DENNIS v. D'ILLO et al
Filing
27
OPINION. Signed by Chief Judge Jose L. Linares on 12/13/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-2136 (JLL)
ANDRE DENNIS,
Petitioner,
OPINION
v.
STEPHEN D’ILIO, et at.,
Respondents.
LINARES, Chief District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Andre Dennis
(“Petitioner”) brought pursuant to 28 U.S.C.
§
2254 challenging Petitioner’s state court
manslaughter conviction (ECF No. I). Following an order to answer, Respondents filed a response
to the petition (ECF No. 16), to which Petitioner has replied. (ECF No. 23). For the following
reasons, this Court will deny the petition and will deny Petitioner a certificate of appealability.
I. BACKGROUND
In its opinion affirming in part and reversing in part the denial of Petitioner’s petition for
post-conviction relief, the Superior Court of New Jersey
—
Appellate Division summarized the
background of this matter as follows:
On April 20, 2007, [Petitioner, Andre Dennis], entered a guilty plea
in Hudson County to aggravated manslaughter, an amended count
of a multi-count indictment; the recommended sentence was
eighteen years subject to eight-five percent parole ineligibility
pursuant to the No Early Release Act (NERA), [N.J. Stat. Ann. §]
2C:43—7.2, to be served concurrent to the anticipated sentence on
I
[Petitioner] ‘s pending unrelated murder charges in Monmouth
County. [‘]
[Petitioner] was not sentenced until July 22, 2008, some
fifteen months later, as the matter was held in abeyance awaiting
disposition of the Monmouth County murder charge. Despite the
delay, when this sentence was imposed, the Monmouth County
charges had not been resolved.
Between plea and sentence, on September 12, 2007,
[Petitioner], acting pro se, filed a motion to withdraw his guilty plea.
That application was itself withdrawn prior to the sentence hearing.
[Petitioner] appealed his Hudson County sentence by way of
the excessive sentence oral argument calendar. See [N.J. Court]
Rule 2:9—11. The sentence was affirmed on March 11, 2010.
[Petitioner]’spro se petition for PCR followed on July 1, 2010. A
counseled and a separate pro se brief were submitted in support of
the petition.
The charges stern from the killing of Rayshawn Rush, who
hours prior to the shooting had robbed [Petitioner] and his brother.
After the robbery, the brothers returned to their home, retrieved
handguns, and tracked Rush down. When he entered his guilty plea,
[Petitioner] admitted to shooting Rush from a distance of about ten
feet. [Petitioner]’s brother, in establishing the factual basis for his
own guilty plea, said that five or six hours elapsed between the initial
robbery and the shooting.
During his plea colloquy, [Petitioner] also said he did not
“know if it was hours” between robbery and shooting. He did not
contradict his trial attorney when the latter told the trial judge that
he and [Petitioner] had discussed the defense of passion provocation
and imperfect self-defense, and that “none of those things in this
case applied
by our reading of the discovery.” When directly
asked if he was abandoning all potential defenses, [Petitioner]
agreed.
...
At the sentence hearing, [Petitioner] expressed his remorse
for killing the victim, with whom he had been acquainted since
childhood. He explained his conduct was influenced by his use of
The Appellate Division noted in its opinion that Petitioner “was sentenced to life on the
Monmouth County charge consecutive to this matter, after conviction by a jury [and] was also
sentenced to a consecutive ten-year term on the related weapons offenses.” Dennis, 2013 WL
2459864 at 1. n. I.
2
PCP, and observed that he could have made a “better decision.” He
went on to state that his poor judgment not only cost the victim his
life, but was going to cost him and his brother “a lot of time on [their
lives] in jail[.]”
While sentencing [Petitioner], the trial judge reiterated that
the Hudson County sentence would be concurrent to the Monmouth
County term of imprisonment. He said that “the State has stood by
the concurrent aspect, even if there is a consecutive sentence in
Monmouth County.”
At the PCR hearing, that judge noted that the Monmouth
County sentence had not been made concurrent to the Hudson
County sentence, and offered to resentence [Petitioner] so the
sentences would run concurrently. After adjourning the matter so
PCR counsel could speak with [Petitioner], [Petitioner] rejected the
judge’s offer, and the judge proceeded to address the merits of his
PCR petition.
That judge found [Petitioner]’s arguments failed to meet the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687,
694[] (1984); accord State v. fritz, 105 N.J. 42, 58 (1987). Because
[Petitioner] had not established aprirnafacie case, the judge denied
his request for an evidentiary hearing. With regard to [Petitioner]’s
claim that counsel was ineffective by virtue of advising him to
dismiss his pro se motion to withdraw his guilty plea, the court
determined that even if [Petitioner] had pursued the application, he
failed to meet the State v. Slater standard, including the absence of
a colorable claim of innocence, lack of legitimate reasons for
withdrawal, and the existence of a plea bargain. See State v. Slater,
198 N.J. 145, 157—58 (2009). The judge considered counsel’s onthe-record statements that he and his client had discussed the
defense of passionlprovocation, as well as imperfect self-defense,
after reviewing discovery, to effectively refute [Petitioner] ‘s
allegation that counsel inadequately investigated the matter or
conferred with him. The judge also deemed [Petitioner]’s claim that
his attorney was ineffective because he had not filed a Miranda
motion to lack merit, as the only basis for the suppression of his
statements were that he had said “a lot of people” had been
“bothering” him after he was taken into custody.
