MATHIS v. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
16
OPINION. Signed by Judge Jose L. Linares on 3/23/16. (cm )
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARVIN MATHIS,
Civil Action No. 15-2092 (JLL)
Petitioner,
v.
:
OPINION
ATTORNEY GENERAL OF
NEW JERSEY, et a!.,
Respondents.
LINARES, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Marvin Mathis
(“Petitioner”) brought pursuant to 28 U.S.C.
§ 2254 challenging Petitioner’s state court conviction
(ECF No. 1). Following an extension panted by this Court, Respondents filed a response to the
petition (ECF No. 10), to which Petitioner has replied (ECF No. 12). Also before this Court is
Petitioner’s motion for an evidentiary hearing (ECF No. 13), to which Respondents have filed a
response (ECF No. 15). For the following reasons, this Court will deny both the motion for an
evidentiary hearing and the petition for a writ of habeas corpus, and no certificate of appealability
shall issue.
I. BACKGROUND
In the opinion affirming Petitioner’s conviction on direct appeal, the Superior Court of
New Jersey
—
Appellate Division provided the following summary of the facts underlying
Petitioner’s conviction:
On January 22, 1996[,] [Petitioner], age 15, and his friend Antwan
Harvey, age 20, visited Migdalia Hernandez and her “live-in”
boyfriend, Stephen Owens, at 224 Third Street, Apartment 6, in
Elizabeth. April Diggs, age 17, and her cousin Renee Diggs, age
22, also visited [that apartment] at the same time. April and Renee
decided to get something to eat at the Chinese restaurant across the
street. [Petitioner] and Harvey agreed to join them. As the four
were leaving the apartment, Hernandez observed [Petitioner] and
Harvey carrying a ski mask and overheard one of the four say he had
a gun. Both Renee and Harvey had their coats on inside out to
camouflage their appearance. April was wearing pink Reeboks.
After leaving the restaurant, the four walked towards
Elizabeth Avenue. According to April Diggs, when they reached
Seventh Street, Harvey announced that he wanted to rob someone
and he wanted April, Renee, and [Petitioner] to act as “lookouts.”
Initially, none of the three responded. According to April, when
they encountered two “Spanish guys,” Harvey and [Petitioner]
chased them, intending to rob them; the “Spanish guys” outran them,
however.
According to April, as the group proceeded to East Jersey
Street, Harvey said “something about busting somebody,” meaning
that he was going to shoot somebody. [Petitioner] said he “would
do it too” and Harvey handed [Petitioner] the gun. About two or
three minutes later, the group observed a man taking out the trash.
Antonio Saraiva, owner of a Portugese American Wine and Liquor
Store at 709 East Jersey Street, had just closed up his shop at 10p.m.
and was taking out trash. His wife and two daughters were inside
the store.
Harvey ran toward Saraiva first [and Petitioner]
followed. Saraiva grabbed [Petitioner] by his jacket, shots were
fired, and Saraiva fell to the ground. April and Renee Diggs both
identified [Petitioner] as the shooter.
After the shots were fired, April asked Renee whether
[Petitioner] shot Saraiva because she did not actually see the shots
fired.
Renee responded “[y]eah.” April then asked where
[Petitioner] shot Saraiva and Renee responded “in the chest”;
however, April said that based on the way Saraiva fell it appeared
he was shot in the head. The four fled the scene. Harvey and
[Petitioner] ran toward Seventh Street; April and Renee ran in the
2
opposite direction. All four returned to Hernandez’s apartment.
While at the Hemandez’s, April asked [Petitioner] why he shot
[Saraiva]. According to April, [Petitioner] responded “because the
man grabbed him.” April gave a statement to police on January 25,
1996.
Meanwhile, Saraiva’ s wife heard the shots, ran outside from
the back of the store, and down an alleyway to the locked security
gates. When she saw her husband lying on the ground, she told her
daughters to call an ambulance as their father was on the ground
“full of blood.” Mrs. Saraiva ran back into the house to get the keys
for the security gates. When she returned and opened the gates her
husband was alone and unconscious. The ambulance arrived and
took Saraiva to the hospital.
[The Court then recounted that Saraiva was pronounced dead
upon arriving at Elizabeth General Hospital, and that the Union
County Medical Examiner determined that the cause of death was a
single bullet wound to the head fired from a distance of eighteen
inches or less.]
Later that day, Detective Kozcur arrested [another
individual] for the murder. [Petitioner] ‘s girlfriend, Sharlama
Brooks, then age fifteen, saw him at school the day after the
shooting, January 23, 1996. According to Brooks, [Petitioner] told
her that if anyone approached her to tell them that he was with her
between 7 p.m. and 11 p.m. on Monday January 22, the night of the
murder.
Brooks refused.
Brooks testified that when she
questioned [Petitioner] about his request he turned away from her
and said if he told her [what he had done]
she would be upset
with him. Brooks said that on her way home from the fish market,
she was approached by four or five young men. One of them pulled
her aside and told her [Petitioner] killed someone.
.
.
.
According to Brooks, [Petitioner] initially denied the
accusation. After reviewing her statement to police, Brooks said
that [Petitioner] told her that “they were walking, him and his
friends, Marvin, I am saying, he went to grab the guy and as soon
as he grab[bed] the guy[,] the gun went off.”
-
Brooks said that she began to cry when defendant told her
this. Brooks then went to her first period class but left because she
was too upset. As she was leaving class, she came in contact with
3
the security guard who escorted her to Janice Sutton, the substanceabuse counselor. Brooks told Sutton what [Petitioner] had told her.
Janice Sutton testified about her meeting with Sharlama Brooks.
She said that Brooks came into her office hysterically crying.
When Sutton asked Brooks what was wrong, according to Sutton,
Brooks said that her boyfriend had been involved in a murder.
Detective Brown was summoned and Brooks was transported to the
police station where she gave a statement.
Detective Koczur took [Brooks’s] statement. As a result of
her statement, the focus of the investigation shifted to [Petitioner].
[Petitioner] was brought to the police station at about 11:15 a.m. on
January 24. He was not handcuffed and he was not placed under
arrest. Once in the conference room, Koczur told [Petitioner] that
he was the principal suspect in this case and told him he should not
say anything until he had a parent or guardian present. Mrs.
Mathis, [Petitioner]’s mother, then was escorted to the police
station. She was advised that [Petitioner] was a potential suspect in
the homicide that occurred at 709 East Jersey Street. Mrs. Mathis
was very cooperative with the detective. She and Koczur entered
the conference room where [Petitioner], Detective Lieutenant Gary
Lewis, and Detective John Furda of the Union County Prosecutor’s
office were waiting.
At 12:07 p.m. Koczur also advised
[Petitioner] of his rights. Both [Petitioner] and Mrs. Mathis said
they understood their rights.
After he was advised of [and waived] his rights, [Petitioner]
first gave an oral statement to the police. He denied any
involvement in the homicide, stating at the time of the homicide he
was in the area of Third Street in Elizabeth or with his girlfriend.
About halfway through the interview, Koczur advised [Petitioner]
that Brooks had given the police a statement indicating that he was
not with her at the time of the homicide. Confronted with this
information, [Petitioner] became very angry and called her a liar.
After Koczur advised [Petitioner] of certain inconsistencies in his
statement, [Petitioner] requested that his mother leave the room. At
that time, he admitted he was present at the scene of the homicide,
“and that he was walking with a man named Antwan, a scuffle broke
out, and a man was shot.” Koczur then brought Mrs. Mathis back
into the room. When his mother returned, [Petitioner] repeated his
involvement in the offense. He made no mention of April Diggs’
or Renee Diggs’ involvement in the crime; he identified two
4
individuals, Antwan Harvey and a man named “Boz,” as
participants in the shooting.
[Petitioner] then gave the first of two written and signed
statements on January 24, l996[,] at 2:30 p.m. He said that he met
Harvey on Second Street at about 7 p.m. Harvey and a third-person
“were looking to rob someone,” but he was not. Harvey wanted
him to hold the gun but he refused; he said he never handled the gun;
[Petitioner went on to assert that Harvey attempted to rob Saraiva
and ultimately Harvey shot Saraiva when the two scuffled.]
Following the shooting, they fled the scene. According to
[Petitioner]’s first statement, before leaving, Harvey took the
victim’s wallet from his right back pocket. [Petitioner] claimed he
did not believe Harvey was going to rob anyone and when he spoke
to Harvey after the shooting, he warned [Petitioner] not to tell
anyone about it or he would kill him.
After [Petitioner] gave his first signed statement, the police
executed a warrant at a residence in Carteret, where Detective John
Furda seized items of clothing described by [Petitioner]. With the
consent of [Petitioner] and his mother, Detective Furda searched
their home and seized pants fitting the description [Petitioner] gave
of the pants he wore on the night of the robbery.
