MASSEY v. WARREN et al
Filing
43
OPINION. Signed by Judge Esther Salas on 12/19/2018. (JB, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
ANTHONY MASSEY,
:
:
Civil Action No. 13-3439 (ES)
Petitioner,
:
:
v.
:
OPINION
:
CHARLES W. WARREN, JR., et al.,
:
:
Respondents.
:
____________________________________:
SALAS, DISTRICT JUDGE
I.
INTRODUCTION
Petitioner Anthony Massey (“Petitioner”) is a state prisoner proceeding with a pro se
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (D.E. No. 1). Following an order to
answer (D.E. No. 8), Respondents filed a response to the Petition (D.E. No. 14), and Petitioner
filed a reply (D.E. Nos. 23 & 33). For the reasons stated below, the Court DENIES the Petition
and declines to issue a certificate of appealability.
II.
FACTUAL BACKGROUND
This case arises out of a sexual assault and burglary that took place on July 22, 1998, in
the victim’s apartment in North Bergen. J.L.,1 the victim, resided there with her two-year-old son,
B.L. At approximately 2:00 a.m., J.L. was awakened by “a yell.” When she opened her eyes, a
man, later identified by her as Massey, was next to her and telling her not to yell. Massey sexually
assaulted her, awakening B.L. Petitioner then slapped the child, knocking him off the bed. After
1
Given that the crimes at issue in this case involve sexual assault, this Opinion refers to the victim by initials
rather than full name, to shield the victim’s identity.
the assault, Petitioner demanded money. When J.L. turned on the light to look for money, she saw
the face of Petitioner, who had performed some work in her apartment when she first moved there.
Petitioner continued the assault and then took thirty or forty dollars, finally leaving her apartment
at approximately 3:40 a.m. (D.E. No. 1-7 at 2-3).
Massey was charged in Hudson County with first-degree aggravated sexual assault;
second-degree burglary; second-degree sexual assault; third-degree aggravated criminal sexual
contact; fourth-degree criminal sexual contact; third-degree terroristic threats; third-degree
criminal restraint; third-degree aggravated assault; fourth-degree child abuse; third-degree
endangering the welfare of a child; third-degree possession of a weapon, a knife with a sharpened
edge, for an unlawful purpose; and first-degree armed robbery. (Id. at 3).
III.
PROCEDURAL HISTORY
Following a pretrial hearing, the trial judge denied Petitioner’s motion to suppress the
statements he gave to the investigating police officers, in which he denied having any sexual
contact with J.L. The case then went to trial before a jury. (Id. at 3-4).
Petitioner testified at trial. Although he had denied any involvement in the incident when
arrested, his trial testimony was that he had consensual sexual relations with J.L. He claimed that
J.L. was concerned that her former husband, who sometimes lived with her, would find out about
their sexual activity and rushed him out of the apartment. He claimed that he saw a Hispanic male
in the area when he left the apartment building. (Id. at 4).
The trial judge dismissed the child abuse and endangering charges at the conclusion of the
evidence. The jury found Massey not guilty of the aggravated assault charge, but convicted him
on all other counts. (Id.).
2
At sentencing, the trial judge merged the sexual assault, aggravated criminal sexual contact,
and criminal sexual contact convictions into the first-degree aggravated sexual assault conviction,
and sentenced Massey to a twenty-year term of imprisonment, with an eighty-five percent parole
disqualifier pursuant to the No Early Release Act (“NERA”), N.J. Stat. Ann. § 2C:43-7.2. The
judge imposed a concurrent ten-year period of imprisonment, with a NERA eighty-five percent
parole disqualifier, on the second-degree armed burglary conviction, and a concurrent five-year
term, with a two and one-half year parole disqualifier, on the third-degree criminal restraint
conviction. (Id. at 4-5).
The trial judge merged the terroristic threats and weapon convictions into the first-degree
armed robbery conviction, and sentenced Massey to a fifteen-year term of imprisonment, with a
NERA eighty-five percent parole disqualifier, to run consecutive to the other sentences.
Consequently, the aggregate term of imprisonment was thirty-five years with an eighty-five
percent term of parole ineligibility. Applicable mandatory fines, penalties, and a period of parole
supervision were also imposed. (Id. at 5).
Petitioner directly appealed his sentence, raising the following issues: his statements to
police should have been suppressed because his waiver of Miranda rights prior to interrogation
was insufficient; failure to instruct the jury on the law of prior inconsistent statements violated his
Fourteenth Amendment Due Process rights; the State violated Petitioner’s right to a fair and
impartial jury via introduction of extraneous matters at trial that inflamed the jury; the
prosecution’s comment on post-arrest silence violated Petitioner’s Fifth Amendment privilege
against self-incrimination; jury instructions on aggravated sexual assault and robbery violated
Petitioner’s Fourteenth Amendment Due Process rights; and his sentence was excessive
(collectively referred to as “Direct Appeal Issues”). (D.E. No. 1-4 at 9-11).
3
On October 15, 2003, the Appellate Division affirmed Petitioner’s conviction. (D.E. No.
1-4 (“Massey I”)). On February 13, 2004, the Supreme Court of New Jersey denied Petitioner’s
petition for certification. (D.E. No. 16-4).
In his March 2004 petition for post-conviction relief (“PCR”), Petitioner argued his trial
counsel was ineffective for: (1) failing to call as a witness Martin Laderman (“Laderman”), the
apartment manager, whom Massey contends would have testified that J.L.’s former husband
sometimes lived at the apartment (D.E. No. 1-6 at 10-12); (2) entering into a stipulation regarding
certain DNA evidence and hospital records of the victim’s son, B.L. (id. at 12-14); (3) the manner
in which counsel handled questions of the jury during deliberations; and (4) failing to make a
motion for judgment of acquittal. (Id. at 14) (collectively referred to as “PCR Issues”).
The PCR judge, who had presided at the trial, denied Petitioner’s request for an evidentiary
hearing and denied PCR, stating at the October 19, 2006 PCR hearing:
[The] Court has received and reviewed the 119 page Brief submitted
by the Petitioner pro se, as well as the 60 page Brief submitted by
his Counsel … At the outset let me state, that an evidentiary hearing
is not required on this Petition. The resolution of the Petitioner’s
claims is not dependent on any evidence outside of the trial or
appellate records, and with one or two exceptions to be dealt with
hereinafter, all involve questions of law and not disputed facts.
Further, a good number of the Petitioner’s claims are procedurally
barred by [New Jersey Rule of Court] 3:22-4 … The only issues
which survive the application of the procedural bar are: (1) The
ineffectiveness of Trial Counsel and Appellate Counsel, and I am
stretching the exceptions in favor of the Petitioner to consider Trial
Counsel’s alleged ineffectiveness here; and (2) The possible
applicability of State v. Natale to his sentence.
(D.E. No. 1-6 at 7-9 (“Massey II”)). As for the ineffective assistance of counsel (“IAC”) claim,
Massey II ruled: “Defendant has failed to satisfy either prong of the Strickland [v. Washington,
466 U.S. 668 (1984)] test. He has not made a prima facie case.” (Id. at 15).
4
In February 2008, Petitioner appealed the denial of PCR, arguing: trial counsel was
ineffective for entering into a stipulation regarding the victim’s medical records (“the
Stipulation”); the PCR judge erred in refusing to hold an evidentiary hearing with respect to his
allegations that counsel had rendered IAC by failing to interview J.L.’s ex-husband; and
excessiveness of sentence. (D.E. Nos. 18-2 and 18-3).
In an October 16, 2008 written opinion, the Appellate Division: (1) affirmed the decisions
of the PCR judge on all issues except ineffectiveness of trial counsel by (a) failing to call or
interview Laderman and (b) failing to explore other potential witnesses; and (2) remanded for an
evidentiary hearing on the IAC issue of “failure to call or interview Laderman and the failure to
explore other potential witnesses.” (D.E. No. 18-12 at 14-15 (“Massey III”)).
On February 4, 2009, the New Jersey Supreme Court denied Petitioner’s petition for
certification. (D.E. No. 18-16).
At the December 10, 2009 remand hearing (D.E. Nos. 20-25 and 20-26), Massey’s trial
counsel, Alan Bowman, Esquire (“Bowman”), testified that either he or his paralegal had contacted
Laderman before trial. Laderman, who also testified at the remand hearing, denied being contacted
by Bowman or anyone from his office. However, Laderman said he did speak with an investigator,
whom he believed was hired by Massey. (D.E. No. 1-7 at 6-7). Explaining the court’s reasons in
detail (D.E. No. 20-27 at 2-18 (State of New Jersey v. Massey, No. A-3627-09T4, Superior Court
of New Jersey, Law Division (Mar. 18, 2010)) ((“Massey IV”)), the judge concluded that, even if
Laderman’s testimony had been offered at trial, the verdict would not have differed. (Id. at 18-19).
The March 23, 2010 order denied PCR on this claim. (D.E. No. 1-12 at 1).
On appeal of PCR denial, Petitioner argued: (1) Bowman rendered IAC in failing (a) to
interview Laderman in order to identify other persons with knowledge and (b) to call Laderman as
5
a witness; (2) Bowman’s factual recollection was flawed; and (3) denial of PCR was “proof of the
prejudice that [Petitioner] has suffered as a result” of IAC. (D.E. No. 1-7 at 12-13).
In a written opinion dated September 24, 2012, the Appellate Division affirmed denial of
PCR. State of New Jersey v. Massey, No. A-3627-09T4, Superior Court of New Jersey, Appellate
Division (Sept. 24, 2012) (“Massey V”) (D.E. No. 1-7). The New Jersey Supreme Court denied
Petitioner’s petition for certification on March 25, 2013. (D.E. No. 19-13; D.E. No. 19-10).
Petitioner then filed a habeas petition with this Court on June 3, 2013, raising seven claims.
(D.E. No. 1). Respondents were ordered to file an answer (D.E. No. 8) and did so on February 14,
2014, asserting such arguments as Petitioner’s failure to exhaust, lack of merit, failure to satisfy
the habeas standard of review, procedural bar, and failure to state a claim for habeas relief. (D.E.
