PICHARDO v. STATE OF NEW JERSEY et al
Filing
17
OPINION fld. Signed by Judge Kevin McNulty on 12/22/15. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-6930 (KM)
Edgar Pichardo,
Petitioner,
OPINION
v.
Kenneth Nelson, et al.,
Respondents.
APPEARANCES:
Edgar Pichardo, pro se
#538545
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Keith E. Hoffman
Senior Assistant Prosecutor
Passaic County Prosecutor’s Office
401 Grand Street
Paterson, NJ 07505
MCNULTY, District Judge
The petitioner, Edgar Pichardo, filed this petition for habeas corpus relief
pursuant to 28 U.S.C.
§ 2254, in which he brings claims of ineffective assistance
of trial and appellate counsel. As to appellate counsel’s failure to raise one issue
regarding the imposition of aggravating factor 1 at sentencing, however, it is
granted. I will therefore do what I believe the Appellate Division, if counsel had
presented it with the issue, would have done: remand the matter for resentencing
without aggravating factor 1. For the reasons set forth below, the petition is
otherwise denied.
I. FACTS
On the night of August 27—28, 2003, AY threw a party in the basement of
her Hawthorne, New Jersey, home to celebrate the seventeenth birthday of her
boyfriend, RV.’ (See ECF No. 9-19 at 41.) Later that evening, a person known as
“Chino” arrived at the party. RV gave Chino a hug to thank him for coming.
Chino felt disrespected by this, and immediately left. (IcL) At about 1:00 a.m.,
Chino returned to the party with “five to eight other men,” including Mr.
Pichardo. (Id. at 42.) Chino and his friends beat RV and another boy almost
unconscious and fled when AY threatened to call the police. (Id.)
Other guests at the party, distressed, called their own friends to go find
Chino. RV called his cousin DJ to ride with him to River Street in Paterson, a
locale Chino was known to frequent. (IcL) Two other boys, AG and EW, drove in a
separate car to the same area. As DJ and RV drove down River Street, they saw a
“group of approximately fifteen people standing in front of the building in which
[Mr. Pichardo] lived.” (Id.) Both cars drove further down River Street, made
U-turns, and again drove past Mr. Pichardo’s apartment building. The cars drove
down River Street a second time, again made U-turns, and again approached Mr.
Pichardo’s apartment building. In the interim, Mr. Pichardo had obtained a rifle
from his apartment.
The nature and status of the gun were critical to the trial, as they are to
certain of the issues here. It was a Hi-Point 9mm rifle (exhibit S-42). The rifle had
what the parties variously called an “infrared” scope, “laser” scope, or sight, but
that nomenclature does not appear to be accurate. The rifle’s original owner
described the scope as having within it an aiming point consisting of an internal
red beam, or illuminated red dot: “[W]hatever that red dot is on is what you will
2
hit.” (ECF No. 9-10 at 87—88; ECF No. 9-11 at 43—44) To function, the scope
These facts are taken from the Appellate Division opinion on direct appeal,
supplemented by references to the trial transcript. (See ECF No. 9-19 at 41-45.) Persons
identified by initials or first names were minors at the time of the events.
1
2
I take this to refer, not to the kind of laser sight which focuses a beam onto the
2
requires electric power from a battery. It has settings from 0 (i.e., off) to 11. (ECF
No. 9-10 at 88) (The transcript does not clarify whether “size” referred to the
brightness of the dot, its arc size, or both.)
It was uncontested that, three weeks before the shooting, the scope had
been operational; three weeks later, it was not, apparently because the battery
was dead. (The State’s firearms expert stated that the scope was not operational
when he inspected the weapon, but did not otherwise describe the operation of
the scope. (ECF 9-10 at 27)) There was no direct evidence of the scope’s condition
on the night of the incident. No witness testified as to whether it was operating at
all, whether the battery was fresh, whether it was turned on, or where it was set
in the 0 to 11 range.
Carrying that gun, Mr. Pichardo stepped out from behind a parked car and
fired two shots. One of the shots hit nothing. The other went through the rear
window of the second car and struck EW in the back of the head, killing him. (Id.
at 43.) Mr. Pichardo went inside his family’s apartment to hide. He maintains
that, at the time, he had no idea he had hit anything, let alone killed someone.
(See ECF’ No. 9-11 at 10; 9-22 at 6.) Based on DJ’s on-scene identification, Mr.
Pichardo was arrested and brought to police headquarters, where he waived his
Miranda rights and gave a statement. (Id.)
II. PROCEDURAL HISTORY
Mr. Pichardo was indicted for first degree murder, N.J. STAT. ANN.
§
2C: 1 1-3(a)(1), (2); second degree possession of a weapon for an unlawful
purpose, N.J. STAT. ANN.
weapon, N.J. STAT. ANN.
N.J. STAT. ANN.
§ 2C:39-4; third-degree unlawful possession of a
§ 2C:39-5(c); and third degree receiving stolen property,
§ 2C:20-2(a).
target itself, or to an infrared night vision scope, but to a red dot sight. “A red dot sight is
a common classification for a type of non-magnifying reflector (or reflex) sight for
firearms, and other devices that require aiming, that gives the user an aimpoint in the
(visited
form of an illuminated red dot.” jt
Dec. 14, 2015) (citing House, James E. (2005). The Gun Digest Book of .22 Rimfire:
flesPistolsAmmunition. Google Books (Gun Digest Books), p. 64).
3
At the conclusion of trial, Mr. Pichardo was acquitted of murder but
convicted of the lesser included offense of aggravated manslaughter. (ECF No.
9-15.) He was acquitted of possession of a weapon for an unlawful purpose, but
convicted of the other weapons offense, as well as receipt of stolen property (i.e.,
the gun, which had been taken from the owner’s home three weeks before the
shooting). (Id.)
On September 30, 2005, Mr. Pichardo was sentenced. Judge Subryan
merged the weapon offense with the aggravated manslaughter offense and
sentenced Pichardo to twenty-two years’ incarceration, subject to the No Early
Release Act. See N.J. STAT. ANN.
§ 2C:43-7.2. Judge Subryan also sentenced
Pichardo to a four-year term of incarceration for receiving stolen property,
consecutive to the manslaughter sentence. (ECF 9-16 at 21; ECF No. 9-22 at 28.)
(References to sentencing herein, unless otherwise specified, pertain to the
22-year sentence for aggravated manslaughter.)
At sentencing, Judge Subryan assessed three aggravating factors against
Mr. Pichardo: nature and circumstances of the offense, i.e., its commission in an
especially heinous, cruel or depraved manner (N.J. STAT. ANN.
§ 2C:44-1(1)); risk
of committing a future offense given history as a juvenile (N.J. STAT. ANN. §
2C:44-1(3)); and need for deterrence (N.J. STAT. ANN. § 2C:44-1(9)). The judge
found one mitigating factor: leading a law-abiding life for a substantial period of
time (N.J. STAT. ANN.
§ 2C:44-1(b)(7)). The sentencing judge found that the
aggravating factors “substantially outweighed” the mitigating one. (ECF 9-16 at
26—27.)
Mr. Pichardo filed a direct appeal. He argued that, although the jury had
acquitted him of the murder charge, the trial court should have entered a
judgment of acquittal sua sponte, and that its failure to do so “tainted” the jury’s
verdict of aggravated manslaughter. (See ECF No. 9-19 at 45.) Pichardo also
argued on direct appeal that his sentence was “manifestly excessive.” (Id.) On
March 10, 2008, the Appellate Division affirmed Pichardo’s conviction and
4
sentence. (Id.) On June 3, 2009, Pichardo filed a petition for certification, which
was denied by the New Jersey Supreme Court. State v. Pichardo, 195 N.J. 524
(2008).
Meanwhile, in June of 2008, Mr. Pichardo had filed a petition for
post-conviction relief (“PCR”) with the Superior Court of New Jersey, Law
Division, Passaic County. The PCR petition alleged ineffective assistance of trial
counsel for failing to review discovery with Pichardo, and for failing to investigate
and call witnesses on Pichardo’s behalf. It alleged ineffective assistance of
appellate counsel for failing to challenge Judge Subryan’s use of aggravating and
mitigating factors.
3
Judge Joseph A. Falcone heard testimony from Mr. Pichardo and his trial
counsel, and denied the PCR petition in an oral opinion. (See ECF No. 9-18.)
Pichardo appealed that denial to the Appellate Division. On appeal, Pichardo
supplemented the grounds asserted by counsel, faulting earlier appellate
counsel for failing to challenge Judge Subryan’s evidentiary rulings, failing to
challenge Judge Subryan’s use of aggravating and mitigating factors, relying on
unsupported facts in sentencing, failing to challenge improper jury instructions,
and failure to challenge Judge Subryan’s decision to admit in evidence the scope
from Pichardo’s rifle. The appellate court affirmed the Law Division in a written
opinion. (See ECF No. 9-22.) The New Jersey Supreme Court denied certification
on December 19, 2012. (See ECF No. 9-23.)
On November 15, 2013, Mr. Pichardo filed a petition with this Court for a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.
Although the record is not quite complete, I find sufficient evidence that these
claims were raised in the trial level PCR court. At any rate, they were clearly raised and
considered on appeal from the denial of PCR. See, e.g., Section IV.B.l & n.5; IV.E.2 &
n.30, infra.
5
III. CLAIMS
Mr. Pichardo presents the following claims in his habeas petition:
Ground One: Ineffective Assistance of Trial Counsel for failing to
investigate witnesses and communicate with Mr. Pichardo; Ineffective
Assistance of Appellate Counsel for failing to challenge trial judge’s
evidentiary rulings.
Ground Two: Ineffective Assistance of Appellate Counsel for failing
to raise that the sentencing court relied on “unsupported facts” when
sentencing Mr. Pichardo.
Ground Three: Ineffective Assistance of Appellate Counsel for failing
to challenge the sentencing court’s misapplication of aggravating factor 1.
Ground Four: Ineffective Assistance of Appellate Counsel for failing
to challenge trial court’s decision to repair the scope on Mr. Pichardo’s rifle
during trial.
Ground Five: Ineffective Assistance of Appellate Counsel for failing
to challenge trial court’s allowance of testimony from the rifle’s original
owner.
Ground Six: Ineffective Assistance of Trial Counsel for failure to call
pertinent witnesses on Mr. Pichardo’s behalf.
The petition will be denied, except as to Ground Three, which will be
granted. I find that appellate counsel was constitutionally ineffective for
failing to challenge the sentencing court’s employment of aggravating
factor 1: commission of the offense in an especially heinous, cruel, or
depraved manner.
IV. DISCUSSION
A.
Habeas Claims of Ineffective Assistance of Counsel: Standards
Title 28, United States Code, Section 2254, provides that the 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
6
in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C.
§ 2254(a). A petitioner has the burden of establishing each
claim in the petition. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013).
Under 28 U.S.C.
§ 2254, as amended by the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), federal courts in habeas corpus cases must give
considerable deference to determinations of the state trial and appellate courts.
See Renico v. Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas
corpus:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C.
§ 2254(d).
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court
explained the application of § 22 54(d) (1). The Court analyzed subsection 1 as
containing distinct clauses: the “contrary to” clause and the “unreasonable
application” clause.
Under (d)(l)’s “contrary to” clause, “a federal court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the U.S. Supreme]
Court on a question of law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts.” Id.
Under (d)(l)’s “unreasonable application” clause, a federal court may grant
the writ if “the state court identifies the correct governing legal principle from [the
7
Supreme] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id. at 413. For purposes of 2254(d)(1), “an unreasonable
application of federal law is different from an incorrect application of federal law.”
