VENABLE v. JOHNSON et al
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 11/10/2016. (seb)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAHEEM VENABLE,
Petitioner,
v.
STEPHEN JOHNSON, et al.
Respondents.
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Civil Action No. 15-6958 (SDW)
OPINION
WIGENTON, District Judge:
Presently before the Court is the amended petition for a writ of habeas corpus of Raheem
Venable (“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court
conviction (ECF No. 5). Following this Court’s Order to Answer, the State filed a response to
the petition (ECF Nos. 9-10), to which Petitioner has replied (ECF No. 13). For the following
reasons, this Court will deny the petition and deny Petitioner a certificate of appealability.
I. BACKGROUND
In its opinion affirming Petitioner’s conviction, the Superior Court of New Jersey –
Appellate Division offered the following summary of the basic facts underlying this case:
A jury found codefendants [Petitioner] and Malik Simmons guilty
of purposeful or knowing murder, in violation of N.J.S.A. 2C:113(a)(1),(2); possession of a handgun without a permit, in violation
of N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful
purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court
sentenced [Petitioner] to life imprisonment, subject to the sixtythree year and nine-month period of parole ineligibility mandated
by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the
murder, and a concurrent ten-year term of imprisonment for
possession of a handgun without a permit. The court sentenced
Simmons to a forty-year term of imprisonment, subject to the thirtyfour year period of parole ineligibility mandated by NERA for the
murder, and a concurrent five-year term for possession of a handgun
without a permit. The court merged defendants' convictions for
possession of a weapon for an unlawful purpose.
Defendants' convictions were based on the death of Fahiym Phelps
as a result of a shooting outside a bar in Irvington on the night of
November 27, 2004. Before the shooting, Phelps was inside the bar
with his brother, Sharif, and a cousin, Tashon Young. During that
time, Phelps had a verbal altercation with [Petitioner], which was
witnessed by Sharif, Young, and the manager of the bar, Sean
Dubose. The altercation was interrupted by Dubose, who had a
security guard, Michael Gibbs, escort [Petitioner] outside the bar,
while Dubose stayed inside with Phelps.
The bar closed approximately ten minutes later, at which time
Phelps, Sharif, and Young walked outside, where they encountered
[Petitioner] and Simmons, both of whom were armed with
handguns. [Petitioner and Simmons] began shooting in Phelps's
direction, discharging between six and ten bullets. Six of the
bullets struck Phelps, causing fatal injuries.
After the crime, Sharif and Young identified both [Petitioner] and
Simmons as the shooters from photographic arrays shown to them
by the police. Sharif and Young also identified [Petitioner] and
Simmons as the shooters at trial. In addition, although he did not
witness the shooting, Gibbs identified [Petitioner] as the person who
had the altercation with Phelps and was escorted out of the bar.
Neither [Petitioner] nor Simmons testified or presented any other
witnesses in their defense.
State v. Venable, 986 A.2d 743, 744-45 (N.J. App. Div.), certif. denied, 997 A.2d 231 (N.J.
2010).
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During jury selection prior to trial and following a discussion of the potential gang
affiliation testimony that might come out during the course of trial, the trial court in this matter
made the following remarks:
Are there individuals here from either the defense’[s] family or the
victim’s family because if so I don’t want anybody from either
family in the courtroom during jury selection because we’re going
to have 85 jurors, and the courtroom is just going to be too crowded.
I don’t, for security reasons, I don’t want members of the
defendant’s family or the victim’s family in the courtroom during
jury selection.
Id. at 745-46. Petitioner’s trial counsel responded to this order by saying, “Oh, okay. No
problem,” and his co-defendant’s lawyer did not respond in any way. Id. at 746. No objection
was made to this temporary closure of the court room as to the families only, and there is nothing
in the record which clearly demonstrates that any such family members were present in the court
room at that time. Id. (See also Document 5 attached to ECF No. 9 at 4-19).
At trial, several witnesses identified Petitioner as either one of the shooters or the person
who was involved in an altercation with the victim inside of the night club prior to the shooting.