Nos. 14, 14-1, and 14-1 at 3).
IV.
ANALYSIS
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254 now provides, in pertinent part: “(a) The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf
of a person in 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.” Habeas petitioners
have the burden of establishing their entitlement to relief for each claim presented in a petition
based upon the record that was before the state court. See Parker v. Matthews, 567 U.S. 37, 40-41
(2012); Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). District courts are required to give
great deference to the determinations of the state trial and appellate courts. Renico v. Lett, 559 U.S.
766, 772-73 (2010).
6
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication: (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)(1)-(2). Federal law is clearly established for these
purposes where it is clearly expressed in “only the holdings, as opposed to the dicta” of the
opinions of the United States Supreme Court. See Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).
“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.” Id. Where a petitioner challenges an allegedly erroneous
factual determination of the state courts, “a determination of a factual issue made by a State court
shall be presumed to be correct [and the] applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Furthermore, “[w]hen a state court arrives at a factual finding based on credibility determinations,
the habeas court must determine whether that credibility determination was unreasonable.” See
Keith v. Pennsylvania, 484 F. App’x 694, 697 (3d Cir. 2012) (citing Rice v. Collins, 546 U.S. 333,
339 (2006)).
B. Exhaustion and Procedural Default
Exhaustion: In addition to the above requirements for habeas corpus relief, a federal court
may not grant a writ under § 2254 unless the petitioner has first “exhausted the remedies available
in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). See also Rose v. Lundy, 455 U.S. 509, 515
(1982); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001)
7
(finding that “Supreme Court precedent and the AEDPA mandate that prior to determining the
merits of [a] petition, [a court] must consider whether [petitioner] is required to present [his or her]
unexhausted claims to the [state’s] courts”). Exhaustion also has the practical effect of permitting
development of a complete factual record in state court, to aid the federal courts in their review.
See Lundy, 455 U.S. at 519.
To meet the exhaustion requirement, a petitioner must “‘fairly present’ all federal claims
to the highest state court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357,
365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This
requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173
(3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)). In other words, a petitioner
exhausts state remedies by presenting his federal constitutional claims to each level of the state
courts empowered to hear those claims, either on direct appeal or in collateral post-conviction
proceedings. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (“[R]equiring state
prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the State.”); Lambert, 134 F.3d at 513
(collateral attack in state court is not required if the petitioner’s claim has been considered on direct
appeal); 28 U.5.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the question presented.”). Once a petitioner’s
federal claims have been fairly presented to the state’s highest court, the exhaustion requirement
is satisfied. See Castille v. Peoples, 489 U.S. 346, 350 (1989); Picard v. Connor, 404 U.S. 270,
275 (1971).
8
Petitioners generally bear the burden to prove all facts establishing exhaustion. See Toulson
v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). This means that the claims heard by the state courts
must be the “substantial equivalent” of claims asserted in the federal habeas petition. See Picard,
404 U.S. at 275. Reliance on the same constitutional provision is not sufficient; the legal theory
and factual basis must also be the same. See id. at 277. The exhaustion doctrine is a “total”
exhaustion rule, in that “a district court must dismiss habeas petitions containing both unexhausted
and exhausted claims [(‘mixed’ petitions)].” Lundy, 455 U.S. at 522.
Generally, district courts should dismiss petitions containing unexhausted claims in the
absence of a state court decision clearly precluding further relief, even if it is not likely that a state
court will consider the claims on the merits. See Lundy, 455 U.S. at 522; Banks v. Horn, 126 F.3d
206, 212-14 (3d Cir. 1997); see also Toulson, 987 F.2d at 989 (“Because no [New Jersey] court
has concluded that petitioner is procedurally barred from raising his unexhausted claims and state
law does not clearly require a finding of default, we hold that the district court should have
dismissed the petition without prejudice for failure to exhaust state remedies.”).
Procedural Default: Even when a petitioner properly exhausts a claim, a federal court may
not grant habeas relief if the state court’s decision rests on a violation of a state procedural rule.
See Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when
the state rule is “independent of the federal question [presented] and adequate to support the
judgment.” Leyva, 504 F.3d 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007);
see also Gray v. Netherland, 518 U.S. 152 (1996); Coleman v. Thompson, 501 U.S. 722 (1991)).
If a federal court determines that a claim has been defaulted, it may excuse the default only upon
a showing of “cause and prejudice” or a “fundamental miscarriage of justice.” Leyva, 504 F.3d at
366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
9
Denial on the merits: To the extent that a petitioner’s constitutional claims are unexhausted
or procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C.
§ 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d
700, 728 (3d Cir. 2005).
V.
DISCUSSION
A. Grounds One and Two of the Petition: Ineffective Assistance of Counsel
In Ground One, Petitioner alleges an IAC argument. He claims that trial counsel failed to
investigate phone records and to interview witnesses Laderman, “the ex-husband Roberto Lopez[,]
[]or the baby’s father, Eddie Carbone.” (D.E. No. 1 at 14-17). Petitioner says he met both prongs
of the Strickland v. Washington, 466 U.S. 668 (1984) test. (Id).
In Ground Two, Petitioner again claims that his trial counsel “fail[ed] to investigate.” (D.E.
No. 1 at 17). Petitioner contends, as in Ground One, that “Laderman’s testimony should have been
put before [the] jury” and that Bowman failed to investigate “phone records.” (Id.). Ground Two
additionally alleges that trial counsel: (1) made no search “for the person [the victim] introduced
to Claudia Quintero2 as her husband; (2) did not search for “a possible DNA match . . . that
excluded Petitioner”; (3) did not “request a complete DNA analysis of other evidence collected
[from J.L.’s apartment]; (4) did not investigate “missing investigative reports”; and (5) did not
“contact investigating Det[ectives] Larry Malang and Luis Cruz.” (Id.).3
2
Claudia Quintero (“Quintero”) was “a resident of the same apartment building as J.L.” (D.E. No. 1-4 at 6).
3
For discussion purposes, the Court refers herein to these claims as follows: claims in Grounds One and Two
regarding IAC as to witness Laderman are “Laderman IAC Claim”; claims in Grounds One and Two regarding IAC
as to investigation of phone records are “Phone Records Investigation Claim”; claims in Ground One regarding IAC
as to Roberto Lopez, Eddie Carbone, the person introduced by J.L. to Claudia Quintero, Detective Larry Malang, and
Detective Luis Cruz are “Other Witnesses IAC Claim”; and claims in Ground Two regarding IAC as to possible DNA
match, DNA analysis, and missing investigative reports are “Evidence Search Claim.”
10
This Court finds from careful review of the record that: (1) the state court ruling on the
Laderman IAC Claim was not contrary to or an unreasonable application of Supreme Court
precedent, and thus habeas relief shall be denied; and (2) while the Phone Records Investigation
Claim, Other Witnesses IAC Claim, and Evidence Search Claim were not fairly presented to state
courts and thus appear unexhausted, this Court may—and does—nevertheless deny them on the
merits.
Laderman IAC Claim: Petitioner raised the Laderman IAC Claim in his PCR petition. (D.E.
No. 1-6 at 10). The PCR trial court rejected it, finding that Petitioner had failed to establish either
deficient performance or prejudice. (Id. at 10-12). On appeal of PCR denial, Massey III affirmed
on all issues except counsel’s alleged failure to call or interview Laderman and failure to explore
other potential witnesses. As to those issues, Massey III remanded for an evidentiary hearing (D.E.
No. 18-12 at 14), which occurred on December 10, 2009. (D.E. Nos. 20-25 and 20-26). The Massey
IV court denied PCR on the Laderman remand issue. (D.E. No. 20-27 at 19). On Petitioner’s appeal
(D.E. No. 1-7 at 12-13), Massey V affirmed denial of PCR. (D.E. No. 1-7).
In assessing habeas claims, the Court looks to the last reasoned state court decision on the
merits. See Simmons v. Beard, 590 F.3d 223, 232 (3d Cir. 2009). A determination as to which state
court ruling is the last reasoned decision depends upon the issue raised. The Massey V Appellate
Division on appeal of PCR denial did not unreasonably apply Strickland to the facts of Petitioner’s
case, as now illustrated.
After the evidentiary hearing on the Laderman IAC Claim, Massey IV had pointed to
multiple instances where “Defendant failed to satisfy either prong of the Strickland test.” (D.E.
No. 20-27 at 19). Indeed, that court stated as follows:
One cannot forget that Laderman’s importance as a witness did not
become known to Counsel until shortly before the trial. For the 15
11
months between arrest and DNA results, the Defendant denied even
being present at the scene. If he wasn’t at the scene, then he couldn’t
have seen the mysterious Hispanic male or assumed that man was
the victim’s husband, rendering Laderman’s entire testimony
irrelevant. Consequently, Laderman was not even on Counsel’s
radar until shortly before trial. He simply had no reason to speak
with him, other than to make the inquiry that he did about the
availability of a pass key to the Defendant.
Counsel cannot be faulted, even if the facts were interpreted as
indicating a failure to investigate Laderman during the time period,
[if] his own client lied to him regarding the essential facts upon
which he had to base his Defense. During that period, the fault lies
entirely with the Defendant, thereby concealing from his attorney
the facts necessary to assess Laderman’s importance to the Defense.
To summarize, I find the proofs establish Mr. Laderman was
interviewed about the matter by an investigator working on the
Defendant’s behalf pretrial.
I find that the failure to focus more attention on Laderman’s
potential as a witness was the direct result of the Defendant’s
deception of his lawyer and not a consequence of Counsel’s
professional conduct of this Defense. I further find that in light of
the fact that Ms. Quintero was on the State’s witness list, Counsel
understood that he could and, in fact did, introduce evidence
respecting the husband’s presence at the victim’s building through
Ms. Quintero and that therefore Counsel could reasonably have
believed Laderman was unnecessary as a witness.
However, even if one were to consider Counsel ineffective for not
pursuing Laderman, that error could not have and did not have any
effect on the outcome of the trial.
