner’s federal claim on the merits,3 as in this case,
a court “has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was
contrary to, or involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States’, or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.’”
Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)).
“When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). The petitioner carries
the burden of proof, and review under § 2254(d) is limited to the record that was before the state
“For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that 1) finally resolves the claim, and 2)
resolves th[at] claim on the basis of its substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks omitted).
3
10
court that adjudicated the claim on the merits. See Harrington v. Richter, 131 S.Ct. 770, 785
(2011).
A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly
established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to
the dicta, of t[he Supreme Court’s] decisions,” as of the time of the relevant state-court decision.
Woods, 135 S.Ct. at 1376 (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014), and Williams
v. Taylor, 529 U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within
28 U.S.C. § 2254(d)(1) if the state court “contradicts the governing law set forth in [the Supreme
Court's] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision
of th[e Supreme] Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at
405-06. Under the “‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from th[e Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.,
529 U.S. at 413.
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an
erroneous factual determination of the state court, two provisions of the AEDPA necessarily apply.
First, the AEDPA provides that “a determination of a factual issue made by a State court shall be
presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke,
545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication
11
of the claim “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)(2).
IV. DISCUSSION
A.
Admission of Prior Crimes and Other Evidence
In Ground One, Velez claims that the admission of certain evidence violated due process.
Specifically, Velez challenges the admission of his mugshot, the admission of testimony that he
had a tattoo on his face at the time of the incident, and references to him by his nickname Pito.
A[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned
review of the wisdom of state evidentiary rules.@ Marshall v. Lonberger, 459 U.S. 422, 438 n.6
(1983). The admissibility of evidence is generally a question of state law which is not cognizable
under habeas review. See Keller v. Larkins, 251 F.3d 408, 416 n.2 (3d Cir. 2001) (AA federal
habeas court, however, cannot decide whether the evidence in question was properly allowed under
the state law of evidence@); Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978) (AAs to the
contention that the trial court erred in admitting the victim=s testimony of a prior flirtatious
conversation, we find that, if there was any error in the court=s ruling . . . that error was at best one
of interpretation of the state=s law of evidence and did not arise to constitutional dimensions@).
In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court held that the state court=s
admission in petitioner=s trial for murdering his infant daughter of the testimony of two physicians
that the child had suffered child abuse (evidence of rectal tearing that was six weeks old and rib
fractures that were seven weeks old) did not violate due process.
The evidence of battered child syndrome was relevant to show
intent, and nothing in the Due Process Clause of the Fourteenth
Amendment requires the State to refrain from introducing relevant
12
evidence simply because the defense chooses not to contest the
point. Concluding, as we do, that the prior injury evidence was
relevant to an issue in the case, we need not explore further the
apparent assumption of the Court of Appeals that it is a violation of
the due process guaranteed by the Fourteenth Amendment for
evidence that is not relevant to be received in a criminal trial. We
hold that McGuire=s due process rights were not violated by the
admission of the evidence.
Id. at p. 70.
In cases not governed by the AEDPA, the Third Circuit has held that the admission of
evidence may violate due process where the evidence Aundermine[d] the fundamental fairness of
the entire trial.@ Keller v. Larkins, 251 F. 3d 408, 413 (3d Cir. 2001); see also Lesko v. Owens,
881 F. 2d 44, 51 (3d Cir. 1989) (Athe erroneous admission of evidence that is relevant, but
excessively inflammatory, might rise to the level of a constitutional violation@); Bisaccia v.
Attorney General of State of New Jersey, 623 F. 2d 307, 313 (3d Cir. 1980) (when Athe probative
value of . . . evidence, though relevant, is greatly outweighed by the prejudice to the accused from
its admission, then use of such evidence by a state may rise to the posture of fundamental fairness
and due process of law@). But ' 2254(d)(1) of the AEDPA does not permit this Court to grant
habeas relief based on Third Circuit precedent. See Marshall v. Rodgers, 133 S.Ct. 1446, 1450
(2013) (holding that circuit precedent may not be used under § 2254(d)(1) “to refine or sharpen a
general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not
announced.”)
Velez raised Ground One on direct appeal. Velez argued that the use of his nickname Pito - by witnesses and the prosecutor throughout the trial and during cross-examination of Velez
violated due process because “it could only serve to reinforce the improper and erroneous message
13
conveyed by the mugshot and tattoo evidence: that defendant was an established criminal.”
(ECF No. 12-19 at 27.) The Appellate Division rejected the claim because
his nickname was relevant since several key witnesses, including Christina Dagle,
Jose Vargas, and Angel Diaz, only knew him as Pito. Velez confirmed that
everyone knew him as Pito, rather than Jose. Moreover, the nickname was not
disparaging, and did not suggest criminal association or bad character on the part
of Velez. As Velez testified, his grandmother gave him the nickname when he
was a child. Such references do not have the clear capacity to bring about an
unjust result.