While detective Furda searched [Petitioner]’ s house, Koczur
met with other investigators. At 5:40 p.m. he returned to question
[Petitioner] again, advising [Petitioner] that he did not believe what
he had said in his first statement. After being readvised ofhis rights
and waiving them, [Petitioner] gave a second written and signed
statement. [Petitioner] stated he met Harvey at 8 p.m. on the night
of the offense at the corner of Third and Bond streets. He said he
and Harvey met April and Renee Diggs at a nearby Chinese
restaurant. This was the first time [Petitioner] mentioned the Diggs
cousins. [Petitioner] stated that all four intended to commit a
robbery. While walking up Elizabeth Avenue, Harvey displayed a
black revolver and asked [Petitioner] to act as the lookout during the
robbery. Harvey asked the girls “to see if that man had any gold on
him.” When Harvey suggested robbing a man standing nearby,
[Petitioner] told him not to rob the man. [Petitioner] also told
Harvey he would not participate in the robbery of a small
delicatessen nearby. [Petitioner] admitted that he and Harvey were
looking for someone to rob because he wanted “to know how it felt.”
As the four continued walking, they encountered two “Spanish
5
boys.” Harvey and April “started running after them real hard, and
me and the other girl jogged after them.” The “Spanish boys”
outran them.
The four continued walking toward East Jersey Street.
[Petitioner] said at this time, it was no longer his intention to
participate in a robbery. According to [Petitioner], when the four
reached East Jersey Street, Harvey told [Petitioner] that he was
going to rob the man there and he wanted [Petitioner] and the Diggs’
to act as “lookouts.” [Petitioner] said [“w]e walked up to the guy.
[Harvey] grabbed him, and he tried going into his pockets.
[Harvey] grabbed the man and the man grabbed [Harvey]. The
man threw a punch at [Harvey]. Then [Harvey] threw a punch back
at him. Then [Harvey] pushed the man off him and he took the gun
and shot him.[”]
[Petitioner] explained that Harvey went through the victim’s
pockets but he, [Petitioner], did not touch the man. After the
struggle ensued between Harvey and Saraiva, [Petitioner] denied
helping Harvey. He said, however, the gun went off “[w]hen all
three were struggling for the gun” and that the gun was pointed one
to two feet from the victim’s forehead. [Petitioner] stated that there
were two shots fired, but one missed. He did not believe it was
Harvey’s intention to shoot Saraiva.
After the shooting,
[Petitioner] and Harvey ran down Seventh Street. The Detective
asked [Petitioner] the following question: “So all four of you
committed this robbery?” Unlike [Petitioner]’s other answers,
which were all typed, that questioned was answered with a
handwritten “yes.”
Koczur believed that when [Petitioner]
reviewed his statement, “he realized that the word A was the answer
and the answer ‘Yes’ wasn’t there. [Petitioner] obviously placed
his name, he obviously added the answer and placed the word ‘Yes’
next to it.” During his testimony [Petitioner] denied ever having
written “yes” on the statement.
After giving the second written statement, [Petitioner]
identified the other three participants from a photographic lineup.
He also confirmed that during the robbery April was wearing pink
Reeboks and that Renee wore her jacket inside out. [Petitioner]
signed this second statement.
The following day, on January 25, 1996, Harvey, April
Diggs, and Renee Diggs were arrested and each gave statements to
6
the police. Police also seized the black ski mask from Hemandez’s
apartment. April Diggs, who was age 17 at the time of the incident,
was charged as a juvenile for robbery and murder. Her case was
waived to adult court where she pled guilty to armed robbery. She
agreed to testify truthfully against [Petitioner] and Harvey in
exchange for a sentence recommendation of fifteen years with a
five-year parole ineligibility period. Renee Diggs, who was age 22
at the time of the incident, pled guilty to armed robbery with a
recommended sentence of at fifteen-year term with a five-year
parole ineligibility period if she testified against [Petitioner] and
Harvey.
(Document 4 attached to ECF No. 10 at 4-12).
On January 25, 1996, Petitioner was charged by way of a Juvenile Delinquency complaint
with crimes that, if committed by an adult, would constitute armed robbery and felony murder.
(Id. at 2). On October 10 and November ii, 1996, the family court held a hearing and ultimately
determined that Petitioner’s case should be waived to the Law Division and Petitioner should be
tried as an adult because it was not likely that Petitioner could be rehabilitated by the time he
reached nineteen years of age and there was probable cause that Petitioner had committed the
charged crimes. (Id. at 2-3). As part of those waiver hearings, three experts prepared reports
designed to aid the Court in determining whether Petitioner could be rehabilitated by the time he
reached nineteen.
Cheryl L. Thompson, a psychologist hired by Petitioner’s counsel, provided one such
report. (Document 2 attached to ECF No. 12 at 9-13). In support of her assertion that Petitioner
could be rehabilitated through juvenile proceedings, Dr. Thompson made the following comments
on Petitioner’s mental functioning and educational difficulties:
[Petitioner]’ s school record reflects severe learning problems that
became obvious in the first grade. [Petitioner] was retained in first
and second grades. He was placed in a special education program
7
because he was never able to learn basic reading, writing and
computation.
On Mental Status: [Petitioner] was oriented to time, place
and person. He denied hallucinations
and no delusional
thinking was elicited.
[Petitioner] ‘s speech was clear and goal
directed. His intelligence is estimated as Borderline to Low
Average.
His problem solving skills are very inconsistent, for
example when asked what he would do with a stamped, sealed and
addressed letter, he responded, “take it to the post office.[”] When
asked what he would do if he were the first person in a movie to see
real smoke and fire, he responded, “go back and get some popcorn.”
He was no[t] able to understand that the fire was separate from the
movie. His ability to think abstractly is also poorly developed. He
is concrete, simplistic and referential. When asked about the
similarity between beer and wine, he stated “Guess dark beer, wine
lighter, I don’t know about beer and wine.” Attention and
concentration are impaired. He has no vegetative symptoms of
depression except poor appetite. He denies all substance use/abuse.
.
.
.
.
.
.
.
.
.
In sum: Marvin presents with a mental status that reflects
no acute psychiatric disability.
Marvin presents as a cooperative young man, with a brighteyed expression. However, he is not bright and is easily confused.
(Id. at 10-il).
Martha H. Page, a Doctor of Education, also evaluated Petitioner following a referral by
defense counsel. In her report, Dr. Page concluded that Petitioner
was functioning on the borderline level of intelligence. He had a
long history of severe learning disabilities. He had repeated first
and second grade and began to display problem behaviors in school.
He was classified as Communication Handicapped in 1990 and,
after a period of home instruction, was placed in a classroom geared
to his needs. There were some problems with respect to behavior
in 1991 and 1992, but, for the most part his behavior was acceptable
in the High School. His teachers had many positive things to say
about his behavior in 1995. He showed no anti-social behavior
trends and had not been involved with the Division of Youth and
Family Services nor the juvenile justice system. The family was
8
headed by the mother, who had progressed from volunteer to paid
worker in a hospital. This was not the typical unstable, chaotic
and/or abusive family often associated with delinquency.
[Petitioner] had considerable difficulty in thinking analytically and
accurately especially when he felt under pressure. He also tended
to be somewhat impulsive, crave excitement and to be accepted.
(Document 2 attached to ECF No. 12 at 22). Tn addition to the results of various tests conducted
on Petitioner, Dr. Page made the following statements regarding Petitioner’s mental faculties:
[Petitioner] was functioning at the intellectually deficient to
borderline range of intelligence.
Test results were affected
negatively by the high noise level and frequent distractions during
the testing session. Potential intellectual functioning was in the
borderline to low average level of intelligence. Fund of knowledge
and ability to think abstractly were at the low average level of
intelligence, as was his auditory memory for numbers. However,
he found it difficult to process verbally presented material rapidly.
Ability to define words was well below average. This reflected not
only processing problems, but also reflected his socio-cultural
background.
Certainly
[his] classification
as
Communication Handicapped was an appropriate one.
His
handling of test tasks was quite variable.
He tended to be quite
concrete in his approach to problems. He did not examine social
situations in depth. However, a high level of anxiety interfered
with his ability to respond with accuracy and rapidity. He was very
concerned about doing well.
.
.
.
.
.
.
.
.
.
(Id. at 19).
The final expert report provided during the waiver proceedings was the report of Dr. Louis
B. Schlesinger, a psychologist hired by the State to evaluate Petitioner. (See Document 2 attached
to ECF No. 12 at 24-39). Tn that report, Dr. Schlesinger provided the following evaluation of
Petitioner’s mental functioning:
[Petitioner] is currently functioning within the high end of the
borderline range of intelligence, gaining a Full Scale IQ of 79
(Verbal IQ = 80; Performance IQ = 83). Verbal Skills fall within
[the] low end of dull-normal range. Fund of general information is
9
weak, suggesting that [Petitioner] has not profited a great deal from
school or experience. For example, he did not know the number of
weeks in a year, the identity of Louis Armstrong, the direction
travelled from Chicago to Panama, the location of Brazil, the author
of Hamlet, the President during the Civil War, and other such simple
facts. Vocabulary is poor and far below average capacity as he was
unable to define such words as fabric, assemble, conceal, consume,
regulate, and the like.
Arithmetic skills were quite poor.
[Petitioner] can add and subtract but he did not memorize his
multiplication tables; therefore he had trouble with multiplication
and division (although he could multiply and divide some very
simple numbers). Poor concentration also negatively affected his
performance on several of the arithmetic tasks.