If Laderman had testified to the evidence he revealed on the remand
at trial, there is absolutely no doubt in my mind that his testimony
would not in any way have altered the result. The entire Defense was
based upon the testimony of a lying Defendant and multiple illogical
and unreasonable inferences he sought the jury to draw from
unreliable evidence. The State’s case, on the other hand, was
consistent, cogent, logical, reasonable and corroborated by scientific
and medical evidence.
(D.E. No. 20-27 at 17-19).
12
The Appellate Division in Massey V discussed at length the facts relevant to the Laderman
IAC Claim, as pertinent to the Strickland standard:
For the purposes of our opinion, we will assume that Massey has
satisfied the first Strickland prong, although we note that the PCR
judge found otherwise. We will focus instead on the judge’s
determination that Laderman’s testimony would not have produced
a different result.
Massey correctly argues that Laderman would have been permitted
to testify that J.L. told him that she had given the key to her
apartment to a male and that he sometimes visited her. He would
also have been permitted to testify to his single observation of a man
leaving the apartment, as well as J.L.’s identification of the man.
However, it is clear from Laderman’s testimony that he was
uncertain whether the person mentioned by J.L. and seen by him was
J.L.’s husband or the father of her child, because Laderman assumed
they were the same person. Once he was challenged on the issue,
Laderman began to use both references. For example, he testified
that, when he asked J.L. about the man he saw running out of the
apartment, she responded “the father of my child, my husband.”
Laderman’s uncertainty, in light of J.L.’s testimony that they were
two different people, would have significantly undercut the value of
his testimony.
The judge’s careful analysis of Laderman’s potential testimony,
which he did not find credible, in light of the trial evidence, which
the judge had experienced firsthand as the trial judge, further
demonstrated that a different result was unlikely. For example, the
judge pointed to Massey’s initial denial of having had any sexual
relationship with J.L., followed by his revised version of events,
involving a consensual relationship, fear of the husband, and the
unknown male, which was put forth by Massey only after the results
of the DNA testing were received shortly before trial. While
Laderman’s testimony, if believed, might have added a bit to the
plausibility to Massey’s revised version of events, the judge
correctly noted that it did not explain the fresh injuries to the child,
which were clearly inconsistent with a consensual sexual
relationship between Massey and J.L.
Our review of the record satisfies us that Massey failed to satisfy the
second prong of the Strickland test because he failed to demonstrate
“a reasonable probability that … the result of the (trial] would have
been different” had Laderman testified at trial . . . Consequently, we
13
affirm the dismissal of Massey’s PCR petition, substantially for the
reasons set forth in the PCR judge’s oral decision.
(D.E. No. 1-7). Thus, Massey V ruled that Petitioner had not made a prima facie claim of IAC.
Massey V is not contrary to or an unreasonable application of Supreme Court precedent.
The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of
Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate
legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel’s
assistance was so defective as to require reversal of a conviction has two components, both of
which must be satisfied: deficient performance and prejudice. Id. at 687.
First, the defendant must “show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 687-88. To meet this prong, a “convicted defendant making a
claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” Id. at 690. The court must then
determine whether, in light of all the circumstances at the time, the identified errors fell “below an
objective standard of reasonableness.” Hinton v. Alabama, 571 U.S. 263, 272 (2014). For IAC
claims under Strickland, the “proper standard for attorney performance is that of ‘reasonably
effective assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). “[A]dvocacy is an art and
not a science, and the adversary system requires deference to counsel’s informed decisions, [so]
strategic choices must be respected in these circumstances if they are based on professional
judgment.” See Strickland, 466 U.S. at 681; see also Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d
Cir. 1998) (“Our review of [IAC] claims does not permit us, with the benefit of hindsight, to engage
in speculation about how the case might best have been tried. We therefore accord counsel’s
strategic trial decisions great deference.”).
14
Second, the defendant must show that “there is a reasonable probability that the result of
trial would have been different absent the deficient act or omission.” Id. at 1083; see also
Strickland, 466 U.S. at 694 (“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”). “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. On habeas review, it is not
enough that a federal judge would have found counsel ineffective. The judge must find that the
state court’s resolution of the issue was unreasonable—a higher standard. See Harrington v.
Richter, 562 U.S. 86, 101 (2011).
Massey V, assuming a showing of Strickland deficient performance for discussion purposes
only, found that Petitioner had not shown prejudice. Given that failure to meet either prong of the
constitutional test defeats IAC claims, see United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002),
Massey V was not contrary to and did not unreasonably apply Strickland. 28 U.S.C. § 2254(d). For
example, the record supports the state court’s determination that a different outcome at trial was
unlikely, in light of Laderman’s uncertainty, Massey’s initial denial and subsequent revised
versions of events, nature of the injuries to the victim’s son, and scientific and medical evidence
presented by the State confirming the “positive DNA match proving to an exact certainty” the
Petitioner’s DNA with post-assault samples taken from J.L. at the hospital. (D.E. No. 1-7 at 1617; see also D.E. 20-27 at 11 (the defense was not “even remotely viable”)).4
In sum, Petitioner has not shown that adjudication of the Laderman IAC Claim by Massey
V was contrary to, or involved an unreasonable application of, Strickland and its progeny. See
Premo v. Moore, 562 U.S. 115, 122 (2011) (citation omitted) (when the Strickland analysis is
In any event, Massey IV had specifically found that “Mr. Laderman was interviewed about the matter by an
investigator working on the Defendant’s behalf pretrial.” (D.E. No. 20-27 at 18) (emphasis added). Laderman’s
testimony was consistent with this finding. (Id. at 5). This finding of fact by Massey IV, and Massey V’s affirmance
of it, further supports the state courts’ consistency with Strickland.
4
15
combined with 28 U.S.C. § 2254(d), federal habeas courts’ analysis is “doubly” deferential to both
the state court and the defense counsel). For these reasons, the Laderman IAC Claim in Ground
One is denied habeas relief.
Other Witnesses IAC Claim: Petitioner’s Other Witnesses IAC Claim in Grounds One and
Two is likely unexhausted5 because it was raised for the first time in the habeas Petition.6
Nevertheless, putting aside the failure to exhaust, for the following reasons, this claim fails on the
merits.
In this habeas proceeding, Petitioner has not demonstrated either: that his counsel rendered
deficient performance as to witnesses Lopez, Carbone, Malang, Cruz, or the person introduced to
Quintero as J.L.’s husband; or that Mr. Bowman’s performance as to these witnesses prejudiced
Petitioner’s case at trial. He has not shown either “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment”7 or that counsel’s
allegedly deficient performance “deprive[d] [Petitioner] of a fair trial . . . whose result is reliable”8
with respect to the Other Witnesses.
For example, Petitioner alleges that Mr. Bowman made “no contact with state investigating
Det. Larry Malang and Luis Cruz” (D.E. No. 1 at 17), but Petitioner does not explain specifically
what these two witnesses would have contributed to defense arguments at trial. Petitioner likewise
5
See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Evans v. Court of Common Pleas, Delaware Cty., Pa., 959
F.2d 1227, 1230 (3d Cir. 1992) (“A claim must be presented not only to the trial court but also to the state’s
intermediate court as well as to its supreme court.”).
See Massey I, D.E. 1-14 at 11 (“Not raised below”); Massey II (D.E. No. 1-6 at 10, 12) (summarizing
Petitioner’s PCR claims of IAC: “counsel’s failure to call a potential defense witness, one Martin Laderman …
entering into the Stipulation in this case regarding certain DNA evidence and to the hospital records of the victim’s
son”); Massey III, D.E. 18-12 at 12-14 (discussing Massey’s PCR appeal of the ruling on his IAC claim regarding
witnesses, which Petitioner asserted only as to Laderman)).
6
7
Strickland, 466 U.S. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
8
Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299.
16
does not demonstrate how counsel’s failure to use them as witnesses in fact prejudiced the
defense’s presentation at trial. Petitioner’s unsubstantiated references to Lopez and Carbone, made
without description of what they would have particularly contributed to his defense or how failure
to use them at trial actually prejudiced Petitioner, are analogous. (D.E. No. 1 at 15, 24). Finally,
Quintero in fact identified Petitioner at trial; thus, the purported “actual search” he criticizes Mr.
Bowman for not having undertaken would have been pointless.
Since “failure to satisfy either prong defeats an ineffective assistance claim,”9 the Other
Witnesses IAC Claim in Ground One lacks merit and is denied.
Phone Records Investigation Claim and Evidence Search Claim: These claims are
unexhausted because they were raised for the first time in the habeas Petition. (See D.E. Nos. 1-4,
18-12, and 1-7 (no mention of phone record search, DNA match, DNA analysis, or missing
investigative report issues among claims raised on direct appeal or PCR). Nevertheless, neither
the Phone Records Investigation Claim nor Evidence Search Claim has merit.
First, Petitioner has not demonstrated deficient performance by counsel. Exercise of legal
strategy is afforded great deference. See Strickland, 466 U.S. at 690. It is not a stretch to engage
in that presumption here, given the professional judgment appellate counsel exercised in weighing
the risks, benefits, and realistic worth of requesting trial transcripts regarding (and making
arguments as to): phone calls (of which Petitioner himself was aware, having claimed to have been
party to them and having in fact used them as part of his defense at trial) (D.E. No. 1 at 14), DNA
(as to which forensic scientist Edward LaRue at trial identified Petitioner as the “positive” match
“to a scientific certainty”) (D.E. 20-7 at 11, 13), and investigative reports (which Petitioner has
failed to allege and show were not in fact provided by the State in discovery). Thus, Petitioner was
9
Strickland, 466 U.S. at 697-98.
17
aware of these evidentiary and phone-call issues before any PCR appeal proceedings began.
Habeas petitioners face a stringent requirement to show that, given all the circumstances,
“counsel’s mistake was so egregious that it fell ‘outside the wide range of professionally competent
assistance.’” Branch, 758 F.3d at 234, 235 (internal citation omitted). Given the need for exercise
of professional legal strategy as to the use of these issues during appeal, this Court cannot say that
appellate counsel rendered deficient performance with respect to them.
