PITTMAN v. STATE OF NEW JERSEY
Filing
21
OPINION. Signed by Judge John Michael Vazquez on 7/10/18. (cm, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ELIJAH PITTMAN,
HONORABLE JOHN M. VAZQUEZ
Petitioner,
Civil Action
No. 15-5546 (JMV)
v.
STATE OF NEW JERSEY, et al.
OPINION
Respondents.
VAZQUEZ, District Judge:
I.
INTRODUCTION
Petitioner, Elijah Pittman, has submitted a pro se amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Am. Pet., ECF No. 5.) For the reasons stated herein, the
amended petition shall be denied and no certificate of appealability shall issue.
II.
BACKGROUND
The New Jersey Superior Court, Appellate Division, summarized the facts underlying
Petitioner’s conviction as follows: 1
According to the State’s proofs, at around 7:30 p.m. on August 22,
2006, while still daylight with clear weather, Union Township
Police Officer Michael Wittevrongel was monitoring eastbound
Route 22 traffic in a marked patrol car parked about ten feet away
in a lot perpendicular to the roadway. The officer noticed a Chrysler
Fifth Avenue approaching in the left lane with no front license plate,
but a New Jersey license plate on the back. Wittevrongel focused
solely on this car as it passed by at about forty to forty-five miles
per hour, paying particular attention because its driver’s side door
lock was damaged, indicating that it could have been stolen. At the
1
State court factual findings are presumed correct unless rebutted by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). As Petitioner has not rebutted the factual findings of the
Superior Court of New Jersey by clear and convincing evidence, this Court relies on those
findings.
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same time, Wittevrongel observed a male driver and a female
passenger.
Wittevrongel ran the number on the rear license plate and found that
it was not registered to that vehicle or any other. As a result, he
radioed two other officers in the area, David Roman and Walter
Stinner, for assistance. Wittevrongel then pulled out onto Route 22
in pursuit, losing sight of the Chrysler for no more than thirty
seconds. He eventually caught up to the Chrysler near the Lowes
Shopping Center on Route 22, where he saw his fellow officers pull
out from the Lowes’ parking lot, in their police cruiser, activate their
lights and sirens, and signal for [Petitioner] to stop. Wittevrongel
did the same, taking over as the primary unit in pursuit, only losing
sight of the vehicle for an instant just before it ultimately crashed a
few minutes later. While in pursuit, Officer Stinner also observed
that the driver was male and the passenger, female.
With the police vehicles following, the Chrysler accelerated to about
seventy miles per hour in the forty-five mile per hour speed zone,
“weaving in and out of traffic,” driving erratically, and suddenly
“pull[ing] from the left lane, clear across the right lane of traffic, and
right off the [exit] ramp.” By then, the officers had been pursuing
the vehicle for approximately 3.3 miles. When Wittevrongel
reached the top of the exit ramp, he saw that the Chrysler -- which
he lost sight of for only “a fraction of a second” when it shot down
the ramp -- had rear-ended another vehicle, a Saturn, at a stop sign
at the bottom of the ramp. The impact forced the Saturn all the way
across the street and into a parking lot where it collided with a tractor
trailer.
The Chrysler had sustained heavy front-end damage and was still
smoking and rolling the wrong way down a one-way street as the
passenger remained inside while the driver attempted to exit, despite
the fact that his door would not open. Wittevrongel, after quickly
checking that the driver of the Saturn was all right, used his police
cruiser to block the Chrysler from moving any further. Inside that
vehicle was [Petitioner], in the driver’s seat, along with a passenger,
[Petitioner’s] cousin Nicole Pittman. [Petitioner], who was the same
person Wittevrongel saw in the driver’s seat when he first observed
the vehicle on Route 22,[ 2] was then placed under arrest. Carol
McBride, the driver of the Saturn vehicle, sustained injuries to her
2
At trial, Wittevrongel explained that he did not include a description of the driver of the car in
his report because “[i]t was the same person I saw originally that was behind the wheel when the
chase ended. I felt there was no need.”
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neck, back, and shoulders that left her, more than a year later, with
continuing pain and still unable to drive.
State v. Pittman, No. A-4846-08T4, 2010 WL 2090047, at *1 (N.J. Super. Ct. App. Div. May 26,
2010) (footnote in original).
Petitioner’s trial proceedings were conducted before the Honorable Joseph P. Donohue,
J.S.C., on September 25 and 26, 2007. (See Sept. 25 and 26, 2007 Trial Trs., ECF Nos. 13-20
and 13-21.) The only individuals who testified at trial were Ms. McBride and Officers
Wittevrongel and Stinner; all three testified as State’s witnesses. (See Sept. 26, 2007 Trial Tr.,
ECF No. 13-21.)
On September 26, 2007, the jury found Petitioner guilty of: (i) second-degree eluding,
N.J. Stat. Ann. § 2C:29-2b; and (ii) second-degree aggravated assault, N.J. Stat. Ann. § 2C:121b(6). Pittman, 2010 WL 2090047, at *1. On July 24, 2008, Judge Donohue sentenced
Petitioner “to six years in prison with a two-year period of parole ineligibility [on the eluding
conviction and] a consecutive eight-year term with an eighty-five percent parole ineligibility
period [on the aggravated assault conviction.]” Id. (See also July 24, 2008 Sentencing Tr., ECF
No. 13-22.)
The Appellate Division affirmed Petitioner’s conviction and sentence on direct appeal on
May 26, 2010. Pittman, 2010 WL 2090047, at *1. The New Jersey Supreme Court denied
certification of Petitioner’s direct appeal on October 7, 2010. State v. Pittman, 6 A.3d 441 (N.J.
2010) (table).
On or about November 12, 2010, Petitioner filed an application for post-conviction relief
(“PCR”) in the Superior Court of New Jersey (hereinafter, the “PCR court”). (See, e.g., Aug. 20,
2012 Statement of Reasons Denying PCR, ECF No. 13-15 at PageID: 449.) Judge Donohue was
the PCR court judge. (See, e.g., Aug. 20, 2012 Order Denying PCR, ECF No. 13-15 at PageID:
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448.) Petitioner argued that he received ineffective assistance of counsel because, among other
things, his trial counsel (1) failed to “investigate damage to the [unmarked police vehicle, ‘TAC
3’, operated by Officers Roman and Stinner] and [radio] transmission records[;]” (2) did not
“consider that there was no plausible factual scenario in which Officer Wittevrongel could have
identified [Petitioner;]” and (3) “failed to investigate racial profiling or selective prosecution.”