(ECF No. 12-14 at 10.)
This Court is required to presume the correctness of the Appellate Division’s findings that
Velez’ grandmother gave him the nickname, that the nickname was not disparaging, and that
several key witnesses knew Velez only as Pito. See 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.” ) Velez has not rebutted the presumption by clear
and convincing evidence, and he has not shown that the Appellate Division’ s adjudication of this
claim “ 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,” as required to obtain habeas relief under
28 U.S.C. § 2254(d)(2)). See Miller-El v. Dretke, 545 U.S. at 240 (holding that a district court
must “ presume the [state] court’ s factual findings to be sound unless [petitioner] rebuts the ‘
presumption of correctness by clear and convincing evidence.’ ” ); Rountree v. Balicki, 640 F.3d
530, 541-42 (3d Cir. 2011) (habeas court is “ bound to presume that the state court’ s factual
14
findings are correct, with the burden on the petitioner to rebut those findings by clear and
convincing evidence.” ) (quoting Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009)).
Velez also argued on direct appeal that the prosecutor’s cross-examination of Velez about
a teardrop tattoo that was on his face at the time of the incident violated due process. On crossexamination, the prosecutor asked Velez if he had a tattoo at the time of the incident; Velez
responded that he had a teardrop under his eye. The prosecutor asked him why he had gotten rid
of the tattoo and Velez responded: “Because everybody they put in the newspaper that I was in
prison before for murder and all this crazy stuff. So, I didn’t like it. I took it out [after my
arrest].” (ECF No. 12-14 at 11.) Defense counsel objected when the prosecutor asked Velez
what the teardrop meant; the judge “excused the jury and defense counsel stated that the
prosecutor’s purpose was to get before the jury that the tattoo represented that Velez had killed
someone before;” and the court did not allow the prosecutor to ask Velez what the tattoo meant.
Id. The Appellate Division found that “[t]he trial judge properly excluded further testimony
regarding the teardrop and gave a limiting instruction to the jury. The testimony about the tattoo
was brief. The jury is presumed to have heeded the judge’s instructions. Thus, there was no
prejudice to defendant.” (ECF No. 12-14 at 12) (citations omitted).
Again, this Court is required to presume the correctness of the Appellate Division’s factual
findings that the only evidence that the teardrop tattoo indicated that Velez had been in prison for
murder came from Velez himself and that the judge gave a limiting instruction. Velez has not
rebutted this presumption by clear and convincing evidence and he has not shown that the
admission of his testimony concerning the tattoo was contrary to, or an unreasonable application
of Supreme Court holdings.
15
Velez further argued on direct appeal that the admission of the testimony of Angel Diaz
that he had selected Velez’ photograph from a book of photographs at police headquarters, and
that the admission of the mugshot itself violated due process. The Appellate Division rejected the
claim as follows:
Although a mugshot or reference to a mugshot has the potential to prejudice the
defendant, there was no reference to a mugshot in this case. The judge was
concerned about such references and defense counsel and the prosecutor sanitized
the photograph to avoid any appearance that it was a mugshot . . . . No objection
was made to the photo nor was a curative instruction necessary since the word
“mugshot” was not used . . . . The proof of defendant’s guilt was overwhelming.
The reference to Velez’ nickname or tattoo or the photo identification did not lead
the jury to a result it otherwise might not have reached.
(ECF No. 12-14 at 12-13 (citations and internal quotation marks omitted).
This Court is not aware of any Supreme Court case clearly establishing that the admission
of the photograph of Velez and the other evidence to which Velez objects constitutes a violation
of federal constitutional rights, and Supreme Court cases suggest the contrary. See, e.g., Estelle,
502 U.S. 62 (allowing evidence of prior injuries in a trial for infant murder); Spencer v. Texas,
385 U.S. 554 (1967) (rejecting due process challenge to admission of evidence of prior similar
crimes when judge gives limiting instruction). A[The Supreme] Court has held on numerous
occasions that it is not an unreasonable application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not been squarely established by this Court.@
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (citation and internal quotation marks omitted).
Because the admission of the evidence concerning the tattoo and the photo selected at police
headquarters by Angel Diaz, and the use of Pito by the prosecutor and witnesses was not contrary
to, or an unreasonable application of clearly established federal law, as determined by the Supreme
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Court, Velez is not entitled to habeas relief on Ground One. See Charlton v. Franklin, 503 F. 3d
1112, 1115 (10th Cir. 2007) (state court=s admission of evidence of petitioner=s prior bad acts did
not render trial fundamentally unfair or warrant habeas relief); Minett v. Hendricks, 135 Fed.