Second, Petitioner has not demonstrated Strickland prejudice from the challenged conduct
by appellate counsel. Petitioner has not shown to a reasonable probability that the phone records,
DNA match, DNA analysis, and missing reports would have altered the outcome of his
proceedings and resulted in an unreliable jury verdict being sustained on appeal. Given the
“overwhelming evidence” against Petitioner at trial (D.E. 1-6 at 14), Petitioner cannot demonstrate
a reasonable probability that, but for appellate counsel’s decisions about obtaining phone records,
DNA matches, DNA analyses, and “missing” reports (as characterized by Petitioner), these items
would have exculpated Petitioner in the jury’s eyes to a reasonable probability. As Massey IV
explained:
Contrasted with the Defendant’s incredible, illogical, unreasonable,
and inconsistent versions of these events, juror[s] hear[d] a single,
consistent, corroborated version of events from the victim. There
was no doubt who was telling the truth and who was lying at this
trial … The entire Defense was based upon the testimony of a lying
Defendant and multiple illogical and unreasonable inferences he
sought the jury to draw from unreliable evidence. The State’s case,
on the other hand, was consistent, cogent, logical, reasonable and
corroborated by scientific and medical evidence.
(D.E. No. 20-27 at 18-19). In short, even if appellate counsel had obtained the supposed items as
Petitioner suggests he should have, it would not have changed the case’s outcome.
18
For these reasons, the Court denies habeas relief of the Phone Records Investigation Claim
and Evidence Search Claim.
B. Ground Three: Jury Instruction Regarding Prior Inconsistent Statements
Petitioner next argues that the trial court should have given a jury instruction on prior
inconsistent statements, in light of the victim’s inconsistent identification accounts. Specifically,
he alleges that: (1) J.L.’s testimony, in which she identified petitioner at trial as her assailant,
differed from the statement she initially gave to police that she could not see her attacker’s face
because he covered it when she turned on the light after the assault; (2) J.L.’s trial testimony, in
which she denied having told Claudia Quintero that Petitioner was her husband, differed from
testimony that J.L. had told Quintero he was her spouse10; and (3) J.L.’s trial testimony differed
from her civil suit deposition.11
The state court ruling on the Inconsistent Statements/Testimony Claim was not contrary to
or an unreasonable application of Supreme Court precedent. While the Inconsistent
Statement/Deposition Claim was not fairly presented to the state courts and thus appears
unexhausted, this Court may—and does—nevertheless deny it on the merits.
Inconsistent Statements/Testimony Claim: At trial, J.L. testified that she believed the police
misunderstood her when she supposedly told them she could not see her attacker’s face because
he had covered it. J.L. testified that Petitioner did attempt to cover his face when she turned on
the light, but that she was in fact able to see him anyway. (D.E. 1-4 at 14).
Also at trial, Claudia Quintero testified that J.L. had once come to Quintero’s apartment,
accompanied by J.L.’s son and the Petitioner, asking Quintero for a screwdriver. During this
10
Issues (1) and (2) are collectively referred to as the “Inconsistent Statements/Testimony Claim.”
11
Issue (3) is referred to as the “Inconsistent Statement/Deposition Claim.”
19
conversation, Quintero asked J.L. if Petitioner was her husband, and J.L. answered “yes.” Quintero
testified that even though she asked J.L. if Petitioner was her husband, and J.L. responded
affirmatively, Quintero acknowledged that she believed J.L. misunderstood her question and
thought Quintero was asking about J.L.’s son. (Id. at 6, 14).
The trial court gave extensive jury instructions regarding witness credibility:
Now, in my preliminary charge when we started the case, I
explained that you are the judges of the facts. And, as judges of the
facts, you are to determine the credibility of the various witnesses,
as well as the weight to be attached to their testimony. You, and you
alone, are the sole and exclusive judges of the evidence, of the
credibility of the witnesses, and the weight to be attached to the
testimony of each witness. Regardless of what counsel or I may have
said recalling the evidence in this case, it is your recollection of the
evidence that should guide you as judges of the facts …
Now, as judges of the facts, you are to determine the credibility of
the witnesses. And in determining whether a witness is worthy of
belief, and, therefore, credible, you may take into consideration: The
appearance and demeanor of the witness; the manner in which he or
she may have testified; the witness’s interest in the outcome of the
trial, if any; his or her means of obtaining knowledge of the facts;
the witness’s power of discernment, meaning their judgment or
understanding; his or her ability to reason, observe, recollect and
relate; the possible bias, if any, in favor of the side for whom the
witness testified; the extent to which, if at all, each witness is either
corroborated or contradicted, supported or discredited by other
evidence; whether or not the witness testified with an intent to
deceive you; the reasonableness or unreasonableness of the
testimony the witness has given; and any and all other matters in the
evidence which serve to support or discredit his or her testimony.
Through this analysis, as judges of the facts, you weigh the
testimony of each witness and then determine the weight to give to
it. Through that process, you may accept all of it, a portion of it, or
none of it …
Now, if you believe that any witness or party willfully or knowingly
testified falsely to any material fact in this case with the intent to
deceive you, you may give such weight to his or her testimony as
you deem it is entitled. You may believe some of it, or you may, in
your discretion, disregard all of it.
20
(D.E. No. 20-19 at 7, 11-12, 17). The court also addressed the credibility issue particular to the
J.L. deposition:
Here the defendant has introduced evidence, through the crossexamination of [J.L.], that she has, subsequent to the state’s
initiation of criminal proceedings, instituted a civil action seeking
monetary damages she claims she sustained as a result of the
defendant’s conduct. The fact of such filing has been admitted in
evidence and may be considered by you only as it may bare on her
credibility or believability as a witness in a case. You, of course, are
free to assign whatever significance to that act as you feel such
evidence deserves on the issue of [her] credibility. You may find it
has great, moderate, light or no impact at all on her testimony. Of
course, the filing of a civil suit alone does not in any way impair a
witness’s credibility. In order for you to properly assign that fact any
weight, as affecting Ms. L[]’s credibility, you must find her
testimony here, in this case, has been shown to you to have been
improperly influenced or affected by the possibility of compensation
in that civil proceeding. If you do not find her testimony was
affected by the possibility of compensation in the civil matter, then
this issue should not factor into your evaluation of her credibility.
On the other hand, if you find her testimony was improperly
influenced by her desire for monetary compensation, then you may
assign whatever weight to such a finding you deem appropriate on
the issue of credibility. The weight to be assigned to such a finding
should be in reasonable proportion to the effect you find such
consideration had on her testimony, if at all.
(D.E. No. 20-19 at 15-17).
On Petitioner’s direct appeal, the Inconsistent Statements/Testimony Claim was rejected
by the Massey I court. (D.E. No. 1-4 at 9, 14). First, as to J.L.’s testimony regarding her view of
her attacker’s face after the assault and her subsequent at-trial identification of him, the Massey I
court applied the “plain error standard of review” and “fail[ed] to see where the prior inconsistent
instruction was warranted. There was no error, much less plain error.” (D.E. No. 1-4 at 14, 15
(observing that “J.L. testified at trial that she believed the police misunderstood her to say that she
could not see her attacker’s face because he covered it. At trial, she testified that defendant
attempted to cover his face when she turned on the light, but that she was able to see him
21
anyway”)). Second, as to Quintero’s testimony regarding conversation with J.L. that Petitioner
was J.L.’s husband, and J.L.’s subsequent denial at trial of making such statement to Quintero, the
Massey I court “question[ed] whether J.L. made any inconsistent statements to even warrant a prior
inconsistent statement charge. Specifically, Ms. Quintero testified that even though she asked J.L.
if Petitioner was her husband, and J.L. responded affirmatively, Ms. Quintero acknowledged that
she believed J.L. misunderstood her question and thought Ms. Quintero was asking about her son.”
(Id. at 15). The New Jersey Supreme Court denied Petitioner’s petition for certification. (D.E. No.
16-4).12 The Inconsistent Statements/Testimony Claim was not addressed on the merits by a triallevel PCR court or by the Appellate Division on any PCR appeal.
The paramount question on habeas review of a jury instruction is “whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process,”
Estelle v. McGuire, 502 U.S. 62, 73 (1991), and “not merely whether the instruction is undesirable,
erroneous, or even universally condemned.” Jacobs, 395 F.3d at 111 (citations omitted). “[I]t is
not the province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle, 502 U.S. at 67–68. “Questions related to jury charges are normally matters of
state law and are not cognizable in federal habeas review.” Paulino v. Ortiz, No. 03–4463, 2005
WL 2922369, at *4 (D.N.J. Nov. 4, 2005). A habeas claim will lie only where “the jury instruction
is so prejudicial as to amount to a violation of due process and fundamental fairness.” Id. at *4
(quotations omitted). To show that a jury instruction so infected the trial, “a habeas petitioner must
demonstrate both (1) that the instruction contained some ambiguity, inconsistency, or deficiency,
Petitioner’s 119-page pro se brief on PCR (D.E. Nos. 17-1 at 3-35; 17-2 at 1-35; 17-3 at 1-35; 17-4 at 1-34)
did not assert claims regarding jury instructions as to prior inconsistent statements. Instead, Petitioner confined his
jury instruction challenges on PCR to only those regarding burglary, weapon evidence, and weapon possession
instructions. (D.E. No. 17-1 at 4). Petitioner’s pro se April 2004 Verified Petition for PCR (D.E. No. 17 at 6-7) made
these same jury instruction challenges.
12
22
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.”
Williams v. Beard, 637 F.3d 195, 223 (3d Cir.2011) (emphasis added) (quoting Waddington v.
Sarausad, 555 U.S. 179, 189 (2009)) (internal quotation marks omitted). “An omission, or an
incomplete instruction is less likely to be prejudicial than a misstatement of the law.” Henderson
v. Kibbe, 431 U.S. 145, 155 (1977).
Petitioner has not made the requisite showings for habeas relief in this case.
