MCKINNON v. LOWERY
Filing
21
OPINION. Signed by Judge Stanley R. Chesler on 12/12/17. (cm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAURICE MCKINNON,
Petitioner,
v.
MR. LOWERY,
Respondent
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Civil Action No. 13-7322 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2254 filed by Petitioner Maurice McKinnon (“Petitioner”), an inmate confined in
South Woods State Prison, in Bridgeton, New Jersey. (Am. Pet., ECF No. 6.) On November 1,
2005, a jury in Essex County Court, New Jersey, found Petitioner guilty of (1) first-degree
aggravated manslaughter; (2) three second-degree aggravated assaults; (3) third-degree illegal
possession of a handgun; and (4) second-degree possession of a handgun with the intent to use it
unlawfully. (Am. Pet., ¶¶1-5); State v. McKinnon, 2008 WL 1820695, at *1 (N.J. Super. Ct. App.
Div. Apr. 24, 2008). Petitioner was sentenced to a total aggregate term of thirty-four years
imprisonment, 85% of which was to be served without parole eligibility in accordance with the No
Early Release Act (NERA). Id., at *1. Specifically, the sentencing judge imposed a twenty year
sentence on the aggravated manslaughter count; two separate seven-year terms on two of the
aggravated assaults, which were consecutive to each other and to the manslaughter count; a seven
year term on the remaining aggravated assault count, to run concurrently with the other terms; and
a four year concurrent term on the unlawful possession of a handgun count. Id., at *15; (Resp. to
Pet. for Writ of Habeas Corpus (“Resp.”) at 19, ECF No. 17.) Petitioner appealed his conviction
and sentence, and the Appellate Division, on April 24, 2008, affirmed. Id. The New Jersey
Supreme Court denied certification. 196 N.J. 465 (Sep. 24, 2008).
Petitioner filed a petition for post-conviction relief on December 18, 2008. (Resp., ¶11.)
The PCR Court denied the petition on October 13, 2010. (Id.) The Appellate Division affirmed,
State v. McKinnon, 2012 WL 6196039 (N.J. Super. Ct. App. Div. Dec. 13, 2012), and the New
Jersey Supreme Court denied certification, 214 N.J. 235 (Jul. 19, 2013). Petitioner originally filed
his habeas petition in this Court on December 5, 2013. Following this Court’s May 2, 2014, opinion
and order addressing certain procedural deficiencies, Petitioner filed an amended petition on
October 24, 2014. He raised the following grounds for relief:
GROUND ONE:
Excessive Sentence.
GROUND TWO:
indictment.
Crime
Scene
Investigator
was
under
GROUND THREE: State failed to prove beyond a reasonable
doubt that the defendant had knowingly and voluntarily waived his
Miranda/common law rights.
(Am. Pet., ECF No. 6 at 5-8.)
I.
BACKGROUND
The factual background in this matter was summarized by the New Jersey Superior Court,
Appellate Division upon Petitioner’s direct appeal. 1 McKinnon, 2008 WL 1820695. On April 13,
2004, between 9:00 and 9:30 p.m., Martin Perez, his cousin Carlos Matias, Jose Sanchez, Juan
Cruz, and Cheryl Green were standing near a Honda Civic owned by Perez parked on James Street
in Newark. A dark-colored Acura Legend, variously described by the witnesses as black, green, or
gray, with tinted windows, passed the group slowly, made a right turn, circled the block, and came
1
The facts found by the Appellate Division are presumed correct pursuant to 28 U.S.C. §
2254(e)(1).
2
back up James Street at a high rate of speed, stopping in front of the group. The car windows were
lowered, a door opened, and at least one individual, later identified as defendant, began shooting.