State v. Dennis, 2013 WL 2459864, at *1.2 (App. Div. June 10, 2013), certif denied, 217 N.J. 285
(2014).
3
Petitioner appealed from the denial of his PCR petition, arguing both that the PCR court
had elTed in rejecting his claims without an evidentiary hearing and ineffective assistance of PCR
counsel. Id. On appeal, the Appellate Division rejected Petitioner’s contentions of ineffective
assistance of counsel in all but one aspect
—
the Appellate Division did find that counsel had
essentially failed in his duty to ensure Petitioner received the benefit of his bargain by making
certain that Petitioner’s manslaughter sentence would run concurrent to Petitioner’s Monmouth
County life sentence after Petitioner was sentenced in the Monmouth County matter. Id. at 2-4.
Specifically, although Petitioner’s Hudson County manslaughter sentence had been imposed
concurrently, the Monmouth County sentence was thereafter imposed consecutively to the Hudson
County sentence, and Petitioner’s Hudson County trial counsel had failed to remedy this problem
by seeking relief in Hudson County.
IcL at 2.
The Appellate Division therefore remanded
Petitioner’s case so that he could be resentenced in accordance with his plea deal in a manner
which would ensure that Petitioner’s Hudson County sentence would run concurrently with his
Monmouth County life sentence as originally intended. Id. Petitioner’s case was remanded and
he was resentenced on November 22, 2013, to an eighteen year prison ten to run concurrently to
Petitioner’s life sentence. (ECF No. 16-30). Petitioner’s petition for certification as to his PCR
petition was thereafter denied on February 4, 2014. (ECF No. 16-3 1). This matter followed.
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C.
§ 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n 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
4
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews,
---
U.S.
---,
---,132 S. Ct. 214$,
2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty
Act, 2$ U.S.C.
§ 2244 (“AEDPA”), district courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corptts unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
2$ U.S.C.
§ 2254(d)(l)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald,
---
U.S.
---,
---,
125 5. Ct. 1372, 1376 (2015). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.”
Id.
Where a petitioner challenges an allegedly erroneous factual
determination of the state courts, “a determination of a factual issue made by a State court shall be
presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 2$ U.S.C.
5
§ 2254(e)(1).
B. Analysis
In his petition, Petitioner raises numerous claims in which he asserts that he suffered
ineffective assistance of trial, appellate, and PCR counsel. The standard which applies to these
claims is well established:
[c]lairns of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 66$ (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 6$7, see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney perfonTiance is that of ‘reasonably effective
assistance.” Jacobs v. Horn, 395 f.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential
a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
.
.
.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that “there
is a reasonable probability, 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; see also Shedrick, 493 F.3d at 299. Where a
6
“petition contains no factual matter regarding Strickland’s prejudice
prong, and [only provides]
unadorned legal conclusion[s]
without supporting factual allegations,” that petition is insufficient
to warrant an evidentiary hearing, and the petitioner has not shown
his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d
386, 395 (3d Cir. 2010). “Because failure to satisfy either prong
defeats an ineffective assistance claim, and because it is preferable
to avoid passing judgment on counsel’s perfonnance when possible,
[Strickland, 466 U.S. at 697-98],” courts should address the
prejudice prong first where it is dispositive of a petitioner’s claims.
United States v. Cross, 30$ F.3d 308, 315 (3d Cir. 2002).
.
.
.
Jttdge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).
1. Petitioner’s Plea Withdrawal Related Claim
In his chief claim, Petitioner argues that his trial counsel proved ineffective in advising him
to withdraw his pro se motion to withdraw his guilty plea. As part of that argument, Petitioner
suggests that he had a colorable claim of innocence available to him at the time he withdrew his
motion, and in so doing contradicts some of the statements he gave under oath in pleading guilty.
A habeas petitioner’s “[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 73-75 (1977). “The subsequent presentation of conclusory
allegations unsupported by specifics” which contradict those solemn statements is “subject to
summary dismissal, as are contentions that in the face of the record are wholly incredible.” Id.
As the Appellate Division explained in rejecting this claim, motions to withdraw guilty
pleas in New Jersey are governed by the standard announced by the New Jersey Supreme Court in
Slater.2 See Stater, 198 N.J. at 157-58; see also Dennis, 2013 WL 2459864 at 4. Under Slater,
2
In his reply brief, Petitioner argues that the state courts should not have considered Slater because
he originally filed his motion prior to the Slater opinion being decided. As the Slater court
explained, however, Slater was a “distill[ation]” of the “similar, overlapping considerations” that
the New Jersey courts had been using to decide motions to withdraw guilty pleas for several
decades prior to Petitioner’s motion, and prior case law had already required the first Slater factor
a colorable claim of innocence insomuch as prior cases required a withdrawing defendant meet
—
—
7
courts must balance four factors in determining whether a criminal defendant should be permitted
to withdraw his plea
—
“(1) whether the defendant has asserted a colorable claim of innocence; (2)
the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain;
and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the
accused.” Stater, 198 N.J. at 157-58. “A bare assertion of innocence is insufficient to justify
withdrawal of a plea [and a criminal defendant] must present specific, credible facts and, where
possible, point to facts in the record that buttress their claim” to be entitled to withdraw their plea.