First, Petitioner has not demonstrated any ambiguity, inconsistency, or deficiency in the
given charge. The trial court in fact stressed to the jurors their obligation to weigh witnesses’
credibility. (D.E. No. 20-19 at 7, 11-12, 15-17). For example, the trial judge itemized over ten
factors the jury could consider in determining whether a witness was worthy of belief, including
“the extent to which, if at all, each witness is either corroborated or contradicted, supported or
discredited by other evidence.” (Id. at 11). The trial court instructed the jury to focus on varying
accounts of events, if any. (Id.). Massey I reasoned that Petitioner therefore was not deprived of a
fair trial by omission of a specific charge on prior inconsistent statements. This Court agrees.
Second, Petitioner has not demonstrated a constitutional violation from “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.” Williams, 637 F.3d at 223. The
court’s general instruction encompassed the point that a witness’s credibility could be discounted
as a result of inconsistent statements, whether resulting from a failure to recollect or an intent to
deceive. (D.E. No. 20-19 at 7, 11-12, 15-17). The charge did not relieve the State of proving any
element of any of the crimes for which Petitioner stood trial. Rather, the trial court instructed that
the State must prove beyond a reasonable doubt each element of each charged offense. (D.E. Nos.
23
20-19 at 5-6 and 17-35; 20-20 at 1-15). Petitioner fails to point to any federal requirement that a
specific credibility charge be provided in this instance; nor can he demonstrate that the lack of the
proposed charge deprived him of a defense that federal law provided to him. Johnson v.
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, jury charges on prior inconsistent
statements merely inform as to certain types of evidence and are typically provided as a guide for
the jury to evaluate the evidence at trial. They are not, unlike jury charges as to elements of offenses
and burdens of proof, required instructions. And as stated above, Petitioner’s claim of error is
based on omission, which the Supreme Court has stated is less serious than a misstatement of the
law. See Henderson, 431 U.S. at 155. Furthermore, the Court finds that the lack of such an
instruction to the jury did not affect the trial’s outcome, as there was sufficient evidence at trial to
support Petitioner’s conviction. See D.E. No. 1-7 at 11-12.13
Given the content of the general witness credibility charge and considering the
overwhelming weight of evidence of guilt presented at trial, this Court does not find that the
absence of a specific instruction on prior inconsistent statements so infected the trial with
unfairness as to amount to a violation of due process. See Paulino, 2005 WL 2922369, at *3 (where
court provided general credibility charge, lack of specific instruction on prior inconsistent
statements did not warrant habeas relief). There is no basis for this Court to conclude that Massey
I’s ruling was contrary to, or an unreasonable application of, Supreme Court precedent. The
omission of a supplemental instruction on credibility, even assuming it was erroneous under state
law (which has not been established), did not rise to the level of a constitutional violation. Jurors
“The entire defense was based upon the testimony of a lying Defendant and multiple illogical and
unreasonable inferences he sought the jury to draw from unreliable evidence. The State’s case, on the other hand, was
consistent, cogent, logical, reasonable and corroborated by scientific and medical evidence . . . The evidence presented
by the defense in this matter, even supplemented with Laderman’s testimony would raise no more than a possible
doubt as to the Defendant’s guilt. A reasonable jury hearing this case would, as the jury here did, find this Defendant
guilty beyond a reasonable doubt.” (D.E. No. 1-7 at 11-12).
13
24
were well aware of their responsibility to assess the truthfulness of the witnesses’ testimony
regarding purportedly contradictory testimony (as well as other matters). Petitioner’s conviction
was based on a credibility determination by the jurors, who chose to believe the State’s witnesses.
Hence, this Court likewise concludes that the absence of a jury instruction on prior inconsistent
statements, when viewed in the context and evidence of this case, did not so infect the trial with
unfairness as to violate Petitioner’s due process rights.
For all of these reasons, the Inconsistent Statements/Testimony Claim in Ground Three
fails on the merits and is denied habeas relief.
Inconsistent Statements/Deposition Claim: In Ground Three (D.E. No. 1 at 20), Petitioner
alleges that J.L.’s testimony at trial regarding her ability to see her attacker’s face and regarding
whether she had ever introduced Petitioner to Quintero as J.L.’s husband differed from statements
J.L. gave during her civil suit deposition. (D.E. No. 20-2 at 30-3114; D.E. No. 20-4 at 19-2615; D.E.
No. 20-5 at 7-10,16 20-21, and 25-2617). Petitioner did not raise this inconsistent testimony claim
“J.L.: What I’m saying [is] that I never introduced to the lady [Quintero] anyone as my husband.” (D.E. No.
20-2 (August 15, 2001 trial transcript)).
14
“Mr. Bowman: Do you remember giving a taped statement on July 22nd, 1998? J.L.: Yes, I remember …
Mr. Bowman: Okay. And do you recall responding: ‘And when he told me [he wanted] [$]1,000, I asked him to let
me check over there in my working bag. And he said, Okay. He put his coat on and everything else, his clothes.’ J.L.:
Yes. Mr. Bowman: And then you recall somebody asking, ‘He put his clothes on?’ J.L.: Yes. Mr. Bowman: And do
you recall responding: ‘Yes, he put his clothes on. And I made believe I was checking on something, but I knew he
didn’t have—I knew I didn’t—anything in there. And from there I got up to turn the light on, I got up and went to the
door. The light switch was right there. I turned it on. He just came and turned it off again and pushed me to the bed,
but he covered his face, so I couldn’t see it.’ Was that the truth? J.L.: Yes, yes. Mr. Bowman: So when you turned on
the light, you didn’t see the person’s face. Is that correct? J.L.: I saw the person’s face. Mr. Bowman: Did you … J.L.:
But he covered. I saw, I saw him. Mr. Bowman: Did you say, on July 22, 1998, ‘But he covered his face so I couldn’t
see it’? J.L.: Perhaps they didn’t understand me. He covered, he covered, but I was able to see his face. That’s why I
was able to recognize him.” (D.E. No. 20-4 at 19-26 (August 26, 2001 trial transcript)).
15
“Mr. Bowman: And [at your deposition] on February 27, 2001, did you testify that at the time that you claim
your child was slapped, that the baby kept on yelling and screaming, and the man slapped him and threw him to the
floor? J.L.: Yes … Mr. Bowman: So when you testified earlier today that the baby cried, but not loudly, that can’t be
true. Is that correct? … J.L.: I do not recall” (D.E. No. 20-5 at 7-10 (August 16, 2001 trial transcript)).
16
“Mr. Bowman: And when the man ran out to run that short distance, you were able, after the door was closed,
to get off the bed, run to the door, and to see his features through the peep hole? J.L.: Yes.” (D.E. No. 20-25 at 24)
17
25
as to J.L.’s deposition on either direct appeal or in his PCR proceedings. (D.E. No. 1-4 at 14-15;
D.E. No. 1-6 at 9). Nevertheless, this Court will deny this Claim on the merits pursuant to 28
U.S.C. § 2254(b)(2), notwithstanding Petitioner’s failure to exhaust.
As noted above, questions relating to jury charges are normally matters of state law and
are not cognizable in federal habeas review.18 Only where the jury instruction is so prejudicial as
to amount to a violation of due process and fundamental fairness will a habeas corpus claim lie.
The Due Process Clause is violated only where “the erroneous instructions have operated to lift
the burden of proof on an essential element of an offense as defined by state law.” Horn, 120 F.3d
at 416. Where such a constitutional error has occurred, it generally is subject to the “harmless
error” standard, determining whether the charge had a “substantial and injurious effect or influence
on the verdict.” Id. at 416-18; Neder v. United States, 527 U.S. 1, 8–11 (1999).
In this case, nothing in the challenged instructions operated to lift the State’s burden of
proof on any essential element of the charged crimes, and Petitioner has not suggested such was
the case. Indeed, the trial court properly instructed the jury that:
Unless each and every essential element of an offense charged is
proven beyond a reasonable doubt, the defendant must be found not
guilty of that charge. The burden of proving each element of a
charge beyond a reasonable doubt rests upon the State, and that
burden never shifts to the defendant. A defendant in a criminal case
has no obligation or duty to prove his innocence or offer any proof
relating to his innocence . . . Now, a reasonable doubt is an honest
and reasonable uncertainty in your mind about the guilt of the
defendant after you have given full and impartial consideration to
all of the evidence … Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s guilt.
(August 16, 2001 trial transcript)).
18
See Engle v. Isaac, 456 U.S. 107 (1982); Henderson v. Kibbe, 431 U.S. 145 (1977); Zettlemoyer v. Fulcomer,
923 F.2d 284, 309 (3d Cir.), cert. denied, 502 U.S. 902 (1991); Grecco v. O’Lone, 661 F. Supp. 408, 412 (D.N.J.
1987).
26
(D.E. No. 20-19 at 5-6). The trial court also spoke about credibility in its preliminary remarks to
jurors, stating: “[i]nconsistencies or discrepancies in the testimony of a witness or between the
testimony of different witnesses may or may not cause you to discredit such testimony … Consider
whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy
results from an innocent error or a willful falsehood.” (D.E. No. 20 at 31-32). Then at the trial’s
conclusion, the court received no objections to its charges on credibility. (D.E. 20-18 at 38-40).
A review of the record illustrates that Petitioner has not demonstrated that absence of a
prior inconsistent statement charge as to J.L.’s trial testimony and deposition offended any
principles of fundamental fairness or due process such that his entire trial and conviction were
prejudiced. There was ample evidence against Petitioner to justify his conviction (D.E. No. 20-27
at 18-19), including “consistent, cogent, logical, [and] reasonable [evidence of the State][,]
corroborated by scientific and medical evidence.” (Id.). The trial court expressly instructed the jury
that they were to judge the credibility of each witness and determine the weight to give to each
one’s testimony—including J.L.’s. Therefore, a specific jury charge as to purported inconsistencies
between trial testimony and J.L.’s civil deposition was not warranted. Petitioner’s conviction was
based on a credibility determination by the jury, who chose to believe the State’s witnesses over
Petitioner’s testimony.
In sum, Petitioner has not shown that the actions of the state court in omitting a specific
prior inconsistent statement jury charge as to J.L.’s deposition resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court or “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.” Thus,
27
the Inconsistent Statement/Deposition Claim is without merit and Petitioner is not entitled to
habeas relief on it.