Perez, at first, “[d]ove” under the Civic with the others, but when he saw “some black
boots” step out of the back seat of the Acura, he “took off and ran.” When Sanchez saw the car
window open and a gun come out, he too “hid under the car” by its front wheels and “play[ed]
dead.” He did not see the others and as “the shots g[o]t closer,” he “kept moving[,] trying to go
under the car but [he] couldn't,” and was shot in the right leg. He saw Green and Matias lying next
to him in “[b]ad shape.” Matias was moaning in pain and he knew Green was dead.
Matias had his back to the Acura talking to Sanchez, when he heard shots and felt
“something hit [him] in the face.” His “first reaction was to hit the floor” and “pretend[ ] like [he]
was laying down.” He heard “boom, boom, boom,” then the shots stopped. Matias heard Green
plead, “Please, no, not me,” and then “heard again boom, boom, boom.”
Cruz lay flat on his stomach near the car, and Green lay next to him, her face near his feet.
Cruz saw blood and nudged Green's leg, asking if she was all right, but there was no reaction. Then
Cruz saw a pair of brown Timberland boots and he “broke,” running “zig zag[ ]” down James
Street and into a parking lot, while two people chased after him shooting. Eventually, Cruz saw
“alot (sic) of people running towards the other way,” and he followed them back to the scene,
where he saw people screaming and Green “on the floor.”
Meanwhile, Perez had also run “zig zag ... between cars,” towards a parking lot until he
“passed out” in shock. When he awoke, his body was “numb,” and people were removing his
clothes, checking to see if he was shot, but he was not. He returned to his car and saw Green on
the ground and Matias “laying there like he was dead.”
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The Newark police department received a report of the shootings at 9:44 p.m. and
responded to the scene. During their subsequent investigation, they discovered a stolen Acura that
had been partially destroyed by fire, and it was identified as the car in which the shooter, or
shooters, had arrived at the scene. Numerous shell casings were recovered, six from a .380 caliber
and one from a 9 mm. handgun. In addition, six vials of cocaine were found at the scene.
Sanchez was treated and released from the hospital after a bullet fragment was removed
from his leg by hospital staff. He provided police with a statement that night. Matias, though
conscious, was unable to give any statement to the police that night because of his wounds. Green
suffered gunshot wounds to her left thigh and to the left side of her head, the latter proving to be
fatal. A bullet was recovered from her skull at autopsy and was subsequently matched by the State's
ballistic expert as having come from the same gun that fired the bullet recovered from Sanchez.
The police took statements from Cruz and Perez the next day and Perez selected defendant's
photo from a photographic array he was shown by the police. On April 20, 2004, defendant was
arrested by Newark police detective Rasheen Peppers, who advised defendant of his Miranda
rights and told him that he was under arrest. Defendant made no statement at the time. Detective
Michael Palermo read defendant his Miranda rights again and placed him in a room by himself.
Approximately five minutes later, another homicide detective, Joseph Hadley appeared and wanted
to retrieve files from the interview room. Palermo told Hadley that defendant was in the room, and
that Hadley might know him from the neighborhood where Hadley's mother lived. Hadley went
into the room and spoke to defendant for about “two minutes,” after which defendant agreed to
provide Palermo with a written statement.
Defendant said his purpose in going to James Street was to “to talk to [the Puerto Rican
dude] so no one would get hurt about the issue,” which defendant described as “words going back
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and forth and ... him thinking that someone stole something from him,” which “was suppose[d] to
be money or drugs or something.” Defendant claimed the problem arose “[a]bout a week and a
half or two weeks before this.” Defendant described what happened the night of the shooting:
We pulled up on James Street to look for the Puerto Rican dude, but I did not see
him. I thought he wasn't out there so we went back around to go down Orange Street
and go up James Street again to see if I see him again. Then I seen him and we must
have caught eye contact because he knew it was me because he started to lift his
shirt as if he was reaching for a gun. Then I fired two shots. He was ducking. I don't
know what he was ducking behind. But then as he was ducking, I was still shooting.
Then he ran and I shot on[c]e more. Then I realized I could not hit him, so I got
back inside the car. Then we pulled off and we headed straight to the townhouses
on Broadway.
