ALVAREZ v. NOGAN et al
OPINION. Signed by Judge Claire C. Cecchi on 02/07/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HECTOR S. ALVAREZ,
Civil Action No. 14-1397 (CCC)
PATRICK A. NOGAN, et al.,
CECCHIg District Judge.
Pro se Petitioner Hector S. Alvarez, a convicted individual who has now been released
from custody, files the instant Petition for a Writ of Habeas Corpus pursuant to 2$ U.S.C.
challenging a conviction by the State of New Jersey for conspiracy to commit a robbery and
attempted theft. Petitioner has declared that this Petition sets forth all grounds for relief and is his
one, all-inclusive habeas petition. (ECF No. 7.) Respondents have filed a Response, (see ECF
Nos. 13 & 14), and Petitioner did not file a reply. For the reasons stated below, the Court denies
For the purposes of this Opinion, the Court recites only relevant facts, and relies on the
findings of fact made by the state appellate court on Petitioner’s direct appeal in State v. Alvarez,
No. A-3332-10T2, slip op. 2-8 (N.J. Sup. Ct. App. Div. Dec. 21, 2012), ECF No. 13-4, unless
otherwise cited. On May 18, 2007, Petitioner, a New York City police officer at the time of the
offense, accompanied by co-conspirator Miguel Castillo, a fellow officer, arrived in Rutherford,
New Jersey at a two-family dwelling, intending to rob an alleged money launderer and drug dealer.
When they knocked on the door, the victim answered, at which point they identified themselves
as police officers, and attempted to gain entry into the premises.
The victim, recognizing
something was amiss, refused their entry. A scuffle ensued, which alerted the victim’s downstairs
neighbor and landlord. A brief conversation occurred between the conspirators and the landlord,
during which the conspirators realized that their scheme had failed, and they quickly fled the scene,
although not before the landlord was able to identify the license plate number of their vehicle.
The landlord notified the Rutherford Police Department (“RPD”) of the incident, and
relayed to the RPD a description of the vehicle and the license plate number. RPD was able to
apprehend the conspirators and brought them back to the police station. At this point, they were
not formally charged nor formally placed under arrest.
Petitioner was allowed to keep his
celiphone, which he used to place numerous calls while at the station, and was at one point
informed that he was not under arrest and was free to leave.
Concurrently RPD conducted an investigation of the incident. It contacted the New York
Police Department (“NYPD”), and was eventually told that the conspirators were not on official
police business. RPD decided to interview Petitioner. Before the interview began, he was given
his Miranda rights, which he then waived. However, during the middle of the interview, he asked
a RPD officer “LT, is a PB
PBA lawyer here?” He was given a negative response. Later,
without re-administration of a Miranda warning, he confessed that he, Castillo, and another
individual, Victor F. Sandoval, had conspired to rob the victim. Sandoval was the recipient of
several calls that Petitioner had placed while at the station, and in part due to Petitioner’s advanced
warning, he was able to evade capture—Sandoval was still a fugitive at the time of Petitioner’s
trial. Petitioner and Castillo were then formally arrested and charged, and NYPD gave them the
option of resignation instead of being fired, which they accepted.
At trial, the state introduced as evidence against Petitioner, among other things, (1) a video
of Petitioner’s confession, (2) testimony of the victim, (3) testimony of Castillo,’ (4) Sandoval’s
fugitive status, and (5) his resignation from the NYPD, all of which the trial court allowed. The
jury eventually acquitted Petitioner of first-degree robbery, second-degree armed burglary,
second-degree unlawful possession of a firearm, second-degree unlawful use of a body vest, and
fourth-degree impersonating a law enforcement officer. He was convicted of second-degree
conspiracy to commit robbery, and fourth-degree attempted theft.
Petitioner appealed. The conviction and sentence were affirmed by the appellate court, and
certification was denied by the New Jersey Supreme Court. (ECF No. 1 at 3-4.) The United States
Supreme Court also denied certiorari. (Id. at 5.) Petitioner did not seek post-conviction relief in
state court. (Id.) The instant Petition followed. The Court issued a notice pursuant to Mason v.
Meyer, 208 F.3d 414 (3d Cir. 2000), notifying Petitioner that he must raise all of his claims
challenging the conviction in the instant Petition and, absent extraordinary circumstances, will not
be allowed to file a second habeas petition in the future. (ECF No. 6.) Petitioner elected to proceed
with the Petition as filed. (ECF No. 7.)
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254, “a district court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
When a claim has been adjudicated on the merits in state court proceedings, a writ for habeas
Castillo had entered into a plea agreement wherein he agreed to testify against Petitioner.
corpus shall not issue unless the adjudication of the claim (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. 28 U.S.C.