Accordingly, the Inconsistent Statements/Deposition Claim in Ground Three is also
denied.
C. Ground Four: Trial Court Errors; and Ground Seven: Trial Court Errors, NERA
Challenge, and Excessiveness of Sentence
In Ground Four of the Petition, Petitioner claims that “[t]he trial court violated the
Petitioner’s right to a fair and impartial jury and the right to confront witnesses by improperly
weighing the probative and prejudicial values of the stipulation offered for deliberation by the jury,
and violated Petitioner’s rights to Due Process by improper, erroneous and prejudicial jury
instructions on substantive law.” (D.E. No. 1 at 22). In support of his claim, Petitioner alleges:
(1)
The trial court “improperly weight[ed] the stipulation . . . [regarding] the treating
pediatric physician notes” and allowed its admission concerning injuries of J. L.’s son, instead of
requiring testimony from the examining physician (this claim is referred to as Petitioner’s
“Stipulation Claim”) (D.E. 1 at 21-22; D.E. No. 20-18 at 33-34);
(2)
The trial court “truncated the jury instruction on the clarification of burglary” and
gave a “conflicting instruction on the weapons charge” in response to jurors’ questions about
elements of the charges. Petitioner also alleges improperly “truncated” jury instructions in Ground
Seven (these “truncated” and “conflicting” jury charge claims in Grounds Four and Seven are
referred to as Petitioner’s “Substantive Jury Instruction Claim”) (D.E. No. 1 at 22, 23);
(3)
The trial court erred when it “insist[ed] that Petitioner change his position when the
DNA results showed the presence of the Petitioner’s DNA. This false assessment evidence was
28
presented to the jury during prosecutor’s summation” (this claim is referred to as Petitioner’s
“Post-DNA Claim”) (D.E. No. 1 at 24; D.E. No. 20-18 at 23-2419); and
(4)
The trial court made “persistent and prejudicial reference to who caused those
injuries to the child in support of all of his decisions to deny [P]etitioner’s PCR” (this claim is
referred to as Petitioner’s “Prejudicial Statements Claim”). (D.E. 1 at 24).
For the reasons explained below, habeas relief is denied on all of these claims.
Stipulation Claim and Substantive Jury Instruction Claim: Petitioner raised the Stipulation
Claim and the Substantive Jury Instruction Claim for the first time in his PCR petition. (D.E. No.
17-1 at 4-6; D.E. No. 17-8 at 2-3). Relying on New Jersey Rule of Court 3:22-4, the PCR trial
court in Massey II determined that the only issues to survive the application of the procedural bar
were Petitioner’s IAC and excessive sentencing claims. (D.E. No. 1-6 at 9) (noting that Rule 3:224 provides that any issue that could have been raised on direct appeal but was not is not a viable
ground for PCR unless one of three exceptions is established: i.e., the issues “could not reasonably
have been raised in any prior proceeding, enforcement of the bar would result in fundamental
injustice, [or] denial of relief would result in [a federal or state constitutional violation]”).)
As noted earlier in this Opinion, a federal court may not grant habeas relief if the state
court’s decision rests on a violation of a state procedural rule. See Johnson, 392 F.3d at 556. As
“MR. BOWMAN: Judge, there’s no evidence in this record that everything changed after the DNA report
came back in. They didn’t ask Mr. Massey about that, your Honor. There’s nothing in the record that indicates Mr.
Massey had manifested this sometime prior. THE COURT: I’m going to overrule your objection. I think it’s a fair
inference from the facts, and I believe that Mr. La Rue testified, there was testimony in the case, as to the date the
samples were submitted and the report dated. MR. BOWMAN: That’s true, but there was no testimony in the record
that Mr. Massey became aware of it. There’s no evidence in the case that the prosecutor’s office was not informed of
the defense’s consent prior to the DNA coming back. MR. GARDNER: I could strike the day, if that’s the objection.
THE COURT: I don’t think that’s objectionable in any event. And I don’t believe it’s anything other than a fair
inference that the prosecutor seeks the jury to draw from the evidence, that at first your client’s statement was he was
not there, and then subsequent to the receipt of the DNA, then his story changed. MR. BOWMAN: But Mr. Massey
testified in this case, and he had an opportunity to establish that that’s when the story changed, and he didn’t, your
Honor. THE COURT: As did you, sir, but neither of you did. I think this is a fair inference. Your objection is
overruled”). (D.E. No. 20-18 at 23-24).
19
29
Massey II noted, New Jersey Rule of Court 3:22-4 procedurally bars Petitioner’s Stipulation Claim
and Substantive Jury Instruction Claim because they should have been raised on his direct appeal
but were not. Thus, those claims violate a state procedural rule. Furthermore, Petitioner has not
offered any facts or argument whatsoever to demonstrate any of Rule 3:22-4’s three exceptions to
procedural bar; nor has he made any showings in support of “cause and prejudice” or a
“fundamental miscarriage of justice” for this Court to excuse his procedural default of the
Stipulation Claim and the Substantive Jury Instruction Claim. See Leyva, 504 F.3d at 366.
Post-DNA Claim and the Prejudicial Statements Claim: Petitioner has raised the Post-DNA
Claim and the Prejudicial Statements Claim for the first time in his habeas Petition. (See D.E. Nos.
1-4 at 9-12; 15-3, No. 15-4; 15-5; 17-1; 17-2; 17-3; 17-4 at 1-31; 17-8; 17-9 at 1-28) (no assertions
of DNA or prejudicial statements claims in Petitioner’s direct appeal or PCR submissions). These
claims substantively fail20 for the following reasons:
First, the Post-DNA Claim is unclear as to precisely what Petitioner means by his
contention that the trial court “insist[ed] that Petitioner change his position when the DNA results
showed the presence of the Petitioner’s DNA. This false assessment evidence was presented to the
20
These claims appear to be procedurally defaulted pursuant to New Jersey Court Rule 3:22-4 because
Petitioner did not raise them in prior state court direct-appeal or PCR proceedings. See D.E. No. 1-6 at 8 (Massey II:
“[A] good number of the Petitioner’s claims are procedurally barred [by] 3:22-4 . . . The only issues which survive
the application of the procedural bar are: (1) The ineffectiveness of trial counsel and appellate counsel, and (2) The
possible applicability of State v. Natale to his sentence”). Petitioner had possessed all the necessary facts and every
opportunity to raise the Post-DNA Claim and the Prejudicial Statements Claim prior to habeas review, as the events
from which they arose occurred during the trial at which Petitioner was present and testified. See Coleman, 501 U.S.
at 735 n.1. Moreover, Petitioner has not demonstrated any of the three exceptions to procedural bar that might excuse
the default: i.e., that the Post-DNA Claim or Prejudicial Statements Claim “(1) could not reasonably have been raised
in any prior proceeding; or (2) that enforcement of the bar . . . would result in fundamental injustice; or (3) that denial
of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the
State of New Jersey.” New Jersey Court Rule 3:22-4(a). Petitioner also has not offered any facts or argument
demonstrating the plain error exception to procedural bar: i.e., that the trial court committed plain error either in
allowing the prosecutor’s summation comment about Petitioner’s supposedly changed version of events or in
commenting about the cause of injuries to J.L.’s son. New Jersey Rule of Court 2:10–2; State v. Adams, 194 N.J. 186,
207 (2008) (the plain error standard allows for reversal if the error was “clearly capable of producing an unjust result”).
Thus, the Post-DNA Claim and the Prejudicial Statements Claim appear to be procedurally defaulted.
30
jury during prosecutor’s summation.” (D.E. No. 1 at 24). This Court construes this allegation to
contend that the trial court made some erroneous evidentiary decision regarding DNA results and
also incorrectly allowed improper remarks during the State’s summation to the jury. Petitioner
cannot obtain relief for any errors in state law evidentiary rulings, unless they rise to the level of a
deprivation of due process. Estelle, 502 U.S. at 70. It is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions. Nor do federal courts’ habeas
powers permit reversal of convictions based on a belief that a trial judge incorrectly interpreted a
state evidentiary rule. The only question for a habeas court is “whether the [challenged evidentiary
decision or instruction] by itself so infected the entire trial that the resulting conviction violates
due process.” Estelle, 502 U.S. at 72. Petitioner has not shown that any decision by any of the state
courts as to the DNA was either contrary to, or an unreasonable application of Supreme Court law.
Furthermore, to the extent the Post-DNA Claim relies upon arguments arising from
comments the State made about DNA evidence during summation (D.E. No. 20-18 at 23-2421),
this Court notes that prosecutorial misconduct is not a basis for reversal unless the conduct was so
egregious that it deprived defendant of a fair trial. See Parker, 132 S. Ct. at 2153; Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v. DeChristofaro, 416 U.S. 637 (1974)).
Accordingly, a prosecutor’s statements must constitute a clear infraction and substantially
prejudice a defendant’s fundamental right to have the jury fairly evaluate the merits of his or her
defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S.
“MR. GARDER: September 8, 1999, over a year later, everything changes. You see, it’s no longer an
identification case, it’s . . .” “MR. BOWMAN: Objection, Your Honor.” “COURT: I don’t think that’s objectionable
in any event. And I don’t believe it’s anything other than a fair inference that the prosecutor seeks the jury to draw
from the evidence, that at first your client’s statement was he was not there, and then subsequent to the receipt of the
DNA, then his story changed.” (D.E. No. 20-18 at 24-25). “MR. GARDNER: September 8, 1999, everything changes.
It’s a whole new ball game, ‘cause it’s no longer a weak identification case. Now, to the gazillions, it’s Anthony
Massey. You heard Ed La Rue testify and he testified as to DNA. And he educated us concerning it, and he gave you
his conclusions. It’s Mr. Massey.” (Id. at 25).