Defendant claimed he was dropped off at his grandmother's house after the shooting. He thought
the gun he used was a 9 mm. but he was not sure. Defendant provided detailed physical
descriptions of his two accomplices, but claimed he knew one of them only as “Rocky” and that
he did not know the name of the driver. Defendant denied that either of them had fired shots on
the evening in question.
Defendant identified photos of Sanchez, who he knew as “Bolo,” as the person with whom
he had the “issue,” and Matias, who he knew as “Bolo's brother or cousin.” Defendant had known
both of them for “roughly six or seven years.” He told police that he “didn't even know anyone got
shot that night” and only learned of that “a couple nights later.” He claimed to feel remorse over
the shooting of Green. Defendant declined to have his statement recorded by video or audio tape.
At trial, Perez was the only victim who identified defendant. Perez said he “couldn't really
see” who was firing the shots, but he recognized defendant, whom he had known for “[a]bout two
years.” Perez claimed that defendant was the person in the front passenger seat of the Acura, a fact
that was contrary to defendant's statement to the police.
5
On cross-examination, Perez acknowledged telling the police that he believed he was the
target of the shooting because he and defendant had a dispute two years earlier. Perez later clarified
that defendant's dispute “wasn't with me, it was with the person I was with.” Perez admitted that
he had been arrested on September 21, 2004, for stealing a car, and subsequently received a
probationary sentence. He acknowledged that in March 2005, he was arrested for selling drugs,
but once again received a probationary sentence. Perez denied, however, that the prosecutor made
any promises to help him in return for his testimony against defendant.
George Martinez also identified defendant in court as the shooter. Martinez testified that
he was smoking crack cocaine in the bathroom of his mother's house on James Street when he
heard noise that he believed “was fire crackers or something like that.” When he looked out the
open bathroom window, he saw “a guy shooting at [Martinez's] nephews and Cheryl Green,” who
were all “on the floor.” After the shooting, Martinez provided a statement to the police and picked
defendant's photo from an array, though he later tried to recant his statement out of “fear for [his]
life.” Martinez testified that he had no doubt that defendant was the man he saw with the gun. At
the time of trial, Martinez was serving a prison sentence for drug possession, the latest in a string
of arrests and convictions.
At trial, Cruz said that he “saw some dudes” whose faces he did not recognize, and although
he gave a general description to the police, he was unable to identify defendant. Cruz also had a
conviction for drug possession. Sanchez was unable to describe the assailant, or assailants, at all.
Defendant did not testify, nor did he call any witnesses on his behalf.
Defendant was tried on charges of conspiracy to commit murder in the second degree, firstdegree purposeful and knowing murder of Cheryl Green, first-degree attempted murder of Matias,
Perez, Sanchez, and Cruz, and the weapons charges. The jury acquitted Defendant of conspiracy,
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murder, and all four charges of attempted murder, but convicted him of the lesser-included offenses
of aggravated manslaughter as to the charged murder of Green and three second-degree aggravated
assaults as to the attempted murder charges regarding Matias, Sanchez, and Cruz. The jury
acquitted Defendant of all charges relating to Perez.
II.
DISCUSSION
A.
Standard of Review
28 U.S.C. § 2254(d) provides:
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.
“Contrary to clearly established Federal law” means the state court applied a rule that
contradicted the governing law set forth in U.S. Supreme Court precedent or that the state court
confronted a set of facts that were materially indistinguishable from U.S. Supreme Court precedent
and arrived at a different result than the Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d
Cir. 2013) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase “clearly
established Federal law” “refers to the holdings, as opposed to the dicta” of the U.S. Supreme
Court’s decisions. Williams, 529 U.S. at 412. An “unreasonable application” of clearly established
federal law is an “objectively unreasonable” application of law, not merely an erroneous
application. Eley, 712 F.3d at 846 (quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
7
In addition, any state-law-based challenges are not cognizable in federal habeas review.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dept., 128 F.3d 152, 159
(3d Cir. 1997). “Federal courts hold no supervisory authority over state judicial proceedings and
may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S.