Social
comprehension is at a comparable level below average range.
[Petitioner] has some basic understanding of the world around him,
but it is not that deep or extensive. Verbal abstract tasks proved to
be a relative strength, but he functions still below average limits,
within dull-normal range. His thinking is somewhat concrete and
he has some difficulty drawing subordinate relations between
objects and ideas. More complex abstractions, such as proverb
interpretation fall within [the] low end of dull-normal range, which
seems to be a fairly accurate assessment of his current and potential
capacity.
Nonverbal subtests fall with the dull-normal range.
[Petitioner] is quite alert to details of a problem, and he can easily
differentiate what is important from what is irrelevant. His
performance on the picture completion subtest was his highest and
falls within average limits. [Petitioner] could also solve problems
utilizing familiar material (such as puzzles) at a level falling just
below average limits. The other nonverbal subtests fall within dullnormal range in an even manner. [Petitioner] has some difficulty
analyzing, synthesizing and integrating parts into a whole concept
(block design), although he does somewhat better in recognizing
logical and sequential relationships with various types of social
stimuli. He can learn new material, but he is really not that quick,
and several repetitions are often necessary in order to transfer new
knowledge into pre-existing structures. Throughout all of the
structured objective tasks, there were no signs of associative
looseness or of paralogical reasoning.
[Petitioner] processes
information in a mildly scattered fashion, and he does better when
structure is provided.
10
[Petitioner] has a history of special education placement;
however, in this examiner’s judgment, [Petitioner]’s potential is
higher than his current scores and school performance suggest.
(Id. at 31-33). Dr. Schlesinger thus concluded that Petitioner’s “level of intelligence falls within
the high end of borderline to dull-normal range.” (Id. at 37).
Following the Family Court’s decision to waive Petitioner to the Law Division, Petitioner
was indicted on February 4, 1997 with the following charges: first degree murder in violation of
N.J. Stat, Ann.
Ann.
§ 2C: 11 -3a( 1) or § 2C: 11 -3a(2), first degree armed robbery in violation ofN.J. Stat.
§ 2C:15-1, first degree felony murder in violation of N.J. Stat. Ann. § 2C:1l-3a(3), second
degree possession of a firearm for an unlawful purpose in violation of N.J. Stat. Ann.
§ 2C:39-4a,
and third degree possession of a weapon for an unlawful purpose in violation of N.J. Stat. Ann.
2C:39-5(b).
(Document 4 attached to ECF No. 10 at 3).
§
Petitioner’s charges thereafter
proceeded to trial in June of 1998. (Id.).
Prior to the onset of trial, the trial court held a hearing on Petitioner’s motion to suppress
his statements to the police on the ground that he did not knowingly and intelligently waive his
Miranda rights on June 9 and 10, 1998. (Documents 28 and 29 attached to ECF No. 10). At that
hearing, Detective Brown testified that he and Detective Garcia asked Petitioner to come from his
school with them to the station, which Petitioner willingly agreed to do. (Document 28 attached
to ECF No. 10 at 7). The detective testified that no force or coercion was used to get Petitioner
to go to the station, that he was not handcuffed or arrested at that time, and that Petitioner chose to
go with them to the station. (Id.).
Following Detective Garcia’s testimony, Detective Koczur testified regarding the
statements Petitioner made to police. He testified that, after speaking with Sharlama Brooks, he
ii
asked that Petitioner be brought to the station from his school as Brooks had told Koczur that
Petitioner had shot someone. (Id. at 14-15). The detective then stated that, once Petitioner was
brought to the station, he informed Petitioner that he was a strong suspect in the shooting of
Saraiva, but the police would not question Petitioner without his mother being present, and that
Petitioner should wait until his mother arrived to speak with the police.
(Id. at 17-18).
Petitioner’s mother was then brought to the station, where she, too, was informed that Petitioner
was a suspect in a murder. (Id. at 19). The detective further testified that once Petitioner and his
mother were placed in an interrogation room, both were advised orally and in writing of
Petitioner’s Miranda rights and asked whether they understood each right individually. (Id. at
20-2 1).
After being informed of Petitioner’s rights and stating that they understood, both
Petitioner and his mother chose to waive those rights and both signed a waiver form after it was
read to them by Koczur. (Id. at 2 1-23).
Detective Koczur further testified that no force or threats were used against Petitioner, that
Petitioner spoke freely with the detectives, and that Petitioner never requested an attorney. (Id.
at 2326), The detective stated that Petitioner initially denied his involvement as summarized
above but ultimately asked that his mother briefly leave the room, at which point he first provided
the information contained in his first statement discussed above. (Id. at 27). The detective stated
that Petitioner was the one who asked her to leave, and Mrs. Mathis did not object, and that she
was then brought back in and Petitioner immediately repeated his story. (Id. at 27-28). Petitioner
thereafter gave his first written statement in the presence of his mother, reviewed it, and signed it.
(Id. at 30-33). The detective then testified that, following the search of Petitioner’s home by
Petitioner and his mother’s consent, Petitioner was brought back, re-mirandized, and once again
12
waived his rights by agreeing to and signing a Miranda waiver form. (Id. at 36-37). Petitioner
was told that the police did not believe his story, and Petitioner ultimately provided the second
written statement discussed above. (Id. at 37-4 1). On cross examination, the detective admitted
he knew Petitioner was fifteen at the time, but denied being told that Petitioner was a special
education student or that Petitioner did not understand any of his rights, and that Petitioner
ultimately appeared to understand his rights. (Id. at 43-53).
Petitioner’s mother also testified at the Miranda hearing. Although Petitioner’s mother
initially stated that the police were questioning her son upon her arrival, when asked when police
started questioning him, she stated that she didn’t remember. (Id. at 65). She then testified that
she remembered the police reading her and her son the Miranda waiver form, and that she and her
son waived those rights the first time the police questioned Petitioner. (Id. at 66). Even when
faced with her own signed statement, Mrs. Mathis claimed that her son never admitted any
involvement in the crime, despite signing a statement to that effect. (Id. at 66-69). She also
stated that it was the detective, and not her son, who asked her to leave the room during his
interrogation. (Id. at 69).
Petitioner was the final witness to testify at the Miranda hearing. Petitioner asserted that
he only went to the police station because the detectives told him that he had to go. (Id. at 7374). Petitioner testified that upon arriving, he was placed in an interrogation room, told the police
were investigating him in relation to a homicide, and that he should not respond to any questions
until his mother arrived. (Id. at 75). Petitioner then testified that another officer entered and tried
to interrogate him, but he insisted that he shouldn’t talk until his mother arrived per the previous
detective’s statement as to Petitioner’s rights, and that officer stopped asking questions and left.
13
(Id. at 75-76). Petitioner then testified that he did answer questions once his mother arrived, but
claimed that he was not read his Miranda rights until after he gave his first statement, at which
point he was read his rights, read it himself, and signed the waiver.
(Id. at 76).
Petitioner
asserted, however, that he didn’t understand the rights that were read, although he did not tell
officers that. (Id.). Petitioner further stated that although he signed and initialed his statement,
he didn’t read it in its entirety because the detectives “rush[edj” him. (Id. at 78).
Petitioner also testified that he ultimately gave a second statement, but insisted that he was
not read his Miranda rights a second time. (Id. at 80-81). Petitioner testified that he could not
recall whether he read this second statement before signing it, and further testified that he only
signed it because he was told to do so by the police. (Id.). Petitioner also stated that he never
read the statement out loud despite having issues with reading. (Id. at 82).
On cross examination, Petitioner admitted that he was not handcuffed until after the second
statement, that he was not mistreated by the police, and that he was not otherwise subject to force
or coercion by police. (Id. at 85-88). Petitioner also reiterated on cross that, after being told he
didn’t have to speak with the police until his mother arrived, that he told a detective not to talk to
him without his mother when he attempted to question Petitioner and thus stopped premature
questioning. (Id. at 90). Petitioner further admitted that he lied in his first statement, and that it
was he, and not the detectives, who asked his mother to leave before he first admitted involvement
in the crime. (Id. at 92-94). Petitioner also stated that he repeated that statement once his mother
returned to the room. (Id. at 94). Petitioner also admitted that he eventually gave a second
statement in which he gave further details after the police told him they did not believe his first
statement. (Id. at 99-100).
14
The final series of questions on cross examination dealt with Petitioner’s ability to
understand the Miranda rights he waived during questioning.
Petitioner admitted that he
understood his right to remain silent, and that anything he said could be used against him. (Id. at
112-13). Petitioner also stated that he understood that he had a right to an attorney, and that he
could have one appointed for him, but claimed that he did not understand what it meant that he
had a right to have a lawyer “present” during questioning.
(Id. at 114-16).
Petitioner also
testified that he understood that he could decide to exercise his rights at any time and end the
questioning. (Id.). Petitioner did assert that although he knew he could have a lawyer appointed
for him, he didn’t understand what the Miranda form meant by saying that he could have a lawyer
appointed before questioning if he wished. (Id.). Ultimately, Petitioner testified that the only
phrases in all of the Miranda warnings that he did not understand were the word “present” and the
phrase “if you wish,” and that he otherwise understood his rights at the time he was questioned.