Williams, 529 U.S. at 366 (emphasis in original).
Together, the clauses of Section 2254(d)(1) apply to questions of mixed law
and fact. Purely factual questions, however, fall under 28 U.S.C.
§ 2254(d)(2).
In conducting the (d)(2) factual analysis, a federal court must confine its
examination to evidence in the state court record. See Cullen v. Pinhoister, 563
U.S. 170, 182, 131 S. Ct. 1388, 1398 (2011). In addition, the state court record
should be reviewed to assess the reasonableness of the state court’s factual
determinations. See id. Finally, federal courts are required to apply a
“presumption of correctness to factual determinations made by the state court.”
Fahy v. Horn, 516 F.3d 169, 181 (3d Cir. 2008); see also 28 U.S.C.
§ 2254(e)(1).
The Third Circuit has ruled that this presumption of correctness based upon
state court factual findings can be overcome only by clear and convincing
evidence. See Lewis v. Horn, 581 F.3d 92, 109 (3d Cir. 2009). A state court
decision is based on an unreasonable determination of the facts only if the state
court’s factual findings are objectively unreasonable in light of the evidence
presented in the state-court proceeding. See Eley, 712 F.3d at 846 (internal
quotations omitted).
All of the claims here assert that trial or appellate counsel were
constitutionally ineffective. In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court articulated the test for demonstrating an ineffective assistance of
counsel claim. First, the petitioner must show that, considering all of the
circumstances, counsel’s performance fell below an objective standard of
reasonableness. See id. at 688; see also Ross v. Varano, 712 F.3d 784, 798 (3d
Cir. 2013). To satisfy this first prong of Strickland, a petitioner must identify acts
or omissions that allegedly fell below standards of reasonable professional
judgment. See Strickland, 466 U.S. at 690. Second, a petitioner must
8
affirmatively demonstrate that any errors resulted in prejudice. Prejudice will be
found only where “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
As stated above, the PCR court’s application of Supreme Court precedent
must have been not merely erroneous, but unreasonable. Accordingly, it is not
enough to show that defense counsel’s performance fell below Strickland’s
two-part standard. In a habeas case, a state court must be granted more
deference and latitude than would apply on direct review of a conviction. See id.;
Renico v. Lett, 559 U.S. 766, 773 (2010); Schriro v. Land rigan, 550 U.S. 465, 473
(2007). So even if this Court disagreed with the state courts’ application of
Strickland, it could not grant Pichardo’s petition based on mere legal error. To
meet the “unreasonable” standard, the error must be one that is not “susceptible
to debate among reasonable minds.” See Wright v. West, 505 U.S. 277, 291
(1992) (quoting Butler v. McKellar, 494 U.S. 407, 415 (1990)).
I discuss Mr. Pichardo’s claims in light of those standards: first, ineffective
assistance of appellate counsel as to sentencing issues (Sections IV.B & C);
second, ineffective assistance of appellate counsel as to suppression and
evidentiary issues (Section IV.D); and third, ineffective assistance of trial counsel
(Section IV.E). I grant relief only as to the first: ineffective assistance of appellate
counsel for failure to raise the aggravating factor/double counting issue in
relation to sentencing (Section IV.B). The petition is otherwise denied.
B.
Ineffective Assistance of Appellate Counsel: Aggravating Factor 1 and
“Double Counting”
Pichardo argues that counsel was ineffective because he failed to argue on
direct appeal that Judge Subryan erred in applying aggravating factor 1. (Ground
Three; see ECF No. 1 at 9-11.) Primarily, Pichardo argues that the application of
aggravating factor 1 constituted impermissible “double counting,” because
9
aggravating factor 1 (committing crime in an especially “heinous, cruel, or
depraved manner”), rests on facts already essential to the offense of
conviction—aggravated manslaughter. (See ECF No. 1 at 5.) Because that error
of state law would have required reversal of his sentence, he says, counsel was
ineffective for failing to press it on appeal.
1.
Judge Subryan’s findings and procedural background
Judge Subryan, at sentencing, applied statutory aggravating factor 1: “The
nature and circumstances of the offense, and the role of the actor therein,
including whether or not it was committed in an especially heinous, cruel, or
depraved manner.” N.J. STAT. ANN.
4
§ 2C:44-1(a)(1). For finding that this offense
was committed in an especially heinous and cruel manner, Judge Subryan gave
the following justification:
Number one, nature and circumstances of the offense and the role of
the actor, including the fact that this was committed in the heinous,
cruel manner. I am cognizant of the fact that our Appellate Courts
and Supreme Court have said that this could be tantamount to
double counting, but I particularly find this factor because of the
circumstances and the weapon used on the night in question. This
was a weapon designed to kill at tremendous distance. He knew
what he had. He bought it. He had it a month before. He knew what
he had. The testimony was he peered through the scope before
pulling that trigger. That weapon, in this Courts opinion and
judgment, makes it necessary that I find that aggravating factor.
(See ECF No. 9-16 at 26) (emphasis added).
On direct appeal, Mr. Pichardo’s appellate counsel did not raise this
aggravating factor/double counting argument. Appellate counsel asserted only
two points:
As noted above, N.J. STAT. ANN. § 2C:44- 1(1) takes into account “[t]he nature and
circumstances of the offense, and the role of the actor therein, including whether or not
it was committed in an especially heinous, cruel, or depraved manner.” Judge Subryan
also applied aggravating factors 3 and 9. Section 2C:44- 1(3) (specffic deterrence)
assesses the “risk that the defendant will commit another offense,” and § 2C:44- 1(9)
(general deterrence) is meant to “[deter] the defendant and others from violating the law.”
10
I. THE TRIAL COURT ERRED IN FAILING TO ENTER A JUDGMENT OF
ACQUITT’AL SUA SPONTE REGARDING THE CHARGE OF MURDER
EMBODIED IN COUNT I, THEREBY NECESSARILY TAINTING THE
JURY’S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER
INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER;
II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Deciding that direct appeal, the Appellate Division rejected both grounds with
fairly minimal discussion. (See ECF No. 9-19 at 45—47.)
In the PCR proceeding, Pichardo asserted that appellate counsel’s
selection of those
two
grounds,
but not others,
constituted ineffective
5
assistance. The trial-level PCR court, without detailed discussion, denied all
claims of ineffective assistance of appellate counsel. (ECF No. 9-18 at 30—3 1.) The
Appellate Division, on review of the denial of PCR, ruled that this claim, one of
several raised by Pichardo in a supplemental pro se brief, was “without sufficient
merit to warrant discussion in a written opinion.” (ECF No. 9-22 at 3, 13.) The
New Jersey Supreme Court denied certification. (See ECF No. 923.)6
The PCR transcript is somewhat vague as to what grounds appellate counsel was
alleged to have omitted. Reference is made to a list in a letter or pro se brief, but the list
is not quoted. On appeal from the denial of PCR, the Appellate Division explicitly cited
(and rejected) this “double counting” claim of ineffective assistance (ECF No. 9-22 at 3),
corroborating the petitioner’s contention that he had raised it below. Respondent, for its
part, admits that this specific ground was raised in PCR proceedings at the trial level.
(Answer, ECF No. 10 at 2 (“Par. 11. Agreed, as to all subparagraphs”)) Respondent also
explicitly “waives any possible exhaustion argument.” (Id.)
6
AEDPA requires this court to defer to a state court’s determination, even where
that determination is a summary one. See Harrington, 562 U.S. 99 (holding that an
unexplained Order is to be treated as “on the merits in the absence of any indication or
state-law procedural principles to the contrary”); Yarborough v. Alvarado, 541 U.S. 652,
664 (2004) (finding that a state court’s determination that a claim is meritless demands
deference as long as fairminded jurists could disagree on the correctness of the
decision). Where a summary appellate denial was preceded by a reasoned decision by
the lower court, the habeas court will typically “look through” to the reasoning of the
lower court decision. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (“...courts generally
affirm[] without further discussion when they agree, not when they disagree, with the
reasons given below”). Here, however, neither court discussed its decision. Hence,
11
2.
Strickland as applied to counsel’s failure to raise an issue
on State direct appeal
The two-part Strickland test applies not just to counsel’s representation at
trial, but to representation on direct appeal as well. See Smith v. Robbins, 528
U.S. 259, 285, 120 S. Ct. 746 (2000); Evitts v. Lucey, 469 U.S. 387, 393—94, 105
5. Ct. 830 (1985). Appellate counsel’s conduct will therefore be measured against
the two-part Strickland test of (1) deficient representation and (2) prejudice. The
claim here is that counsel failed to raise the aggravating factor! double counting
issue on direct appeal. Counsel, of course, does not violate professional
standards by exercising broad discretion to select issues for appeal; it can be
unreasonable, however, for appellate counsel to skip an issue that had merit,
while pursuing one that did not. If so, Strickland “prejudice” then requires a
reasonable probability that the forgone issue would have prevailed on appeal.
(Those standards are discussed further in sections IV.B.3 & 4, infra.)
When considering a habeas claim of ineffective assistance on a State
appeal, it is important to separate the various levels of review. The ruling of
“federal law” to which this Court must defer under 28 U.S.C.
§ 2254(d)(1) is the
PCR court’s application of Strickland. To obtain relief, then, Mr. Pichardo would
have to demonstrate that the PCR court “unreasonably applied” the two-part
7
Strickland standard, as set forth in the footnote. The state PCR court, however,
although I defer to the state court’s ultimate decision, there is no substantial statement
of reasons on which I may rely.
7
As is customary, the defendant litigated his ineffective assistance claim in PCR
proceedings, not on direct appeal. There is no contention that the PCR court’s decision
was “contrary to” Strickland, in the sense that the court misidentified or ignored that
case. The claim must be that the state PCR court unreasonably applied Strickland.
Judge Hillman of this Court has usefully summarized the “unreasonable application”
standard thus:
A state court decision “involve[s] an unreasonable application” of
federal law “if the state court identifies the correct governing legal rule
from [the Supreme] Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case,” and may involve an “unreasonable
application” of federal law “if the state court either unreasonably extends a
12
was required to assess counsel’s performance in the context of state substantive
law and state law standards of review. So this Court must, in a sense, think like
a New Jersey appellate court—but subject that thinking to the rigors of the
Strickland test and habeas deference.
As I have perhaps already suggested, the special context of ineffective
assistance of appellate counsel can lead a reviewing habeas court down some
conceptual blind alleys. I mention two.
It is axiomatic that a federal habeas court corrects errors of federal law, not
state law. See 28 U.S.C.
§ 2254(d)(1); Estelle v. McGuire, 502 U.S. 62, 67—68, 112
S. Ct. 475, 480 (1991). That principle, however, is premised on the primary role
of the State appellate courts in correcting error. Where that role has been
legal principle from [the Supreme Court’s] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle
to a new context where it should apply,” (although the Supreme Court
expressly declined to decide the latter). Id. at 407—09. See also Moore v.
DiGuglielmo, No. 09—2 189, 489 F. App’x 618, 624 n. 2 (3d Cir.2012) (noting
the same). To be an “unreasonable application” of clearly established
federal law, the state court’s application must be objectively unreasonable.
[citing Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495 (2000)]. “This
is ‘difficult to meet’: To obtain habeas corpus relief from a
standard
federal court, a state prisoner must show that the challenged state-court
ruling rested on ‘an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Metrish v.