209, 221 (1982). “If a state prisoner alleges no deprivation of a federal right, § 2254 is simply
inapplicable.” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982). “[E]rrors of state law cannot be
repackaged as federal errors simply by citing the Due Process Clause.” Johnson v. Rosemeyer,
117 F.3d 104, 110 (3d Cir. 1997). Moreover, “it is well established that a state court’s
misapplication of its own law does not generally raise a constitutional claim.” Smith v. Horn, 120
F.3d 400, 414 (3d Cir. 1997) (citation omitted); see also, Smith v. Zimmerman, 768 F.2d 69, 71,
73 (3d Cir. 1985).
B.
Analysis
1.
Ground One
In Ground One of the habeas petition, Petitioner challenges his sentence for three reasons.
First, Petitioner asserts that the trial court improperly balanced the aggravating and mitigating
sentencing factors when imposing his sentence. (Am. Pet., ECF No. 6 at 5.) Second, Petitioner
claims that the trial court made findings of fact inconsistent with jury findings as justification to
impose an excessive sentence. (Id.) Finally, Petitioner contends that the trial court erred by
imposing consecutive sentences. (Id.) Respondent argues that Petitioner failed to raise a
constitutional issue with respect to his “within-state-guidelines sentence.” (Resp., ECF No. 17 at
26.)
8
Petitioner raised these issues in his direct appeal. In doing so, Petitioner did not raise any
federal or constitutional arguments regarding the trial court’s application of aggravating and
mitigating factors or its imposition of consecutive sentences. (See Def.’s Br. In Supp. of Appeal
of J. of Conviction (“Def.’s App. Br.”), ECF No. 17-8 at 91-93; 94-96.) Instead, Petitioner’s
arguments rested solely on state law. The Appellate Division addressed Petitioner’s sentencing
claim as follows:
At sentencing, the judge observed that defendant committed these crimes after he
had pled guilty to a previous indictable offense, failed to appear for sentencing, and
a bench warrant had issued for his arrest. By the age of twenty-one, defendant had
been arrested five times and had thirty-one petitions filed against him as a juvenile.
The judge found that aggravating factor three applied, the risk that defendant would
commit another crime, because he had “a voluminous record” for a young man and
“ha[d] shown a propensity not to learn from his past mistakes,” having violated
probation in the past. The judge also found aggravating factor six, the extent and
seriousness of defendant's prior record, and aggravating factor nine, the need for
deterring defendant and others from violating the law. The judge rejected
defendant's argument that mitigating factor twelve applied—willingness to
cooperate with law enforcement authorities—simply because defendant gave a
statement to the police. The judge concluded that the aggravating factors
“overwhelmingly” preponderated. Defendant's argument that the judge failed to
properly weigh the aggravating and mitigating factors is without merit.
Likewise, his claim that judge “disregarded the jury verdict” and
“unconstitutionally made [his] own findings of fact” because the aggregate
sentence exceeds that for more serious crimes, such as murder, is also without any
merit. Defendant ignores the fact that the sentence reflects an aggregate term for
crimes committed against four separate victims.
Defendant also argues that the court's decision to impose consecutive sentences was
erroneous “[s]ince all the crimes arose out of the same reckless conduct.” But, the
judge concluded that defendant should be sentenced to consecutive terms because
his crimes involved multiple victims. In State v. Yarbough, 100 N.J. 627, 643–44,
498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d
308 (1986), the Court set forth the factors to be considered when deciding whether
to impose consecutive or concurrent sentences. The Yarbough factors essentially
focus upon “the nature and number of offenses for which the defendant is being
sentenced, whether the offenses occurred at different times or places, and whether
they involve numerous or separate victims.” State v. Carey, 168 N.J. 413, 423, 775
A.2d 495 (2001) (quoting State v. Baylass, 114 N.J. 169, 180, 553 A.2d 326
9
(1989)). In this case, the trial court properly recognized that the crimes for which
defendant was sentenced involved separate, numerous victims and deserved
consecutive terms. The sentences imposed do not shock the judicial conscience,
and we find no basis to otherwise disturb them.