Id. at 158. In rejecting Petitioner’s ineffective assistance claim, the Appellate division found that
Petitioner had “not made a colorable claim of innocence, and both he and his brother made sworn
statements on the record inculpating” Petitioner in the shooting underlying his plea. Dennis, 2013
WL 2459864 at *4 The Appellate Division thus found that, because Petitioner had not presented
a colorable claim of innocence, he could not meet the Slater standard, and counsel had not been
ineffective in advising him to withdraw a meritless motion. Id., cf United States v. A idea, 450 F.
App’x 151, 152 (3d Cir. 2011) (“[c]ounsel cannot be ineffective for failing to raise meritless
claims”); see also Wets v. Vaughn, 22$ F.3d 178, 203 (3d Cir. 2000); Parrish v. Futcomer, 150
F.3d 326, 328-29 (3d Cir. 199$).
his burden to present a plausible basis for withdrawing his plea accompanied by a good faith
defense on the merits to the crime charged. Slater, 198 N.J. at 156-57. Thus, it appears that
Petitioner is misguided in arguing that the state court’s application of Stater was improper. See,
e.g., State v. Smuilen, 11$ N.J. 408, 416-17 (1990) (requiring more than mere “late protestations
of innocence” to warrant withdrawal of a guilty plea in the pre-Slater context and applying a
nascent form of the Slater factors, including whether there was evidence in support of an assertion
of innocence in the record, in affirming the denial of a motion to withdraw a guilty plea).
Ultimately, the state courts determined that Stater was the proper lens for reviewing whether a
motion to withdraw a plea would have been successful, and this Court must review Petitioner’s
claims in light of that determination of state law.
$
In his petition, Petitioner argues that the state courts misapplied the facts of his case because
Petitioner asserted his innocence both in, and prior to, his motion to withdraw his guilty plea and
that he therefore had a “colorable claim” of innocence. Petitioner misunderstands the requirement
of a colorable claim of innocence
—
it is not enough that he asserted his innocence or decried his
admissions of guilt, he instead must establish that the evidence in the record
statement to the police and his admissions during his plea hearing
—
—
including his
provide adequate support for
his assertions of innocence. See Slater, 198 N.J. at 178; Smutten, 118 N.J. at 418. The record here
provides no such support. Instead, the record contains both Petitioner and his brother’s admissions
to their involvement in the shooting to police officers (see ECF No. 16-32 at 33-35; Discs 1-2 of
the Recorded Statement of Antoine Dennis), and the following sworn testimony Petitioner
provided in the factual basis for his guilty plea:
[Counsel]: [Petitioner], I am going to direct your attention back to
December 23td in the year 2005, were you in Jersey City on that day?
[Petitioner]: Yes.
[Counsel]: And at some point in time during the course of that day
did you come to find out that a Rayshawn Rush had robbed your
brother and attempted to rob you?
[Petitioner]: Yes.
[Counsel]: And you and your brother went back to your house and
got some handguns and then went to find Mr. Rush, correct?
[Petitioner]: Yes.
[Counsel]: And you found Mr. Rush, and where was that in Jersey
City?
[Petitioner]: On Bidwell and Martin Luther King Drive.
[Counsel]: And when you came across Mr. Rush, you fired the
weapon at him, correct?
9
[Petitioner]: Yes.
[Counsel]: And you’ve come to find out later that the shot that was
fired did in fact hit him and he did in fact die, correct?
[Petitioner]: Yes.
[Counsel]: And you knew that by firing at him from such a short
distance it possibly could have hit him?
[Petitioner]: Yes.
THE COURT: How far away would you say you were?
[Petitioner]: I don’t know.
THE COURT: I mean in feet?
[Petitioner]: I don’t know.
THE COURT: The distance of me to you?
[Petitioner]: Yeah, something like that.
THE COURT: That’s about 10 feet.
[Counsel]: Judge, I have nothing further.
THE COURT: Sir, you’re pleading guilty to acting in such a
manner, by firing at him along with your brother, that it’s in a
manner that’s under circumstances manifesting extreme
indifference to the value of human life, a reckless, aggravated
manslaughter, do you understand that?
[Petitioner]: Yes.
THE COURT: Are you guilty of that?
[Petitioner]: Yes.
THE COURT: And so that, as your brother had said, there was a
period of maybe 5 or 6 hours between the initial incident and you
going back, you understand that?
[Petitioner]: Yes.
10
THE COURT: Is that about right, do you recall
the same time, it was hours later?
—
well, it wasn’t at
[Petitioner]: No, it wasn’t, I don’t know if it was hours, but it was
not at the same time.
THE COURT: All right. So you went through this idea of some
kind of self-defense or imperfect self-defense, you’ve gone through
this with your client?