Because one of Petitioner’s challenges relates to this identification testimony, a brief summary of
the testimony regarding those identifications is necessary for the purposes of this opinion. At
trial, Sharif Phelps, the victim’s brother, testified that he broke up a fight between his brother and
another individual, whom he identified as Petitioner. (Document 7 attached to ECF No. 9 at 4041). Phelps also testified that Petitioner was with his co-defendant, whom Phelps had known for
several years. (Id. at 41). He further stated that when he, his cousin, and the victim left the
club at closing time, Phelps heard several gunshots, and turned to see Petitioner and his codefendant with guns in their hands, and his brother upon the ground having been shot. (Id. at
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43). He then witnessed Petitioner continuing to shoot his brother. (Id.). Phelps stated that the
area was well lit, and that he got a good look at Petitioner and his co-defendant during the
shooting and that he was certain that Petitioner was both the shooter and the man who had fought
with his brother in the club. (Id. at 45-46).
Phelps also testified about his having made prior identifications of Petitioner and his codefendant. Phelps testified that, following the shooting, he made a statement at the Irvington
police station and identified Petitioner’s co-defendant by name as one of the two shooters,
ultimately picking him out of a photo array a couple of hours later. (Id. at 48-49). Phelps
further testified that, a few days later on November 29, 2004, he went to the prosecutor’s office
to look through a series of photos via computer. (Id. at 50-51). During this session, Phelps
identified Petitioner’s photograph, immediately stating to the detective that “this is the
motherfucker right here” upon seeing Petitioner’s photo. (Id. at 51). Phelps also testified that,
during the array, he had been told only to tell the detective if he recognized anyone, and was not
directed to pick someone out. (Id.).
Detective Bzik, the lead detective in this matter, eventually testified that, when they were
having difficulty identifying the second shooter, later identified as Petitioner, she brought Phelps
into her office to review a computer database of photographs. (Document 9 attached to ECF
No. 9 at 90). She then testified that she entered into the computer the description Phelps had
given and let Phelps go through the pictures, but Phelps could not identify anyone. (Id.). She
then adjusted the description, changing the skin tone from light to medium, and had Phelps again
look through photos. (Id. at 90-91). During this second viewing, Petitioner’s photo eventually
appeared, at which point Phelps stood up, “spit on the screen, and he yelled, that motherfucker,
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and became extremely upset.” (Id. at 91). Bzik then printed the photo of Petitioner, and placed
it into a photo array with several photos of other individuals with similar characteristics. (Id. at
91-92). To be certain that Phelps had not identified based on his tattoos, Bzik covered the areas
where Petitioner had tattoos on all six photos with a black marker, so that all of the photos in the
array appeared similar in that respect. (Id. at 92). She then had another detective named Frisk
show that array to Phelps, at which point he again identified Petitioner as the one who shot his
brother. (Id. at 93).
After Phelps’s testimony concluded, the State next called a detective Gregory, who
testified regarding his having shown Phelps the original photo array. Gregory testified that on
the night of the shooting, he was not involved with the investigation, and was thus chosen to
show Phelps the initial photo array. (Document 7 attached to ECF No. 9 at 100). Gregory
further testified that he gave Phelps the standard instructions for reviewing a line up, in which he
informed Phelps that he did not know who the suspects were, and that it was for the witness to
identify anyone he recognized in the array. (Id. at 100-01). Gregory testified that Phelps,
without further direction or help, identified Petitioner’s co-defendant. (Id. at 102).
The State then called Tashon Young, the victim’s cousin. Young also identified
Petitioner as the person who argued with the victim in the club, and as one of the shooters. (Id.
at 107-110). Young testified that he had a good opportunity to view Petitioner and his codefendant, from a short distance away in decent lighting on that evening. (Id. at 110-12).
Young also testified to his having identified both Petitioner and his co-defendants during photo
arrays, and that he was absolutely certain that they were the ones who shot his cousin. (Id. at
113-18).
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Detective Frisk of the county prosecutor’s office next testified regarding the photo array
in which Phelps identified Petitioner following his initial identification of Petitioner on a
computer screen discussed above. Frisk testified that he was not involved in the investigation of
the shooting, but was asked by the detective investigating the case to conduct the November 29th
photo array with Phelps. (Document 8 attached to ECF No. 9 at 39-40). Frisk stated that he
gave Phelps the standard instructions and showed Petitioner the array, and that he did not know
anything about the case or the suspects involved in this case. (Id. at 40). Frisk further testified
that he and Phelps were the only ones present at that time. (Id. at 41). Frisk then testified that
Phelps identified Petitioner, stating that he was the one who shot his brother upon seeing
Petitioner’s photograph. (Id. at 42-43).