133 S. Ct. 1781, 1786—87, 185 L.Ed.2d 988
U.S.—,
Lancaster,
v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786—87,
(2013) (quoting Harrington
178 L.Ed.2d 624 (2011)).
...
—
———,
The “clearly established Federal law” referred to in § 2254(d)(1)
consists of the U.S. Supreme Court precedents at the time of the state
court decision adjudicating the petitioner’s claims. Greene v. Fisher,
132 5. Ct. 38, 181 L.Ed.2d 336 (2011). In determining whether
U.S.
the state court’s application of Supreme Court precedent was objectively
unreasonable, however, a habeas court may consider the decisions of
inferior federal courts. Matteo v. Superintendent, 171 F.3d 877, 890 (3d
Cir. 1999), cited in Glenn v. Wynder, No. 12—4333, 2014 WL 642947, *5 n.
6 (Feb. 20, 2014) and Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir.
2004).
Almodovar v. Hauck, No. CIV.A. 11-5086 NLH, 2014 WL 4931276, at *4 (D.N.J.
—
,
Oct. 1, 2014).
13
compromised by ineffective assistance, the habeas court must determine (inter
alia) whether the issue,
f properly presented to
the State appellate court, would
have induced that State court to reverse or remand. That determination
necessarily enmeshes the federal court in the issues of state law and procedure
that the state court would have considered.
Likewise, the habeas statute provides that State court errors of fact will be
corrected only in egregious cases. See 28 U.S.C.
§
2254(d)(2). But we must be
clear about what factual findings we mean. The habeas claims here do not,
strictly speaking, call upon me to overturn the trial court’s factual findings at
sentencing; instead, I must assess the likelihood that, absent counsel’s errors,
the Appellate Division would have overturned them. Or rather, after granting
proper deference, I must determine whether it was unreasonable for the PCR
court to conclude that the Appellate Division would not have overturned such
findings.
This Court’s assessment of effective representation, and especially of
prejudice, thus requires it to stand in the shoes of the state appellate court,
applying state law standards of appellate review and state substantive law. That
hypothetical state appeal, in effect a gedankenexperiment, provides the backdrop
for the ultimate issue: whether the State PCR court “unreasonably applied”
federal law, i.e., Strickland, or unreasonably found the facts in connection with
that ineffective assistance claim.
3.
Strickland prong one: unreasonableness of decision to
forgo the aggravating factor issue on direct appeal
I first examine whether counsel’s failure to raise the aggravating
factor/double counting issue on direct appeal fell below an objective standard of
reasonableness. See Strickland, 640 U.S. at 699. Under the first prong of
Strickland, deficient performance may be found where counsel has failed to raise
a viable issue on appeal. Of course, appellate counsel does not render
14
substandard assistance by failing to raise every nonfrivolous matter. See Jones
v. Barnes, 463 U.S. 745 745 (1983). To the contrary, counsel “decides which
issues to pursue on appeal
...
and there is no duty to raise every possible claim.
An exercise of professional judgment is required.” Sistnink v. Vaughn, 96 F.3d
666, 670 (3d Cir. 1996) (citing Jones, 463 U.S. at 751 (1983)). Indeed, “the
‘process of winnowing out weaker arguments on appeal and focusing on those
more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.’” Id. (quoting Smith v. Murray, 477 U.S. 527, 536
(1986)). Thus a petitioner must “show that his appellate counsel’s failure to raise
the
[}
argument on appeal fell outside the wide range of reasonable professional
assistance; that is, [he would have to] overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound [appellate]
strategy.”’ Buehi v. Vaughn, 166 F.3d 163, 173 (3d Cir. 1999) (quoting Strickland,
466 U.S. at 689; [bracketed] language is in Buehi).
That presumption of sound strategy may be overcome, however, where the
omitted issue is “clearly stronger” than those that were presented on appeal.
Robbins, 528 U.S. at 288. The case law is not clear as to what constitutes a
“clearly stronger” argument. At a minimum, however, an omitted argument is
“clearly stronger” when it has considerable merit and the arguments actually
presented had little or none. See id.; Showers v. Beard, 635 F.3d 625, 634 (3d
Cir. 2011).
The two grounds that Mr. Pichardo’s counsel did raise on direct appeal
were quite weak. (ECF No. 9-19 at 45—47.) The first was that so-called
“overcharging” (i.e., unwarranted submission of the murder charge to the jury)
smoothed the way for a compromise verdict of aggravated manslaughter. The
Appellate Division rejected this claim for three reasons: (1) trial counsel had not
preserved it by moving at trial for a judgment of acquittal; (2) the evidence of
intent was not so clearly lacking that the court should have withdrawn the
murder charge from the jury sua sponte; and (3) the argument that
15
“overcharging” required reversal rested on case law that had been overturned by
the New Jersey Supreme Court. (See ECF No. 9-19 at 45—47.) The second
8
ground for appeal, that the sentence was manifestly excessive, was quickly
rejected without discussion. (Id. at 45)9
The grounds actually raised on direct appeal, then, were quite weak. To
demonstrate ineffective assistance, however, Pichardo must show more: he must
demonstrate that the arguments appellate counsel did not make were “clearly
stronger” than those he did. See p. 15, supra (citing, e.g., Robbins, 528 U.S. at
288).
I therefore consider the strength of the forgone aggravating factor/double
counting issue. Appellate counsel was clearly on notice that double counting was
at least a potential issue; Judge Subryan himself signaled that, in applying
aggravating factor 1, he was perhaps stretching the boundaries of the
The reference is to State v. Wilder, 939 A.2d 781 (N.J. 2008). Former case law,
reversed by Wilder, set a low bar for reversal, equating prejudice with a “real possibility”
of a compromise verdict. Id. at 786 (citing State v. Christener, 362 A.2d 1153 (N.J.
1976)). Wilder established that there is no special, lower standard of review for a “jury
overcharge” claim. Such a claim will be reviewed like any other—i.e., the error will be
disregarded unless “clearly capable of producing an unjust result.” N.J. Ct. R. 2:10-2.
The Wilder court opined, and seemingly intended, that “few jury-overcharge cases would
meet the ‘unjust result’ standard.” 939 A.2d at 793.
9
A manifestly excessive sentence is one that runs afoul of the appellate court’s
residual power to reverse or remand where a sentence, although it conforms to the
procedural requirements of the Code, nevertheless “shocks the judicial conscience.”
State v. Cassady, 966 A.2d 473, 482 (N.J. 2009); (quoting State v. O’Donnell, 564 A.2d
1202, 1205 (N.J. 1989)). Such claims, though routinely raised, almost never succeed;
indeed, they rarely even make it into published decisions. A Westlaw search for
“manifestly excessive sentence” revealed that, in the last year, the Appellate Division has
denied such claims in some 20 opinions, all of them unreported, generally without
extensive discussion. While those cases include some limited remands, the grounds are
not excessiveness per Se, but rather failure to consider a relevant factor, or some other
more specific error. In short, this catchall claim, commonly tacked onto appellate
briefs as the final point, did not present a promising issue—particularly where, as here,
the sentence imposed was two years above the middle of the statutory 10—30 year range.
8
16
permissible: “I am cognizant of the fact that our Appellate Courts and Supreme
Court have said that this could be tantamount to double counting
.. . .“
(ECF No.
9-16 at 26) Mr. Pichardo argues that appellate counsel should have raised that
issue on appeal, because it had far more chance of prevailing than the two points
counsel did raise. I agree.
Under the State system, each offense or grade of offense has a statutory
sentencing range (in the case of aggravated manslaughter, 10 to 30 years).
Within that range, the sentencing judge applies aggravating and mitigating
factors to arrive at a sentence. New Jersey has been clear about its determination
to rein in disparities in sentence. Indeed, the “double-counting” prohibition was
a component of that effort; “double-counting of elements of the offenses as
aggravating factors would be likely to interfere with the Code’s dedication to
uniformity in sentencing.” State v. Kromp hold, 744 A.2d 640, 644-45 (N.J. 2000).
Accordingly, sentencing in general, and the application of aggravating and
mitigating factors in particular, is an appellate minefield. Federal practitioners
will find something familiar, for example, in the appellate activity that followed
the State’s abandonment of the mandatory “presumptive sentence” system. That
abandonment is closely analogous to, and indeed was based on, the federal
courts’ abandonment of the mandatory aspect of the federal Sentencing
Guidelines. Compare United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), with State v. Natale, 878 A.2d 724 (N.J. 2005). See discussion at Section
III.C, infra.
The obligations of a New Jersey sentencing judge are many, complex, and
varied. A sentencing judge “shall” consider certain aggravating and mitigating
factors, in each instance numbered 1 through 13. N.J. STAT. ANN. § 2C:44-1(1)(a)
& (b). “Each factor found by the trial court to be relevant must be supported by
‘competent, reasonably credible evidence.” State v. Fuentes, 85 A.3d 923, 931—
32 (N.J. 2014) (quoting State v. Roth, 471 A.2d 370, 386 (N.J. 1984)). The Court
Rules require that the sentencing court explain the reasoning behind its
17
findings, N.J. Ct. R. 3:21—4(g); failure to articulate an adequate explanation may
in itself require a remand for resentencing. See State v. Bieniek, 985 A.2d 1251,
1255 (N.J. 2010). For example, “a remand may be required when a reviewing
court determines that a sentencing court failed to find mitigating factors that
clearly were supported by the record. State v. Dalziel, 867 A.2d 1167 (N.J. 2005)
(concluding that aggravating and mitigating factors supported by record ‘must be
a part of the deliberative process’).” Id.
The former system of mandatory “presumptive sentences,” generally falling
around the middle of the range, has been abolished. Now a sentencing judge
may, but is not required to, use “the middle of the sentencing range as a logical
starting point for the balancing process” of aggravating and mitigating factors.
Fuentes, 85 A.3d at 932 (quoting State v. Natale, 878 A.2d 724, 740 (N.J. 2005)
(invalidating the mandatory “presumptive sentence” system)). “[Rleason suggests
that when the mitigating factors preponderate, sentences will tend toward the
lower end of the range, and when the aggravating factors preponderate,
sentences will tend toward the higher end of the range.” Id.
In Mr. Pichardo’s favor was one mitigating factor (that he had been a law
abiding citizen for a substantial period of time); against him were three
aggravating factors (specific deterrence, general deterrence, and the commission
of the offense in a cruel and heinous manner). The resulting sentence was 22
years—2 years above the midpoint of the range. I note that the two deterrence
factors are fairly generic; it is reasonable to conclude that aggravating factor 1,
the “cruel and heinous” commission of the offense, did most of the work in
raising Pichardo’s sentence.
The trial court’s balancing of aggravating and mitigating factors is
discretionary, but there are some legal constraints. The New Jersey Supreme
Court has held, for example, that an aggravating factor must be premised upon
facts independent of the elements of the crime itself. Fuentes, 85 A.3d at 926; see
also State v. Link, 485 A.2d 1069, 1071 (N.J. Super. App. Div. 1984) (where an
18
essential element of a crime is a specific fact, that element may not be used as an
aggravating factor to extend a custodial sentence under the former “presumptive
term” system). Thus, “when intent is an element of an offense, it may not be
considered as an aggravating factor.” State v. O’Donnell, 564 A.2d 1202, 1206
(N.J. 1989). In particular, a court considering aggravating factor 1 (“heinous,
cruel, or depraved”) must avoid “double-counting” facts that are inherent in the
offense itself. See State v. KrompholcZ, 744 A.2d 640, 644 (N.J. 2000).’° Were it
otherwise, “every offense arguably would implicate aggravating factors merely by
its commission, thereby eroding the basis for the gradation of offenses and the
distinction between elements and aggravating circumstances.” Id. at 645.