(See, e.g., ECF No. 13-15 at PageID: 449.)
On or about February 13, 2012, Petitioner filed a motion in the PCR court requesting,
inter alia, the following additional, post-trial discovery: 3 (1) “[c]opies of all communications
between the police vehicles and headquarters (dispatch/transmissions and [mobile data computer
(“MDR”) records;]” (ii) “[c]opies of all records related to the damage sustained by [TAC 3],
including but not limited to towing and repairs[;]” and (iii) [a]n in camera inspection of the
personnel files of the police officers involved in this matter and disclosure to Petitioner of any
complaint of racial profiling or selective prosecution.” (See Pet’r’s Feb. 13, 2012 Notice of
Mot., ECF No. 13-15 at PageID: 379-80; accord Pet’r’s Mar. 17, 2012 Letter Br., ECF No. 1315 at PageID: 404-06.) Petitioner claimed that this discovery was needed to substantiate his
ineffective assistance of counsel claims. (Id.) The PCR court held a hearing on Petitioner’s
motion for post-trial discovery on April 20, 2012. (Apr. 20, 2012 Discovery Mot. Hr’g Tr., ECF
No. 13-24.) The same day, the PCR court issued an order formally denying the request. (ECF
No. 13-11 at PageID: 303.)
3
By way of that motion, Petitioner also sought to recuse Judge Donohue from the PCR matter.
(See ECF No. 13-15, at at PageID: 379-80.) The PCR court held a hearing on the recusal portion
of Petitioner’s motion on March 16, 2012. (Mar. 16, 2012 Mot. Hr’g Tr., ECF No. 13-23.) On
March 19, 2012, the PCR court executed an order formally denying Petitioner’s request to recuse
Judge Donohue. (ECF No. 13-7.)
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Thereafter, on August 10, 2012, the PCR court held a hearing on the merits of
Petitioner’s PCR application. (Aug. 10, 2012 Hr’g Tr., ECF No. 13-25.) On August 20, 2012,
the PCR court entered an order formally denying Petitioner’s PCR application. (ECF No. 13-15
at PageID: 448.) The PCR court’s denial was based on the reasons it placed on the record on
August 10, 2012 (see Aug. 10, 2012 Hr’g Tr. 21-28, ECF No. 13-25), and the additional reasons
it detailed in the “Statement of Reasons Denying PCR” appended to the PCR court’s April 20th
order. (ECF No. 13-15 at PageID: 449-52.)
The Appellate Division affirmed the denial of Petitioner’s PCR petition on March 9,
2015. State v. Pittman, No. A-1383-12T4, 2014 WL 8086797, at *1 (N.J. Super. Ct. App. Div.
Mar. 9, 2015). The New Jersey Supreme Court denied certification of Petitioner’s PCR appeal
on June 19, 2015. State v. Pittman, 116 A.3d 1071 (N.J. 2015) (table).
Petitioner initiated this § 2254 action on July 14, 2015. (ECF No. 1.) Petitioner filed his
amended petition on August 14, 2015, asserting four grounds for relief. (ECF No. 5.)
Respondents submitted their answer on February 29, 2016. (ECF No. 13.) Petitioner filed a
reply on March 9, 2016. 4 (ECF No. 15.)
4
By way of that reply, Petitioner also requested that this Court appoint him counsel. (Id. at 3.)
Petitioner’s request for counsel is denied. The Court notes that even if Petitioner made this
request before formal briefing in this matter was completed, he has neither a statutory nor
constitutional right to the appointment of counsel. Reese v. Fulcomer, 946 F.2d 247, 263 (3d
Cir. 1991), cert. denied, 503 U.S. 988 (1992) (“there is no ‘automatic’ constitutional right to
counsel in federal habeas corpus proceedings”), superseded on other grounds by statute, 28
U.S.C. § 2254. A district court may, nonetheless, appoint counsel for a habeas petitioner where
the petitioner shows that he is indigent and “the court determines that the interests of justice so
require.” 18 U.S.C. § 3006A(a)(2)(B). This determination, in turn, requires the Court to
consider, inter alia, the complexity of the factual and legal issues in Petitioner’s case. Reese,
946 F.2d at 263-64. Here, although Petitioner has demonstrated his indigency (see Aug. 26,
2015 Order, ECF No. 6), the factual and legal issues in this habeas matter remain
“straightforward and capable of resolution on the record.” Ferguson v. Jones, 905 F.2d 211, 214
(8th Cir. 1990). Indeed, this Court’s review of the merits of Petitioner’s habeas petition under 28
U.S.C. § 2254(d) is limited to whether the State courts’ adjudications “resulted in a decision
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III.
STANDARD OF REVIEW
Section 2254(a) permits a court to entertain only claims alleging that a person is in state
custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Petitioner has the burden of establishing each of his claims. See Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Anti–Terrorism and
Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), federal courts in habeas corpus
cases must give considerable deference to determinations of the state trial and appellate courts.
See Renico v. Lett, 599 U.S. 766, 772 (2010).
28 U.S.C. § 2254(d) provides as follows:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
Where a state court adjudicated petitioner’s federal claim on the merits, 5 a federal court
“has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law . . . ; or 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.” See
28 U.S.C. § 2254(d)(1)-(2). The record of the relevant state court proceedings has provided this
Court with the information needed to perform this review.
5
“For the purposes of Section 2254(d), a claim has been adjudicated on the merits in State court
proceedings when a state court has made a decision that 1) finally resolves the claim, and 2)
resolves th[at] claim on the basis of its substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks
omitted).
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contrary to, or involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.’”
Parker v. Matthews, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)). The petitioner
carries the burden of proof, and review under § 2254(d) is limited to the record that was before
the state court that adjudicated the claim on the merits. See Harrington v. Richter, 562 U.S. 86,
98, 100 (2011).
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions,” as of the time of the relevant statecourt decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within § 2254(d)(1)
if the state court “contradicts the governing law set forth in [the Supreme Court’s] cases” or if it
“confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405–06. Under the
“‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle from th[e Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.
With regard to § 2254(d)(1), a federal court must confine its examination to evidence in the
record. See Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an
erroneous factual determination of the state court, two provisions of AEDPA apply. First,
AEDPA provides that “a determination of a factual issue made by a State court shall be
presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of
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correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller–El v. Dretke, 545
U.S. 231, 240 (2005); see also Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008) (state
courts’ “implicit findings of fact are entitled to deference under AEDPA to the same extent as
explicit findings of fact”), cert. denied, 131 S. Ct. 1041 (2011). Second, AEDPA precludes
habeas relief unless the adjudication of the claim “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)(2).
A federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner
has “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In
other words, “a petitioner must ‘fairly present’ all federal claims to the highest state court before
bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing
Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002) (quoting Whitney v. Horn, 280
F.3d 240, 250 (3d Cir. 2002))); see also Garvey v. Phelps, 840 F. Supp. 2d 782, 785 (D. Del.
2012) (“A petitioner satisfies the exhaustion requirement by ‘fairly presenting’ the substance of
the federal habeas claim to the state’s highest court, either on direct appeal or in a postconviction proceeding, and in a procedural manner permitting the state courts to consider it on
the merits.”). “This requirement ensures that state courts have an initial opportunity to pass upon
and correct alleged violations of prisoners’ federal rights.” Leyva, 504 F.3d at 365 (citing United
States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1,
3 (1981)).
To the extent that Petitioner’s constitutional claims are unexhausted, this Court can
nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504
F.3d 416, 427 (3d Cir. 2007) (“because [this court] will deny all of [petitioner’s] claims on the
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merits, [it] need not address exhaustion.”); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005)
(“Under 28 U.S.C. § 2254(b)(2), [this court] may reject claims on the merits even though they
were not properly exhausted, and [this court will] take that approach here.”). “Where the state
court has not addressed the merits of a claim . . . , then [§ 2254’s] deferential standard of review
does not apply and [this Court] instead review[s] the claim de novo.” Breakiron v. Horn, 642
F.3d 126, 131 (3d Cir. 2011) (citing Porter v. McCollum, 558 U.S. 30, 39 (2009)). This Court
“nevertheless must presume that state-court factual findings are correct unless the presumption is
rebutted by clear and convincing evidence.” Id. (citing Palmer v. Hendricks, 592 F.3d 386, 392
(3d Cir. 2010); 28 U.S.C. § 2254(e)(1)); see also Robinson v. Beard, 762 F.3d 316, 324 (3d Cir.
2014), cert. denied sub nom Robinson v. Wetzel, 136 S. Ct. 53 (2015)).
IV.
ANALYSIS
Petitioner presents four “grounds” in his amended habeas petition:
Ground One: The discovery will show that the officers racial[ly]
profiled me and the judge and prosecutor know that. That’s why he
den[ied] me the discovery because it will show what really
happen[ed]. So that [is] how the [state] courts violat[ed] my
constution[al] rights. And I submitted a document to the [state]
courts . . . showing that the officer wasn’t telling the truth on what
time he checked the license plate. He said 7:30pm[;] the paper work
I have show[s] 8:38pm.
Ground Two: The dispatch transmission report and towing record
and repair record will support my claim of being innocen[t]. I will
show that the judge, prosecutor, and the officers in my case
cover[ed] up what had happen[ed] in my case and the “MDC”
computer show[s] that the officers didn’t check the license plate at
7:30pm like he testif[ied] to[;] the “MDC” computer show[s] it was
8:38pm.
Ground Three: If the jury [had known] about the dispatch
transmission report and towing records and repair record and the
officers not telling the truth about the time they check[ed] the
license, the outcome of my trial would have been different.
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Ground Four: The dispatch transmission report and towing record
and repair record will support my claim of being innocen[t.] I just
need the [District Court] to review my case to see how my
constitution[al] rights [were] violated.
(Am. Pet., ECF No. 5.)
Petitioner does not refer to any specific constitutional provisions or cite to any case law
in support of the foregoing grounds. There is also significant factual overlap underlying each of
these the claims. Based on these considerations, this Court construes Petitioner’s habeas claims
as follows: first, that Officer Wittevrongel falsely testified that he ran Petitioner’s license plate at
7:30pm, as evidenced by discovery already in Petitioner’s possession demonstrating that
Petitioner’s license plate was checked at 8:38pm; second, that the PCR court improperly denied
his motion for additional post-trial discovery; third, that if Petitioner obtained that discovery, he
would have been able to show that he is actually innocent of the crimes charged, that he was only
pulled over as a result of racial profiling, and that the jury would have acquitted him, and; fourth,
that the assistant prosecutor and the trial judge were aware that Petitioner was pursued and
arrested by Officers Wittevrongel, Roman, and Stinner as a result of racial profiling, and that
these individuals engaged in a collective effort to cover up this fact. 6
Initially, this Court notes that Petitioner never advanced any of the above-identified
claims, per se, during his state court proceedings. Indeed, the primary argument advanced by
Petitioner during his PCR proceedings was that he received ineffective assistance of counsel.
Petitioner in no way asserts that he received ineffective assistance of counsel in the current
6
Petitioner’s assertion that the judge, assistant prosecutor, and Union Township police officers
engaged in a concerted effort to prevent him from obtaining post-trial discovery does not appear
to have been raised as an issue during state court proceedings. Instead, it appears that Petitioner
is now raising this claim for the first time on habeas review.
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habeas matter. That said, and as further detailed, infra, the record makes clear that Petitioner
nonetheless raised many of his present habeas assertions to the state courts, notwithstanding that
Petitioner raised those claims in support of his then-overarching argument that he received
ineffective assistance of counsel. As a result, the PCR court and the Appellate Division provided
significant, substantive analysis on the first, second, and third claims listed above, albeit utilizing
the ineffective assistance of counsel analysis set forth in Strickland v. Washington, 466 U.S. 668
(1984). Although this Court finds the decisions of the state courts to be instructive, in an
abundance of caution, this Court will nonetheless review all of Petitioner’s claims de novo. 7
Breakiron, 642 F.3d at 131 (“Where the state court has not addressed the merits of a claim . . . ,
then [§ 2254’s] deferential standard of review does not apply and [this Court] instead review[s]
the claim de novo.”); see also Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005). Yet, this
Court still must presume that the unrebutted factual findings of the state court are correct.
Breakiron, 642 F.3d at 131 (state court factual findings are presumed correct when reviewing the
merits of a habeas claim, regardless of whether that claim is reviewed de novo or under
AEDPA’s more deferential standard of review) (citations omitted).
i.
The Relevant Rulings of the State Court
As noted above, Petitioner argued to the PCR court, inter alia, that his trial counsel failed
to investigate damage to the unmarked police vehicle, TAC 3, operated by Officers Roman and
Stinner; failed to review the relevant radio transmission records between the Union County
7
This standard of review is different than the deferential standard of review AEDPA requires
for habeas claims that have been fairly presented and properly exhausted in the state courts.