(Id.). Petitioner thus asserted that what he did not understand was that he could have a lawyer
appointed prior to questioning, as opposed to at some later point. (Id.). Petitioner admitted,
however, that his mother was present at the time of the Miranda waiver, and that she, too, agreed
to waive his rights. (Id. at 115-16).
The trial court ultimately denied Petitioner’s Miranda motion, making the following
findings:
Having had the opportunity to listen to the witnesses in this matter
and to observe them during the course of their testimony, I conclude
that the credible evidence supports the following with respect to this
matter with respect to the issue of [Petitioner]’ s arrest, as raised by
the defense:
15
I find that [Petitioner] was not arrested at the high school. I
think the facts as presented by the credible evidence support the
conclusion by [a] preponderance of that credible evidence that
[Petitioner] was not arrested. He was not cuffed, he was not told
[that] he was arrested. He was told that a detective at headquarters
wanted to speak to him, and he agreed to go to headquarters to speak
to the detective. I think, quite simply, that’s what took place.
The circumstances were not such as to cause a belief of
arrest. He was escorted from a classroom not solely by the police
but also by a school representative, vice-principal of the school with
whom [Petitioner] was familiar[.] [Petitioner] was questioned by
plain clothes officers who were regularly assigned to the school with
whom [Petitioner] had had previous contact and persons that he was
aware were officers assigned to the school. And there is nothing in
the manner in which he was transported to headquarters to suggest
that he was arrested. And, furthermore, his own statements [show]
that he went from [the] high school to the headquarters freely and
voluntarily.
So I do not find that he was arrested at the high school.
With respect, then, to the Miranda issue, I find that
[Petitioner] was advised of his rights in the presence of his mother
by having those rights read to him by Detective Koczur, and then
the form shown to [Petitioner] and his mother for them to initial and
sign the waiver.
The Court finds beyond a reasonable doubt that
[Petitioner] knowingly, voluntarily, and intelligently read [and]
waived his rights after having been [orally] advised of those rights.
There is no evidence that [Petitioner] was threatened, forced, or
coerced into giving a statement. [Petitioner]’s rights were, as I
indicated, read to him by the officers.
.
During the course of the cross examination of Detective
Koczur, as [defense counsel] was going through the form reading
off each of the rights that [Petitioner] was read. and then asking
questions of Detective Koczur, is this what you read, is this what he
signed, is this what he had initialed. I was observing the clock
during that conversation during that cross examination with respect
to the form, and it took two minutes and ten seconds to cross
examine the officer on each of the points contained in the form.
.
16
.
Clearly, the form can be read intelligently in [the] two minute period
[during which Petitioner was able to read the form after having his
rights read to him].
I do not find credible [Petitioner] ‘s testimony that he didn’t
understand what was being read to him. On cross examination, [the
State] went through the form with him and indicated phrase by
phrase almost word by word what was contained in the form, and
there the answers given by [Petitioner] did not suggest that he
did not understand what was contained in the form. Furthermore,
[Petitioner] didn’t advise the police that he didn’t understand
anything. Nor did his mother advise the police that things were not
understood. And there was the example, cited by [Petitioner], that
an officer came to the room where he was waiting and he told the
officer that he was instructed not to say anything until his mother
came, and no interrogation took place. Clearly, [Petitioner] had
some knowledge even in advance of having [his] rights read to him,
just based on an oral statement of an officer that he should wait for
his mother, that he was able to exercise some control over the
process.
Accordingly, as I indicated, my findings are that the
statements were voluntarily given after [Petitioner’s] rights [were]
read, and after [Petitioner had been] advised of his rights and [that
Petitioner] intelligently, knowingly, and voluntarily waived [his
rights]. [The] Miranda motion of the defense is denied.
(Document 29 attached to ECF No. 10 at 14-17).
Petitioner’s case then proceeded to trial, where the various witnesses testified as recounted
above. The defense, however, called several additional witnesses:
In [Petitioner’s] case, two of [his] teachers, Ronald Orr and Belquis
Fernandez testified on his behalf. They considered him a truthful
person. Herminia Garcia, a social worker at the Union County
juvenile detention center, testified that April [Diggs] had told her
that Renee [Diggs] and [Petitioner] were present at the shooting but
that neither had done anything. Rather April indicated that a fourth
individual was responsible for the shooting. April Diggs admitted
that after her arrest she was taken to the Union County Detention
Center and met with Garcia. She did not recall, however, telling
Garcia that it was Harvey, and not [Petitioner], who shot Saraiva: “I
17
doubt if I said that.” Garcia did not make a written report of her
discussion with April Diggs. She admitted that although she
assigned herself as [Petitioner’s] intake worker, she never bothered
to mention this exculpatory statement to him.
Damina Arcos testified that she met Renee Diggs in the
Union County jail. In November 1997 April had also mentioned
that Renee was involved in the murder but never mentioned
[Petitioner].
[Petitioner’s] mother testified and denied that
[Petitioner] admitted his involvement in the robbery when giving his
statement to police.
[Petitioner] also testified at trial. [Petitioner] denied that he
possessed a gun, participated in a robbery, or shot anyone on January
22, 1996. He admitted his first statement was a lie. He testified
that on January 22, 1996, he and the Diggs cousins were walking on
Elizabeth Avenue. As they were walking Harvey noticed a man
waiting for a bus and asked the girls to see if the man was wearing
any gold jewelry. When the girls reported that he was wearing gold
jewelry, and [Petitioner] realized Harvey wanted to rob the man,
[Petitioner] urged Harvey not to do it. April urged Harvey to rob
the owner of a delicatessen nearby. [Petitioner] refused to act as a
lookout. As the four continued walking, Harvey and April ran after
two “Spanish boys,” while [Petitioner] and Renee jogged behind;
the boys outran them. [Petitioner] said he realized Harvey had a
gun when they crossed Elizabeth Avenue. He said Harvey
“pull[edj out the gun acting crazy” and began “showing off.”
[Petitioner] testified he was frightened, wanted to leave, and
“thought [Harvey] was going to shoot me or something.” When
Renee attempted to leave, Harvey grabbed her and refused to let her
leave.
When they reached the corner of Seventh and East Jersey
Street, Harvey noticed a man taking out his trash. Harvey asked the
Diggs cousins and [Petitioner] to act as lookouts. [Petitioner]
refused because he was “too scared.” He said he walked across the
street and stood next to a Chinese restaurant. Harvey approached
Saraiva and it “sounded like he said empty his pockets.”
[Petitioner] testified
And [the] man looked at him and [Harvey]
tried to go in his pockets, tried to go in his pocket.
18
Then the man slapped his had down. And that’s
when [Harvey) grabbed the man, and the man
grabbed [Harvey], and the man threw a punch at
[Harvey], and that’s when [Harvey] threw a punch
back at the man.
Then [Harvey] pulled out the gun. When the
man noticed the gun he was like shocked, you know
seeing the gun. And that’s when the man grabbed
the gun, they was [sic] struggling, and that’s when I
noticed they was [sic] struggling and I tried, went
over there and tried to stop, you know, what was
about to happen. But it was too late.
[Petitioner] explained that as the two struggled, he grabbed
Harvey’s arm to try to prevent Harvey from shooting Saraiva.
[Petitioner] said two shots were fired; the first bullet missed the
second shot struck Saraiva. [Petitioner) was shocked after he saw
Saraiva fall down. He then ran off with Harvey toward Seventh
Street. [Petitioner] said he ran home.
[Petitioner] denied ever holding the gun, denied shooting
anyone, and denied helping anyone commit a robbery. He also
denied asking his girlfriend, Brooks, to lie for him. [Petitioner]
said [he told her] “if anyone asks If I was with her, you now, [she
should say] that she don’t know.” He claimed he gave a false
statement implicating “Boz” because he was scared and confused.
He admitted giving the second statement and initialing it, but
claimed that he never told police that he helped in any way with the
robbery. Although he signed the statement, [Petitioner] claims the
police were “rushing” him and his understanding of his rights was
“not that good.” [Petitioner] admitted that he lied in his first
statement because he was scared; he claimed his second statement
was truthful. [Petitioner] consistently claimed [Harvey] shot
Saraiva.
(Document 4 attached to ECF No. 10 at 12-15).
On June 18, 1998, the jury found Petitioner guilty of all charges.
(Id. at 3).
At
sentencing, counsel for Petitioner noted that there was a mandatory sentencing schem in
e place,
but that the Court should sentence Petitioner to the low end of that scheme based on Petitio
ner’s
19
age at the time of the offense, his lack of a prior record, and Petitioner’s status as a special
education student who was subject to the influence of older young people. (Document 39 attached
to ECF No. 10 at 2-4). Counsel also argued that although only two teachers testified to his good
character at trial, there were dozens more willing to testify that he was a good student. (Id. at 4).
Counsel also argued that Petitioner was subject to rehabilitation per a letter filed by Garcia, the
social worker who testified at trial, and that Petitioner’s apparent lack of remorse was simply a
result of his continuing to assert his innocence. (Id.). Petitioner also spoke on his own behalf at
sentencing, apologizing for what was happening and insisting that he tried to stop what happened,
but “was too late.” (Id. at 5-6).