21
31
1021 (1996); United States v. Young, 470 U.S. 1, 11-12 (1985). Federal habeas review is limited
to determining whether the prosecutor’s conduct “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643. Prosecutors are
permitted to respond to arguments raised by defense counsel as long as they do not stray beyond
the evidence adduced at trial. Evans v. D’Ilio¸ No. 15-2132, 2016 WL 3219874, at *9 (D.N.J. June
6, 2016) (citing Reid v. Beard, 420 F. App’x 156, 159 (3d Cir. 2011)).
After analyzing the record in the light of these standards, this Court is not persuaded that
the statements by Mr. Gardner were clearly capable of producing an unjust result. This Court’s
review of the prosecutor’s summation as a whole satisfies it that there was nothing so egregious
as to deprive defendant of a fair trial. Parker, 132 S. Ct. at 2153; Darden, 477 U.S. at 181;
Donnelly, 416 U.S. at 643. None of the comments challenged by Petitioner “infected the trial with
unfairness.” Rather, the prosecutor was advocating for his position and identifying flaws in the
defense’s case, including pre-DNA report and post-DNA report discrepancies in Petitioner’s
recollection of whether or not he was present in J.L.’s apartment the night of the assault. While
Petitioner takes issue with the choices made by the prosecutor during his summation, looking at
the trial as a whole, none of the statements rendered the resulting conviction a denial of due
process.
Second, Petitioner’s Prejudicial Statements Claim lacks merit because he has not shown
how the state court’s purported “persistent [] reference to who caused those injuries to the child in
support of his decisions to deny PCR” (D.E. 1 at 24) violated a constitutional right. Massey II
denied PCR because Petitioner had not satisfied Strickland’s deficient performance and prejudice
prongs—not because of how J.L.’s child might have sustained injuries found on him post-assault
by a pediatric physician. (D.E. No. 1-6 at 9-15). Rather, Massey II only discussed the injuries in
32
the context of whether Mr. Bowman’s performance was deficient under Strickland by entering into
the Stipulation:
So Counsel had a choice, live testimony from objective witnesses
with no interest in the case as to objective, visible findings that
would consume at a minimum half an hour with a jury focused
exclusively upon injuries to a two year old child attributed to his
client, or the alternative would have been a 15 second reading of one
paragraph detailing those injuries. By stipulating to this evidence,
Counsel attempted to minimize the jury’s focus upon a fact that
could cause the jury to seriously question the consensual sex
defense. In short, the jury could ask if the sex was consensual, how
did the two year old wind up with all those injuries? That clearly
wasn’t something Counsel wanted indelibly etched in the jurors’
minds.
(Id. at 13). Furthermore, Petitioner has offered no facts or argument demonstrating that Massey
IV’s determination of the “absurdity” of Petitioner’s explanation of events on the night in
question22 was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
In sum, the Post-DNA Claim and Prejudicial Statements Claim do not warrant granting
Petitioner habeas relief.
NERA Challenge: Petitioner also contends in Ground Seven of the Petition that “the NERA
application is in violation of petitioner’s Federal Constitutional Rights, depriving the defendant of
a fair trial, impartial jury and due process of law.” (D.E. No. 1 at 35).
At sentencing, the trial judge merged the sexual assault, aggravated criminal sexual contact,
and criminal sexual contact convictions into the first degree aggravated sexual assault conviction,
and sentenced Petitioner to a 20-year term of imprisonment, with an eighty-five percent parole
“Acceptance of this second version of events would require the jury to ignore the fact that during this incident,
the victim’s two year old child was physically assaulted and required medical attention. That hardly fits within the
parameters of any conventional understanding of consensual sex. Any reasoned evaluation of Defendant’s version
would reveal its absurdity.” (D.E. No. 20-27 at 12).
22
33
disqualifier pursuant to NERA. The judge imposed a concurrent 10-year period of imprisonment,
with a NERA eighty-five percent parole disqualifier, on the second-degree armed burglary
conviction, and a concurrent five-year term, with a two and one-half year parole disqualifier, on
the third-degree criminal restraint conviction. The trial judge merged the terroristic threats and
weapon convictions into the first-degree armed robbery conviction, and sentenced Petitioner to a
15-year term of imprisonment, with a NERA eighty-five percent parole disqualifier, to run
consecutive to the other sentences. The aggregate term of imprisonment was 35-five years with an
eighty-five percent term of parole ineligibility. (D.E. No. 1-7 at 4-5).
As noted above, Massey appealed his conviction and the Appellate Division affirmed in
Massey I. (D.E. No. 1-4). The New Jersey Supreme Court denied his petition for certification.
(D.E. No. 16-4).
For the following reasons, Petitioner has not shown any violation of the United States
Constitution, laws, or treaties with respect to his NERA-based claim, which must be denied for
this reason.
NERA expressly applies to convictions for sexual assault, aggravated sexual assault, and
burglary such as Petitioner’s. See N.J. Stat. Ann. § 2C:43–7.2(d)(4), (7), and (12). Petitioner has
not pointed to any constitutional violation occasioned by this state law. To the extent he suggests
that an extended term with limited opportunity for parole constitutes an Eighth Amendment
violation for cruel and unusual punishment, courts have consistently reject that argument. See, e.g.,
United States v. Miknevich, 638 F.3d 178, 186 (3d Cir. 2011); United States v. Walker, 473 F.3d
71, 83 (3d Cir. 2007); State v. Johnson, 166 N.J. 523, 766 A.2d 1126, 1140–41 (2001) (holding
that New Jersey’s NERA statute does not constitute cruel and unusual punishment). To the extent
Petitioner is challenging the state courts’ application of state law, he may not do so on habeas
34
review. See Chapman v. United States, 500 U.S. 453, 465 (1991) (“[A] person who has been so
convicted is eligible for, and the court may impose, whatever punishment is authorized by statute
for his 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.”).
Furthermore, “[s]entencing is generally considered a matter of state criminal procedure,
which does not fall within the purview of federal habeas review.” Vreeland v. Warren, No. 115239, 2013 WL 1867043, at *17 (D.N.J. May 2, 2013); see also Sutton v. Blackwell, 327 F. Supp.
2d 477, 486 (D.N.J. 2004) (sentencing “is a matter of state criminal procedure and it does not
involve such a denial of fundamental fairness as to fall within the purview of federal habeas
corpus”); Grecco, 661 F. Supp. at 415. “Federal courts are thus limited on habeas review of a
petitioner’s sentence to the question of whether the prisoner’s sentence exceeds the relevant
statutory limits.” Reddick v. Warren, No., 2016 WL 29261, at *13 (D.N.J. Jan. 4, 2016) (citing
Vreeland, 2013 WL 1867043, at *17). Here, the sentencing Petitioner received was within the
statutory limits for the relevant crimes under state law23, and Petitioner does not assert otherwise.
(See D.E. No. 20-23 at 7-824). Petitioner’s claims regarding his sentence do not present meritorious
habeas claims. Vreeland, 2013 WL 1867043 at *17.
Petitioner also asserts in Ground Seven of the Petition that the “elements needed to convict
the [P]etitioner beyond a reasonable doubt was [sic] not established and was [sic] not found by a
fact finding jury.” (D.E. No. 1 at 35). This argument is wholly without merit.
23
N.J. Stat. Ann. §§ 2C:12-3b, 2C:13-2, 2C:14-2a, 2C:14-2c, 2C:14-3a, 2C:14-3b, 2C:18-2, 2C:39-4d, 2C:
2C:43-7.2, and 2C:15-1.
“Mr. Bowman: We’re not in a position to raise cogent opposition to that [application of NERA], Your
Honor.” (D.E. No. 20-23 at 7-8).
24
35
Proof of a criminal charge beyond a reasonable doubt is constitutionally required. In re
Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970). Due process requires that no individual be deprived
of their freedom “unless the jurors who try him are able, upon their consciences, to say that the
evidence before them . . . is sufficient to show beyond a reasonable doubt the existence of every
fact necessary to constitute the crime charged.” Davis, supra, 160 U.S. at 493, 16 S.Ct. at 360.
Moreover, the reasonable doubt standard provides “concrete substance for the presumption of
innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the
foundation of the administration of our criminal law.” In re Winship, supra, 397 U.S. at 363, 90
S.Ct. at 1072, (quoting Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 403 (1895)).
In this case, the record indicates that the trial judge clearly—and repeatedly—instructed
jurors on the reasonable doubt standard and its application to the elements of the charged offenses.
(D.E. No. 20-19 at 5-6). The appropriate inquiry here does not require this Court to ask “whether
it believes that the evidence at the trial established guilt beyond a reasonable doubt, Woodby v.
INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486 (1966), but rather, whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson, supra,
443 U.S. at 320, 99 S.Ct. at 2789. Only where, “after viewing the evidence in the light most
favorable to the prosecution, [no] rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt” should the writ issue. See Jackson v. Virginia, 443 U.S. 307,
319 (1979).
A review of the record demonstrates sufficient evidence against Petitioner in support of his
conviction. At trial, the jury was given the opportunity to evaluate the credibility of Petitioner’s
testimony (D.E. No. 1-4 at 7-9), and compare its inconsistencies with that of the victim, who was
cross-examined extensively by defense counsel. (D.E. Nos. 20-1 at 11-35, 20-2 at 1-35, 20-3 at 1-
36
25, and 20-4 at 1-35). The jury also heard evidence from Edward J. La Rue, a forensic scientist
with the New Jersey State Police and supervisor of its DNA analysis unit, that Petitioner’s “blood
control is an exact match” with the sperm sample obtained post-assault from J.L. at the hospital.
(D.E. No. 1-4 at 4). Defense counsel offered character evidence of Petitioner’s reputation for truth
and veracity, endeavoring to support Petitioner’s testimony that sex between the victim and
Petitioner on July 22, 1998 was consensual. (D.E. No. 20-18 at 4). Weighing the credibility of all
this evidence was properly a task left to the jury—who did so here and concluded that Petitioner
was guilty. It is solely within a jury’s province to accord the testimony of witnesses their places in
the ultimate verdict, and this is not a matter susceptible to review in a federal habeas corpus
proceeding. See United States ex rel. Petillo v. State of New Jersey, 562 F.2d 903, 907 (3d 1977).