Aggravating factor 1, then, must rest on facts that depart from, or exceed,
the elements of the offense. As to offenses on the continuum from manslaughter
to murder, death is a given. As a matter of law, the death of the victim cannot do
The clearest examples are cases in which the aggravating factor literally
duplicates an element of the offense. Kromphold cited a number of such cases:
10
In State v. Pineda, 119 N.J. 621, 627—28, 575 A.2d 855 (1990), we held
that because death was an element of the crime of death by auto, N.J.S.A.
2C: 11—5(b), the victims death could not be considered as an aggravating
factor for sentencing purposes. Similarly, in [State v. Jarbath, 555 A.2d
559, 564 (N.J. 1989)], we held that to consider a child’s death as support
for the seriousness-and-gravity-of-harm aggravating factor constituted
impermissible double-counting because “the death of the child itself was
an element of the offense of second-degree manslaughter.” See also [State
v. Pillot, 560 A.2d 634 (N.J. 1989)] (holding that where use of BB gun
elevated robbery from second-degree to first-degree crime, use of weapon
could not be considered aggravating factor for sentencing purposes); State
v. Yarbough, 195 N.J. Super. 135, 143, 478 A.2d 432 (App.Div.1984)
(holding that where age of victim is factor that makes sexual assault
against her crime of first degree, victim’s age may not be used as
aggravating factor), remanded for resentencing on other grounds, 100 N.J.
627, 645—46, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct.
1193,89 L.Ed.2d 308 (1986); State v. Link, 197 N.J. Super. 615, 620, 485
A.2d 1069 (App. Div. 1984) (holding that where victim’s status as police
officer was essential element of offense, that status could not be used as
aggravating factor for sentencing purposes), certif denied, 10]. N.J. 234,
501 A.2d 911 (1985).
Kromp hold, 744 A.2d at 645.
19
double duty as an aggravating factor. See State v. Jarbath, 555 A.2d 559, 564
(N.J. 1989). Aggravating factor 1 may be applied, however, to especially “cruel”
conduct. Analogizing to an aggravating factor for capital murder, O’Donnell
required that the defendant intended “to inflict pain, harm and suffering—in
addition to intending death.” O’Donnell, 564 A.2d at 1206 (emphasis added).
Was Mr. Pichardo’s killing of EW especially cruel or heinous in a manner
that exceeded what is inherent in his conviction for aggravated manslaughter?
Very arguably not. Aggravated manslaughter requires a showing that the
defendant “recklessly cause[d] death under circumstances manifesting extreme
indifference to human life.” N.J. STAT. ANN. § 2C: 1 1—4(a)(1). To avoid double
counting, aggravating factor 1 would have to be based on something over and
above (1) the death of the victim and (2) the defendant’s recklessness and
extreme indifference to human life, which are inherent in the offense. Judge
Subryan’s findings did not establish cruelty beyond that inherent in the offense
itself. Double counting was a meritorious appellate issue; indeed, as argued in
the following section, it was potentially a winning issue.
In short, the argument that Judge Subryan impermissibly assessed
aggravating factor 1 against Mr. Pichardo has considerable merit, but the
arguments that counsel actually presented on appeal had little.
In the face of such a disparity, the courts have found that appellate
counsel’s failure to raise an issue fell below an objective standard of
reasonableness. Thus, for example, in Showers v. Beard, supra, trial counsel
failed to secure an expert to support the defense that the victim was not
poisoned, but rather committed suicide by ingesting a toxic liquid form of
morphine known as Roxanol. Defense counsel elicited some testimony that
Roxanol had a bitter taste that an unknowing victim would have detected. He did
not, however, call a qualified expert to establish that the taste could not easily be
masked. Counsel’s omission, said the Showers court, could have furnished
meritorious grounds for appeal, but appellate counsel did not raise it: “[Cjounsel
20
ignored an argument going directly to the issue of guilt that is clearly stronger
than those presented. For example, appellate counsel included an argument
challenging the sufficiency of the evidence, which rarely prevails.” 635 F. 3d at
634.
As I must, I give due deference to the denial of Mr. Pichardo’s claim (albeit
without extensive analysis) by the Appellate Division. Nevertheless I find that
there is a wide disparity between the two weak issues that appellate counsel did
pursue and the meritorious aggravating factor/double counting issue that he did
not pursue. Appellate counsel’s decision to forgo the double counting issue,
while pressing two nearly hopeless issues, fell below an objective standard of
reasonableness. Pichardo’s claim satisfies the first prong of Strickland and
Smith.
4.
Strickland prong two: Prejudice
I move to the second prong of the Strickland analysis: prejudice. That
prejudice prong has a particular application to ineffective assistance on direct
appeal. The petitioner has the burden to “show a reasonable probability that, but
for his counsel’s unreasonable failure to [argue the omitted issue], he would have
prevailed on his appeal.” Smith, 528 U.S. at 285. On appeal, to “prevail” means to
establish a non-harmless error that results in reversal or remand.
The issue here is a sentencing issue. For purposes of the Strickland
prejudice analysis, sentencing errors are salient, “because ‘any amount of
[additional] jail time has Sixth Amendment significance.”’ Lajier u. Cooper,
U.S.
—,
132 S. Ct. 1376, 1386 (2012) (quoting Glover v. United States, 531 U.S.
198, 203, 121 5. Ct. 696 (2001)). So we are not presented with the typical case of
ineffective assistance at trial, where any error must be weighed against other
evidence of guilt; a sentencing error is a prejudicial “outcome” for Strickland
purposes. “Prejudice” here, then, requires a reasonable probability that the State
appellate courts would have reversed and remanded the case for resentencing
without aggravating factor 1.
21
a. Appellate Division standard of review of sentencing
error
Initially, Strickland’s “reasonable probability” depends on the standard of
review that the State appellate court would have applied. With respect to
sentencing, that standard of review received its classic statement in State v.
Roth:
First, we will always require that an exercise of discretion be based
upon findings of fact that are grounded in competent, reasonably
credible evidence.
Second, we will always require that the factfinder apply correct legal
principles in exercising its discretion....
Third, we will exercise that reserve of judicial power to modify
sentences when the application of the facts to the law is such a clear
error of judgment that it shocks the judicial conscience. We
anticipate that we will not be required to invoke this judicial power
frequently.
471 A.2d 370, 386 (N.J. 1984) (citations omitted).
Under Roth, the Appellate Division would have reviewed the factual
findings underlying the trial judge’s application of aggravating factor 1 only to
ensure they were “grounded in competent, reasonably credible evidence.” Id. Mr.
Pichardo’s aggravating factor/double counting contention, however, is in many
respects an issue of law. And the question of whether the sentencing court
applied “correct legal principles” would have received plenary review.
All of the foregoing is subject to the principle that an error, if found, will
not require reversal if it is harmless.’ Under New Jersey practice, an error at
1
trial will be found harmless “unless it is of such a nature as to have been clearly
capable of producing an unjust result.” N.J. Ct. R. 2:1O2.12
Like the federal courts, the New Jersey courts distinguish between “trial errors,”
which are subject to harmless error analysis, and “structural” errors, which go to the
very integrity of the trial process and require automatic reversal. See State v. Camacho,
95 A.3d 635, 643 (N.J. 2014) (citing Arizona v. Fulminante, 499 U.S. 279, 307, 309, 111
S. Ct. 1246, 1263, 1265 (1991)). The errors claimed here do not fit in that narrow
category of structural errors.
H
12
That standard is a protean one, varying with the circumstances. Parenthetically,
22
b. Is there a reasonable probability that the Appellate
Division would have overturned the sentencing judge’s
fact finding as to aggravating factor 1?
The trial judge concluded for purposes of aggravating factor 1 that the
offense was committed in a particularly cruel and heinous manner. That
conclusion rested on two facts:
(1) As the defendant knew, the weapon was a rifle with a laser scope,
designed to kill at a tremendous distance; and
3
(2) the defendant peered through the scope when firing.’
Under Roth, the Appellate Division would have considered whether those two
and without deciding the matter, I note that in criminal trials this standard may require
that harmlessness be demonstrated beyond a reasonable doubt. The New Jersey
Supreme Court, in perhaps the leading case on harmless error, has stated that it is “not
at all sure the test in Chapman [i.e., harmless beyond a reasonable doubt] is discernibly
different from our measure for reversible error [i.e., clearly capable of producing an
unjust result], despite the differences in phrasing.” State v. Macon, 273 A.2d 1, 6 (N.J.
1971) (material in [brackets] added; citing Chapman v. Calfomia, 386 U.S. 18, 87 S. Ct.
824 (1967) (“harmless beyond a reasonable doubt” standard for constitutional trial
errors)). Justice Weintraub, emphasizing that the determination was a sensitive,
case-specific one, wrote for the Court that “[a] judge would hardly insist an error,
‘constitutional’ or other, was ‘harmless’ if he found a ‘reasonable’ doubt as to whether
the error contributed to the result.” Macon, 273 A.2d at 9. The Appellate Division has
continued to cite Macon for the proposition that error, even where not objected to at trial,
will be found harmless only if is not sufficient to raise “a reasonable doubt” as to whether
it altered the jury’s verdict. See, e.g., State v. Morgan, 33 A.3d 527, 534 (N.J. Super. App.
Div. 2011), affd, 84 A.3d 251 (N.J. 2013); State v. Brooks, 706 A.2d 757, 767 (N.J.
Super. App. Div.), certif denied, 718 A.2d 1215 (N.J. 1998).
13
The entire fmding, quoted here for ease of reference, was as follows:
Number one, nature and circumstances of the offense and the role of the
actor, including the fact that this was committed in the heinous, cruel
manner. I am cognizant of the fact that our Appellate Courts and Supreme
Court have said that this could be tantamount to double counting, but I
particularly find this factor because of the circumstances and the weapon
used on the night in question. This was a weapon designed to kill at
tremendous distance. He knew what he had. He bought it. He had it a
month before. He knew what he had. The testimony was he peered through
the scope before pulling that trigger. That weapon, in this Court’s opinion
and judgment, makes it necessary that I fmd that aggravating factor.
(See ECF No. 9-16 at 26) (emphasis added).
23
findings were supported by competent, reasonably credible evidence.
The first finding was supported by substantial evidence. The defendant
admitted that he knowingly possessed the rifle, which had been stolen from its
owner three weeks earlier. The rifle was a 9 mm weapon, pistol caliber but quite
lethal. It is inferable that the defendant knew the rifle had a scope. (I discuss the
operability of the scope in relation to the second finding.)
The sentencing judge, who explicitly based aggravating factor 1 on “[t]hat
weapon,” was clearly affected by the weapon’s accuracy, and expressed a
palpable distaste for the gun itself. (ECF No. 9-16 at 23)(”one of the most
evil-looking weapons I’ve seen”). The State’s firearms expert, however, stated that
the gun was nothing special. Defense counsel asked if it was a “sophisticated”
weapon, and asked the expert whether it was more analogous to a high
performance aircraft or a Piper Cub. The expert replied that it was “[cjloser to a
Piper Cub.” (ECF No. 9-10 at 27)
The second finding, in both its literal truth and its implications, was more
problematic, for several reasons. By finding that Pichardo looked through the
scope of this weapon, which was “designed to kill at a tremendous distance,” the
court implied that Pichardo took advantage of the rifle’s advanced capabilities to
hit precisely the distant target that he was aiming at: EW’s head, in the car.