[Counsel]: Judge, we discussed it, at some point my client even
brought up passion provocation manslaughter, which we’ve talked
about, and that that doesn’t apply in this particular situation because
there was a cooling off period of hours, as well as an imperfect selfdefense, and none of those things in this case apply, Judge, by our
reading of the discovery.
THE COURT: State v. Mauriclo is the seminal case on passion
provocation, where an individual out of Hoboken went back and
shot the wrong person after being thrown out of a bar.
[Counsel]: Correct.
THE COURT: And there’s a cooling off period, and you discussed
all of these things?
[Counsel]: We did, Judge, and as I’ve indicated to [Petitioner], it
could be a matter of moments, it doesn’t even have to be hours.
THE COURT: Well, that would go into what the jury would have to
decide, if it was even charged, but you understand, you’ve gone
through all these defenses, you’re abandoning them and pleading
guilty to this, is that correct?
[Petitioner]: Yes.
THE COURT: Is anybody forcing you or threatening you?
[Petitioner]: No.
THE COURT: Do you wish to plead guilty?
[Petitioner]: Yes.
THE COURT: Anything else?
11
[The State]: No, your Honor, [that is] sufficient.
THE COURT: And you stipulate the cause of death?
[Counsel]: I do, Judge.
THE COURT: And so there was a mutual firing here by both
[Petitioner and his brother]?
[Counsel]: That’s correct, Judge.
[The State]: Yes.
(ECFNo. 16-33 at 11-15).
The record of this matter thus contains Petitioner’s sworn statements admitting his role in
the death of the victim,3 and nothing to the contrary other than Petitioner’s bald assertion that he
is innocent. Such a bald assertion, especially when it is in direct contradiction to Petitioner’s own
sworn statements in open court, is insufficient to establish a colorable claim of innocence, and is
thus insufficient to warrant the withdrawal of a properly entered guilty plea in New Jersey. See
Slater, 198 N.J. at 178; Smullen, 11$ N.J. at 41$. Because the facts in the record do not support
Petitioner’s bald assertion of innocence, and because Petitioner has otherwise failed to establish
any entitlement to the withdrawal of his guilty plea, the state courts did not unreasonably apply
the facts at hand in determining that Petitioner’s motion to withdraw was fruitless. Likewise,
because the state courts determined that Petitioner’s withdrawal motion was meritless, the
In his reply brief, Petitioner attempts to argue that his sworn statements during the plea hearing
should not be held against him because he was only responding to leading questions and was thus
not testifying. Although Petitioner did mostly respond to questioning, where he took issue with
the questions regarding the amount of time between his brother being robbed and the shooting,
Petitioner corrected counsel. Petitioner also directly provided the location at which he and his
brother found the victim, and had an exchange with the trial court regarding the distance at which
he fired upon the victim. Petitioner’s contention that he was not giving a sworn statement but
merely responding mechanically to leading questions is thus belied by the record and is without
merit.
12
Appellate Division’s conclusion that Petitioner’s counsel was not ineffective in advising him to
withdraw that motion is neither contrary to, nor an unreasonable application of, Strickland and its
progeny, and Petitioner is therefore not entitled to habeas relief on his plea withdrawal ineffective
assistance claim.
2. Petitioner’s Investigation Related Claim
Petitioner also asserts that his trial counsel was
ineffective
insomuch as counsel failed to
fully investigate his case and advise him in regards to the applicable defenses and lesser included
charges. In order to make out a claim for Strickland prejudice in regards to counsel’s alleged
failure to investigate and prepare for trial, Petitioner
“‘must
make a comprehensive showing as to
what the investigation would have produced. The focus of the inquiry must be on what information
would have been obtained from such an investigation and whether such information, assuming
admissibility in court, would have produced
a
different result.” Brown v. United States, No. 13-
2552, 2016 WL 1732377, at *4.3 (D.N.J. May 2,2016) (quoting United States v. Askeii’, $8 F.3d
1065, 1073 (D.C. Cir. 1996)); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir 2011)
(a petitioner making inadequate investigation claims “has the burden of providing the court with
specific information as to what the investigation would have produced”); United States v. Green,
$82 F.2d 999, 1002 (5th Cir. 1989) (same); ciccord United States v.
(3d Cir. 2008).
Gan’in,
270 F. App’x 141, 144
Because Petitioner’s case was resolved by a guilty plea, a showing that the
proceeding would have been different requires Petitioner to “show [that] the outcome of the plea
process would have been different with competent advice.” Lafler v. Cooper,
---
U.S.
---,
---,
132
S. Ct. 1376, 1384-85 (2012). A Petitioner makes this showing by establishing not only that he
would not have pled guilty and would have instead proceeded to trial had he been properly advised,
13
but also that “a decision to reject the plea bargain would have been rational under the
circumstances.” Radii/a v. Kentttckv. 559 U.S. 356, 372 (2010); see a/so Hi//v. Lockhart, 474 U.s.
52, 59 (1985).