§ 2254(d); see also Parker v. Matthews, 132 5. Ct. 2148, 2151 (2012).
A state-court decision involves an “unreasonable application” of clearly established federal
law if the state court (1) identifies the correct governing legal rule from the Supreme Court’s cases
but unreasonably applies it to the facts of the particular case; or (2) unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply. Williams v.
Taylor, 529 U.S. 362, 407 (2000). Federal courts must follow a highly deferential standard when
evaluating, and thus give the benefit of the doubt to, state court decisions. See Felkner v. Jackson,
131 5. Ct. 1305, 1307 (2011); Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). A state court
decision is based on an unreasonable determination of the facts only if the state court’s factual
findings are objectively unreasonable in light of the evidence presented in the state-court
proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Moreover, a federal court must
accord a presumption of correctness to a state court’s factual findings, which a petitioner can rebut
only by clear and convincing evidence. 28 U.S.C.
§ 2254(e); see Rice v. Collins, 546 U.S. 333,
339 (2006) (petitioner bears the burden of rebutting presumption by clear and convincing
evidence); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) (factual determinations of state
trial and appellate courts are presumed to be correct).
In the instant Petition, Petitioner raises five grounds for relief: (1) admission of his
confession at trial was in error because it was obtained in violation of his Miranda rights; (2)
admission of Sandoval’ s fugitive status was in error because it was irrelevant and unduly
prejudicial; (3) admission of his and Castillo’s resignations was irrelevant and unduly prejudicial;
(4) admission of his “mug shot” at trial was unnecessary and unduly prejudicial; (5) prosecutor
committed misconduct by comparing his crime with sexual assault in the context of explaining the
burglary charge to the jury.
A. Ground One
Petitioner argues that his confession—which occurred after he “unambiguously requested
to speak to his PBA attorney again”—was in violation of his Miranda rights, because he was not
given another Miranda warning after asserting his right to counsel, rendering his confession
inadmissible. In denying this claim, the state appellate court held that (1) Petitioner’s inquiry did
not constitute the assertion of his right to counsel, (ECF Nq. 13-4 at 13), and (2) even if the
confession was inadmissible, its admission was harmless error, (id. at 14). The Court finds that
the appellate court’s decision was a reasonable application of established federal law, based on a
reasonable determination of the facts.
In Miranda v. Arizona, the Supreme Court held that “[p]rior to any questioning, the person
must be warned that he has a right to remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed.” 384 U.S. 436, 444 (1966). This required warning by a prosecuting authority is now
known as the Miranda warning. “The defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and intelligently.” Id.
If, however, he indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner that he does not
wish to be interrogated, the police may not question him. The mere fact that he
may have answered some questions or volunteered some statements on his own
does not deprive him of the right to refrain from answering any further inquiries
until he has consulted with an attorney and thereafter consents to be questioned.
Id. at 444-45. “[U]nless and until such warnings and waiver are demonstrated by the prosecution
at trial, no evidence obtained as a result of interrogation can be used against him.” Id. at 479.
In that regard, the Supreme Court held that “a suspect who has ‘invoked his right to have
is not subject to further interrogation by the authorities until counsel has been
made available to him, unless [he] initiates further communication, exchanges, or conversations
with the police.” Berghuis v. Thompldns, 560 U.S. 370, 405 (2010) (quotingMaryland v. Shatzer,
559 U.S. 98, 104 (2010)). However, “[a]fler a suspect has knowingly and voluntarily waived his
Miranda rights.. police may continue questioning ‘until and unless the suspect clearly requests
an attorney.” Id. at 406 (quotingDavis v. United States, 512 U.S. 452, 461 (1994)). “[I]f a suspect
makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of questioning.” Davis, 512 U.S. at 459.
“[W]e are unwilling to create a third layer of prophylaxis to prevent police questioning when the
suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may
continue.” Id. at 462 (emphasis in the original).
Here, the appellate court makes two critical findings of fact, neither of which Petitioner
disputes in the Petition. First, the appellate court found that Petitioner was initially given a
Miranda warning before the start of the interview, and he affirmatively waived his rights. (ECF
No. 13-4 at 6.)
Second, the appellate court found that the statement in dispute regarding
Petitioner’s assertion of his right to counsel was “his question about the whereabouts of a PBA
lawyer,” (Id. at 13), a clear reference to Petitioner’s statement as recited above—”LT, is a PB
PRA lawyer here?” Indeed, Petitioner himself argues, in support of the instant Petition, that
[d]uring a break in the interrogation, the petitioner specifically asked an
unidentified police lieutenant whether his attorney had arrived, to which he
received a negative response. Whether, or not, the petitioner’s inquiry into the
presence of his PBA attorney was communicated to the investigating officers, the
question triggered the petitioner’s Miranda privilege, and mandated that all
questioning cease until the attorney was present.