The evidence that the scope was operable on the night of the shooting was
equivocal. Three weeks before, it was operable. Three weeks later, it was not,
possibly as a result of a dead battery. As Judge Subryan pointed out during the
course of the trial, “the State did not produce any evidence showing that [the
scope] was working on the 28th.” (ECF No. 9-10 at 82.) He found, however, that
the scope met the minimal threshold of relevance, and admitted it in evidence.
(See discussion at Section IV.D.2, infra.) At trial, a fresh battery was inserted for
demonstrative purposes. But whether there was “competent, reasonably credible
evidence” permitting a fact finder to conclude that the scope was working on the
24
night of the shooting is another matter.’
4
Second, the “testimony [that Pichardo] peered through the scope before
pulling that trigger”—and the related implication that Pichardo specifically
intended to kill EW—was shaky. There was only one piece of “testimony” that
arguably fit that description. RV, one of the partygoers who traveled from
Hawthorne to River Street in Paterson, intent on revenge for the beating, was
riding in one of the cars when the shooting occurred. RV first testified that “I’m
not sure if [Pichardo] was aiming.” Pichardo, he testified, just held the gun up
and shot it. During an exchange between counsel and the court, RV interrupted
to explain that while testifying, RV had, through his hand gestures, mimed
“looking through a peek hole.” RV asked to explain himself further, but the court
15
cut him off, telling him to wait for the “next question.” There was no further
The jury’s rejection of the murder charge tends to suggest that it did not accept
that the scope was operating on the night of the shooting. As Judge Falcone, in the PCR
proceeding, explained it:
So, even the scope issue, State’s position with the scope, was he was never
going to miss with a scope. You don’t miss with a scope unless youre
blind. So, even the issue about the scope being allowed in evidence didn’t
seem to have the impact that the State was hoping, because the jury in this
case found that the behavior of Mr. Pichardo was, in fact, reckless.
(ECF No. 9-18 at 28) This issue is discussed further at Section IV.D.2, infra.
15
Here is the entire exchange:
Q.
What did you see?
A.
I think it was a shot gun or a rifle, something like that.
Q.
Do you remember what color it was?
A.
Black.
Q.
Did you see what this person did with it?
A.
Used it.
Q.
How did this person use it?
A.
Well, I’m not sure if he was aiming but he shot it.
Q.
What did you see him do with the rifle?
A.
Put it up, shoot it.
25
exploration of the issue. Based solely on the position of the witness’s hands, the,
the trial court concluded that there was “testimony” suggesting that Pichardo
aimed the gun—when RV had explicitly, orally testified that he wasn’t sure.
As the PCR court put it, the State’s theory was that the killing was
intentional, because a shooter employing an operational red dot scope almost
cannot miss. (ECF No. 9-18 at 28) (“[H]e was never going to miss with a scope.
You don’t miss with a scope unless you’re blind.”) Of course, with the first shot
Pichardo did miss, but the second shot, tragically, hit and killed EW. But even on
the assumption that Pichardo looked through the scope—and the evidence of
that is thin—the facts are consistent with the scope’s not having been
operational at the time.’
6
Q.
You’re going to have to do that again so I can describe it for the
record. Okay. You made a gesture with two hands up in the air. You
put the head tilted downwards.
MR. GEIST:
Could your Honor do this?
THE COURT:
Yes. The record will reflect the witness has
placed both hands, one in front of the other in
front of his face; is that correct, Mr. Vacca?
THE WITNESS:
Yes, sir.
MR. GEIST:
And turned his face away.
THE COURT:
No, he did not. I didn’t see that.
THE WITNESS:
No, I was like looking like a little peek hole.
THE COURT:
Witness indicated he was holding both hands
in front of his face.
THE WITNESS:
Yeah, yeah.
THE COURT:
Please. In front of his face and was your words,
you said looking through a peek hole?
THE WITNESS:
Yes. May I
THE COURT:
No, wait for the next question.
-
(ECF No. 9-8 at 19—20.)
In fact, the State’s expert made it clear that a person’s looking through the sight
did not necessarily imply that the sight was operational. Even if the battery-powered
features are off, “you can still look through it and still see the front sight.” (ECF No. 9-10
at 29) The implication seems to be that a shooter could sight along the barrel, as with a
16
26
I find a real possibility that the Appellate Division—if counsel had
presented the issue—would have found that the sentencing court’s factual
findings were not supported by competent, reasonably credible evidence. In the
context of all the facts, that might or might not have sufficed to require a remand
for resentencing. At the very least, however, by undermining that fact finding,
counsel could have strengthened the argument that the sentencing judge
misapplied the law.
Is there a reasonable probability that the Appellate
Division would have found that the sentencing
judge misapplied the law?
c.
Judge Subryan applied the law to the facts and found that the State had
established aggravating factor 1. In doing so, the judge honestly and
conscientiously flagged a potential legal issue:
I am cognizant of the fact that our Appellate Courts and Supreme
Court have said that this could be tantamount to double counting,
but I particularly find this factor because of the circumstances and
the weapon used on the night in question.
(ECF No. 9-16 at 26). Surveying the Supreme Court and Appellate Division case
law to which Judge Subryan was surely referring, I conclude that double
counting was a meritorious issue here. If raised by counsel, that issue would
have had a reasonable probability of success. It is likely that the Appellate
Division would have remanded for resentencing.
“Double counting,” as discussed above, refers to the finding of an
aggravating factor based on matters already taken into account by the offense of
conviction. See Section IV.B.3, supra, pp. 18-20. Aggravated manslaughter, the
traditional iron sight. See ht:ps: / / en.wikipedia. org/ wiki / iron si.hts (citing
merriam-webster.com
—
iron sight). Whether Pichardo did so, however, is speculative.
Mr. Pichardo, for his part, testified that he did not look through the scope, did not
know how to turn it on, intended only to scare the people who were looking for revenge,
and did not realize until later that his shot had hit anyone. (ECF No. 9-11 at 10, 12—13,
39.) Of course the sentencing court was not required to adopt Pichardo’s version; it only
needed to have sufficient evidence for the version it did adopt.
27
offense of conviction here, requires a showing that the defendant “recklessly
cause[d] death under circumstances manifesting extreme indifference to human
life.” N.J. STAT. ANN. § 2C: 1 1—4(a)(1). To avoid double counting, then, aggravating
factor 1 “must be based on factors other than [1] the death of the victim and [2]
the circumstances essential to support a finding that the defendant has acted
with extreme indifference to human life.” Fuentes, 85 A.2d at 933 ([bracketed]
numbers added).
To be sure, as discussed above, a defendant’s conduct may be similar in
nature to the statutory elements of the offense, but nevertheless exceed them in
cruelty. Fuentes, for example, held that “a sentencing court may justify the
application of aggravating factor 1, without double-counting, by reference to the
extraordinary brutality involved in an offense.” 85 A.3d at 933. But to meet that
deplorable standard, the offense must have been cruel in some extraordinary
way. The defendant’s conduct must have been intended “to inflict pain, harm
and suffering—in addition to intending death.” O’Donnell, 564 A.2d at 1206
(emphasis added). “Cruel,” as used in aggravating factor 1, imports that “pain,
either physical, psychological, or emotional is inflicted gratuitously or as an end
in itself.” Id. Finally, the sentencing court’s finding must be specific and well
supported: “[A]s the Appellate Division [has held], effective appellate review
cannot be achieved when there is uncertainty whether the court meant that [the
defendants killing of the victim] was unusually brutal or cruel in nature.”
Fuentes, 85 A.3d at 934 (internal citations omitted).
I survey the cases. Aggravated manslaughter cases have upheld the
application of aggravating factor 1 where the defendant, in addition to causing
death, cruelly inflicted prolonged suffering:
In State v. Lewis, 538 A.2d 399 (N.J. Super. Ct. App. Div. 1988), for
example, the defendant firebombed a house. He injured some of the seven
occupants and killed one, a child. As his sentencing for aggravated
manslaughter, the judge stated, “it’s hard to imagine a more painful, dreadful
28
way to die.” IcL at 403. The Appellate Division upheld the sentencing judge’s
application of aggravating factor 1.
In State v. Soto, 773 A.2d 739 (N.J. Super. Ct. App. Div. 2001), overruled on
other grounds, State v. Dalziel, 867 A.2d 1167 (N.J. 2005), another aggravated
manslaughter case, three defendants robbed the victim. In the resulting
struggle, one of them attempted to duct tape the victim’s mouth to muffle his
screams. Meanwhile, another used the barrel of a shotgun to beat the victim,
who died of massive cranial cerebral injuries. Id. at 743, 745. The Appellate
Division, upholding the application of aggravating factor 1, quoted the trial
judge: “[Tjhis was not just ‘a shooting where the victim dies, boom in the old
754•17
movies. This was brutal, and it went on for a long time.”’ Id. at
Cases involving offenses other than aggravated manslaughter are
analogous. They have upheld the application of aggravating factor 1 when the
defendant tortured and terrorized the victim, or sadistically prolonged the
victim’s ordeal. Thus aggravating factor 1 has been affirmed against a defendant
convicted of endangering the welfare of a child when the child was starved and
“tortured” physically and emotionally, State v. T.C., 789 A.2d 173, 188 (N.J.
One case that is at least superficially problematic for Mr. Pichardo’s position is an
unreported, non-precedential one: State v. Williams, 2014 WL 4175204 (N.J. Super. Ct.
App. Div. Aug. 25, 2014). Without discussion, Williams upheld the application of
aggravating factor 1 over defendant’s objection that his crime lacked “particular
heinousness’ because the victim of his shooting was not the intended victim and the
incident was ‘brief.’” Id. at *5 (The case does not, by the way, mention “double
counting”; the issue may simply have been the applicability, or not, of aggravating factor
1.) There, however, the trial court found that the defendant and others had gotten into a
gang-related altercation at a club; that the defendant got a ride home and retrieved a
gun; that he returned to the club and lay in wait until his intended victim got into his car
emptied
and locked his seat belt; and then “didn’t pull the trigger once or twice, but
killed
the weapon into the vehicle.” Id. The shots injured the intended victim, and
another occupant of the car. Mr. Pichardo, in contrast, did not lie in wait or “empty” his
gun, but took two shots in the direction of one of two automobiles that had come to his
street, seeking revenge for the earlier beating. For heinousness, Williams’s facts, I think,
are distinguishable from those of this case. Or so a State appellate court could find, to
the extent it considered Williams precedential at all. In any event, I do not think that
Williams would outweigh the principles expressed in the other cases cited here.
17
...
29
Super. Ct. App. Div. 2002); in an aggravated assault case where the defendant
police officers handcuffed the victim, suspended him off the ground, and severely
beat him with night sticks, O’Donnell, 564 A.2d 1202; and in a sexual assault
case where the defendant “held the victim hostage” for a day, State v. Frost, 577
A.2d 1282, 1292 (N.J. Super. Ct. App. Div. 1990).
Cases that reverse and remand on double counting grounds, like those
that affirm, tend to fall in a pattern. Of course, conduct that is itself an explicit
element of the offense cannot be double counted as an aggravating
factor—quintessentially, the victim’s death in a manslaughter or murder case.
(See, e.g., cases cited at n. 10, supra.) In addition, however, aggravating factor 1
has been reversed when it rests on the particularfacts that supported the
aggravated grade of the offense—as to aggravated manslaughter, the
“circumstances essential to support a finding that the defendant has acted with
extreme indifference to human life,” Fuentes, 85 A.2d at 933 (emphasis added).