Petitioner presents no reason for the Court to disturb the jury’s finding here. As Massey IV
observed:
The evidence presented by the Defense in this matter, even
supplemented with Laderman’s testimony would raise no more than
a possible doubt as to the Defendant’s guilt. A reasonable jury
hearing this case would, as the jury here did, find this Defendant
guilty beyond a reasonable doubt.
(D.E. No. 20-27 at 19).
After carefully examining the entire record, this Court is satisfied that any rational trier of
fact could indeed have found Petitioner guilty of the essential elements of the crimes beyond a
reasonable doubt. The record reflects that the trial court did in fact specifically stress to the jurors,
again and again, that the State must prove beyond a reasonable doubt each element of each offense.
(D.E. Nos. 20-19 at 5-6 and 17-35; 20-20 at 1-15). Thus, because the trial court did not lift the
burden of proof on any essential element of any offenses charged, Petitioner has failed to show
that he is entitled to relief on this claim. As this Court is not empowered to sit in substitution of a
37
state trier of fact, nor has it found the verdict to be insufficient as a matter of constitutional law,
habeas relief is denied on this claim as well. In sum, Petitioner’s NERA-application and excessive
sentencing challenges in Ground Seven fail on the merits.
D. Ground Five: Cumulative Effect Of Errors
In Ground Five, Petitioner claims that the “cumulative effects of the errors complained of
and the deficient trial counsel prejudiced and rendered the trial unfair and deprived the Petitioner
of Due Process.” (D.E. No. 1 at 26).
In support of his claim, Petitioner relies upon allegations concerning: (1) the Laderman
IAC Claim, (2) the Stipulation Claim, (3) the Substantive Jury Instruction Claim, (4) the PostDNA Claim, (5) the Prejudicial Statements Claim, and (6) allegations of prosecutorial misconduct
in cross-examination and in summation by reference to the Stipulation (referred to as “Misconduct
Claim”) (these six claims are collectively referred to as “Cumulative Errors Argued On PCR”).
(D.E. Nos. 1 at 26-27; 17-1 at 4-6; 17-8 at 2-3; and 17-9 at 19-20).
In support of Ground Five, Petitioner also relies upon: (1) claims of a Brady violation by
the prosecutor in not informing Petitioner of exculpatory evidence (referred to as “Brady Claim”);
and (2) IAC for failing to argue against NERA and for not arguing in support of appropriate
mitigating factors at sentencing (referred to as “NERA/Sentencing-IAC Claim”) (these two claims
are collectively referred to as “Cumulative Errors Alleged On Habeas”). (Id.).
For reasons explained below, the Cumulative Errors Argued On PCR Claim and the
Cumulative Errors Alleged On Habeas Claim are denied on the merits.
“The cumulative error doctrine allows a petitioner to present a stand-alone claim asserting
the cumulative effect of errors at trial that so undermined the verdict as to constitute a denial of his
constitutional right to due process.” Collins v. Sec’y of Pennsylvania Dep’t of Corr., 742 F.3d 528,
38
542 (3d Cir. 2014). “Individual errors that do not entitle a petitioner to relief may do so when
combined, if cumulatively the prejudice resulting from them undermined the fundamental fairness
of his trial and denied him his constitutional right to due process.” Id. (quoting Fahy v. Horn, 516
F.3d 169, 205 (3d Cir. 2008)). The test for a “cumulative error” claim is whether the overall
deficiencies “so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” See Hein v. Sullivan, 601 F.3d 897, 917 (9th Cir. 2010) (relying on Donnelly, 416
U.S. at 643; see also Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (“Cumulative errors are not
harmless if they had a substantial and injurious effect or influence in determining the jury’s verdict,
which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he
can establish ‘actual prejudice.’”).
The PCR appellate court adjudicated the Cumulative Errors Argued On PCR (despite
possible procedural bar under New Jersey Rule of Court 3:22-4 (D.E. No. 17-1 at 4-6; D.E. No.
17-8 at 2-3; D.E. No. 17-9 at 19-20)) and found no merit to any of them. (D.E. 18-12 at 9-12 and
14 (Massey III court’s finding of lack of merit to Petitioner’s challenges to use of Stipulation at
trial, albeit under IAC analysis of his claim, and ruling the balance of PCR issues raised by
Petitioner “are without merit”)); as such, there are no meritorious grounds for habeas relief based
upon alleged accumulation of errors that did not exist. See, e.g., Muniz v. Powell, No. 13-178, 2015
WL 511618, at *15 (D.N.J. Feb. 6, 2015); Stewart v. United States, No. 12-346, 2014 WL
3573395, at *12 (D.N.J. July 21, 2014).
This Court also rejects the Cumulative Errors Alleged On Habeas Claim. This claim
appears unexhausted. Nevertheless, it is without merit. First, as to the unexhausted Brady Claim
that Petitioner has raised for the first time on habeas, a Brady claim has three elements: (1) the
prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the
39
defense. Moore v. Illinois, 408 U.S. 786 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Here, the
Petition does not set forth the required elements, since Petitioner merely alleged “a possible Brady
violation by prosecutor” as to Laderman’s “exculpatory evidence testimony.” (D.E. No. 1 at 27,
29, 31, and 32 (emphasis added)). Petitioner has not specified how Laderman’s testimony was, in
fact, exculpatory. Consequently, habeas relief must be denied on this ground. Second, as to the
unexhausted NERA/Sentencing-IAC Claim, wherein Petitioner argues ineffective assistance for
counsel’s failure to argue against NERA and in support of appropriate mitigating factors (D.E. No.
1 at 26), “strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” Strickland, 466 U.S. at 690-91. Petitioner has not
demonstrated either that trial counsel’s strategic decision as to NERA and mitigating factors was
deficient, or that such counsel prejudiced Petitioner. Under Strickland, both are requisite elements
for assertion of IAC claims on habeas review.
For all of these reasons, this Court denies habeas relief as to all of Ground Five’s claims
for Cumulative Errors Argued On PCR and Cumulative Errors Alleged On Habeas. There is no
merit to Petitioner’s exhausted and unexhausted claims for individual errors. As such, there is no
basis for habeas relief based upon an alleged accumulation of errors that does not exist.
E. Ground Six: Assertion of Innocence and Request for Evidentiary Hearing
In Ground Six, Petitioner “maintains his innocence and the interests of justice mandate a
full evidentiary hearing on all issues raised in the habeas corpus petition.” (D.E. No. 1 at 29, 26).
In support of his actual innocence claim, Petitioner relies upon allegations of IAC regarding failure
to investigate and use of Laderman as a witness, various alleged “erroneous[] [determinations]”
by the PCR court, and purported Brady violation by prosecutor. (Id. at 30-31).
40
Assertion of actual innocence: Because habeas petitions that are filed pro se are to be
construed liberally, the Court will allow Petitioner to raise actual innocence as a defense for the
first time in the Petition. See Hubbard v. Pinchak, 378 F.3d 333, 337-38 (3d Cir. 2004) (holding
that actual innocence can be raised in a traverse when using the “more forgiving lens” of a pro se
petition (citing United States v. Garth, 188 F.3d 99, 108 (3d Cir. 1999))). Even after making such
an allowance, however, the Petition must be denied as without merit.
A claim of “actual innocence” relates to innocence in fact, not innocence based on a legal,
procedural defect. A litigant must present evidence of innocence so compelling that it undermines
a court’s confidence in the trial’s outcome of conviction, thus permitting him to argue the merits
of his claim. A claim of actual innocence requires a petitioner to show: (a) new reliable evidence
not available for presentation at the time of the challenged trial; and (b) that it is more likely than
not that no reasonable juror would have convicted the petitioner in light of the new evidence. See
House v. Bell, 547 U.S. 518 (2006); Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Furthermore,
the House Court emphasized that the gateway standard for habeas review in claims asserting actual
innocence is extremely demanding and permits review only in the “extraordinary” case. House,
547 U.S. at 536–37 (citing Schlup, 513 U.S. at 327).
In this case, Petitioner has not presented any evidence that undermines this Court’s
confidence in his conviction. Petitioner’s claim of “actual innocence” is not based on any new
evidence suggesting “innocence in fact.” Absent demonstration of new reliable evidence of his
factual innocence, Petitioner cannot show that it is more likely than not that no reasonable juror
would have convicted him. See House v. Bell, 547 U.S. 518, 537 (2006); Schlup v. Delo, 513 U.S.
298, 324, 327 (1995). Furthermore, Petitioner has failed to demonstrate circumstances that would
render § 2254 an inadequate or ineffective remedy; nor does he represent an intervening change in
41
the law that renders non-criminal the crime for which he was convicted. Petitioner also fails to
demonstrate any circumstances amounting to a “complete miscarriage of justice.” Consequently,
Petitioner is not entitled to relief on his “actual innocence” claim.
Request for evidentiary hearing: Petitioner has not alleged any facts that, if proved, would
entitle him to relief on any grounds set forth in his Petition. Thus, an evidentiary hearing is not
necessary to establish the truth of any allegations pertinent to its disposition. Furthermore, it is
worth noting that when a claim has been adjudicated on the merits in state court, federal habeas
review is limited to the record before the state court. Cullen v. Pinholster, 563 U.S. 170, 181-82
(2011) (habeas courts’ review is confined to the record that was before the state court on
petitioners’ exhausted claims). Petitioner having failed to make the threshold proffer necessary for
relief, his hearing request does not merit further written discussion and is denied. See Zettlemoyer,
923 F.2d at 298 n.2; Mayberry v. Petsock, 821 F.2d 179 (3d Cir.), cert. denied, 315 484 U.S. 946
(1987).
VI.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court's resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003).
Because jurists of reason would not disagree with this Court’s conclusion that Petitioner has failed
to make a substantial showing of the denial of a constitutional, the habeas petition is inadequate to
deserve encouragement to proceed further. A certificate of appealability is denied.
42
VII.
CONCLUSION
For the reasons expressed in this Opinion, the Court DENIES the § 2254 Petition for habeas
relief and DENIES a certificate of appealability. An appropriate Order follows.
s/Esther Salas
Esther Salas, U.S.D.J.
43
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?