Indeed when “the state court has not reached the merits of a claim thereafter presented to a
federal habeas court, the deferential standards provided by AEDPA . . . do not apply.” Appel v.
Horn, 250 F.3d 203, 210 (3d Cir. 2001). “In such an instance, the federal habeas court must
conduct a de novo review over pure legal questions and mixed questions of law and fact, as a
court would have done prior to the enactment of AEDPA.” Id.
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police officers; failed to appropriately address the implausibility of Officer Wittevrongel’s
purported identification of him; and failed to investigate whether Petitioner was the victim of
racial profiling or selective prosecution. (See, e.g., Aug. 20, 2012 Statement of Reasons Denying
PCR, ECF No. 13-15 at PageID: 449.) Petitioner also sought to have the PCR court order the
State to produce copies of (1) all communications between the police vehicles and headquarters
related to his pursuit and arrest; (2) all records related to the damage sustained by TAC 3; and (3)
an in camera inspection of Officers Wittevrongel, Roman, and Stinner’s personnel files,
including any complaints of racial profiling or selective prosecution. (See Pet’r’s Feb. 13, 2012
Notice of Mot., ECF No. 13-15 at PageID: 379-80; accord Pet’r’s Mar. 17, 2012 Letter Br., ECF
No. 13-15 at PageID: 404-06.)
The PCR court found that Petitioner was not entitled to any of the post-trial requested
discovery, and further concluded that Petitioner failed to establish that he received ineffective
assistance of counsel. Judge Donohue detailed some of the reasons supporting that decision on
the record at Petitioner’s August 10, 2012 PCR hearing:
Let me say at the outset that [Petitioner’s] application for discovery
in this matter I think is absolutely inappropriate. . . .
You can’t say I suspect they’re racial profiling and therefore I want
to look through their files. There’s a balancing test between the
public’s right to know and an officer’s right of privacy.
And before you can get in and have an in-camera inspection you
have to establish some factual predicate that would lead one to
believe that a review was going to produce something.
And to merely say, well he profiled me, therefore he must be
profiling others, is not the kind of thing that you can get that with. .
..
With respect to the discovery with whether or not there was one or
two or more checks of the vehicle, as I recall this even came up at
trial, and I think it was argued by Mr. McCormack as part of the
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case, the time of the police report or the report that indicated there
was a check of the license plates was an hour after the stop. And
that is not inconsistent. Those matters are part of an investigation
after a file. It doesn’t necessarily mean that every transmission
becomes the subject of a report.
Every police department doesn’t keep ad infinitum every radio
transmission, does not record every radio transmission. There’s no
evidence to show that such transmission existed then or existed now.
....
[Petitioner has] made some pro se applications regarding crossracial identification. Identification is really not the sine qua non of
this case. This case is not about identification. It’s about his claims
that the officer lied.
It’s not a question of whether the officer was able to identify the
driver of the vehicle as it went past with the person who was in the
driver’s seat. Was that the subject of cross-examination. Could that
issue have been addressed at the trial.
. . . . The issue is did the police officer lie when they said a man was
driving the car. Ultimately we know that the car that passed the
officer was involved in an accident. And when the officer
investigated at the end and said that’s the man at trial who was
behind the wheel of the car that’s the important part of the case.
. . . . [T]here was sufficient evidence and cross-examination on this
issue. This is not an identification case. It’s whether the officers
are telling the truth.
And as to a cross-racial identification, even if that -- even if you
wanted to say that we should ask for cross-racial identifications
when a police officer is involved, and that’s not the case, you don’t
get a cross-racial identification when there’s a police officer
involved with someone who’s of a different race. That’s a regular
citizen. So we don’t usually apply cross-racial to those cases. But
this is not an identification case.
I saw a man driving the car. The car was chased. He eluded the
police. There was an accident. When I got to the car that had
crashed the person behind the wheel was a male. It was the same
person.
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ls that an identification? I would suggest that it’s subject to crossexamination, it’s subject to some question. But the issue is his
testimony that the person behind the wheel of the car when it was
stopped was confirmed that it was a male. Not that it was the same
person. That’s the importance of this case. This was not an
identification case. It had to do with the credibility of the police
officers.
With respect to the allegations that there was ineffective assistance
of counsel, let’s deal with the racial profiling issue first.
Even by [Petitioner’s] own argument today, after there was an
accident there was an eluding of the police. And after that that car
that was eluding struck someone -- struck another vehicle. Even by
that argument it’s hard to understand how racial profiling would
excuse the conduct of eluding the police. It just simply does not
make sense.
(Aug. 12, 2012 PCR Hr’g Tr. 21-25, ECF No. 13-25.)
In addition to the reasons set forth by the PCR court on the record on August 12, 2012,
the PCR court made the following express factual findings in its August 20, 2012 written
decision denying PCR:
1. On August 22, 2006, at approximately 7:30 p.m., Union County
Police Officer Michael Wittevrongel was parked in the Working
Gear Store parking lot in a marked police car, monitoring traffic on
Route 22 Eastbound.
2. At this time, Officer Wittevrongel observed a Chrysler Fifth
Avenue pass in the left lane of Route 22. He observed that the
driver’s door lock was damaged. He further observed a male driver
and female passenger.
3. Officer Wittevrongel testified that he had a clear view of the
vehicle. It was approximately 7:30 p.m., in the summer, light
outside, a clear day, and the Officer was as close as 10 feet from the
vehicle when it passed.
4. Officer Wittevrongel ran the rear license plate number and found
that it was not registered to any vehicle. He then radioed Officers
David Roman and Walter Stinner for assistance.
Officer
Wittevrongel pulled out onto Route 22 in pursuit, losing sight of the
Chrysler for no more than 30 seconds.
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 15 of 28 PageID: 726
5. He caught up to the Chrysler and observed the other officers pull
out from the Lowes parking lot, activate their lights and sirens and
signal for [Petitioner] to stop. Officer Wittevrongel did the same.
6. With the police vehicles in pursuit, the Chrysler drove erratically,
speeding, and weaving in and out of traffic. When Officer
Wittevrongel reached the top of the exit ramp, he observed that the
Chrysler, which he lost sight of only momentarily, had rear-ended a
Saturn at the stop sign at the bottom of the ramp. The impact forced
the Saturn all the way across the street, into a parking lot, where it
collided with a tractor trailer.
7. The Chrysler, having sustained heavy front-end damage, was
smoking and rolling the wrong way down a one-way street as the
driver attempted to exit, despite [the fact] that [the] door would not
open.