For example, in State v. Briggs, 793 A.2d 882 (N.J. Super. Ct. App. Div.
2002), following a drunken argument on New Year’s Eve, a woman “stabbed [her
husband] once in the chest, piercing his heart.” She pled guilty to aggravated
manslaughter, stipulating to a 20-year minimum sentence. The court, clearly
troubled by the quality of counsel’s representation at the plea (and defendant’s
waiver of counsel at sentencing), as well as other factors, reversed and
remanded. In doing so, it instructed the sentencing court to reconsider, inter
alia, aggravating factor 1. It appeared that the defendant had stabbed the victim
once, and then called 911. At the initial sentencing, there was no clear finding of
“unusually brutal or cruel” conduct, id. at 887, beyond the fatal stabbing itself.
In State v. Baum, 2013 WL 3879904, at *14 (N.J. Super. Ct. App. Div.
2013),18 a drunk driver ran over and killed two school
girls who were walking on
the shoulder of the road. He was convicted of aggravated manslaughter, and the
Baum is non-precedential, but I think a state court would find it persuasive,
because its reasoning consists largely of a block quotation from Kromphold, supra.
18
30
trial judge applied aggravating factor 1, because (1) the defendant was
extraordinarily intoxicated, (2) he did not merely swerve, but drove on the
shoulder as if it were a regular lane of automobile travel, despite his (inferable)
knowledge that pedestrians from a nearby school used it as a walkway; and (3)
he did not brake. The Appellate Division reversed, quoting Kromphold, supra:
[T]he sentencing court double-counted the defendant’s level of
intoxication by supporting the first aggravating factor with the same
evidence that the jury was authorized to consider in determining
whether the State had proved “recklessness” or “circumstances
manifesting extreme indifference to the value of human
life.”... Defendant’s convictions of second-degree aggravated assault
[pursuant to N.J.S.A. 2C:12—lb(l)] required a jury finding of
recklessness that, pursuant to the trial court’s instruction, could
have been based on the jury’s reliance on defendant’s extraordinary
level of intoxication. That jury finding, however, precluded the
sentencing court from using defendant’s level of intoxication as an
aggravating factor.
Id. (entire paragraph quoted from State v. Kromp hold, 744 A.2d 640, 646 (N.J.
2000)). The three facts relied on by the sentencing judge, said the Appellate
Division, were also relied upon by the jury to find recklessness and
circumstances manifesting an extreme indifference to human life. Indeed, the
jury was instructed that it could so find based on those facts. To use the same
facts as the basis for aggravating factor 1, then, would be double counting. Baum
remanded for resentencing.
Here, Mr. Pichardo fired two shots at a moving vehicle, killing one person,
and was convicted of aggravated manslaughter. The sentencing judge applied
aggravating factor 1 based on the nature of the weapon and his conclusion that
Pichardo peered through the scope. Aggravating factor 1 is based on particularly
cruel and heinous conduct, not in relation to law-abiding conduct, but in relation
to the violent offense of conviction. This killing was tragic and senseless, to be
sure, but when the offense is aggravated manslaughter, the taking of life is a
given. In an aggravated manslaughter case, the use of a lethal weapon does not
strike me as extraordinary, but typical. There was nothing about using an
31
accurate weapon, or a “evil-looking” one, that rendered the offense more “cruel”
than is typical. Judge Subryan neither found nor mentioned the “extraordinary
brutality” that underlies aggravating factor 1. There was no evidence of sadistic
infliction of pain for its own sake, terrorization, or prolongation of a victim’s
ordeal. EW was shot from behind, as the car drove away, and it seems that his
death was immediate. This was the very “shooting where the victim dies, boom”
that Soto implied would not support aggravating factor 1.
Like the extreme intoxication and other factors in Baum and Kromphold,
the use of a weapon, or this particular kind of weapon, is not literally an element
of aggravated manslaughter. But as in those cases, it was surely the basis for the
jury’s verdict of aggravated manslaughter—the very “circumstance[j essential to
support a finding that the defendant has acted with extreme indifference to
human life.” Fuentes, 85 A.2d at 933. Shooting the gun at the car, with death
resulting, was the conduct that made this an aggravated manslaughter, as
opposed to some lesser offense. Firing in the direction of the occupied car was the
gist of Pichardo’s recklessness and was the circumstance that manifested an
extreme indifference to human life. There was no other reckless conduct to which
9
this could be considered an enhancement.’
For all of these reasons, I find a reasonable probability that, but for
counsel’s failure to argue Mr. Pichardo’s meritorious point, Pichardo would have
prevailed on his appeal and received a remand for resentencing. See Strickland,
466 U.S. at 694; Smith, 528 U.S. at 288.
Counsel’s decision to forgo the double-counting claim fell below an
objective standard of reasonableness and produced prejudice. The Appellate
Division’s summary denial of Mr. Pichardo’s Sixth Amendment claim on appeal
At the very least, I think a State appellate court would find that Judge Subryan
did not make an adequately clear fmding. The finding he did make—based on the
“weapon” and Pichardo’s peering through the scope—is not clearly connected to
brutality or cruelty.
19
32
Strickland
from the denial of PCR was therefore an unreasonable application of
and Smith.
Because the PCR court’s application of Strickland was unreasonable,
nce
AEDPA deference loses its force, and I must consider the ineffective assista
(citing,
claim anew. See Branch v. Sweeney, 758 F.3d 226, 233 (3d Cir. 2014)
(2007)
inter alia, Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 2858
dent
(“When a state court’s adjudication of a claim is dependent on an antece
2254(d)(1)
unreasonable application of federal law, the requirement set forth in §
ce
is satisfied. A federal court must then resolve the claim without the deferen
AEDPA otherwise requires.”) Based on the foregoing discussion, I find that
issue on
appellate counsel’s omission of the aggravating factor/double counting
appeal was ineffective, and that it caused prejudice.
I will therefore grant the habeas petition to this limited extent:
Mr. Pichardo’s sentence is vacated, and this matter is remanded to the
that
State court for resentencing. It is my intent to remand on the same terms
would have applied if effective counsel had prevailed on the appeal of the
e
aggravating factor! double counting issue. Because sentencing is a delicat
be free to
process, involving interdependent factors, the resentencing court must
the
rebalance the aggravating and mitigating factors. I express no view on what
not
revised sentence for aggravated manslaughter should be. This ruling does
ty.
implicate the consecutive four-year sentence for receiving stolen proper
C.
Ineffective Assistance of Appellate Counsel: Blakely claim
t
Mr. Pichardo argues that the three aggravating factors assessed agains
r,
him by Judge Subryan (commission of offense in cruel or heinous manne
ECF
general deterrence, specific deterrence) rested on “unsupported facts.” (See
found by
No. 1 at 4, 8; Ground Two.) By that, he means that those facts had to be
ngton,
a jury, beyond a reasonable doubt. In support, he cites Blakely v. Washi
that
542 U.S. 296 (2004). Blakely, however, held only that a jury must find facts
33
would increase the penalty beyond the prescribed statutory maxim
um for the
offense. See 542 U.S. at 304; see also Apprendi v. New Jersey, 530
U.S. 466
(2000). Such is not the case here. The statutorily defined sentencing
range for
aggravated manslaughter is 10 to 30 years. See N.J. STAT. ANN.
§ 2C: 11-4(c). Mr.
Pichardo was sentenced to 22 years’ imprisonment, just above the middle
of that
range. The aggravating and mitigating factors were used only to
guide the
sentencing judge’s discretionary selection of sentence within that statuto
ry
range, and short of the statutory maximum. Accordingly, the court
was not
required to submit aggravating factors to the jury or to find the facts
beyond a
reasonable doubt. See McMillan v. Pennsylvania, 477 U.S. 79, 79-80
(1986)
(holding that aggravating factors under a statutory scheme do not exceed
a
State’s powers unless the maximum sentence is affected); see also
Alleyne v.
United States, 133 S. Ct. 2151, 2152 (2013) (holding that any fact that
does not
increase a mandatory sentence need not be submitted to a jury); United
States v.
O’Brien, 560 U.S. 218, 224 (2010) (reiterating McMillan’s holding that
a
sentencing factor can be proved to a judge by a preponderance of
the evidence).
I consider in addition, however, that this is a claim of ineffective
assistance. Under that rubric, counsel may be ineffective for failing
to raise an
issue of State law that was a potential winner. New Jersey, howev
er, generally
follows federal law as to this Blakely/Apprendi issue. Applying those
federal
principles to the New Jersey sentencing system, the State Supreme
Court found
that the “presumptive term”—i.e., a sentence near the middle of the
statutory
range—was equivalent to a “statutory maximum” for purposes of Blakel
y. See
State v. Natale, 878 A.2d 724 (N.J. 2005). Taking its cue from United
States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Natale eliminated presum
ptive
terms because, if mandatory, they would trigger the Blakely require
ments.
Instead, Natale charged sentencing judges with finding aggravating
and
mitigating factors by a preponderance, and balancing them to arrive
at a just
sentence within statutory limits. While the middle of the range
might be a valid
34
ce.
starting point, it would no longer constitute a mandatory presumptive senten
6,
Natale, 878 A.2d 724 at 487—88. See also Almodovar v. Hauck, Civ. No. 11-508
2014 WL 4931276, at *8 (D.N.J. Oct. 1, 2014) (Hiliman, J.).
Natale was decided on August 2, 2005; Pichardo’s sentencing took place
nearly two months later, on September 30, 2005.20 Before announcing the
sentence, Judge Subryan acknowledged on the record that “I am aware of our
Supreme Court ruling in STATE V. NATALE in August of 2005 where
27)
presumptive sentences are no longer the laws of this State.” (ECF No. 9-16 at
There is no indication that Judge Subryan overlooked Natale or reverted to the
pre-Natale “presumptive sentence” regime.
Nothing about Judge Subryan’s finding of aggravating factors by a
preponderance of the evidence fell afoul of Blakely or Natale. Appellate counsel
was not ineffective for failing to raise a Blakely/Natale claim.
D.
Ineffective Assistance of Appellate Counsel: Suppression and
Evidence Issues
Mr. Pichardo argues that appellate counsel was ineffective for failing to
appeal the trial court’s evidentiary rulings (Ground One; see ECF No. 1 at 6);
failing to challenge the trial court’s decision to allow the scope on Mr. Pichardo’s
to
gun to be “repaired” for trial (Ground Four; see ECF No. 1 at 12); and failing
d
challenge the admissibility of the testimony of the gun’s original owner (Groun
Five; see ECF No. 1 at 14).21 Mr. Pichardo raised these claims first to the PCR
Natale’s holding was given “pipeline retroactivity”—i.e., it was applied to
“defendants with cases on direct appeal as of the date of this decision and to those
defendants who raised Blakely claims at trial or on direct appeal.” Natale, 878 A.2d at
745; State v. Thomas, 902 A.2d 1185, 1194 (N.J. 2006).
2
As discussed above, on direct appeal, Mr. Pichardo’s counsel made only two
arguments: (1) that the trial court’s failure to enter a judgment of acquittal on the
murder charge “tainted the jury’s verdict finding [Mr. Pichardol guilty of the lesser
included offense of aggravated manslaughter”; and (2) that the sentence imposed was
manifestly excessive. The Appellate Division rejected both arguments without lengthy
discussion. (See ECF No. 9-19 at 45.)
20
35
court, which denied relief orally. (See ECF No. 9-18 at 29-3 1.) In an Opinion
issued on August 12, 2012, the Appellate Division affirmed that denial of PCR.