McKinnon, 2008 WL 1820695, at *16.
A federal court may review a state sentence only where the challenge is based upon
“proscribed federal grounds such as being cruel and unusual, racially or ethnically motivated, or
enhanced by indigency,” see Grecco v. O'Lone, 661 F. Supp. 408, 415 (D.N.J. 1987) (citation
omitted), which means that an attack on the state court's discretion at sentencing cannot be
reviewed in a federal habeas proceeding unless there is a showing of a violation of a separate
federal constitutional limitation. See Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d
Cir. 1984). As stated above, the violation of a right created by state law is not cognizable as a basis
for federal habeas relief. See Estelle, 502 U.S. at 67–68 (1991) (“We have stated many times that
‘federal habeas corpus relief does not lie for errors of state law.’ “(quoting Lewis v. Jeffers, 497
U.S. 764, 680 (1990))); see 28 U.S.C. § 2254(a).
As his first basis for relief, Petitioner alleges that the state trial court failed to properly
consider aggravating and mitigating factors in sentencing. In his third claim for relief, Petitioner
asserts that the trial court erred by imposing consecutive sentences. Petitioner did not allege that
these alleged errors violated any federal or constitutional right and the Appellate Division applied
only state law in resolving these claims. Accordingly, based on the supporting facts Petitioner
alleges for these grounds, which relate only to alleged violations of state law, Petitioner is not
entitled to federal habeas relief on these claims. See Engle, 456 U.S. at 120, n. 19.
Petitioner’s remaining argument was that the trial judge unconstitutionally made findings
of fact that were inconsistent with the jury’s findings in order to impose an excessive sentence. A
defendant’s constitutional rights are violated where a judge imposes a sentence greater than the
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statutory maximum based upon additional findings of fact that were not so found by the jury or
admitted by the defendant. Blakely v. Washington, 524 U.S. 296, 304 (2004) (“When a judge
inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts
which the law makes essential to the punishment . . . and the judge exceeds his proper authority”)
(citation omitted); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Here, however, Petitioner
is not entitled to habeas relief on this claim. First, Petitioner did not identify any findings of fact
that the trial court made that were allegedly contrary to the jury’s findings and influenced
Petitioner’s sentence. Moreover, as the Appellate Division stated, the fact that Petitioner’s total
sentence exceeds that of a more serious single offense is of no moment where Petitioner’s sentence
was an aggregate based on serious crimes committed against four different individuals. In addition,
as Respondent observes, the trial court imposed terms of incarceration that were within the
statutory range for each charge. (See Resp., ECF No. 17 at 21-22); N.J. STAT. ANN. 2C:11-4c
(person convicted of aggravated manslaughter may be sentenced to term of imprisonment between
ten and thirty years); N.J. STAT. ANN. 2C:43-6a(2) (person convicted of a crime of the second
degree may be sentenced to a term between five and ten years); N.J. STAT. ANN. 2C:43-7.2
(requiring 85% period of parole ineligibility for, inter alia, aggravated manslaughter and
aggravated assault). Petitioner therefore failed to show that his sentence was “excessive” or
otherwise unconstitutional. Accordingly, the Appellate Division’s conclusion regarding this claim
was not contrary to, or an unreasonable application of, Supreme Court precedent. Ground One
therefore will be denied.
2.