8. Officer Wittevrongel quickly checked the driver of the Saturn
before using his police cruiser to block the Chrysler from moving
any further. Inside that vehicle was [Petitioner], in the driver’s seat.
Nicole Pittman, [Petitioner’s] cousin, was in the passenger seat.
9. [Petitioner,] who was the same person Officer Wittevrongel saw
in the driver’s seat when he observed the vehicle on Route 22, was
placed under arrest.
10. Carol McBride, the driver of the Saturn, sustained injuries to her
neck, back and shoulders that left her with pain and unable to drive
for more than one year.
(See Aug. 20, 2012 Statement of Reasons Denying PCR at Findings of Fact, ECF No. 13-15 at
PageID: 449-50.)
By way of its August 20, 2012 written decision, the PCR court also expressly found, inter
alia: (1) that “identification was not a critical issue in this case[;]” (2) that “there was ample
additional evidence corroborating Officer Wittevrongel’s identification of [Petitioner] as the
individual driving the Chrysler[;]” (3) “that the Officer [Wittevrongel] observed [Petitioner] in
the vehicle [and] was within sight of the vehicle at all crucial times[;]” (4) “that the vehicle did
not stop until it crashed[;]” (5) “that Officer Wittevrongel observed [Petitioner] exit the
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 16 of 28 PageID: 727
vehicle[;]” (6) “that the attempted stop of [Petitioner’s] vehicle was objectively reasonable
because it bore unregistered license plates[;] (7) that “[Petitioner] has not established even one
iota of evidence that he was the victim of profiling [and that] even if he did establish this to
invalidate the stop, it would not justify his eluding or the assault resulting therefrom[;]” and (8)
that [t]he jury would [ultimately] still likely have found [Petitioner] guilty based on his actions
subsequent to the stop.” (See id. at Conclusions of Law, PageID: 450-52.)
In his appeal challenging the PCR court’s denial of his PCR petition, Petitioner expressly
argued that the PCR court improperly denied Petitioner’s post-trial motion for discovery. (See
Pet’r’s Dec. 31, 2013 Br. at Point II, ECF No. 13-14.) Petitioner expounded upon that argument
as follows:
[Petitioner’s motion for post-trial] discovery sought, in pertinent
part, copies of all communications between police vehicles and
headquarters (dispatch/transmissions and MDC) which had been
transmitted on the night in question, as well as copies of all records
with reference to the damage sustained by [TAC 3], including but
not limited to towing and repair records.
According to the [Petitioner’s] supporting certification, he
emphasized his defense at trial was that he was not the driver of the
Chrysler that allegedly eluded police, and that Patrolman
Wittevrongel could not possibly have reliably identified him as the
driver. According to the officer’s testimony, as the Chrysler drove
by at approximately 45 miles per hour, he was able to observe
damage to the driver’s door lock, the absence of a license plate on
the front of the car, the existence of a New Jersey license plate on
the back of the car, and that there was a male driver and a female
passenger. This occurred at approximately 7:30 p.m.
Pretrial discovery which was provided by the State included a
computer print-out which showed the license plate was run on the
night in question at 8:38 p.m., although the officer’s police report
did not indicate what time the license plate was run. Trial counsel
never questioned the officer regarding the absence of a MDC
computer print-out for approximately 7:30 p.m.
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 17 of 28 PageID: 728
[Petitioner] maintained the dispatch and MDC records were relevant
to Wittevrongel’s credibility with respect to how the events
transpired, and whether he could have reliably identified the driver.
In this regard, communications between he and dispatch would
demonstrate the time he initially observed the vehicle, as well as any
observations he made with respect to its condition and the
occupants. Such information was crucial to the [Petitioner’s]
contention that he did not receive adequate legal representation from
trial counsel as a result of counsel's failure to confront and impeach
the testimony elicited by the State. As a result, it was essential to
obtain all dispatch/transmission and MDC records with respect to
that evening.
With respect to the damage and towing reports of [TAC 3], that
vehicle was operated by Patrolman Stinner with Patrolman Roman
as a passenger. According to the [Petitioner’s] certification, the
Chrysler in which he was riding pulled over on Route 22 after it
appeared it was being followed. The TAC 3 vehicle then rammed
the Chrysler, which then took off, exiting Route 22 at which time it
rear-ended a Saturn on the exit ramp. The TAC 3 vehicle also hit
the Saturn, sustaining sufficient front-end damage that had to be
towed from the scene. As a result, it was necessary to obtain records
of the damage to the vehicle to demonstrate the State’s version of
the incident, which did not include the ramming of the Chrysler on
Route 22 or the hitting of the Saturn on the exit, was inaccurate.
In further support thereof, [Petitioner] emphasized inconsistencies
between Patrolman Wittevrongel’s testimony, his police report, and
the observations of Patrolman Stinner. In addition, contradictions
existed between the testimony and report of Wittevrongel and Carol
McBride, the driver of the Saturn. As a result, it was essential to
obtain the towing and damage reports relating to the TAC 3 vehicle
to adversely impact the State’s case, which trial counsel had failed
to obtain in support of his defense.
(Id. at 20-23 (internal citations omitted).)
The Appellate Division provided the following analysis on these claims in its opinion
denying Petitioner’s PCR appeal:
[Petitioner] argues his trial attorney was ineffective because he
failed to investigate the circumstances of the police chase to support
his defenses that his cousin, Nicole Pittman, was the driver of the
Chrysler and that the police were actually the cause of the collision
with the Saturn on the exit ramp.
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We will assume for purposes of the appeal that trial counsel should
have pursued discovery of police transmissions during the incident
to verify whether any of the officers reported to their headquarters
that a man was the driver of the fleeing vehicle. The absence of such
a transmission would not have changed the presentations at trial
significantly. Officer Wittevrongel’s police report did not indicate
the gender of the driver that he observed on Route 22, and defense
counsel cross-examined him on that omission. The officer testified
that he did not include a description because there was no issue in
his mind of who the driver was. Furthermore, Officer Stinner
testified that he, too, saw a male driver in the Chrysler as it sped
away on Route 22. The incident developed quickly into a police
chase, and the description of the vehicle rather than the fact that a
man was driving would have been the important information to
convey to other officers and headquarters.
Only if the police transmissions were to include a statement by one
of the officers that a woman was driving the fleeing vehicle would
it have helped the defense’s contention that Nicole Pittman rather
than [Petitioner] was the driver. However, the police released
Nicole Pittman on the scene shortly after the crash. There is no
credible likelihood that she would have been released if an officer
had seen a woman driving the Chrysler during the chase and made
such a transmission to police headquarters.