(See ECF No. 9-22.)
1.
Failure to appeal suppression rulings
Mr. Pichardo first claims that his appellate counsel erred in failing to
challenge the trial court’s rulings denying suppression of certain evidence.
Before trial, Mr. Pichardo moved to suppress (1) an on-site eyewitness
identification given by DJ, a boy in the other car, as unduly suggestive; (2)
Pichardo’s allegedly un-Mirandized statements to police after he was arreste
d;
and (3) the rifle obtained during an allegedly illegal search of his family’s
apartment. (See ECF No. 9-22 at 7.) Judge Subryan held a pretrial evidentiary
hearing on these issues. That hearing lasted two days and included testimo
ny by
seven witnesses. At the conclusion of the hearing, Judge Subryan ruled that DJ’s
eyewitness identification, because it was a traditional confrontation at the
scene
of the crime, close in time to the events, was not unduly suggestive. (ECF No.
9-5
at 31.) He further found that Pichardo was properly Mirandized and validly
consented in writing to waive his Fifth Amendment rights. (Id. at 32) Finally
,
Judge Sübryan found, based on the officers’ testimony, that Pichardo’s mothe
r
gave the police informed consent to search her apartment. (Id. at 33.) The trial
judge “did not find Mrs. Pichardo or her daughter to be credible witnesses.
The
[trial] Court finds
that the police translated the Consent to Search form to Mrs.
Pichardo who freely and voluntarily consented to the search.” (Id. at 32.)
Under AEDPA, for exhausted claims, this Court reviews the last reason
ed
state court decision. See Harrington, 562 U.S. at 99. Here, that would be the
Appellate Division’s decision on appeal from the denial of PCR. I consid
er
...
whether that court interpreted and applied Supreme Court law, not just
incorrectly, but unreasonably. (See discussion at Section IV.A and nn. 6—7,
supra.)
36
Before the Appellate Division, as he does here, Pichardo claimed that the
find
trial court erred in making the suppression rulings, and asks this Court to
his appellate counsel constitutionally ineffective for not challenging them on
direct appeal. Initially, the Appellate Division found that there was no appealable
error in the suppression rulings—in particular, “flO error in the trial judge’s
detailed findings of fact and conclusions of law” regarding the on-scene
n
identification of Mr. Pichardo. (See ECF No. 9-22 at 9.) The Appellate Divisio
was
found sufficient evidentiary support for the determination that Mr. Pichardo
“read his Miranda rights, signed the waiver form, and then gave a statement
which was reduced to writing.” (Id. at 10.) And it deferred “to the trial judge’s
to
credibility findings” in finding that Pichardo’s mother gave informed consent
search her apartment. (Id. at 11.) In so ruling, the Appellate Division gave
Pichardo’s suppression claims a level of review similar to that which they would
a
have received on direct appeal. Nothing about that court’s decision hints that
ld
meritorious issue was forfeited procedurally, or blocked by the higher thresho
for reversal on PCR.
The Appellate Division further held that Mr. Pichardo’s claims of error as to
these suppression rulings would not satisfy either prong of Strickland
As noted above, counsel is entitled, indeed obligated, to select the strongest
e
issues for appeal. Like the State court, I cannot fault counsel’s selection, becaus
these fact-intensive rulings were poor candidates for reversal. I therefore agree
with the Appellate Division that Pichardo could not satisfy the first,
deficient-performance prong of Strickland. Even more clearly dispositive,
however, is the second, prejudice prong of Strickland.
1f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be followed.” Strickland, 466 U.S. at 670.
Mr. Pichardo has not shown a reasonable probability that, had this issue been
d
raised, the Appellate Division would have reversed his conviction or ordere a
ed.
new trial. On the contrary, it is quite likely that he would not have prevail
37
Pichardo points to no error in the legal standards applied by Judge Subrya
n, a
legal error being the ordinary foundation of a successful appeal. I have
reviewed
the case law cited by the Appellate Division against the background of
federal
constitutional law. I see no error in the Appellate Division’s articulation
or
application of standards governing on-the-scene “show-up” identification
s,
Miranda waivers, or consent searches. (ECF No. 9-22 at
pp. 9—11.)
For example, as a matter of law, Mr. Pichardo could not contend that
the
warrantless apartment search was unlawful even f his mother consen
ted to it.
See generally Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041
(1973)
(consent searches permitted by Fourth Amendment). On appeal, he would
have
had to challenge the factual finding that she gave consent. The standa
rd of
review on such an appeal would have been very daunting indeed:
[A]n appellate court reviewing a motion to suppress must uphold the
factual findings underlying the trial court’s decision so long as those
findings are “supported by sufficient credible evidence in the
record.” [Appellate Division decision] (citing State v. Locurto, 157
N.J. 463, 474, 724 A.2d 234 (1999)); see also State v. Slockbower,
79
N.J. 1, 13, 397 A.2d 1050 (1979) (concluding that “there was
substantial credible evidence to support the findings of the motion
judge that the
investigatory search [was] not based on probable
cause”); State v. Alvarez, 238 N.J. Super. 560, 562—64, 570 A.2d 459
(App. Div. 1990) (stating that standard of review on appeal from
motion to suppress is whether “the findings made by the judge could
reasonably have been reached on sufficient credible evidence
present in the record” (citing State v. Johnson, 42 N.J. 146, 164, 199
A.2d 809 (1964))).
...
State v. Elders, 192 N.J. 224, 243-44, 927 A.2d 1250, 126 1-62 (2007)
.
Judge Subryan held a two-day hearing and made credibility-based
findings of fact. He weighed the circumstances and considered the
relative
credibility of the witnesses, such as the police officers, Mr. Pichar
do, and
Pichardo’s mother. Because his findings—for example, that Pichar
do’s mother
gave consent to the search—were based on substantial evidence of
record, they
would have been nearly unassailable on appeal.
38
ly to succeed on
Because these suppression issues would have been unlike
y, and I cannot
direct appeal, I cannot second-guess appellate counsel’s strateg
Accordingly, the
find that the omission of those issues resulted in prejudice.
te counsel’s
Appellate Division was not unreasonable in holding that appella
Strickland. See Werts
representation surmounted the effectiveness threshold of
ot be deemed
v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000) (“counsel cann
on this ground is
ineffective for failing to raise a meritless claim”). Habeas relief
denied.
2.
Failure to appeal admission of rifle scope evidence
utionally
Mr. Pichardo argues that his appellate counsel was constit
ng (1) for the
ineffective for failing to challenge the trial court’s rulings allowi
tionality
22 so its use
telescopic sight on Mr. Pichardo’s rifle to be restored to func
owner to testify that
could be explained to the jury; and (2) for the rifle’s original
some three weeks
the scope had been functional when it was in his possession,
of PCR, rejected
before the shooting. The Appellate Division, reviewing the denial
sion in a written
these contentions as lacking sufficient merit to “warrant discus
still entitled to
opinion.” (ECF No. 9-22 at 13.) That ruling, though terse, is
ate Division’s
deference under AEDPA, and may be disturbed only if the Appell
ough, 541 U.S.
application of Supreme Court law was unreasonable. See Yarbor
is meritless
at 664 (finding that a state court’s determination that a claim
e on the
demands deference as long as fairminded jurists could disagre
correctness of the decision).
ted of the
Mr. Pichardo was charged with murder, and ultimately convic
no dispute that
lesser included offense of aggravated manslaughter. There is
a 9mm carbine
Pichardo fired his rifle into EW’s car, killing him. The rifle was
n,” and the
Defense counsel at times referred to the scope as having been “broke
explanation of record for the
defendant refers to the “repair” of the scope. The only
that was offered on a
non-functionality of the scope was that the battery was dead, and
at or about the time of
somewhat tentative basis. A fresh battery was apparently inserted
trial. See infra.
22
39
with what was colloquially called a “laser” scope—actually, appa
rently, some
type of “red dot” sight, which requires a battery to operate. The
functionality of
the scope might have tended to support the murder charge,
because it could
support the proposition that Pichardo intentionally aimed at
and hit EW.
Accordingly, the operability, or not, of the scope on the nigh
t of the shooting was
a significant issue at trial.
Michael Zaccone, the gun’s original owner, testified that the
gun was
stolen from his home on August 6, 2003, some three weeks
before the shooting.
At that time, he said, the scope was operational. (ECF No. 9-10
at 85—88.)
Lieutenant Mason, the officer who tested the gun, testified that
on September 20
or 21, 2003, some three weeks after the incident, the scope
was not operational.
(See id. at 27.) Mason believed the battery was dead. (Id.
at 28, 89.)
Sometime before trial, however, a fresh battery had been place
d in the
scope. From the transcript it seems that Zaccone, in the cour
se of his testimony,
held the scope and described the operation of the laser sight.
(Id. at 87—89.)
There was evidence, then, that the scope was working three
weeks before
the incident, and was not working three weeks after. There was
no direct
evidence, however, regarding the condition of the scope on Aug
ust 28, 2003, the
night of the shooting. As Judge Subryan put it, “the State did
not produce any
evidence showing that [the scope] was working on the 28th.” (ECF
No. 9-10 at 82.)
Judge Subyran’s rulings left it to the parties to argue the inferen
ce that the
scope was or was not operational on August 28, 2003. (Id. at
8 1—82) The State
attempted to persuade the jury that the scope had been func
tional on the night of
the crime. Defense counsel argued that there was no evidence
of that, and that
the shot that killed EW was simply “the unluckiest shot in history
.” (ECF No.
9-11 at 10.)
Mr. Pichardo now argues that his appellate counsel should
have
challenged the admission of the evidence regarding the rifle
scope. Under the
first prong of Strickland, however, I must find that counsel’s
strategic decision to
40
forgo that issue falls within the bounds of reasonable professional judgment. On
direct appeal in New Jersey, evidentiary rulings are reviewed for abuse of
discretion, with “substantial deference” given to the trial judge. See Benevenga v.
Digregorio, 737 A.2d 686, 699 (N.J. Super. Ct. App. Div. 1999). Like the federal
courts, New Jersey courts will treat ordinary, non-structural errors as “trial”
errors, to be analyzed for harmlessness in the context of the evidence at trial. See
generally State v. Camacho, 95 A.3d 635, 643 (N.J. 2014). These evidentiary
rulings are trial matters that would have been subject to ordinary harmless error
analysis.
That the battery was live three weeks before the shooting, and dead three
weeks after, would not have led the jury astray. The jury surely recognized the
limited relevance of either fact; it is common knowledge that a battery may go
dead in three weeks. Nevertheless, this evidence met the low threshold of
relevance under N.J.R. Evid. 401; depending on how the jury interpreted it, it
23
might tend to support or negate criminal intent. Nothing about the witnesses’
description of the evidence regarding the scope was inflammatory or so
prejudicial as to tip the balance under N.J.R. Evid. 403. Or so a competent
appellate attorney could reasonably have thought. As a result, the first prong of
Strickland is not satisfied.
Here again, however, the second prong—i.e., the lack of any serious
showing of prejudice—is perhaps a more fruitful approach. The functionality of
a fact of
That is, the evidence has a “tendency to make more probable
1991 Supreme Court Committee
consequence to the action.” N.J.R. Evid. 401,
Comment. The relevant test is “whether the [proffered evidence] ‘renders the desired
inference more probable than it would be without the evidence.’” State v. Davis, 477
A.2d 308, 312 (N.J. 1984) (quoting State v. Deatore, 358 A.2d 163, 172 (N.J. 1976)).