Petitioner asserts, without providing actual evidentiary support, that had counsel more fully
investigated, he would have found that there was “inadequate evidence” that Petitioner, as opposed
to his brother and co-defendant, actually caused the death of the victim when the two brothers fired
upon him, resulting in his death. Petitioner also asserts that counsel should have realized that
passionlprovocation was an applicable defense option because the victim was killed only “a couple
of hours” afler he robbed Petitioner’s brother and Petitioner therefore had no cooling off period
between the robbery and the killing of the victim. As to Petitioner’s first contention, Petitioner
himself admitted that the victim’s death resulted from him and his brother firing upon and killing
the victim, and Petitioner makes no “comprehensive showing” as to what evidence would have
been discovered with further investigation that would have established that Petitioner could not
have been responsible for the death of the victim. Petitioner has thus failed to show prejudice with
regard to his claim that counsel should have more fully investigated the facts of his case as he has
failed to provide any actual support for the contention that further investigation would have
exposed some fatal flaw in the state’s evidence.
Turning to Petitioner’s second contention, that counsel failed to investigate the possibility
of a passionlprovocation defense, the record directly contravenes his contention. As the excerpt
from Petitioner’s plea hearing quoted above shows, counsel and Petitioner both acknowledged at
that hearing that they had explored that defense, and that counsel had concluded that such a defense
would have been ill advised in light of the several hours that passed between the robbery of
Petitioner’s brother and the time at which the two brothers fired upon the victim in this matter.
14
Thus,
it appears that Petitioner’s contention that he and counsel did not disctiss
passion/provocation as a lesser included offense or defense to the charges against him is in direct
contravention of the record. Likewise, as counsel acknowledged at the plea hearing, any such
defense would be substantially weakened as a passion/provocation defense requires a defendant to
show that the death of the victim was the result of an incident in which the defendant was subject
to “(1) reasonable and adequate provocation; (2) [had] no cooling-off time in the period between
the provocation and the slaying; (3) [the] defendant
provocation; and (4) [the] defendant.
.
.
.
.
.
actually was impassioned by the
did not cool off before the slaying.” Stctte v. Josephs, 174
N.J. 44, 103 (2002). As Petitioner admits in his current petition, several hours passed between the
provocation in this matter —the robbery of Petitioner’s brother
—
and counsel’s opinion that such a
defense was not viable in light of that amount of cooling off time was entirely reasonable. Thus,
the record contradicts Petitioner’s assertion that counsel did not consider possible lesser included
charges and defenses, and the facts of Petitioner’s case do not show that counsel’s conclusion that
passion/provocation was not viable was in any way erroneous. Petitioner has thus utterly failed to
show deficient performance or Strickland prejudice, and his claim is without merit. The Appellate
Division’s rejection of Petitioner’s claim was therefore not an unreasonable application of
Supreme Court precedent to the facts of Petitioner’s case, and Petitioner is not entitled to habeas
relief on this claim.
3. Petitioner’s Miranda Related Claim
Petitioner next asserts that his trial counsel proved ineffective in failing to make a motion
to suppress his statement to the police prior to his pleading guilty. Petitioner asserts that he invoked
his right to remain silent during questioning, and that no further questioning should have occurred
15
after that invocation. As the Supreme Court has explained, an invocation of one’s right to remain
silent must be “unambiguous.” Berghttis v. Thompkins, 560 U.S. 370, 38 1-82 (2010). Where a
criminal defendant makes statements regarding either his right to counsel or to remain silent that
are “ambiguous or equivocal,” the police are not required to end their interrogation,
nor are
they
required to ask questions clearly establishing whether the defendant wished to invoke his rights.
Id. Where a criminal defendant has not invoked his right to remain silent, any statements he makes
during the course of a custodial interrogation will be admissibLe against him at trial where the
defendant “knowingly and voluntarily waived [his Miranda rights] when making [hisj statement.”
Id. “The waiver inquiry has two distinct dimensions: waiver must be voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or deception,
and made with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Id. (internal quotations omitted). Waiver need not
be established through an express or formal statement that the rights are being waived, but may be
made by implication so long as the facts show that the defendant was informed of his rights to
counsel and to remain silent, understood those rights, and thereafter voluntarily made a statement.
Id.
In support of his argument that counsel should have filed a motion to suppress his
statement, Petitioner argues that he invoked his right to remain silent when he told the questioning
officer, after having his Miranda rights explained to him, that a “lot of people been bothering” him
about the death of the victim in this matter. Petitioner argues that this should have been sufficient
to end the questioning at that time. The underlying problem with that assertion is that Petitioner’s
statement that he was being bothered about the case, in
context,
did not appear to be an invocation
of his right to remain silent. Indeed, in his video recorded statement, Petitioner clarifies that
16
statement by saying that he was receiving phone calls from blocked numbers regarding the case,
and, immediately after making that statement to the detective interviewing him, Petitioner chose
to sign a i’vliranda rights waiver fonm Petitioner then gave a recorded statement to the police
regarding his involvement in the shooting. Petitioner’s assertion that his statement regarding being
bothered about this case was an invocation of his right to remain silent is thus belied by the record
—
not only was it not a clear and unambiguous invocation of his rights in context, but it was also
only after he made that statement that Petitioner chose to sign the Miranda fonn, waive his right
to remain silent, and make a statement to the police regarding the case. As explained by the
Appellate Division, any motion to suppress the statement based on this argument would have been
utterly without merit as the recording of Petitioner’s statement clearly shows that Petitioner was
provided with the appropriate explanation of his Mirandct rights, made no unambiguous statements
invoking his right to remain silent, and after making the challenged declaration to the police chose
to sign the waiver fon-n and give a statement to the police. The facts therefore fail to establish a
basis for the suppression of his statement, and counsel therefore could not have been ineffective
in choosing not to file a motion to suppress his statement. Aldea, 450 F. App’x at 152; Wets, 228
F.3d at 203; Parrish, 150 F.3d at 328-29.