Detective Kyle Jackson of the prosecutor’s office then testified regarding the photo array
he conducted for Tashon Young. Jackson testified that he gave Young the standard instructions,
including an instruction that the perpetrator may not be in the array. (Id. at 45-46). Jackson
also stated that he had no involvement in this case, and thus did not know anything about the
individuals in the array. (Id. at 46). Jackson testified that Young then identified Petitioner
without hesitation upon seeing his picture. (Id. at 46-47). Detective Wallace of the Irvington
police, who was also not involved in this case, later testified that Young similarly identified
Petitioner’s co-defendant during an earlier photo array. (Document 9 attached to ECF No. 9 at
65).
A third witness, an employee of the night club named Gibbs, also identified Petitioner as
the man who argued with the victim inside the club before the shooting via photo array and
during the trial. (Document 9 attached to ECF No. 9 at 44-45). Gibbs had not been able to
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identify Petitioner’s co-defendant, however. (Id. at 46). Detective Homes, who conducted the
array with Gibbs but was otherwise uninvolved, also testified regarding Gibbs’s identification of
Petitioner. (Id. at 70). Holmes testified that, after viewing the array, Gibbs was certain that the
photograph of Petitioner was the individual who was involved in the club altercation with the
witness. (Id. at 71).
Following all of the testimony at trial, Petitioner and his co-defendant were convicted of
purposeful or knowing murder and related weapons charges. Venable, 986 A.2d at 744.
Petitioner appealed his conviction and sentence, and the New Jersey Appellate Division
affirmed. Id.1 Petitioner filed a petition for certiorari, which the New Jersey Supreme Court
ultimately denied. 997 A.2d at 231.
Following the conclusion of direct appeal, Petitioner and his co-defendant both filed
petitions for post-conviction relief, which were denied by the trial courts. See State v. Simmons,
2014 WL 6677148, at *1 (N.J. App. Div. Nov. 26, 2014). Petitioner also filed a motion for a
new trial based on allegedly newly discovered evidence alongside his petition. Id.at *2. That
motion was based on a certification provided by an individual known as Q, also known as
Laquan Jordan. In his certification, Q stated that he was at the club on the night of the shooting
with the victim and his brother. Id. Q further asserted that, at the time of the shooting, he and
Sharif Phelps were not near the site of the shooting as they were at his car. Id. Q states that the
two ran to the scene, discovered the victim and Tashon Young, and asked Young what had
Only a portion of the Appellate Division’s opinion affirming Petitioner’s conviction was
published. The remainder was presented in an unpublished opinion. See State v. Venable,
2010 WL 32980 (N.J. App. Div. Jan. 29, 2010).
1
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happened, to which Young responded he didn’t know as he had run from the shots. Id. Q did
not assert that he had seen who shot the victim, nor that the shooter was not Petitioner, and thus
only offered impeachment evidence challenging the testimony of Phelps and Young that
Petitioner was the shooter. Id. This information, however, was offered by Q for the first time
in 2010, several years after trial. Id. Q asserted that, upon learning the length of Petitioner’s
sentence, he decided to come forward because he “knew” that Phelps and Young had not seen
the shooter. Id. Q also claimed that he never discussed the case with Phelps. Id.
The PCR court denied the motions of both Defendants, finding that their claims of
ineffective assistance were without merit, and that Q’s certification was insufficient to warrant a
new trial as it offered only impeachment evidence, and that that impeachment evidence would
not have produced a different jury result had it been provided at trial in light of the multiple
eyewitnesses at trial all of whom identified Petitioner as either the shooter or the person who
argued with the victim. Id. at *3-4. Petitioner and his co-defendant appealed, and the New
Jersey Appellate Division affirmed the denial of their PCR motions and the motion for a new
trial. Id. Petitioner petitioned for certification, and the New Jersey Supreme Court denied his
petition on April 30, 2015. State v. Venable, 112 A.3d 593 (N.J. 2015). Petitioner thereafter
filed this habeas petition.
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
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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)(1)-(2). Federal law is clearly established for these purposes where it is
clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015).