Here, the prosecution’s “desired inference” was that the scope was operable at the time
of the incident. The “without the evidence” scenario would be a hypothetical case in
which the scope was shown to be inoperative after the incident, and there was no other
evidence. The proffered evidence that the scope was operative before the incident
renders it more likely that it worked (for example, that the battery was charged) at the
time of the incident.
23
...
41
the sight was most relevant to the murder charge, which required intent to kill.
24
The jury, however, acquitted Mr. Pichardo of that murder charge. It did not find
that Pichardo aimed the rifle at EW and shot, intending to kill him. Rather, the
jury found Pichardo guilty of the lesser included offense of aggravated
manslaughter. That lesser offense requires, not intent to kill, but
recklessness—i.e., conscious disregard of a substantial and unjustifiable risk
that another’s death will result. (ECF No. 9-12 at 17 (jury charge).) The jury’s
split verdict implies that they did not necessarily believe Pichardo intended to kill
EW, but that his firing of the gun in the direction of the car manifested a culpab
le
disregard of a substantial danger of death. It is possible that if the jury found the
scope operable, they might have found Pichardo guilty of intent-to-kill murder;
it
is likewise possible that, in rejecting a murder verdict, the jury took into accoun
t
the lack of proof that the scope was operable that night. But as to the aggravated
manslaughter verdict the jury actually did reach, the functionality of the scope
was not so essential. So even if counsel had challenged the admission of this
25
evidence on appeal and prevailed, an appellate court would likely have found
its
admission harmless. Prejudice is lacking.
24
I use “intent to kill” as a shorthand for a more complex concept. For example,
murder may also involve intent to cause serious bodily injury, where death in fact
results. The requirement of purpose or knowledge may encompass, not just
straightforward intent to kill, but knowledge of a substantial risk of death and a high
probability that death would result, or else defendant’s awareness that it was practic
ally
certain his conduct would cause death. State v. Wilder, 939 A.2d 781, 787 (N.J. 2008).
The jury was so instructed. (ECF No. 9-12 at 14)
25
The late Judge Joseph A. Falcone, an able and experienced jurist, presided over
the PCR proceedings. He heard testimony from Pichardo and his trial counsel, and
concluded thus:
So, even the scope issue, State’s position with the scope, was he was never
going to miss with a scope. You don’t miss with a scope unless you’re
blind. So, even the issue about the scope being allowed in evidence didn’t
seem to have the impact that the State was hoping, because the jury in this
case found that the behavior of Mr. Pichardo was, in fact, reckless.
(ECF No. 9-18 at 28.)
42
Appellate counsel’s decision not to appeal the admission of the rifle scope
evidence fell within the broad bounds of professional representation and caused
no cognizable prejudice. This claim of ineffective assistance therefore fails the
test of Strickland. The denial of PCR, and the Appellate Division’s summary
affirmance on this particular point, were neither contrary to nor an unreasonable
interpretation of Supreme Court law. The claim of ineffective assistance of
appellate counsel on this claim is therefore denied.
Ineffective Assistance of Trial Counsel
E.
Mr. Pichardo alleges that his counsel was ineffective at the trial level for a
number of reasons. First, Pichardo asserts that trial counsel was ineffective “for
failing to investigate and communicate with his client.” (See ECF No. 1 at 6,
Ground One.) Second, Pichardo claims that trial counsel failed to “argue
mitigating factors” during the sentencing hearing. (Id. at 11, Grounds Two and
Three.) Third, Pichardo claims trial counsel was ineffective for failing to call
s of
witnesses on his behalf. (Id. at 16, Ground Six.) As is common, ineffectivenes
er,
trial counsel was not raised on direct appeal. The trial court on PCR, howev
; the
heard evidence and addressed the merits of the ineffective assistance claims
Appellate Division, on appeal from the PCR court’s oral denial, affirmed in a
written opinion; and the New Jersey Supreme Court denied certification. (See
ECF Nos. 9-18, 9-22, 9-23.) State remedies have therefore been exhausted. See
generally Rose v. Lundy, 455 U.S. 509 (1982).
1.
Failure to communicate about discovery, investigate witnesses,
or call witnesses to testify
Mr. Pichardo first alleges that trial counsel failed to communicate
effectively with him during discovery, failed to properly investigate potential
witnesses, and failed to call potentially helpful witnesses to testi1r on his behalf.
(See ECF No. 9-18 (raising these grounds in PCR proceedings).) The facts as
developed in the PCR hearing are fatal to those claims.
43
As to communication about discovery, the Appellate Division noted that
“[Mr. Pichardo] conceded during the evidentiary hearing on his PCR applica
tion
that defense counsel had, in fact, provided him with all the discovery prior to trial
and he had read through all the discovery ‘once or twice’.” (ECF No. 9-22
at 12.)
As to failure to investigate pertinent witnesses, the Appellate Division noted that
“defense counsel explained at the [PCR] hearing that he did locate [the witnes
ses]
before trial,” but judged that the witnesses were unable to provide useful
26
testimony. (Id.)
As to counsel’s failure to call witnesses, the Appellate Division rioted that
no such potentially helpful witness had been identified. In the PCR procee
dings,
Mr. Pichardo claimed that a friend of his, Ariel Guzman, could have suppor
ted a
claim of self-defense by testiIring that he saw the victim, EW, in possession
of a
gun that night. But trial counsel testified, and the PCR court accepted,
that he
had found and questioned Guzman, who “was unable to state that he
saw the
victim with a gun.” (Id.) That was reason enough for trial counsel’s strateg
ic
choice not to call Guzman as a witness and subject him to cross examin
ation:
Guzman’s testimony would not have actually supported Mr. Pichardo’s
27
contentions. (Id.)
“Accordingly,” wrote the Appellate Division, “defendant’s claims of
ineffective assistance of trial counsel fail to meet either prong of Strickl
and
and
consequently we reject this argument on appeal.” (Id. at 13.) It is true that
the
Appellate Division did not explore the Strickland analysis in any detail.
Its
decision, however, is clear, and is still entitled to deference under AEDP
A. See
26
Mr. Pichardo claims that trial counsel failed to contact two witnesses. The PCR
court noted that trial counsel actually found and spoke with three potential witnes
ses.
(ECF No. 9-18 at 29.)
27
Trial counsel was able to “track down Ariel Guzman, because Ariel Guzma
n didn’t
voluntarily show up at his office
[However,] Mr. Guzman didn’t say anything that the
victim had a gun in his waistband and/or that he wielded a gun. [Trial counse
l] certainly
would have been, at a minimum, derelict in his responsibilities to his client if
he called
Mr. Guzman in those circumstances....” (ECF No. 9-18 at 29.)
...
44
Harrington v. Richter, 562 U.S. 86, 98 (2011) (“Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state court to deny relief.”);
see also Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (finding that a state
court’s determination that a claim is meritless demands deference as long as
fairminded jurists could disagree on the correctness of the decision). And the
Appellate Division’s decision is thoroughly consistent with Strickland.
The first prong of Strickland dictates that, to be considered deficient,
counsel’s performance must fall below an objective standard of reasonableness:
that is, it must diverge from prevailing professional norms. See 466 U.S. at 690.
The record shows no unreasonable performance by trial counsel here, either
generally or specifically in relation to discovery and the investigation of
witnesses. The PCR court found, and I agree, that “the record is in direct
contravention of [defendant’s] position.” (ECF No. 9-18 at 30.) Similarly, there
28
is no showing that any arguably deficient performance met Strickland’s second
prong: prejudice, in the sense of a reasonable probability that the result of the
proceeding would have been different. Any shortcomings in counsel’s
communication with his client about discovery, for example, had no
demonstrable consequences; the defendant admittedly received and thoroughly
reviewed all discovery before trial. Nor would calling Mr. Guzman, who had no
helpful testimony to offer, have changed the outcome in Pichardo’s favor.
Mr. Pichardo has not pointed this Court to any evidence that would
substantially call into question the reasonableness of the state courts’ findings.
They are therefore entitled to deference under 28 U.S.C.
§ 2254(d)(2).
Accordingly, his claims that his trial counsel failed to communicate with him
during discovery, investigate potential witnesses, or call pertinent witnesses fail
to persuade. Habeas relief on these grounds is denied.
“The transcript clearly reflects [that] when the State was attempting to introduce
certain evidence
how vigorous [trial counsel] argued against it. The record supports
how hard fought the suppression issues were.” (ECF No. 9-18 at 30.)
28
...
45
2.
Failure to argue mitigating factors at sentencing
29
Next, Mr. Pichardo claims that trial counsel was ineffective for failing to
press certain mitigating factors during the sentencing hearing. (See ECF No. 1 .)30
I turn to the first prong of Strickland, deficient performance. Mr.
Pichardo argues that, during his sentencing hearing, trial counsel failed to
argue mitigating factors. That omission, he says, was objectively
unreasonable and fell short of professional standards. (See ECF No. 1 at
11.) The sentencing transcript contradicts Pichardo’s allegations. (See ECF
No. 9-16 at 4-6.) Trial counsel delivered a plea for leniency, citing his
client’s youth, his prospects, his educational success, and his generally
law abiding behavior. (Id. at 5.) And Judge Subryan did specifically
’
3
accept that Pichardo had generally lived a law abiding life, which was
mitigating factor number seven. (See id. at 27 (“[Mr. Pichardo] has led a
law abiding life for a substantial period of time.”); see N.J. STAT. ANN.
§
2C:44- 1(b)(7).)
The Appellate Division cited that sentencing transcript and accepted that
counsel had urged mitigation upon the court, which was thoroughly familiar
with Mr. Pichardo and the case. My review of the record leads me to the same
conclusion. A fortiori, the state court’s ruling was not an unreasonable
application of Supreme Court law. Pichardo is not entitled to habeas relief on this
ground and his claim of ineffective assistance of trial counsel is denied.
29
This contention was raised as part of Ground Three in Mr. Pichardo’s petition.
To remove any doubt, I briefly address exhaustion of state remedies as to this
particular sub-point. Although the trial-level PCR court did not discuss this claim, it was
raised. The Appellate Division noted the claim, but denied it as “lacking sufficient merit
to warrant discussion in a written opinion.” (ECF No. 9-22 at 13.) The New Jersey
Supreme Court’s denial of certification, as is customary, contained no substantive
discussion of any issue. This claim, however, was raised and exhausted by Mr. Pichardo,
so this court is empowered to hear it. See Rose v. Lundy, supra.
30
“This is a young man who distinguished himself by fmishing school, who was
about to enter college
I ask you to realize the goodness in Edgar
and be merciful,
because mercy is the province of this Court....” (ECF No. 9-16 at 4-5.)
31
...
...
46
V.
CERTIFICATE OF APPEALABILITY
This Court must determine whether the petitioner is entitled to a
certificate of appealability in this matter. See 3d Cir. R. 22.2. A district court will
issue a certificate of appealability if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). As to one
claim, of course, the petitioner has prevailed. As to the other, which I have
denied, the discussion above demonstrates that he has not made such a
showing, and I will not issue a certificate of appealability.
VI. CONCLUSION
The Petition will be granted solely as to Mr. Pichardo’s claim of ineffective
assistance of appellate counsel with respect to the application of aggravating
factor 1 during sentencing. I will order that Mr. Pichardo be resentenced without
the application of aggravating factor 1. The habeas petition is otherwise denied.
An appropriate Order accompanies this Opinion.
Dated:
December 22, 2015
KEVIN MCNULTY
United States District Judge
47
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