[Petitioner] alleges that the police car driven by Officer Stinner had
rammed the Chrysler earlier on the shoulder of Route 22 and thus
caused the Chrysler to flee and eventually collide with the Saturn.
We will assume that [Petitioner’s] trial attorney should have
attempted to obtain discovery of any repair records of the police
vehicle. Even if [Petitioner’s] version is true that Stinner’s vehicle
rammed the Chrysler, it would not justify [Petitioner’s] fleeing on
Route 22 at high speed for two or three miles, then suddenly crossing
from the left lane to the exit ramp on the right, and ramming the car
of an innocent citizen at the bottom of the ramp.
The investigation that [Petitioner] contends his attorney should have
done might theoretically have produced additional impeachment
evidence to challenge the accuracy and completeness of the officers’
trial testimony, but it would not have created a defense against the
allegations of dangerous eluding and the aggravated assault of an
innocent driver in the course of the eluding.
[Judge Donohue] issued a written decision by which he addressed
and rejected point by point each of [Petitioner’s] allegations on the
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 19 of 28 PageID: 730
PCR petition. We agree that [Petitioner’s] allegations were not
sufficient to call into question the essential evidence in the
prosecution’s case or the strength of that evidence with respect to
[Petitioner’s] criminal conduct during the incident.
Furthermore, with the testimony of two officers that they saw a male
driver, followed by [Petitioner] being found immediately after the
crash in the driver’s seat, this was not a case where identification
was an issue. There was no basis in the evidence to instruct the jury
about the trustworthiness of cross-racial identification of strangers .
...
The PCR petition did not proffer any evidence that Nicole Pittman
was the actual driver of the vehicle rather than [Petitioner].
Pittman, 2014 WL 8086797, at *3-4 (N.J. Super. Ct. App. Div. Mar. 9, 2015).
ii.
The PCR Court’s Denial of Petitioner’s Post-Trial Discovery Requests
Petitioner challenges the PCR’s court’s denial of his discovery motion requesting copies
of all police communications related to his pursuit and arrest, all records related to the damage
sustained by TAC 3 in the course of that pursuit, and an in camera inspection of Officers
Wittevrongel, Roman, and Stinner’s personnel files. (See Am. Pet. at Grounds One and Two,
ECF No. 5.)
Petitioner’s claim that the PCR court improperly denied his post-trial discovery motion,
however, is not, in and of itself, cognizable on federal habeas review. Indeed, Section 2254
limits the federal courts’ ability to grant relief from a state court judgment “only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). “Thus, the federal role in reviewing an application for habeas corpus is
limited to evaluating what occurred in the state . . . proceedings that actually led to the
petitioner’s conviction; what occurred in the petitioner’s collateral proceeding does not enter into
the habeas calculation.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998), cert. denied,
526 U.S. 1065 (1999). In other words “alleged errors in collateral proceedings . . . are not a
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 20 of 28 PageID: 731
proper basis for habeas relief from the original conviction. It is the original trial that is the ‘main
event’ for habeas purposes.” Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004), cert.
denied, 544 U.S. 1063 (2005); see also Thomas v. Miner, 317 F. App’x 113, 115 (3d Cir. 2008)
(citing Hassine, 160 F.3d at 954); Williams v. D’Ilio, No. 3:15-cv-1720 (AET), 2016 WL
1436272, at *7 (D.N.J. Apr. 11, 2016) (PCR court’s failure to grant § 2254 habeas petitioner’s
motion for post-trial discovery of trial witnesses’ phone records “is not cognizable in federal
habeas.”). As such, Petitioner’s allegations regarding the PCR court’s discovery rulings fail to
provide a basis for this Court to grant him habeas relief.
iii.
Officer Wittevrongel’s Purportedly False Testimony
Petitioner argues that Officer Wittevrongel provided false testimony at trial regarding the
time at which he initially checked the license plate of the Chrysler which Petitioner was driving.
(See Am. Pet. at Grounds One and Two, ECF No. 5.) More specifically, Petitioner claims
“[Officer Wittevrongel] didn’t check the license plate at 7:30pm like he testif[ied] to[;] the
‘MDC’ computer show[s] it was 8:38pm.” (Id. at Ground Two.) Petitioner further claims “that
the judge, prosecutor, and the officers in [his] case cover[ed this fact] up.” (Id.)
“The Supreme Court has long held that the state’s knowing use of perjured testimony to
obtain a conviction violates the Fourteenth Amendment.” Lambert v. Blackwell, 387 F.3d 210,
242 (3d Cir. 2004) (citing, inter alia, Giglio v. United States, 405 U.S. 150, 153 (1972); Napue v.
Illinois, 360 U.S. 264, 269 (1959)). Consequently, “a conviction obtained by the knowing use of
perjured testimony . . . must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97,
103 (1976), holding modified by United States v. Bagley, 473 U.S. 667 (1985). “[T]he same
result obtains when the State, although not soliciting false evidence, allows it to go uncorrected
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 21 of 28 PageID: 732
when it appears.” Giglio, 405 U.S. at 153 (quoting Napue, 360 U.S. at 269; see also Haskell v.
Superintendent Greene SCI, 866 F.3d 139, 146 (3d Cir. 2017); Lambert, 387 F.3d at 242. To
obtain habeas relief on such a claim, Petitioner must show: “(1) [that a witness] committed
perjury, (2) the [State] knew or should have known that the testimony was false, (3) the false
testimony was not corrected, and (4) there is a reasonable likelihood that the perjured testimony
could have affected the judgment of the jury.” Haskell v. Superintendent Greene SCI, 866 F.3d
139, 146 (3d Cir. 2017).