Ground Two
In Ground Two, Petitioner states that the crime scene investigator was under indictment
for official misconduct for evidence tampering. (Am. Pet., ECF No. 6 at 7.) Petitioner raised this
11
issue as an evidentiary argument during his direct appeal. Specifically, he argued that the trial court
violated his right to due process by refusing to permit the defense to present other-crime evidence
regarding the investigator’s indictment. Because a pro se habeas petition must be construed
liberally and with a measure of tolerance, see Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);
Lewis v. Attorney General, 878 F.2d 714, 721–22 (3d Cir. 1989), the Court construes the Petition
as asserting this claim before this Court.
On appeal, the Appellate Division addressed this claim as follows:
Defendant argues that the trial court erred when it refused to allow him to present
evidence that one of the crime scene investigators was under indictment for official
misconduct because that evidence was relevant to the jury's evaluation of the
reliability of the investigation. We are not so persuaded.
Before trial, defense counsel informed the court that she intended to cross-examine
Palermo regarding one of the crime scene investigators, Detective Cosgrove, who
was under indictment for official misconduct based upon an allegation that he
tampered with evidence. According to defense counsel, Cosgrove had mapped and
photographed the scene, collected evidence, and done the distance measurements
and she argued that the “other crimes” evidence was relevant to the jury's
“evaluation of the quality of his work.”
Cosgrove never testified at trial, though there was testimony that he had collected
evidence at the scene. Defense counsel argued that the fact that Cosgrove was under
indictment for evidence tampering was admissible because he “had responsibility
for things that not everyone had control over.” The State argued that it was not
introducing any evidence that Cosgrove was solely responsible for obtaining and
securing, and the judge denied defendant's request.
Defendant renews the argument before us. Assuming arguendo that Cosgrove's
indictment was evidence admissible under N.J.R.E. 404(b), he never testified. The
witnesses who testified did so based upon their own actions and conduct, not those
of Cosgrove. To allow them to be cross-examined about Cosgrove's indictment
would have been highly prejudicial to the State, and it would have lacked any true
probative value. State v. Franklin, 384 N.J. Super. 306, 312, 894 A.2d 1154 (App.
Div. 2006).
McKinnon, 2008 WL 1820695, at *14–15.
As this Court already explained supra, matters of state substantive law, rules of procedure
12
and evidence are not reviewable in a federal habeas petition. Estelle, 502 U.S. at 67–68; see also
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“we have never questioned the power of the States
to exclude evidence through the application of evidentiary rules that themselves serve the interests
of fairness and reliability, even if the defendant would prefer to see that evidence admitted”).
However, evidentiary rulings may violate due process when the petitioner was denied fundamental
fairness at trial. See Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir. 1994); accord United States v.
Agurs, 427 U.S. 97, 108 (1976) (explaining that, for a habeas petitioner to prevail on a claim that
an evidentiary error amounted to a deprivation of due process, he must show that the error was so
pervasive as to have denied him a fundamentally fair trial). Hence, the appropriate inquiry is
whether the claimed error of law is a fundamental defect which inherently results in a complete
miscarriage of justice or is an omission inconsistent with the rudimentary demands of fair
procedure. See United States v. De Luca, 889 F.2d 503, 506 (3d Cir.1989), cert. denied, 496 U.S.
939 (1990).
The Appellate Division’s denial of this claim was not an unreasonable application of
Supreme Court precedent. As that court observed, the investigator did not testify at trial. Petitioner
has not advanced any argument or evidence that the investigator committed misconduct in his case
and the introduction of evidence of his indictment would have been improper propensity evidence
that would have prejudiced the State and offered little probative value. In addition, Petitioner
retained the ability to cross-examine the State’s testifying witnesses with respect to the
investigation of his case. Moreover, evidence in the case such as eye witness testimony and
Petitioner’s own statement went to the key issue in the case – the identity of the shooter – and were
separate and apart from the investigator’s collection of physical evidence. The state court’s
exclusion of the other-crimes evidence therefore did not render Petitioner’s trial fundamentally
13
unfair and therefore did not infringe upon his due process rights. Ground Two will therefore be
denied.
3.