3. Petitioner’s Appellate Claims
Petitioner also attempts to bring multiple claims of ineffective assistance of his appellate
counsel, asserting that counsel failed to consult with him as to what issues to raise and that counsel
therefore failed to raise numerous ineffective assistance of counsel claims Petitioner wished had
been raised on direct appeal. While the actions of appellate counsel are subject to the same
ineffective assistance standard applicable to trial counsel claims, see Smith e. Robbins, 52$ U.S.
259, 285 (2000), “it is a well established principle.
.
.
that counsel decides which issues to pursue
on appeal,” Sistrttnk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate counsel need not
raise every nonfrivolous claim a defendant desires to pursue. Jones v. Barnes, 463 U.s. 745, 751
(1983). Because the chief component of effective appellate advocacy is the winnowing out of
weaker claims in favor of those with a greater chance of success, id. at 753; Smith v. Murray, 477
U.S. 527, 536 (1986), the Supreme Court has held that “[g]enerally, only when ignored issties are
clearly stronger than those presented, will the presumption of effective assistance of [appellate]
counsel be overcome.” See Robbins, 528 U.S. at 288 (quoting Gray v. Greer, $00 F.2d 644, 646
(7th Cir. 1986)).
In his various claims of ineffective assistnace of appellate counsel, Plaitniff essentially
argues that, because appellate counsel did not consult with him regarding what grounds to raise on
appeal, appellate counsel failed to raise various claims of ineffective assistance of trial counsel on
direct appeal and failed to challenge the sufficiency of Petitioner’s plea. The claims Petitioner
asserts counsel should have raised are as follows: I) that trial counsel did not adequately meet with
him to dicuss his case; 2) that trial counsel failed to provide Petitioner with all of the discovery; 3)
that trial counsel failed to adequately investigate Petitioner’s case; 4) that trial counsel failed to
seek a Miranda hearing; 5) that trial counsel misadvised him to withdraw his motion to withdraw
his guilty plea; 6) that trial consel failed to advise him that Monmouth county could ignore his
concurrent sentence and sentence him consecutively; and 7) that trial counsel failed to explain to
Petitioner that his guilty plea could be used to impose an enhanced sentence in his Monmouth
County case as Petitioner would have a manslaughter charge on his record. Petitioner also asserts
that both trial and appellate counsel were ineffective in failing to raise a claim that Petitioner’s
guilty plea was not supported by an adequate factual basis.
1$
Initiatlly, the Court notes that
Petitioner’s desired claims regarding the plea withdrawal motion, the failure to move for
suppression of his statement, and the failure to fully investigate and explain Petitioner’s case to
him fail for the reasons presented above, i.e., Petitioner has failed to show that trial counsel was
ineffective in those matters sufficient to warrant relief, and appellate counsel could therefore not
have been ineffective in failing to raise those claims on direct appeal.
Additionally, the Court notes that Petitioner’s assertion that appellate counsel should have
raised these various ineffecitve assistance of counsel claims also ignores the procedural posture of
Petitioner’s appeal. The New Jersey courts have “expressed a general policy against enteretaining
ineffective assistance of counsel claims on direct appeal because such claims involve allegations
and evidence that lie outside the trial record.” State v. Castagna, 187 N.J. 293, 313 (N.J. 2006)
(quoting State v. Preciose, 129 N.J. 451, 460 (1992)). A New Jersey appellate court will only
penriit such a claim to be raised on direct appeal where the “trial itself provides an adequately
developed record upon which to evaluate [the] defendant’s claims.” Id. All of the ineffective
assistance of counsel claims Petitioner wishes had been raised on direct appeal
—
counsel’s failure
to communicate with him, his failure to fully explain to him his case, the failure to provide him all
discovery, the failure to conduct a more thorough investigation, the failure to adequately advise
him regarding his withdrawal motion, the failure to file a Miranda suppression motion, and the
failure to properly advise Petitioner regarding the potential sentencing issues in Monmouth county
concern information outside of Petitioner’s plea record, and the merits of those claims require
consideration outside of the record which was available on direct appeal, with the possible
exception of Petitioner’s proposed Miranda claim.
Thus, with the possible exception of the
Miranda claim, which is clearly without merit, all of these claims that Petitioner wished had been
19
raised on direct appeal were not actually cognizable on direct appeal, and appellate counsel was
therefore not ineffecitve in failing to raise them for that reason as well.