App’x. 547 (3d Cir. 2005) (rejecting claim that admission of Aother crimes@ evidence is contrary
to or an unreasonable application of clearly established Supreme Court precedent).
B.
Failure to Instruct on Imperfect Self Defense and Passion/Provocation Manslaughter
Velez argues that the failure to instruct the jury on imperfect self defense and
passion/provocation manslaughter violated due process. On direct appeal he argued that the
imperfect self defense instruction was required because there was evidence that would have
supported a jury finding that he shot Lopez “in the unreasonable, but honest, belief that he needed
to do so to protect himself from [Lopez] - a belief provoked by [Lopez’] prior aggressive conduct
towards him, [his] knowledge that [Lopez] had recruited Dusty Lou to help kill defendant, and
most immediately, his belief that [Lopez] was reaching for a gun to shoot him.” (ECF No. 12-19
at 31. He argued that, if the court had instructed the jury on imperfect self defense, then the jury
could have acquitted him of murder even though it rejected the justification of self defense. Id.
The Appellate Division rejected this claim regarding the failure to instruct on imperfect self
defense on the ground that the trial judge did instruct the jury on alternate verdicts to murder:
Imperfect self-defense may reduce a charge to manslaughter when a person uses
deadly force under an honest but unreasonable belief that the force was necessary
to defend himself. The Code of Criminal Justice does not provide an independent
category of justification, excuse, or mitigation under the concept of imperfect selfdefense . . . . A defendant may be entitled to have the jury consider evidence that
his belief was honest, if not reasonable, if the evidence bears on his state of mind.
However, this is satisfied when the judge instructs the jury on alternate verdicts of
murder. Here, the trial judge instructed the jury to consider murder, aggravated
manslaughter, reckless manslaughter and self-defense. The charge was adequate
17
to allow the jury to convict on a lesser offense. Plaintiff was thus not prejudiced
by the lack of an imperfect defense charge. As noted, the evidence of guilt was
overwhelming.
(ECF No. 12-14 at 13-14 (citations and internal quotation marks omitted).
Velez also argued on direct appeal that the failure to instruct on passion/provocation
manslaughter violated due process. The Appellate Division rejected this claim on the ground that
“no reasonable jury could [have] conclude[d] that the elements of passion/provocation
manslaughter were present in this case.” (ECF No. 12-14 at 15.)
A habeas petitioner who challenges state jury instructions must Apoint to a federal
requirement that jury instructions on the elements of an offense . . . must include particular
provisions@ or demonstrate that the jury Ainstructions deprived him of a defense which federal law
provided to him.@ Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997).
In Beck v.
Alabama, 447 U.S. at 627, the Supreme Court held that the death penalty may not be imposed
“when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital
offense, and when the evidence would have supported such a verdict.” See also Hopper v. Evans,
456 U.S. 605, 611 (1982) (holding that due process does not require lesser included offense
instruction in death penalty case where there is no lesser included offense under state law); Larry
v. Branker, 552 F.3d 356, 366-68 (4th Cir. 2009); Brown v. Sirmons, 515 F.3d 1072, 1085-88
(10th Cir. 2008); Boltz v. Mullin, 415 F.3d 1215, 1233-34 (10th Cir. 2005).
In this case, the trial court instructed the jury on murder, aggravated manslaughter, reckless
manslaughter and self defense, but the Appellate Division found that a specific instruction on
imperfect self defense was not warranted and that the evidence did not support a
passion/provocation manslaughter instruction. Any error of state law regarding these rulings
18
cannot form the basis for habeas relief as habeas relief is not available for errors of state law. See
Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (A[T]he fact that the instruction was allegedly
incorrect under state law is not a basis for habeas relief.”); Engle v. Isaac, 456 U.S. 107, 119 (1982)
(AInsofar as respondents simply challenge the correctness of the self-defense instructions under
Ohio law, they allege no deprivation of federal rights and may not obtain habeas relief@). In
addition, the finding that the evidence did not support a passion/provocation manslaughter
instruction is entitled to a presumption of correctness under 28 U.S.C. 2254(e)(1) and Velez has
not rebutted this presumption of correctness by clear and convincing evidence. Habeas relief is
not warranted on Ground Two where the jury was instructed on alternatives to murder and, in any
event, the Supreme Court has not held that such instructions are required by due process.4 To
summarize, this Court finds that the New Jersey courts’ adjudication of this failure to instruct claim
was not based on an unreasonable determination of the facts in light of the evidence presented and
did not result in a decision that was contrary to, or involved an unreasonable application of clearly
established Supreme Court precedent.
C.