Ground Three
In Ground Three, Petitioner asserts that the State failed to prove beyond a reasonable doubt
that Petitioner had knowingly and voluntarily waived his Miranda/common law rights. (Am. Pet.,
ECF No. 6 at 9.) Petitioner states that the Essex County Prosecutor’s office recognized that Det.
Palermo had not advised Petitioner that a judge had issued an arrest warrant for Petitioner. (Id.)
Respondent asserts that the record shows that Petitioner received Miranda warnings on two
occasions and waived them and that even if Petitioner was not told that an arrest warrant had
issued, federal law contains no such requirement. (Resp., ECF No. 17 at 31-37.)
Petitioner raised this claim during his direct appeal. The Appellate Division analyzed the
claim as follows:
Defendant argues that the judge erred in admitting into evidence the statement he
gave to police, contending that the State failed to prove that he knowingly and
voluntarily waived his rights because 1) it cannot prove that defendant was advised
prior to giving his statement that a judge had already issued an arrest warrant
charging him with Green's murder; and 2) because the State failed to produce as a
witness “the officer who influenced the defendant to give a statement.” We think
the argument mischaracterizes the actual evidence in the case and therefore is
unavailing.
At the Miranda hearing, Peppers testified that he arrested defendant in the early
morning hours of April 20, 2004, and read defendant his rights from a card. At
10:15 a.m., Palermo claimed that he met with defendant and again advised him of
his rights from “a preamble form.” Defendant placed his initials next to the five
sequentially numbered rights on the form. Palermo testified:
After I Mirandized [defendant] I told him that he was under arrest for [the]
murder of Cheryl Green which occurred at Baxter Terrace....
At that point I walked out of the office and asked [Detective] Hadley if he
wanted to talk. He said he would talk to him. [ ] Hadley walked into the
room, came out five minutes later, if that.... He says, “Okay, he wants to
talk to you.”
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Defendant signed the Miranda preamble form and the waiver form. The statement
began at 11:50 a.m., and ended at 1:30 p.m. Palermo took an addendum to the
statement at 4:20 p.m. during which time, he asked defendant:
Q. K[h]alif did I advised [sic] you before we began this Statement that you
were under arrest for the Murder of Cheryl Green?
A. Yes.
Q. After you were advised of your rights per Miranda and before I started
interviewing you did I tell you that you were locked up for a warrant issued
by a Judge for the murder of Cheryl Green?
A. Yes.
Q. After being advised about the warrant were you still willing to talk to
me?
A. Yes.
Since the judge found this testimony to be credible, defendant's reliance on State v.
A.G.D., 178 N.J. 56, 835 A.2d 291 (2003), is entirely misplaced. In that case, the
Supreme Court held that the State could not carry its burden of establishing an
“informed waiver of rights, regardless of other factors that might support [the]
confession's admission” because defendant was not advised that an arrest complaint
had already been issued before he agreed to speak to the police. Id. at 68, 835 A.2d
291. Here, Palermo's testimony was unequivocal, and it was corroborated by
defendant's own answer in which he acknowledged that Palermo told him he was
under arrest for Green's murder before he waived his rights.
At the hearing, defendant also argued that the State failed to meet its burden of
proof because “we have absolutely no idea what [ ] Hadley said to [defendant].” He
renews this argument before us. However, the judge found “no evidence in the case
that [ ] Hadley did anything, that he coerced in any way, induced or used police
trickery, physical or psychological pressure or anything that would in fact cause the
statement of [defendant] to be less than voluntary.” We likewise find no basis to
conclude otherwise. Defendant had already received his Miranda rights twice, was
with Hadley for a brief period of time, and there was no evidence that his will was
overborne during that time so as to make his decision to waive his rights and speak
to the police an involuntary one.
McKinnon, 2008 WL 1820695, at *12–13.