The transcript of trial proceedings confirms that Officer Wittevrongel testified that he
observed Petitioner’s vehicle at approximately 7:30pm on August 22, 2006, that he checked the
vehicle’s license plate on the computer in his police car, that the license plate was “not on file[,]”
and that he relayed this information to Officers Stinner and Roman prior to Petitioner’s vehicle
crashing. (See Sept. 26, 2007 Trial Tr. 9-11, ECF No. 13-21.) The record also confirms that
Petitioner received a document in the course of pre-trial discovery demonstrating that his license
plate was checked at 8:38pm. (See, e.g., Pet’r’s Reply, ECF No. 15 at PageID: 687.) The PCR
court found that these two facts, when considered together, do not necessarily lead to the
conclusion that Officer Wittevrongel provided false testimony during trial. Indeed, the PCR
court explained that “[the fact that Officer Wittevrongel’s report] indicated there was a check of
the license plates [] an hour after the stop . . . is not inconsistent [with his testimony that he
checked Petitioner’s license before that time]. Those matters are part of an investigation after a
file. It doesn’t necessarily mean that every transmission becomes the subject of a report as
Petitioner claims.” (Aug. 12, 2012 PCR Hr’g Tr. 22-23, ECF No. 13-25.) In other words, the
PCR court found it entirely plausible that Officer Wittevrongel checked Petitioner’s license on
more than one occasion, notwithstanding that the evidence at trial showed only that the license
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 22 of 28 PageID: 733
plate was checked at 8:38pm. In that respect, this Court notes that “[d]iscrepancy [in a witness’s
testimony] is not enough to prove perjury.” Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir.
2004).
The PCR court thereafter made an express factual finding that “Officer Wittevrongel ran
the license plate number [on the Chrysler] and found it was not registered to any vehicle. He
then radioed Officers [Roman and Stinner] for assistance.” (See Aug. 20 2012 Statement of
Reasons Denying PCR at Findings of Fact ¶ 4, PageID: 449) (emphasis added.) The Appellate
Division did not expressly accept, reject, or otherwise rule on the propriety of this factual finding
in its opinion affirming the PCR court’s denial of Petitioner’s PCR petition; instead, it simply
noted that “[Judge Donohue’s written decision] addressed and rejected point by point each of
[Petitioner’s] allegations on the PCR petition.” Pittman, 2014 WL 8086797, at *4. The PCR
court’s factual determination on this issue is therefore entitled to deference from this Court.
Breakiron, 642 F.3d at 131.
The Appellate Division, did, however, expressly find that Petitioner’s allegations
regarding the discrepancies between Officer Wittevrongel’s testimony and the police records
presented at trial “were not sufficient to call into question the essential evidence in the
prosecution’s case or the strength of that evidence with respect to defendant’s criminal conduct
during the incident.” Pittman, 2014 WL 8086797, at *4. The Appellate Division further found
that additional investigation “might theoretically have produced additional impeachment
evidence to challenge the accuracy and completeness of the officers’ trial testimony, but it would
not have created a defense against the allegations of dangerous eluding and the aggravated
assault of an innocent driver in the course of the eluding.” Pittman, 2014 WL 8086797, at *4.
Petitioner has not presented this Court with any evidence which rebuts these findings.
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 23 of 28 PageID: 734
Petitioner, likewise, has failed to present any evidence which even remotely substantiates
his conclusory allegation that the trial judge, assistant prosecutor, and officers who testified at
trial somehow colluded to ensure that Officer Wittevrongel’s allegedly false testimony would
stand. Petitioner’s factually-unsupported assertion that the State knowingly relied on the
allegedly perjured testimony of Officer Wittevrongel to obtain its conviction against him fails to
provide a basis to award him habeas relief.
The Court agrees with the Appellate Division that ultimately, Petitioner’s allegations
regarding Officer Wittevrongel’s trial testimony are “not sufficient to call into question the
essential evidence in the prosecution’s case or the strength of the evidence with respect to
defendant’s criminal conduct during the incident.” See Pittman, 2014 WL 8086797, at *4.
Petitioner is therefore not entitled to habeas relief on this claim. See Williams v. Ricci, No. 2:09cv-1822 (DRD), 2015 WL 333417, at *6 (D.N.J. Jan. 22, 2015) (denying habeas relief on
petitioner’s claim that prosecutor knowingly allowed a police officer to provide false testimony
where state court found overwhelming evidence of petitioner’s guilt and the allegedly false
testimony was not a key element of the State’s case); see also Williams v. D’Ilio, No. 3:15-cv1720 (AET), 2016 WL 1436272 (D.N.J. Apr. 11, 2016) (“Petitioner has not established that
[witness] actually perjured herself at trial; therefore, he is not entitled to habeas relief on that
ground.”). As such, Petitioner’s allegations regarding the allegedly false testimony Officer
Wittevrongel fail to provide a basis for this Court to grant him habeas relief.
iv.
Petitioner’s Assertion That He Was Impermissibly Stopped
Petitioner appears to assert that he is entitled to habeas relief because there was no
legitimate reason to stop the vehicle he was driving. (See Am. Pet. at Grounds One and Two,
ECF No. 5.) More specifically, Petitioner appears to claim that the police officers who pursued
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 24 of 28 PageID: 735
him in the Chrysler would never have attempted to stop that vehicle but for their utilization of
racial profiling. (Id.) Although Petitioner fails to reference any specific constitutional provision,
it is clear that this claim is rooted in Petitioner’s Fourth Amendment right “to be secure . . .
against unreasonable searches and seizures.” U.S. Const. amend IV. See Ingram v. Phelps, No.
CIV.A.07-12-GMS, 2008 WL 4365945, at *1 (D. Del. Sept. 24, 2008) (Petitioner alleging
Fourth Amendment violation on habeas review after claiming during state court PCR
proceedings that “the investigatory stop and detention of [him] was the result of racial
profiling.”). It also appears that Petitioner may additionally be attempting to claim that he was
subjected to selective enforcement in violation of his rights to equal protection under the
Fourteenth Amendment. See, e.g., Gibson v. Superintendent of N.J. Dep’t of Law & Pub. SafetyDiv. of State Police, 411 F.3d 427, 440-41 (3d Cir. 2005).
During PCR proceedings, Petitioner claimed that there was an insufficient basis to stop
the Chrysler based on Officer Wittevrongel’s initial observations of that vehicle, and that the
officer sought to stop the vehicle based on Petitioner’s race. (See, e.g., Pet’r’s Feb. 18, 2012
Cert. ¶ 6, ECF No. 13-15 at PageID: 385-86.) The PCR court supported its rejection of this
argument with a litany of factual findings showing why it was objectively reasonable for the
police officers to attempt to stop Petitioner’s automobile. (See, generally, Aug. 20, 2012
Statement of Reasons Denying PCR, ECF No. 13-15 at PageID: 449-452.) Indeed, the PCR
court expressly found, inter alia, that Petitioner’s vehicle “drove erratically, speeding, and
weaving in and out of traffic.” (Id. at Findings of Fact ¶ 6, PageID: 449.) The PCR court further
noted that Petitioner failed to present “any objective evidence demonstrating the existence of
selective enforcement or racial profiling[,]” and further found that “even if he did establish [that
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 25 of 28 PageID: 736
he was racially profiled], it would not justify his eluding or the assault resulting therefrom.” (Id.
at Conclusions of Law ¶¶ 11, 13, PageID: 451-52.)