(ECF No. 8 at 25.) As such, there is no dispute as to the appellate court’s factual findings.
As to the merits of Petitioner’s claim, the appellate court did not apply Davis’s clearstatement standard. Rather, it applied its own state law, that “a suspect need not be articulate,
clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous,
will trigger entitlement to counsel.” (ECF No. 13-4 at 11 (quoting State v. Reed, 133 N.J. 237,
253 (1993)).) It further opined that “an equivocal request for an attorney is to be interpreted in a
light most favorable to the defendant,’ and that where a defendant makes an equivocal request for
counsel, ‘questioning should cease and the police should inquire of the suspect about the correct
interpretation of the statement.” (Id. at 12 (quoting State v. Chew, 150 N.J. 30, 63 (1997)).)
However, despite adopting this less-stringent standard, it nevertheless held that:
Alvarez’s circumstances belie his claim that his question about the whereabouts of
a PBA lawyer amounted to even an equivocal request for counsel. As a police
officer versed in Miranda warnings, Alvarez never cut short the interview, stood
mute, or otherwise manifested an interest in either speaking to an attorney or
waiting for one to arrive. His curiosity about a PBA attorney neither triggered a
need for clarification nor mandated a breather until new Miranda warnings could
(Id. at 13.)
The Court cannot find that the appellate court’s decision was an unreasonable application
of established federal law. As the above case law makes clear, New Jersey has a much less onerous
standard in determining whether a suspect has invoked his right to counsel—where as in New
Jersey, a suspect’s ambiguous assertion must be interpreted in a light most favorable to him, under
Davis, a suspect is only afforded the protection of what a reasonable officer in light of the
circumstances would have understood. Yet even under this more generous standard, the appellate
court still held that Petitioner’s statement did not amount to an equivocal assertion of his right to
counsel, much less a clear assertion as required by Davis. As the Supreme Court explained, “a
statement either is such an assertion of the right to counsel or it is not.” Davis, 512 U.S. at 459
(quoting Smith v. Illinois, 469 U.S. 91, 97-98 (1984)). Under federal law, a question as to the
whereabouts of one’s lawyer is not a clear assertion of one’s right to counsel. Cf Davis, 512 U.S.
at 452 (“Maybe I should talk to a lawyer” too ambiguous to invoke right to counsel); United States
v. Whiteford, 676 f.3d 348, 362 (3d Cir. 2012) (Defendant’s statement that his attorney directed
him to cooperate unless he “got stumped” was not an invocation of right to counsel); Flamer v.
State of Delaware, 68 F.3d 710, 725 (3d Cir. 1995) (Defendant’s request to call his mother “to
possible representation” was not an invocation of right to counsel); United States
v. Pette, No. 05-0407, 2006 WL 2528552, at *8 (D.N.J. Aug. 31, 2006) (Defendant’s statement “I
don’t want to sign anything right now. I think you people should leave until I consult with my
attorney” was not a clear invocation of the right to counsel). Accordingly, the Court finds the state
court’s decision to be a reasonable application of Davis, based on a reasonable determination of
the facts. Relief on this ground is denied.
B. Grounds Two Through five
Respondents assert that Petitioner has procedurally defaulted on Grounds Two through
five, because he failed to raise those claims with the New Jersey Supreme Court. The Court
agrees. federal statute requires a petitioner to exhaust state court remedies before he can raise a
claim on federal habeas, and the Court cannot grant habeas relief if a claim has not been exhausted
in state court. 2$ U.S.C.
§ 2254(b) (“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 unless it appears
the applicant has exhausted the remedies available in the courts of the State.”) The
exhaustion requirement gives the state courts “the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.” Collins v. Sec y of Pa. Dep ‘t. of Corr., 742 F.3d 528,
542 (3d. Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)). A state prisoner must
exhaust the remedies available in state courts before bringing his federal habeas petition, unless
“there is an absence of available state corrective process or.
such process ineffective.” 28 U.S.C.
circumstances exist that render
A claim is exhausted in state court only when the petitioner has presented the claim at each
level of state court empowered to hear such claim, either on direct appeal or in post-conviction
proceedings. Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (citing O’Sullivan v. Boerckel,
526 U.S. 838, 844-45 (1999)); Robinson v. Beard, 762 f.3d 316, 328 (3d Cir. 2014). When a
claim has not been exhausted, ordinarily the Court is duty-bound to return the petitioner back to
state court to present his unexhausted claims. Rhines v. Webber 544 U.S. 269, 274 (2005).