The Fifth Amendment provides, in part, that no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. amend. V. The Fourteenth Amendment
15
incorporates the Fifth Amendment privilege against self-incrimination. See Malloy v. Hogan, 378
U.S. 1, 8 (1964). In Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that “without proper
safeguards the process of in-custody interrogation . . . contains inherently compelling pressures
which work to undermine the individual's will to resist and to compel him to speak where he would
not otherwise do so freely.” 384 U.S. at 467. When police ask questions of a suspect in custody
without administering the required warnings, Miranda dictates that the answers received be
presumed compelled and that they be excluded from evidence at trial in the State's case in chief.
See Oregon v. Elstad, 470 U.S. 298, 317 (1985). Thus, a confession taken during a custodial
interrogation without the provision of Miranda warnings violates the privilege against selfincrimination. See Thompson v. Keohane, 516 U.S. 99 (1995).
“To safeguard the uncounseled individual's Fifth Amendment privilege against selfincrimination, the Miranda Court held, suspects interrogated while in police custody must be told
that they have a right to remain silent, that anything they say may be used against them in court,
and that they are entitled to the presence of an attorney, either retained or appointed, at the
interrogation.” Thompson, 516 U.S. at 107; Miranda, 384 U.S. at 479. The Miranda Court outlined
the procedures to be followed after the police provide these warnings. If the accused requests
counsel, then “interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 474.
“After such warnings have been given, and such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer questions or make a statement.”
Id. at 479.
Here, Petitioner does not claim that his statement was coerced or resulted from any
improper police conduct. Rather, Petitioner argues that the State failed to prove beyond a
reasonable doubt that his statement was knowing and voluntary because Det. Palermo did not tell
16
him that a judge had issued an arrest warrant. 2 In rejecting this claim, the Appellate Division did
not unreasonably apply, or reach a result contrary to, clearly established federal law. First,
Petitioner has not pointed to any Supreme Court precedent holding that a person in custody must
be told that a judge has issued an arrest warrant in order to satisfy Miranda; the requirement on
which Petitioner relies is one of state law. See State v. A.G.D., 178 N.J. 56, 66-68, 835 A.2d 291,
297-98 (2003) (observing that the New Jersey common law privilege against self-incrimination
affords greater protection than the federal privilege). Habeas relief is only appropriate “where there
is no possibility fairminded jurists could disagree that the state court’s decision conflicts with
[Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). As discussed above,
this Court will not review the state court’s application of state law.
Moreover, the record reflects that Petitioner received the required Miranda warnings on
2
Though Petitioner argues that the State did not prove a knowing and voluntary waiver “beyond
a reasonable doubt,” there is no such federal requirement. It is true that under New Jersey law, the
State must prove waiver beyond a reasonable doubt. State v. Bey, 112 N.J. 123, 140, 548 A.2d
887, 895 (1988) (citing State v. Yough, 49 N.J. 587, 231 A.2d 598 (1967)). The United States
Supreme Court, however, has not so held. Though the prosecution’s burden to prove waiver is
“heavy,” Miranda, 384 U.S. at 475, the Supreme Court has rejected a reasonable doubt standard:
In Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), we
considered whether the prosecution was required to prove beyond a reasonable
doubt that a confession was voluntary. In holding that a preponderance of the
evidence was sufficient, we stated that “the purpose that a voluntariness hearing is
designed to serve has nothing whatever to do with improving the reliability of jury
verdicts.” Id., at 486, 92 S.Ct., at 625. Accord, Jackson v. Denno, 378 U.S. 368,
384–385, 84 S.Ct. 1774, 1785, 12 L.Ed.2d 908 (1964), holding that the “reliability
of a confession has nothing to do with its voluntariness.” A defendant who has not
prevailed at the suppression hearing remains free to present evidence and argue
to—and may persuade—the jury that the confession was not reliable and therefore
should be disregarded.
United States v. Raddatz, 447 U.S. 667, 678 (1980). Thus, for federal habeas purposes, the State
was required to prove Miranda waiver by a preponderance of the evidence.
17
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