The trial court, however, rejected that argument, finding that the heinous nature of the
crime, which involved four young people stalking the streets with the purpose of robbing and
potentially shooting someone, did not suggest the good character counsel and others ascribed to
Petitioner, but rather indicated a criminal who “has complete disregard for the law, [and] complete
disregard for other people.” (Id. at 8-9). The Court likewise noted that there was a need for the
Court to issue a sentence which would act as a strong deterrent
—
both to deter Petitioner
specifically, and to deter others like him. (Id. at 9-10). The Court thus found that the only
applicable mitigating factor was Petitioner’s lack of a prior criminal record, but that mitigating
factor was “so clearly and convincingly outweigh[ed]” by the aggravating factors including both
the seriousness of the offense and the need to deter Petitioner and those like him that a sentence
above the statutory minimum was required in Petitioner’s case.
(Id. at 10).
The trial court
therefore merged felony murder and second degree possession of a weapon for an unlawful
purpose with the first degree murder charge, and sentenced Petitioner to a term of fifty years
20
imprisonment with a thirty year parole disqualifier. (Id. at 10-11). The Court also sentenced
Petitioner to sentences of eighteen years with six years parole ineligibility on the robbery charge,
and a four year sentence with eighteen months parole ineligibility for the final unlawful possession
of a weapon count, both of which appear to run concurrently with the murder sentence. (Id. at
ii).
Petitioner appealed, raising several claims which he does not attempt to raise again in this
habeas matter, and the Appellate Division affirmed his conviction and sentence in a lengthy
opinion on June 2, 2000. (Document 4 attached to ECF No. 10). The New Jersey Supreme Court
denied certification on June 13, 2000. (Document 5 attached to ECF No. 10). In April 2001,
Petitioner filed with the New Jersey Courts a purported petition for post-conviction relief.
(Document 8 attached to ECF No. 10). Petitioner thereafter filed a full PCR petition on or about
September 17, 2003, in which he first raised the ineffective assistance of counsel claims he brings
in his current habeas petition. (Document 9 attached to ECF No. 10). The trial court initially
denied Petitioner’s PCR petition, making the following findings:
It is argued that [Petitioner], a special ed. Student at the time of his
arrest suffered from learning disabilities and that therefore, his
competency to stand trial, his competency to have made a voluntary
statement was lacking, and that he lacked that his capacity to
formulate the necessary mental status necessary to convict him of
these crimes was lacking.
—
So the question then before the court is.. was there a failure
on the part of counsel to raise these issues. Information has been
presented to the court [al]luded to by counsel here in the argument,
the psychological reports [from the waiver hearing] that have been
presented to the court here in connection with this matter.
.
they
—
Based upon my review of those reports it is clear to me that
while the evidence does support the conclusion that
21
[Petitioner] had learning disabilities that his
learning capacity
was. at a borderline level. There’s also no information contained
in these reports that supports a conclusion that he was suffering any
psychiatric illness.
.
.
.
.
.
There is nothing here that says he lacked competence. That
is that he did not understand and appreciate the nature of the charges
against him. There is nothing that supports the conclusion that he
had a diminished capacity. That is he did not have the capacity to
formulate the ability to act in a purposeful or knowing way.
The review of the proceedings indicates that he participated
in the interview with the police and the time he gave his statement
again in the presence of.
a parent. He voluntarily waived his
rights. It is apparent that he understood the proceedings, that he
understood the questions being posed to him, and was able to
formulate answers to those questions that were appropriate and
responsive to the questions before him.
—
.
.
There is nothing that allows this [C]ourt to conclude that the
evidence supports a conclusion that [Petitioner] at the time of his
trial was incompetent or suffered from diminished capacity. Thus
any failure on the part of his attorney to raise those issues, either in
connection with the Miranda [hearing] or at the time of sentencing
as a mitigating factor or to raise as a bar to the prosecution of
this case[,] that any failure of counsel to do that was ineffective
assistance. There simply was nothing to present to the court to
argue that [Petitioner] lacked competency or that he suffered
diminished capacity.
(Document 25 attached to ECF No. 10 at 15-16).
Petitioner thereafter appealed, arguing inter alia that PCR counsel provided ineffective
assistance in his failure to file a brief in support of the PCR petition. (Document 25 attached to
ECF No. 10 at 3-4). The Appellate Division agreed that PCR counsel’s failure to file a
brief
amounted to ineffective assistance of PCR counsel and remanded the matter for a new hearing
on
whether Petitioner had presented a prima facie case for PCR relief. (Id.). On remand, the PCR
22
court denied Petitioner’s PCR application on the record and by way of a separate order on January
27,2012. (Id. at4).
In that decision, the PCR court made the following additional findings:
Largely, this is a claim of ineffective assistance of counsel related
to the claim that counsel failed to raise the learning disability and
special education status of [Petitioner]. And it is contended that
that failure occurred at three stages of the proceedings[:]
[a]t the
Miranda [hearing, at] trial[,] and then at sentencing.
.
.
.
With respect to the contention that the failure to raise a
learning disability or special ed status, constituting ineffective
assistance, the Court notes that in reviewing the record, it does not
find that there are any facts from which it could be demonstrated
that the fact that [Petitioner] was learning disabled or was a special
ed student was sufficient to show that he had a mental deficiency
that would some way render him incapable of or impairing his
ability to participate in this case.
There is nothing that indicates that he was disabled so that
he could not knowingly and voluntarily waive his Miranda rights.
That somehow that special ed status would have affected his waiver
hearing in juvenile court, his participation in the trial, or even affect
the sentencing. We are not without a record here. There was a
waiver proceeding in the juvenile court.
There w[ere]
psychologist[s] involved in that proceeding.
And again the conclusion of the court is that there was not
evidence that the mental deficiency was so severe that the absence
of his presentation would have affected the outcome of the
proceeding. There is nothing to show that reasonable probability
but for the failure to present that evidence, the result somehow
would have been different.
[The Court then discussed several claims not presented here]
Again, it is not developed or demonstrated as to how
[counsel’s alleged failures] would have affected the outcome of this
matter. There is simply nothing that indicates to the Court that
errors committed by trial counsel, if there were any, were [of] such
23
a substantial nature.. that it is reasonably probabl[e] that the results
would have been different [absent those alleged errors].
.
I must conclude that there has not been a prima facie
showing of ineffective assistance of counsel demonstrated in this
case from which the Court could determine. that a[n evidentiary]
hearing is required. This P.C.R. application is denied.
.
.
(Document 41 attached to ECF No. 10 at 25-28).
Petitioner appealed, and the Appellate Division affirmed the denial of Petitioner’s PCR
petition on August 1, 2014, for substantially the same reasons expressed by the trial court in both
of its decisions denying PCR relief. (Document 25 attached to ECF No. 10 at 15-18). As to the
Miranda hearing claim, the Appellate Division added the following:
Based on our review of the record, we agree that [Petitioner] failed
to make a prima facie showing of ineffective[ assistance]. The fact
that [Petitioner] was a special education student and functioned at a
low intellectual level does not alone constitute a sufficient factual
basis to conclude that he did not understand his rights when he
waived them. When [Petitioner] testified at the suppression
hearing, [Petitioner] generally acknowledged his understanding of
the Miranda warnings, identifying only isolated phrases that he
claimed he did not understand. The motion judge found this
testimony not to be credible, a finding entitled to. deference. No
evidence has been presented to refute that finding to create a prima
facie case of ineffective assistance on this ground. Accordingly,
the PCR court correctly concluded that an evidentiary hearing was
not warranted.
.
.
(Id. at 17-18). The New Jersey Supreme Court denied Petitioner’s petition for certification on
February 3, 2015. See State v. Mathis, 220 N.J. 572, 108 A.3d 632 (2015). Petitioner filed the
instant habeas petition on or about March 23, 2015. (ECF No. 1).
IL DISCUSSION
24
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
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, 2148, 2151(2012). Under the statute, as amended by the Anti-Terrorism and Effective Death
Penalty Act, 28 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, 77273 (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 corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C.
§ 2254(d)(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.
White v. Woodall,
--
U.S.
--,
--,
124 S. Ct. 1697, 1702 (2014) (quotations
omitted). “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
25
no reasonable dispute that they were wrong.” See Woods v. Donald,
---
U.S.
---,
---,
125 S. Ct.
1372, 1376 (2015). 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 thel applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(l).
B. Analysis
1.
Petitioner’s request for an evidentiary hearing
Petitioner argues that he should be granted an evidentiary hearing on his petition for a writ
of habeas corpus. 28 U.S.C.
§ 2254(e)(2) generally bars habeas petitioners who are challenging
their State court convictions from receiving evidentiary hearings where the petitioner failed to
develop the factual record underlying his claims in the State courts. That rule, however, does not
apply where the petitioner “unsuccessfully sought an evidentiary hearing in the PCR court and
unsuccessfully appealed from the denial of his PCR petition” because such actions indicate that
the petitioner did not fail to develop the record, but was denied the opportunity to do so. 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 28 U.S.C.