Challenge to Hindering Apprehension Conviction
In Ground Three, Velez asserts that he should have been acquitted of the charge of
hindering his apprehension because, while the state proved that the handgun was incriminating,
the state failed to establish beyond a reasonable doubt that Velez threw the handgun into a yard
Although failure to give an instruction may violate due process where the error “so infected the
entire trial that the resulting conviction violate[d] due process” Henderson v. Kibbe, 431 U.S. 145,
154 (1997) (citation omitted), Velez has not shown that the failure to instruct on imperfect self
defense or passion/provocation was an error that infected the entire trial and violated due process.
4
19
with the intent of hindering his apprehension, prosecution, conviction or punishment. On direct
appeal, Velez argued that, given that the police found the gun within one minute of arriving on the
scene, the simple act of throwing the gun as Velez ran from the scene does not show intent to
conceal the gun from the police. The Appellate Division found that “Velez admitted that after he
shot [Lopez] he ran down the alleyway and discarded the gun behind a funeral home.
A
reasonable jury could find him guilty of the charge beyond a reasonable doubt, as it did.” (ECF
No. 12-14 at 15.)
A sufficiency of the evidence claim is governed by Jackson v. Virginia, 443 U.S. 307, 318
(1979). A[I]n a challenge to a state criminal conviction brought under 28 U.S.C. ' 2254 . . . the
applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at
the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.@ Id.
at 324; accord Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (per curiam); Cavazos v. Smith,
132 S.Ct. 2 (2011) (per curiam); McDaniel v. Brown, 558 U.S. 120, 121 (2010) (per curiam). “[I]t
is the responsibility of the jury - not the court - to decide what conclusions should be drawn from
evidence admitted at trial.” Cavazos, 132 S.Ct. at 3. Jackson Arequires a reviewing court to
review the evidence in the light most favorable to the prosecution. Expressed more fully, this
means a reviewing court >faced with a record of historical facts that supports conflicting inferences
must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to that resolution.=@ McDaniel, 130
S. Ct. at 673 (quoting Jackson, 443 U.S. at 326); see also House v. Bell, 547 U.S. 518, 538 (2006)
(AWhen confronted with a challenge based on trial evidence, courts presume the jury resolved
evidentiary disputes reasonably so long as sufficient evidence supports the verdict@). “[T]he
20
standard . . . does not permit a court to make its own subjective determination of guilt or
innocence.@ Jackson at 320, n. 13.
In this case, the jury was convinced that Velez threw away the gun to hinder his
apprehension, “and the only question under Jackson is whether that finding was so insupportable
as to fall below the threshold of bare rationality. The state court of last review did not think so,
and that determination in turn is entitled to considerable deference under AEDPA, 28 U.S.C. §
2254(d).” Coleman, 132 S.Ct. at 2065. Affording due respect to the role of the jury and the New
Jersey courts under § 2254(d), this Court finds that the evidence “was not nearly sparse enough to
sustain a due process challenge under Jackson.” Id. Velez is not entitled to habeas relief on
Ground Three. See Eley v. Erickson, 712 F.3d 837, 847-853 (3d Cir. 2013) (holding that state
courts’ adjudication of sufficiency of evidence claims was not contrary to, or an unreasonable
application of Jackson).
D.
Challenge to Sentence
In Ground Four, Velez asserts that the maximum sentence of life in prison for murder was
not supported by the proper analysis of aggravating and mitigating factors. Velez raised this
ground on direct appeal, arguing that the trial judge had improperly analyzed the aggravating
factors under New Jersey law and improperly failed to recognize mitigating factors. (ECF No.
12-19 at 40-43.) The Appellate Division rejected the ground, finding that “[t]he aggravating
factors found by the judge [were] clearly supported by the record” and “[t]here was no mistaken
exercise of sentencing discretion and no warrant to disturb the sentences imposed.” (ECF No. 1214 at 17.)
21
Here, the state correctly argues that Velez’ life sentence is not unconstitutional. Absent a
claim that a sentence constitutes cruel and unusual punishment prohibited by the Eighth
Amendment, or that it is arbitrary or otherwise in violation of due process, the legality and length
of a sentence are questions of state law over which this Court has no jurisdiction under § 2254.
See Chapman v. United States, 500 U.S. 453, 465 (1991) (holding that under federal law, “the
court may impose . . . whatever punishment is authorized by statute for [an] offense, so long as
that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary
distinction that would violate the Due Process Clause of the Fifth Amendment”); see also
Wainwright v. Goode, 464 U.S. 78 (1983). Habeas relief is not warranted on the sentencing claim
because the New Jersey courts’ adjudication of the claim was not contrary to, or an unreasonable
application of, clearly established Supreme Court precedent.
E.
Certificate of Appealability
Velez has not made a substantial showing of the denial of a constitutional right.
Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See
Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
V. CONCLUSION
This Court dismisses the Petition with prejudice and denies a certificate of appealability.
s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
U.S.S.D.J.
Dated: May 14, 2015
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