Turning to Petitioner’s argument that both trial and appellate counsel were ineffective in
failing to challenge the sufficiency of the factual basis for Petitioner’s plea, Petitioner essentially
argues that his guilty plea was improper because he failed to provide an adequate factual basis
insomuch as there “was no evidence” that Petitioner acted recklessly or was responsible, in and of
himself, as opposed to in concert with his brother, for the death of the victim. Although Petitioner
asserts that the trial court should have rejected his plea based on his post-sentence reading of the
evidence against him had his case proceeded to trial, Petitioner completely fails to take into account
the information he provided in his plea allocution. Under New Jersey law, a person commits
aggravated manslaughter where he “recklessly causes death under circumstances manifesting
extreme indifference to human life.” N.J. Stat. Ann.
§ 2C:H-4(a)(l). Aggravated manslaughter
thus requires a showing that the defendant “was aware of and consciously disregarded a substantial
risk of death” and that his actions caused the death of the victim. See State v. Jenkins. 178 N.J.
347, 362 (2004).
During his plea allocution, quoted at length above, Petitioner admitted that he and his
brother sought out the victim and then fired upon the victim from about ten feet away, striking
him, and that these gunshots resulted in his death. Petitioner also specifically stated that he was
aware that the bullets could hit the victim, and that he was guilty of causing the victim’s death
through actions showing extreme indifference to the victim’s death.
Thus, Petitioner’s plea
allocution more than sufficiently supports his guilty plea as it establishes that Petitioner, alongside
his brother, hunted down the victim, shot at him from close range knowing the vicitm could be hit
and die, struck him with more than one bullet, and that the victim died as a result of those wounds.
20
Any challenge by trial or appellate counsel as to the sufficiency of the plea allocution would
therefore have been fruitless, and niether counsel was ineffective in failing to challenge the
sufficiency of the plea.
Finally, Petitioner asserts that appellate counsel should have argued that his trial counsel
failed to explain to him that the Monomouth County Court coctid ignore his concurrent sentence
in this matter and could thus give Petitioner a consecutive sentence, and that trial counsel failed to
advise Petitioner that he might be subject to an enhanced sentence in Monmouth County.
Petitioner also asserts this as a standalone basis for ineffecitve assistance of trial counsel. The
Court first notes as to this claim that any prejudice Petitioner suffered due to counsel’s failure to
ensure that Petitioner ultimately received a concurrent sentence as promised was completely
alleviated when the Appellate Division remanded his PCR proceeding for the entrance of an
amended judgement clearly establishing that his manslaughter sentence was to run conccurrent
with his Monmouth County life sentence, which had always been the intention of the sentencing
judge in this matter. As to the second part of his claim, that counsel should have advised him that
his manslaughter guilty plea could be used to enhance his sentence in Monmouth County,
Petitioner has identified no Supreme Court case which required that counsel at the time of
Petitioner’s guilty plea advise Petitioner that a guilty plea could result in an enhanced sentence in
a completely different case should he ultimately be convicted in that separate, later case. As
Petitioner has therefore failed to identify any Supreme Court case which was contrary to the
Appellate Division’s finding that Petitioner’s claim was without merit as counsel was not deficient
in this respect, and as this Court is not aware of any Supreme Court case to which the Appellate
Division’s decision is contrary or which the Appellate Division unreasonably applied, Petitioner’s
contention that counsel was required to inform him he might later be subject to enahnced sentences
21
in entirely separate, later cases based on his guilty plea is without merit, and he is not entitled to
habeas relief on that basis, whether raised as ineffective assistance of trial counsel or ineffective
assistance of appellate counsel in failing to raise such a claim on direct appeal.
4. Ineffective Assistnace of PCR Counsel
In his final group of ineffective assistance claims, Petitioner asserts that he suffered
ineffective assistance of PCR counsel during his state collateral review proceedings. Pursuant to
2$ U.S.C.
§ 2254(i), however, the “ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief’ in a habeas
proceeding challenging a state court conviction. Petitioner’s ineffective assistance of PCR counsel
claims therefore provides no basis for habeas relief.
5. Petitioner’s Hearing Claims
Finally, Petitioner contends that the state PCR courts erred in refusing to hold an
evidentiary hearing and in denying certain of his claims without a frill written opinion addressing
the deficiencies of his claims. It also appears that Petitioner contends that he is entitled to an
evidentiary hearing on his claims in this court. Generally, 2$ U.S.C.
§ 2254(e)(2) bars habeas
petitioners who are challenging a state court conviction from receiving an evidentiary hearing if
the petitioner failed to develop the factual record underlying his claims in the state court. The
statute does not bar a hearing, however, where the petitioner presented a potentially meritorious
claim for relief and “unsuccessfully sought an evidentiary hearing in the PCR court and
unsuccessfully appealed from the denial of his PCR petition” as those actions indicate that the
petitioner was not responsible for failing to develop the factual record and was instead denied the
22
ability to do so by the state courts. Branch v. Sweeney, 758 F.3d 226, 241 (3d Cir. 2014). “In
cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary
hearing by 2$ U.S.C.
the district
court”
§ 2254(e)(2), the decision to grant such a hearing rests in the discretion of
Palmer v. Hendricks, 592 f.3d 386, 393 (3d Cir. 2010) (quoting Schriro v.