§ 2254(e)(2), the decision
to grant such a hearing rests in the discretion of the district court.” Palmer v. Hendricks, 592 F.3d
386, 393 (3d Cir. 2010) (quoting Schriro v. Landrigan, 550 U.S. 465, 468 (2007)). Although the
decision to provide a hearing is within the discretion of the court in such cases, that decision is
subject to two considerations which must guide the Court’s exercise of that discretion:
First, in determining whether or not to hold an evidentiary hearing,
26
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 determine whether
the petition presents a prima facie showing which, if proven, would
enable the petitioner to prevail on the merits of the asserted claim.
See, e.g., Campbell v. Burns, 515 F.3d 172, 184 (3d Cir. 2008);
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,” Schriro, 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 Mayberry v.
Petsock, 821 F.2d 179, 185 (3d Cir. 1987)); Anderson v. Atty Gen.
of Kansas, 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[j. That is, even if the factual allegations in the habeas petition
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, “[i]f district courts were required to
allow federal habeas applicants to develop even the most
insubstantial factual allegations in evidentiary hearings, district
courts would be forced to reopen factual disputes that were
conclusively resolved in the state courts.” Schriro, 550 U.S. at
475[j.
Palmer, 592 F.3d at 393.
Even assuming that Petitioner did not fail to develop the factual record in the state courts
27
in so much as he was denied a hearing by the PCR court, Petitioner is not entitled to an evidentiary
hearing. Because Petitioner has failed to establish Strickland prejudice for the reasons set forth
below, Petitioner has failed to establish a prima facie case of ineffective assistance, and as a result
has not shown that he is entitled to federal habeas relief. As a result, no evidentiary hearing is
necessary on Petitioner’s ineffective assistance of counsel claims. Id. at 394. This Court will
therefore deny Petitioner’s motion for an evidentiary hearing.
2.
Petitioner’s ineffective assistance of counsel claims
Petitioner’s asserts that he received ineffective assistance of counsel prior to and during his
criminal trial. The standard which governs such claims is well established:
[c]laims 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. 668 (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 687; 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 performance 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
28
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 “petition contains no factual matter regarding
Strickland 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
performance 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, 308 F.3d 308, 315
(3d Cir. 2002).
.
.
.
.
.
.
Judge v. United States, 119 F. Supp. 3d 270, 280-281 (D.N.J. 2015).
Most of Petitioner’s arguments as to counsel’s ineffectiveness arise from Petitioner’s
assertion that counsel should have raised Petitioner’s status as a special education studen
t at
various points of his criminal proceedings. Specifically, Petitioner asserts that counse should
l
have raised his special education status during the Miranda hearing, at trial, and at senten
cing as
a mitigating factor. Petitioner also asserts that counsel should have raised these same
claims on
direct appeal, and that appellate counsel failed to argue that the trial court did not consid
er the
totality of the circumstances in denying his Miranda motion on direct appeal. This
Court will
29
turn to each of those arguments in turn.
a. Petitioner’s claim that counsel was ineffective at the Miranda hearing
Petitioner first argues that his trial counsel was constitutionally ineffective in failing to
properly raise Petitioner’s special education status during his Miranda hearing. Petitioner
asserts
that, had counsel provided proper expert testimony and other information regarding Petitio
ner’s
mental functioning, the trial court would have found that his waiver of his Miranda rights was
not
knowing, intelligent, and voluntary. The problem with this, and all of Petitioner’s ineffec
tiveness
claims, however, is that Petitioner has failed to provide any information as to exactly
what
information it is that counsel should have presented. The only documentary eviden Petitio
ce
ner
submits in support of his assertion that counsel should have provided more information to the
trial
court are the three expert reports provided to the juvenile court during the waiver procee
dings.
As this Court will discuss below, those reports are insufficient to establish that Petitio
ner was
prejudiced by counsel’s alleged failings.
Under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny, a statement taken during
a custodial interrogation is only admissible at a criminal defendant’s trial where that defend
ant has
made a knowing, intelligent, and voluntary waiver of his rights. 384 U.S. at 444; see also
Sweet
v. Tennis, 386 F. App’x 342, 345 (3d Cir. 2010). A valid waiver has two dimensions:
First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice rather
than intimidation, coercion, or deception. Second, the waiver must
have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it. Only if the totality of the circumstances surrounding the
interrogation reveal both an uncoerced choice and the requisite level
30
of comprehension may a court properly conclude that the Miranda
rights have been waived.
Sweet, 386 F. App’x at 345 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986); see also Fare
v. Michael C,, 442 U.S. 707, 725 (1979). Factors to be considered when weighing the totality of
the circumstances in cases involving a juvenile defendant include “the juvenile’s age, experience,
education, background, and intelligence and.
.
.
whether he has the capacity to understand the
warnings given to him, the nature of the Fifth Amendment rights [involved], and the consequences
of waiving those rights.” Fare, 442 U.S. at 725; see also Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973). The presence of a parent or adult relative can be considered as a factor which
possesses the potential to mitigate a juvenile’s age, immaturity, and inexperience and place him
on “a less unequal footing with his interrogators.”
Gallegos v. Colorado, 370 U.S. 49, 54
(discussing the voluntariness of a confession in a pre-Miranda setting), reh ‘g denied, 370 U.S. 965
(1962); Fare, 442 U.S. at 725.
Although both age and mental capacity are factors to be
considered, neither, in and of itself, is sufficient to warrant suppression of a statement in all cases.
See, e.g., Vance v. Bordenkircher, 692 F.2d 978, 980-8 1 (4th Cir. 1982).
In considering a Miranda suppression decision during habeas review, “{f]ederal habeas
courts have an ‘independent obligation’ to determine whether a confession was voluntary.”
Sweet, 386 F. App’x at 345 (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)). In undertaking
that independent obligation, the federal court is not bound by the state courts’ ultimate decision
as
to the voluntariness of a waiver of the petitioner’s rights, but must “defer[] to state court
factfinding as to ‘subsidiary factual questions” including as to the credibility of the witnesses
who
testified at the suppression hearing. Id.; see also Miller, 474 U.S. at 110-12. Ultimately,
if the
31
court concludes that the state court was correct in determining that, “under the totality of the
circumstances, the confession was obtained in a manner compatible with the requirements of the
Constitution,” no habeas relief is warranted. Sweet, 386 F. App’x at 345 (quoting Miller, 474
U.S. at 112).
Petitioner asserts that had his counsel raised his special education status directly through
witness testimony, the outcome of his Miranda hearing would have been different. Briefly, this
Court notes that although Petitioner asserts that the trial court was not aware of the expert reports
submitted during waiver proceedings, it is not clear from the record that the motion judge was
unaware of those reports.
It is also worth noting that, on cross examination of one of the
detectives who interrogated Petitioner, counsel did raise the special education status. Regardless
of these facts, however, Petitioner has failed to show prejudice in this context because he has not
provided any directly applicable evidence showing what, if anything, an expert witness may have
said regarding Petitioner’s ability to knowingly and intelligently waive his rights, as Petitioner
instead relies solely on the expert reports from the waiver hearing.
In support of his assertion that an expert or Petitioner’s school records would have shown
that Petitioner had low intelligence and thus would have been unable to knowingly and
intelligently waive his Miranda rights, Petitioner provides only the three expert reports submitted
during his waiver proceedings.
These reports, although they do comment on Petitioner’s
intelligence which they generally categorize as falling between low borderline to low average, are
not directly on point and provide no solid information as to whether Petitioner was able to
understand the Miranda warnings he was given, and make a knowing, intelligent, and voluntary
waiver of those rights. As the PCR court noted, the reports certainly support the suggestion that
32
Petitioner had a somewhat below average intelligence and had difficulty with reading.
The
reports, however, provide no real evidence that Petitioner could not understand the Miranda
warnings which he was given orally by the detectives in this case. Even if this Court were to
assume that Petitioner was unable to understand the warnings by reading them silently to himself,
that the warnings were given orally not only to Petitioner but to Petitioner’s mother who was
present severely complicates Petitioner’s arguments, and, to some extent, renders any question as
to his reading abilities far less important.
By Petitioner’s own admission on cross-examination, he understood all of the portions of
the Miranda warnings except the word “present” and the phrase “if you wish.” Indeed, based on
Petitioner’s admissions and Petitioner’s clearly asserted ability to exercise at the very least his
ability to refuse to talk to police until his mother arrived, the motion judge found Petitioner’s
claims that he lacked an understanding of his rights completely incredible.
Providing that
credibility determination with the deference it is due, and giving proper weight to the fact that
Petitioner’s mother was present and also agreed to the Miranda waiver, this Court cannot conclude
that the facts presented, including the proffered reports, indicate that the motion judge would have
reached a different conclusion had counsel more fully raised the special education issue.
The reports Petitioner presents do not provide a sufficient basis to question Petitioner’s
ability to understand the Miranda warnings he was given.