However, if state procedural rules prevent the petitioner from presenting such claim upon return,
then the claim is procedurally defaulted. Id. (citing Jimenez v. Walker, 458 F.3d 130, 149 (2nd
Cir. 2006)). “[A] habeas petitioner who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an opportunity to address those claims
in the first instance.” Edwards v. Carpenter, 529 U.S. 446, 451(2000). “We therefore require a
prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice
therefrom, before the federal habeas court will consider the merits of that claim.” Id.
Procedural default may be excused and a federal habeas court may address the claim if the
petitioner shows cause and prejudice for the default or that a fundamental miscarriage of justice
will occur if the claim is not addressed. Collins, 742 F.3d at 542, n.8 (citing Jimenez, 458 F.3d at
149) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).
“The existence of cause for
procedural default must ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s procedural
rule.” Murray, 477 U.S. at 488. The prejudice required to excuse procedural default is more than
the possibility of prejudice, but that the trial errors “worked to his actual and substantial
disadvantage, infecting the entire trial with error of constitutional dimensions.” Albrecht v. Horn,
485 F.3d 103, 124, n.7 (3d Cir. 2007) (quoting Murray, 477 U.S. at 494)).
Procedural default may also be excused if a “fundamental miscarriage ofjustice” will occur
if the habeas court does not address the merits of the claim. Coleman v. Thompson, 501 U.S. 722,
750 (1991). “To establish a miscarriage ofjustice excusing a procedural default a habeas petitioner
must ‘persuade the district court that, in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” Cristin v. Brennan, 281 F.3d
404,420 (3d Cir. 2002) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Thus, “[a]n allegation
of ‘actual innocence’ if credible, is one such ‘miscarriage ofjustice’ that enables courts to hear the
merits” of otherwise procedurally defaulted habeas claims. Hubbard
Pinchak, 378 f.3d 333,
338 (3d Cir. 2004).
Here, it is clear that Petitioner did not exhaust Grounds Two through five of the Petition.
Petitioner’s appellate counsel raised, and the Appellate Division explicitly addressed, Grounds
One, Two, and Three on direct appeal. (See ECF No. 13-1 at 2-3; ECF No. 13-4 at 9-18.)
Petitioner also filed apro se brief on appeal, in which he asserted Ground four. (See ECF No. 13-
3 at 10.) However, neither counsel’s brief nor Petitioner’s pro se brief raised Ground five on
appeal. Moreover, on petition for certification with the New Jersey Supreme Court, the only
argument raised in counsel’s brief was Ground One, (see ECF No. 13-5 at 2), and Petitioner
submits no evidence that he had filed apro se brief that raised any other grounds. As such, he did
not present Grounds Two through five at each level of state court—indeed, he did not raise Ground
Five at all in state court.
Furthermore, a return to state court would be futile. It is too late to raise these claims on
direct appeal, and while New Jersey has a post-conviction relief (“PCR”) process, state rule
prohibits a petitioner from raising on PCR any claim that could have been raised on direct appeal.
N.J. Ct. R. 3:22-4(a) (“Any ground for relief not raised in the proceedings resulting in the
conviction.. or in any appeal taken in any such proceedings is barred from assertion [on PCR
review].”); State v. McQuaid, 147 N.J. 464, 483 (1997) (“A defendant ordinarily must pursue relief
by direct appeal,
and may not use post-conviction relief to assert a new claim that could have
been raised on direct appeal.”). Even if 1?etitioner could theoretically raise these claims on PCR,
he is now time-barred from filing a PCR application—judgment was entered against him by the
trial court on May 14, 2010, (ECF No. 1 at 2), and under state law, a PCR application must be filed
within five years after the trial court has rendered judgment. N.J. Ct. R. 3:22-12(a)(1). Therefore,
Grounds Two through Five are procedurally defaulted.
As stated above, Petitioner may overcome procedural default by presenting evidence of
good cause and prejudice, or by showing that a “fundamental miscarriage ofjustice” will occur if
the Court does not address the merits of the claim. However, Petitioner did not file a reply, and
he has not presented any argument to rebut Respondents’ assertion of the procedural default
Accordingly, the Court finds that Grounds Two through Five of the Petition are
procedurally defaulted, and relief on these grounds is denied.
C. Certificate of Appealability
Pursuant to 28 U.S.C.
§ 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C.
2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller—El v. Cockretl, 537 U.S. 322, 327
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Thus, no certificate of appealability shall issue. See Fed. R. App. P. 22(b)(l); 3d Cir. L.A.R.
For the reasons set forth above, the Petition is DENIED, and the Court DENIES a
certificate of appealability.
Claire C. Cecchi, U.S.D.J.
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