In light of the foregoing, it is clear (i) that Petitioner received the opportunity to – and in
fact did – argue to the state courts that there was an insufficient basis to stop the Chrysler based
on Officer Wittevrongel’s initial observations of that vehicle; and (ii) that Petitioner’s habeas
petition now seeks relief from this Court based on Petitioner’s assertion that his “Fourth
Amendment claims were decided incorrectly or incompletely by the New Jersey courts.”
Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002).
In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held that
“where the State has provided an opportunity for full and fair litigation of a Fourth Amendment
claim, a state prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial.” See id. at
495-96. As explained by the Third Circuit in Hubbard v. Jeffes, 653 F.2d 99 (3d Cir. 1981),
Stone ultimately stands for the broader proposition that “when a state prisoner raises a Fourth
Amendment violation in a habeas petition, a federal court may not consider the merits of the
claim if the state tribunal had afforded the petitioner ‘an opportunity for a full and fair litigation’
of his claim.” Id. at 102-03 (citing Stone, 428 U.S. at 494); see also Marshall, 307 F.3d at 82
(“An erroneous or summary resolution by a state court of a Fourth Amendment claim does not
overcome the [Stone] bar”) (citations omitted).
In accordance with Stone and its progeny, and in light of the facts detailed above, it is
clear that this Court is now barred from considering Petitioner’s Fourth Amendment claims
regarding the Union Township police officers’ purported lack of a legitimate basis to stop the
vehicle he was driving in this § 2254 proceeding. See Gilmore v. Marks, 799 F.2d 51 (3d Cir.
Case 2:15-cv-05546-JMV Document 21 Filed 07/10/18 Page 26 of 28 PageID: 737
1986); Hubbard, 653 F.2d at 103; see also Ingram, 2008 WL 4365945, at *4. It is less clear,
however, whether Stone also precludes this Court from considering the merits of Petitioner’s
additional Fourteenth Amendment equal protection claim.
In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that “[a]n
automobile stop is . . . subject to the constitutional imperative [under the Fourth Amendment]
that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop
an automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred.” Id. at 810. Whren holds that “the constitutional reasonableness of
traffic stops [does not depend] on the actual motivations of the individual officers involved[,]”
and thus, the Fourth Amendment is not violated “where the search or seizure is based upon
probable cause.” Id. at 813, 817. In other words, “[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis. Id. at 813. Whren, however, also states –
without elaboration – that “the constitutional basis for objecting to intentionally discriminatory
application of laws is the Equal Protection Clause, not the Fourth Amendment.” Id.
Whren does not discuss the import of Stone, and it does not appear that the Supreme
Court has ever subsequently addressed the interplay of these two decisions. This Court therefore
finds itself without definitive authority from the Supreme Court regarding whether the officers’
purported violation of Petitioner’s Fourteenth Amendment equal protection rights receive
independent consideration and analysis, or whether this claim is also subsumed by Stone. This
Court is likewise unable to locate definitive guidance from the Third Circuit on this particular
issue. Compare, e.g., Gibson, 411 F.3d at 440-41 (stating, in opinion considering propriety of
dismissal of a plaintiff’s civil rights lawsuit, that “if a person can demonstrate that he was
subjected to selective enforcement in violation of his Equal Protection rights, his conviction will
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be invalid.”); and United States v. Delfin-Colina, 464 F.3d 392, 397, 397 n.5 (3d Cir. 2006)
(noting that the Third Circuit “has not directly addressed the question whether Whren has
changed the law of traffic stops” and that its “Gibson opinion did not discuss Whren”).
Decisions of other federal courts persuade this Court that it is precluded from
independently considering Petitioner’s allegation of racial profiling as a stand-alone habeas
claim. See United States v. Stone, 225 F.3d 647 (2d Cir. 2000) (criminal defendant’s claim “that
the police officers’ initial surveillance of him was predicated on racial stereotyping” did not alter
the court’s Fourth Amendment analysis) (citing Whren, 517 U.S. at 813); Williams v. McKee,
No. 1:08-cv-62, 2009 WL 2982757 (W.D. Mich. Sept. 14, 2009) (finding that the illegal search
and seizure claim raised by a § 2254 habeas petitioner who averred that he was stopped as a
result of racial profiling was barred from substantive consideration pursuant to Stone). This is
particularly so because Petitioner previously raised the issue of racial profiling during his state
court proceedings. See, e.g., Cobbs v. Pollard, No. 08-CV-704-BBC, 2009 WL 1604988, at *4
(W.D. Wis. June 5, 2009) (§ 2254 habeas petitioner’s contention “that the traffic stop violated
his Fourteenth Amendment equal protection rights because it was racially motivated” was barred
under Stone where “his claim that he was subject to racial profiling was a central part of the
Fourth Amendment claim that he raised in state court.”). 8
8
To the extent this Court is incorrect in finding that its independent consideration of Petitioner’s
Fourteenth Amendment equal protection claim is not barred under Stone, this Court would
nonetheless find that Petitioner’s factually unsupported allegation of racial profiling fails to
provide a basis to grant him habeas relief. Petitioner has not presented any facts upon which this
Court could conclude or reasonably infer that he was the victim of racial profiling. The Court is
likewise unable to locate any basis in the record which suggests otherwise. Petitioner has
similarly failed to provide any legal authority – convincing or otherwise – upon which this Court
could find that he is entitled to habeas relief as to this alleged violation.
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In light of the foregoing considerations, Petitioner’s claims regarding the purported
absence of a valid basis to pull over the Chrysler he was driving – including Petitioner’s claim
that he was the victim of impermissible racial profiling – fail to provide a basis for this Court to
grant him federal habeas relief.
v.
Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a
habeas proceeding where that petitioner’s detention arises out of his state court conviction unless
he has “made a substantial showing of the denial of a constitutional right.” “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude that the issues
presented here are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). For the reasons expressed above, Petitioner has failed to make a
substantial showing that he was denied a constitutional right. As reasonable jurists could not
disagree with this Court’s resolution, the Court shall deny Petitioner a certificate of appealability.
V.
CONCLUSION
For the reasons stated above, the habeas petition is denied. A certificate of appealability
shall not issue. Petitioner’s request for the appointment of pro bono counsel is denied. An
accompanying Order will be entered.
July 10, 2018
Date
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
U.S. District Judge
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