Those reports do not evaluate
Petitioner’s ability to understand those Miranda warnings, but only give a very general overview
of Petitioner’s mental and intellectual functioning. This is not surprising, given the fact that those
reports were authored solely for the purpose of determining whether Petitioner was capable of
rehabilitation by the age of 19
—
the standard applicable in New Jersey juvenile jurisdiction waiver
33
proceedings at the time of Petitioner’s arrest. Thus, those reports do not give this Court any sense
of what even the three experts who authored those reports would have testified had they been asked
to evaluate Petitioner’s ability to understand his Miranda warnings. That Petitioner has failed to
provide a certification or affidavit from any expert regarding what testimony they would have
given, nor provides such an affidavit from any of his teachers or school officials about what
testimony they could have provided as to Petitioner’s mental functioning and ability to intelligently
waive his Miranda rights further weakens Petitioner’s claim. See, e.g., Tolentino v. United States,
Civil Action No. 13-4168, 2014 WL 3844807, at *3 (D.N.J. July 31, 2014) (stating that the
“[petitioner’s] failure to include a sworn statement regarding the nature of [a witness’s] proposed
testimony is fatal to his making a prima facie showing of prejudice” based on counsel’s failure to
call such a witness); see also Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001).
Petitioner has failed to provide sufficient evidence to make a prima facie showing that the
outcome of Petitioner’s Miranda hearing would have been different had counsel “properly” raised
the issue of his special education status during that hearing through expert testimony or otherwise.
There is insufficient evidence in the record, even considering the waiver reports, to indicate that
Petitioner was unable to knowingly, intelligently, and voluntarily waive his Miranda rights given
both the fact that Petitioner was read his rights orally by the detectives and Petitioner’s mother was
present and also freely chose to waive Petitioner’s rights. Combining this lack of evidence with
the motion judge’s credibility determination that Petitioner was not credible when he claimed he
did not understand the warnings, this Court cannot conclude that Petitioner was incapable of
making a knowing, intelligent, and voluntary waiver ofhis Miranda rights. Given the facts before
this Court including that credibility determination and the presence of Petitioner’s mother during
34
the waiver, and even given Petitioner’s youth, inexperience, and intellectual difficulties, it fully
appears that the motion judge was entirely correct in concluding that Petitioner knowingly,
intelligently, and voluntarily waived his Miranda rights, and the waiver reports provide no
information sufficient to alter that conclusion. As such, the PCR court neither unreasonably
applied federal law, nor misapprehended the facts, and Petitioner is not entitled to habeas relief on
this claim.
b.
Petitioner’s claim that counsel was ineffecfive for faffing to raise his special education
status during trial
Petitioner further contends that his counsel was ineffective in so much as he failed to fully
investigate Petitioner’s special education status prior to the Miranda hearing and trial, and failed
to secure and call witnesses regarding Petitioner’s intellectual capacity during trial. In Strickland,
the Court held that defense counsel “has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case,
a particular decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” 466 U.S. at 691.
“The failure to investigate a critical source of potentially exculpatory evidence may present a case
of constitutionally defective representation,” and “the failure to conduct any pretrial investigation
generally constitutes a clear instance of ineffectiveness.” United States v. Travillion, 759 F.3d
281, 293 n. 23 (3d Cir. 2014) (internal quotations omitted); see also United States v Gray, 878
F.2d 702, 711 (3d Cir. 1989) (noting that a complete absence of investigation usually amounts to
ineffective assistance because a complete absence of investigation does not present a strategic
35
choice made by counsel); United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980). To show
prejudice in regards to a claim that counsel conducted an incomplete investigation,
a defendant basing an inadequate assistance claim on his or her
counsel’s failure to investigate 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 produce a different
result.”
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819
F.2d 1382, 1392 (7th Cir. 1987); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir.
2011) (“When a petitioner alleges that counsel’s failure to investigate resulted in ineffective
assistance, the petitioner has the burden of providing the court with specific information as to what
the investigation would have produced.”); United States v. Green, 882 F.2d 999, 1002 (5th Cir.
1989) (“A defendant who alleges a failure to investigate on the part of his counsel must allege with
specificity what the investigation would have revealed and how it would have altered the outcome”
of Petitioner’s case); accord Untied States v. Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).
The standard applicable to claims that counsel was ineffective in failing to call certain
witnesses is similar. When presented with such a claim, courts “are ‘required not simply to give
[the] attorney[] the benefit of the doubt, but to affirmatively entertain the range of possible reasons
[petitioner’s] counsel may have had for proceeding as he did.” Branch v. Sweeney, 758 F.3d
226, 235 (3d Cir. 2014) (quotations omitted). Moreover,
Strickland requires that a defendant “overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” 466 U.s.
at 689 (internal quotation marks omitted). If the Government “can show that counsel
actually pursued an informed strategy (one decided upon after a thorough investigation of
the relevant law and facts),” the effectiveness of counsel’s assistance is “virtually
36
unchallengeable.” Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).
United States v. Graves, 613 Fed. App’x 157, 159, 2015 WL 3406548, at *2 (3d Cir. May 28,
201 5). As previously stated, however, where a petitioner fails to provide a sworn statement or
affidavit regarding a purported witness’s proposed testimony, that Petitioner cannot make a prima
facie showing of Strickland prejudice, and that claim must fail. Tolentino, 2014 WL 3844807 at
*3; see also Duncan, 256 F.3d at 20 1-02.
As in his Miranda claim discussed above, Petitioner fails to provide this Court with any
evidence other than the reports prepared in advance of the waiver hearing to suggest that counsel
failed to properly investigate his special education status and failed to call witnesses to testify to
that status at trial. Indeed, that counsel did obtain the expert reports themselves clearly indicates
that counsel conducted at least some investigation into Petitioner’s intellectual abilities, and that
this is not a case where no investigation was conducted. As such, the onus is upon Petitioner to
make at least a prima facie showing of prejudice by indicating what information which was not
produced at trial would have been discovered with adequate investigation, and what testimony, if
any, a witness may have provided had he been called to testify. Petitioner, however, does neither.
Petitioner’s assertions that his school records establish his special education status suffers from
the fact that Petitioner does not actually provide any context nor information as to what relevance
Petitioner’s special education status would have had if presented at trial.
Petitioner asserts,
without providing support for the assertion, that his special education status would have impacted
his credibility, but without any clear indication of what his “special education” status actually
meant or any information as to what information an expert or school official would have provided
about how Petitioner’s intellectual functioning affected his credibility or behavior, Petitioner has
37
simply failed to show that the special education issue was of any significant importance to his trial,
and has certainly failed to show that he was prejudiced in so much as he has failed to show that
the provision of such information would have altered the outcome of his trial.
Considering the significant bordering on overwhelming evidence arrayed against Petitioner
at trial, including the testimony of his girlfriend and the Diggs cousins who were present at the
shooting, as well as Petitioner’s own statement admitting to his presence at the scene of the
shooting and at least partial participation in the robbery, it is difficult to imagine that Petitioner’s
special education status would have been sufficient to alter the outcome of his trial absent clear
testimony about what that status entailed, how it impacted Petitioner’s ability to act, and what
affect it would have upon his credibility. Petitioner provides no evidence from which this Court
can glean that information. As in the Miranda context, the waiver reports provide little to no
information that is directly applicable to Petitioner’s criminal trial. They do not establish that he
was so intellectually deficient as to have a diminished capacity or an inability to understand the
consequences of his actions, and they certainly don’t have any direct bearing on his credibility as
a witness, The reports provide little in the way of clear information about whether those experts
were available to testify at trial, and what information they would have provided had they been
called as witnesses. As Petitioner fails to provide a name, let alone an affidavit or statement of
proposed testimony, as to any other witness counsel “failed” to call, Petitioner has failed to make
a prima facie showing that he was prejudiced by counsel’s failure to either investigate or call
witnesses regarding Petitioner’s special investigation status prior to or during trial. As Petitioner
has failed to demonstrate prejudice, the decision of the PCR courts involved neither an
unreasonable application of federal law, nor of the facts, and Petitioner’s argument provides no
38
basis for habeas relief as a result.
c. Petitioner’s argument that counsel was ineffective in failing to raise his special education
status as a mitigating factor at sentencing
Petitioner next argues that counsel was ineffective in failing to present evidence or
witnesses at sentencing regarding his special education status. In so doing, Petitioner notes that
counsel mentioned Petitioner’s special education classification to the Court, and mentioned the
testimony at trial of Petitioner’s teachers, but failed to provide expert testimony in support of
Petitioner’s mental status. Petitioner argues that, had counsel provided such testimony, the trial
court may have found additional mitigating factors which could have impacted his sentence.
Petitioner points to two statutory mitigating factors in particular. First, Petitioner argues
that his low intellectual functioning, combined with his youthful age, a point which counsel did
argue, might amount to “substantial grounds tending to excuse or justify [his] conduct, though
failing to establish a defense” under N.J. Stat. Ann.