Landrigan, 550 U.S. 465, 468 (2007)). A court’s decision whether to hold a hearing under those
circumstances is subject to two considerations:
First, in determining whether or not to hold an evidentiary hearing,
courts should “consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true,
would entitle the applicant to federal habeas relief.” Schriro, 550
U.S. at 474[]. In other words, courts considering the appropriateness
of an evidentiary hearing should detenTilne whether the petition
presents aprimafacie showing which, if proven, would enable the
petitioner to prevail on the merits of the asserted claim. See, e.g.,
Campbell v. Bttrris, 515 f.3d 172, 1 84 (3d Cir. 200$); Wells v.
Petsock, 941 F.2d 253, 259 (3d Cir. 1991); Smith v. freeman, 892
F.2d 331, 338 (3d Cir. 1989). The reasons underlying such a
consideration are self-evident-given “AEDPA’s acknowledged
purpose of reducing delays in the execution of state and federal
criminal sentences,” Schi-iro, 550 U.S. at 475[] (quotation marks,
citations, and brackets omitted), a court should be reluctant to
convene an evidentiary hearing to explore the claims of a petitioner
whose pleadings are factually insufficient to suggest any entitlement
to habeas relief. See, e.g., Campbell, 515 F.3d at 184 (“bald
assertions and conclusory allegations do not afford a sufficient
ground for an evidentiary hearing”) (quoting !vlavberiy v. Petsock,
821 F.2d 179, 185 (3d Cir. 1987));Anderson v. Att’y Geii. ofKansas,
425 F.3d 853, 858-59 (10th Cir. 2005) (to warrant an evidentiary
hearing, a habeas petitioner’s “factual allegations must be specific
and particularized, not general or conclusory”) (quotation marks and
citation omitted).
Second, “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.” Schriro, 550 U.S. at
474[]. That is, even if the factual allegations in the habeas petition
23
are sufficient to make out a prima facie claim for habeas relief, a
district court may decline to convene an evidentiary hearing if the
factual allegations are “contravened by the existing record.” Id.
(citation omitted); see also Campbell, 209 F.3d at 290. As the
Supreme Court has explained, “[hf district courts were required to
allow federal habeas applicants to develop even the most
insubstantial factual allegations in evidentiary hearings, di strict
courts would be forced to reopen factual disputes that were
conclusively resolved in the state courts.” Schriro, 550 U.S. at
475[].
Palmer, 592 F.3d at 393. These considerations are essentially mirrored in the New Jersey state
courts, which permit a hearing only where the petitioner can make out a prima facie claim for
relief. See, e.g., State e. Preciose, 129 N.J. 451, 459-60 (1992); see also Ellison v. Rogers, 484
F.3d 658, 660-6 1 (3d Cir. 2007).
In Petitioner’s underlying PCR action, the state PCR court declined to hold a hearing as it
found that all of Petitioner’s claims were without merit. The Appellate Division likewise rejected
Petitioner’s claim that he should have received an evidentiary hearing as it found that all of his
claims, other than his claim that he should have received concurrent sentences on which the
Appellate Division granted relief, were without sufficient merit to warrant detailed consideration.
Dennis, 2013 WL 2459864 at *3..4 As explained in detail above, none of the claims Petitioner
raises states aprimafacie claim for habeas relief, and for that reason he would not be entitled to a
hearing before this Court even if this Court were to assume, arguendo, that Petitioner was not
responsible for the failure to develop the factual matter in this case. Petitioner has thus failed to
establish that he is or was entitled to a ftill evidentiary hearing on his claims, and his contention
that he should receive such a hearing is without merit.
In his final claim, Petitioner asserts that his right to Due Process was impinged by the
failure of the state PCR court to provide him with a full statement of reasons for the denial of his
24
pro
se claims, which largely overlapped the claims raised by counsel which the PCR court
addressed in detail. As the Appellate Division noted in its opinion affirming in part and reversing
in part the PCR court’s decision, the state PCR court addressed Petitioner’s claims “in the main,”
and the AppeLLate Division, in any event, addressed all of Petitioner’s claims, even if some of those
decisions required little discussion because “all [of the pro se points were] so lacking in merit as
to warrant further discussion.” Id. at *4 Petitioner therefore did receive a full consideration of
his claims by the Appellate Division, and an explanation of the reason for their rejection, and any
failure of the trial level PCR court to discuss his claims in more detail was thus entirely harmless.
fiy v. Filler, 551 U.S. 112, 116 (2007) (claims of even constitutional error do not warrant habeas
relief “unless [the alleged errors] had a substantial and injurious effect or influence” in the outcome
of the petitioner’s case); see also Brecht v. Abrahamson, 507 U.S. 619, 631 (1993).
All of
Petitioner’s claims are therefore without merit, and his habeas petition is therefore denied.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c). a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” il’filler-El v. Cockrell, 537 U.S. 322, 327 (2003);
Slack v. i1’IcDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason could not disagree with
this Cotrt’s conclusion that Petitioner’s habeas petition is without merit, Petitioner has failed to
make a substantial showing of the denial of a constitutional right and Petitioner’s habeas petition
25
is inadequate to deserve encouragement to proceed further. As a result, this Court will deny
Petitioner a certificate of appealability.
IV. CONCLUSION
For the reasons expressed above, Petitioner’s petition for a writ of habeas corpus is
DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
JOSE LINARS
Cdge, United States District Court
26
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