§ 2C:44-l(b)(4). Petitioner asserts that, had
counsel submitted unspecified evidence and called witnesses Petitioner has not named regarding
his intellectual difficulties, the Court would have found that such difficulties would be sufficient
to excuse his behavior. Petitioner’s failure to provide sworn statements as to the testimony of any
alleged witnesses again prevents this Court from being able to find that Petitioner was prejudiced
by the failure to call those witnesses. See Tolentino, 2014 WL 3844807 at *3; see also Duncan,
256 E3d at 201 -.02. To the extent that Petitioner argues that the expert reports from the waiver
hearings would establish that his mental functioning would establish an excuse for his behavior,
Petitioner is simply incorrect. Although those reports do provide that Petitioner had learning
39
difficulties and was of a borderline to low average intelligence, they do not categorically show that
Petitioner did not understand his actions or that they were wrong. Petitioner’s actions after the
shooting, including providing an admittedly false statement to the police and asking his girlfrie
nd
to do likewise if she were asked likewise clearly indicates that Petitioner understood the gravity
of
what he had done. Thus, even considering the waiver reports, Petitioner has failed to provid
e any
evidence which would support a conclusion that his intellectual difficulties would have
been
sufficient to in any way excuse his conduct. Given the fact that the trial court did
find that
Petitioner’s callous disrespect for the law, the need to deter him and others like him,
and the
heinous nature of Petitioner’s actions severely outweighed any mitigatory value his youth or
lack
of a criminal history would have, it in no way appears that the trial court would have
found that
the information in the waiver reports would have been sufficient to excuse or justifi Petitio
ner’s
conduct, and thus Petitioner has failed to show any prejudice as to this claim.
Although it suffers from the same weakness as his first sentencing claim in so much
as
Petitioner fails to provide a sworn affidavit from whatever expert could have
testified at
sentencing, Petitioner’s second argument at first glance appears stronger. Petitio
ner’s second
sentencing argument is that counsel’s failure to raise his special education statement also
the sentencing court from finding the mitigating factor provided in N.J. Stat. Aim.
prevented
§ 2C:44-lb(l3).
Pursuant to that section, a sentencing court in New Jersey may find that the “condu
ct of a youthful
defendant was substantially influenced by another person more mature than the
defendant” as a
mitigating factor at sentencing. In support of this assertion, Petitioner points
to the following
statement in the report of Dr. Thompson presented during the waiver hearing
:
“[Petitioner]
presents as a follower, someone who could be easily persuaded by more
successful anti-social
40
characters to become involved with them.”
(Document 2 attached to ECF No. 12 at 11).
Petitioner also raises the following conclusion of Dr. Page in her report submitted in the waiver
hearing: “[Petitioner] became involved with an older group of young people whom he, with his
simplistic thinking saw as role models. He was influenced negatively by them.” (Document 2
attached to ECF No. 12 at 23).
Even if this Court assumes that Dr. Page and Thompson were available to testify at
sentencing, and that they would have testified at sentencing exactly as they wrote several years
earlier during the waiver proceedings, facts which Petitioner has in no way established, it does not
follow that the court would have found the mitigating factor at issue. As to Dr. Thompson’s
report, while the doctor opines that Petitioner could be subject to influence, Dr. Thompson in
no
way suggests that that is necessarily what happened in this case. Likewise, although Dr.
Page
concludes that Petitioner saw his co-defendants as role models and that they negatively influen
ced
Petitioner, the doctor does not conclude nor suggest that this influence resulted in the crimin
al
conduct at issue here, let alone that it substantially influenced Petitioner’s decision to engage
in
the robbery which resulted in Petitioner’s conviction. Neither doctor specifically contex
tualizes
their findings on Petitioner’s being subject to influence by asserting that it was Petitio
ner’s co
defendants who caused him to act. Indeed, given Petitioner’s assertion in his second
statement
and during trial, as well as the information he gave those experts, it is doubtful that they
could
claim that Petitioner’s criminal conduct was substantially influenced by his co-def
endants in so
much as Petitioner continued to assert that he never intended to rob Saraiva, and that
he attempted
to stop his co-defendant from shooting Saraiva during the struggle that ensued. Petitio
ner’s own
testimony at trial certainly suggests that Petitioner was not overbom by the older
young people
41
with whom he spent the night of the shooting, and that he was capable of resisting them.
Given the trial court’s findings as to the heinous and severe nature of Petitioner’s conduc
t,
as well as the fact that the “older” individuals present at the robbery were neither greatly
older or
in possession of an authority position over Petitioner, it is not clear that the trial judge would
have
found substantial influence in any event. See, e.g., State v. Bieniek, 200 N.J. 601,
610 n. 1, 985
A.2d 1251 (2010) (noting that New Jersey Courts have properly rejected this mitiga
ting factor
where a sixteen year old defendant engaged in criminal conduct that was clearly
not childish in
nature, and have properly found the mitigating factor where a thirteen year old was
subject to a
more mature and authoritative figure at the time of his criminal conduct, and asserti
ng that finding
this factor is only appropriate where the more mature individual directly contributed
to the crime).
Petitioner’s assertion is likewise severely weakened by the trial court’s finding that
the nature of
the crime, Petitioner’s apparent lack of respect for the law, and the need for deterre
nce strongly
outweighed the sole mitigating factor found by the court (Petitioner’s lack of
a criminal record).
It is also highly unlikely that Petitioner’s sentence would have been reduced on
the basis of the
influence of his co-defendants, which would arise from facts (the presence of
older youths and
Petitioner’s agreeing to participate in a robbery with them) which were well known
to the trial
court at sentencing. As Petitioner has therefore failed to show that he was prejud
iced by his
counsel’s alleged failings, his ineffective assistance claim is without merit,
and the State courts
neither unreasonably applied federal law nor the facts in rejecting his claims
on post-conviction
review.
d.
Petitioner’s claim that appellate counsel was ineffective in failing
to raise the above
42
arguments on direct appeal
In his final two grounds, Petitioner argues that appellate counsel proved constit
utionally
ineffective by failing to raise first the ineffective assistance of counsel argum
ents discussed above
and second the argument that the trial court erred in weighing the totality of the
circumstances in
denying his Miranda suppression motion. The Strickland standard applies to claims
of ineffective
assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000)
. “[l]t is a well
established principle[, however,] that counsel decides which issues to pursue
on appeal,” Sistrunk
v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate counsel need
not raise every
nonfrivolous claim a defendant requests. See Jones v. Barnes, 463 U.S. 745,
751 (1983). As
“[a] brief that raises every colorable issue runs the risk of burying good arguments”
id. at 753, the
heart of effective Appellate advocacy is “winnowing out weaker arguments..
[in favor of] those
.
more likely to prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986). Thus,
the Supreme Court
has held that “[glenerally, only when ignored issues are clearly stronger than
those presented, will
the presumption of effective assistance of counsel be overcome.” See Robbin
s, 528 U.S. at 288
(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Petitioner’s argument that appellate counsel was ineffective in failing
to raise the
ineffective assistance of counsel arguments discussed above is patently
without merit. Even if
those claims were meritorious, which they clearly are not, Petitioner’s ineffec
tive assistance of
counsel claims rely on his claim that counsel failed to call witnesses and
present evidence which
is not in the trial record including witnesses who would have discuss
ed Petitioner’s special
education status and documentary evidence in support of such testimony.
Because those claims
relied on information that was not in the trial record, such as the alleged
witnesses that were not
43
called, and alleged evidence which was not submitted to the trial court, such claims would not be
cognizable on direct appeal in New Jersey and could only be brought on collateral review. See,
e.g., State v. Johnson, 837 A.2d 1131, 1135 (N.J. App. Div. 2003) (holding that although
ineffective assistance of counsel claims most often are only appropriate on collateral review
because they require information outside of the record, those claims are only cognizable on direct
review where the Appellate Division can fully evaluate and decide the claim solely on the basis of
the trial court record); certification denied, 179 N.J. 372, 845 A.2d 1254 (2004). As it is clear
that the New Jersey Courts could not, and would not, have provided Petitioner relief on his
ineffective assistance claims on direct review, it is clear that Petitioner’s assertion that counsel was
ineffective for failing to raise those claims is without merit.
Petitioner’s assertion that counsel failed to raise the totality of the circumstances on direct
review fairs no better. As discussed above, the totality of the circumstances clearly shows that
Petitioner made a knowing, intelligent, and voluntary waiver of his Miranda rights, even if one
were to consider the expert reports submitted during the waiver process in weighing those
circumstances. As such, any appeal on the basis of the trial court’s Miranda decision would have
been of little to no merit, and certainly would not have been more meritorious than the claims
which counsel did raise on direct review which resulted in an extensive opinion by the Appellate
Division. As Petitioner’s Miranda claim would have been without merit on direct appeal, counsel
was not ineffective in failing to raise that claim. Petitioner is therefore not entitled to habeas
relief
Ill. CERTIFICATE OF APPEALABILITY
44
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
ofhis constitutional claims or that jurists could conclude that the issues presented here
are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003).
For the reasons expressed above, Petitioner has failed to make a substantial showin
g that he was
denied a constitutional right as jurists of reason could not disagree that Petitio
ner has failed to
establish Strickland prejudice and he has thus not shown that the issues presen
ted deserve
encouragement to proceed further. This Court shall therefore deny Petitioner a certific
ate of
appealability.
IV, CONCLUSION
For the reasons stated above, Petitioner’s motion for an evidentiary hearing is DENIE
D,
Petitioner’s petition for a writ of habeas corpus is DENIED, and Petitioner is DENIE
D a certificate
of appealability. An appropriate order follows.
IT IS SO ORDERED.
DATED
March
‘
,2016
C
/_
4
Hon. Jose L. Linares,
ttinited States District Judge
45
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