“When reviewing state criminal convictions on collateral review, federal judges are required to
afford state courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Id. Where a petitioner challenges an allegedly
erroneous factual determination of the state courts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting
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the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
B. Analysis
1. Petitioner’s Public Trial Claim
Petitioner’s chief claim is that the trial court denied him his right to a public trial by
ordering that the family members of Petitioner and the victim be removed from the court room
during jury selection. This Order, Petitioner contends, is a structural error requiring reversal of
his conviction, and as a result the State Court’s denial of his public trial claim is contrary to the
Supreme Court’s ruling in Presley v. Georgia, 558 U.S. 209 (2010). As the Third Circuit has
explained,
[i]n general, the denial of a defendant’s right to a public trial is a
“structural error”—i.e. a defect “affecting the framework within
which the trial proceeds”—requiring reversal irrespective of
whether the defendant demonstrates the error prejudiced his
substantial rights. See Arizona v. Fulminante, 499 U.S. 279, 310[]
(1991) (canvassing cases and delineating the scenarios in which
structural errors have been recognized). “It does not necessarily
follow, however, that every deprivation in a category considered to
be ‘structural’ constitutes a violation of the Constitution or requires
reversal of the conviction, no matter how brief the deprivation or
how trivial the proceedings that occurred during the period of
deprivation.” Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir.2009),
cert. denied, ––– U.S. ––––, 130 S. Ct. 61, 175 L.Ed.2d 233 (2009).
That is, “not every improper partial closure implicates [Sixth
Amendment] concern[s].” Brown v. Kuhlmann, 142 F.3d 529, 536
(2d Cir.1998); see also Bowden v. Keane, 237 F.3d 125, 129 (2d
Cir.2001) (explaining that a defendant's right to a public trial “is not
trammeled, for example, by a trivial, inadvertent courtroom
closure”); Braun v. Powell, 227 F.3d 908, 919 (7th Cir.2000)
(holding the exclusion of one spectator from an entire trial “does not
implicate the policy concerns that inform the Sixth Amendment's
right to an open trial”).
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Whether a particular closure abridges a defendant's Sixth
Amendment rights hinges on its potential to undermine the values
advanced by the public trial guarantee, which include (1) ensuring a
fair trial; (2) reminding the government and the judge “of their
responsibility to the accused and the importance of their functions”;
(3) encouraging witnesses to come forward; and (4) discouraging
perjury. Peterson v. Williams, 85 F.3d 39, 43 (2d Cir.1996). In
Peterson, for example, the Second Circuit held a closure that was
“1) extremely short, 2) followed by a helpful summation, and 3)
entirely inadvertent” did not, in that instance, violate a defendant's
Sixth Amendment rights. 85 F.3d at 44. Additionally, “the
exclusion of a family member or friend may, in rare circumstances
..., not implicate the Sixth Amendment public trial guarantee.”
Carson v. Fischer, 421 F.3d 83, 94 (2d Cir.2005); see also United
States v. Perry, 479 F.3d 885, 890–91 (D.C.Cir.2007) (finding a
district court's exclusion of the defendant's son to be a trivial closure
insufficient to raise constitutional concerns).
Courts have continued to conduct triviality analyses in the
wake of Presley's holding that the Sixth Amendment extends to voir
dire proceedings. In Barrows v. United States, 15 A.3d 673, 680–
81 (D.C. 2011), the Court of Appeals for the District of Columbia
affirmed a conviction after concluding a “brief closure of the
courtroom during voir dire ” had not “seriously compromised the
fairness or integrity of [the defendant's] trial.” And in Kelly v.
State, []6 A.3d 396 (2010), the Maryland Court of Special Appeals
considered the following factors determinative in holding a closure
to have been de minimus:
(1) the limited duration of the closure, two to three
hours during voir dire;
(2) that the closure did not encompass the entire
proceedings of voir dire and jury selection, and that
a significant portion of the proceedings during that
time were not even audible to spectators in the
courtroom; and (3) that the closure was a partial one
[that encompassed only members of the defendant's
family], and not a total exclusion of all spectators.”
Id. at 411.
Moreover, courts have placed considerable emphasis on the
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role of the trial judge in assessing whether a closure is of
constitutional magnitude and have resisted ascribing to judges the
unauthorized actions of courthouse personnel. The Tenth Circuit
has held that a defendant may not mount a successful Sixth
Amendment claim in the absence of “some affirmative act by the
trial court meant to exclude persons from the courtroom.” United
States v. Al–Smadi, 15 F.3d 153, 154 (10th Cir.1994); see also id. at
154–55 (“The brief and inadvertent closing of the courthouse and
hence the courtroom, unnoticed by any of the trial participants, did
not violate the Sixth Amendment.”). The Fourth Circuit found a
bailiff's temporary refusal to allow members of the public into the
courtroom “entirely too trivial to amount to a constitutional
deprivation” when it “existed for but a short time and was quickly
changed by the Court, when advised of the action of the bailiff.”
Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir.1975). By contrast,
when a trial judge is initially unaware of a closure but subsequently
ratifies actions taken by courthouse personnel to limit access to the
courtroom, such “ex-post approval” is sufficient to trigger
constitutional considerations. United States v. Smith, 426 F.3d 567,
572 (2d Cir. 2005).
United States v. Greene, 431 F. App’x 191, 194-96 (3d Cir. 2011).
The Court first notes that the closure of the Court room was very limited in scope and
duration – it applied only to the family members of Petitioner, his co-defendant, and the victim,
and only during jury selection. It must likewise be noted that Petitioner’s attorney was not
opposed to the order directing the family members to leave the court room, instead stating his
acceptance of the order, with Petitioner’s co-defendant’s counsel also failing to object. The Court
also notes, as did the New Jersey Appellate Division, that the record is unclear as to whether any
of Petitioner’s family or the victim’s family were actually present in the court room at the time of
the order, and there is thus nothing in the record indicating that anyone who actually wished to
attend jury selection was in any way barred from doing so. It is clear, however, that the closure
in no way prevented members of the general public from viewing jury selection and, indeed, the
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remainder of trial. Given these facts, it is doubtful that the closure in this case would be sufficient
to undermine the values presented by the public trial right, and in turn it is doubtful that this closure
could be said to truly impugn Petitioner’s Sixth Amendment rights. Greene, 431 F. App’x at 19596.
Even if the closure here could be said to be violative of the Sixth Amendment to some
extent, Petitioner’s claim is essentially without merit for two reasons. First, counsel’s failure to
object to the closure, and, indeed, assent thereto, essentially amounts to a waiver of Petitioner’s
right to have the family members present pursuant to the public trial guarantee of the Sixth
Amendment, see Visciotti v. Martel, --- F.3d ---, ---, 2016 WL 606814 (9th Cir. 2016) (citing
Levine v. United States, 362 U.S. 610, 619-20 (1960), for the proposition that a defendant may
waive his right to a public trial); Addai v. Schmalenberger, 776 F.3d 528, 534 (8th Cir. 2015)
(criminal defendant may waive his right to a public trial); United States v. Whalen, 578 F. App’x
533, 539 (6th Cir. 2014) (counsel can waive a defendant’s right to a public trial by consenting to
a limited closure of the court room); United States v. Cockerham, 397 F. App’x 944, 945 (5th Cir.
2010) (failure to object to closure of court room by defendant or counsel amounts to waiver of
right to challenge violation of right to a public trial) (citing United States v. Hitt, 473 F.3d 146,
155 (5th Cir. 2006); United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949)); Guyton v.
Butler, 490 F. App’x 331, 332 (11th Cir. 2012) (“[n]o clearly established Supreme Court precedent
holds that a defendant cannot waive the right to a public trial, nor that the court must balance the
interests of closure absent an objection”). Thus, because Petitioner’s counsel essentially agreed
to the trial court’s order directing the families of the victim and Petitioner to leave the room for
lack of space during jury selection, Petitioner is deemed to have waived his right to a public trial
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to the extent that that right was impugned by the brief closure at issue here.
Second, and more importantly, even in the post-Presley world, an alleged violation of a
criminal defendant’s right to a public trial can be rejected where the violation asserted was too
trivial to fundamentally affect his rights. Greene, 431 F. App’x at 194-96. Here, as noted above
and in the Appellate Division’s opinion on direct appeal, the trial closure asserted was relatively
brief – only occurring during a portion of jury selection due to space and, potentially, safety
concerns, and was limited only to the family of the victim and the defendants. Nothing in the
record suggests that any of those people were actually in the court room at the time, or that they
wished to attend but were denied the opportunity to do so. Instead, the measure appears to have
been made in the abstract.
Thus, it is not clear that any individuals who wished to view
Petitioner’s trial, be they family or otherwise, were actually barred from entering the jury selection
proceedings. It therefore fully appears that this brief and limited closure did not in any way
impugn the interests inherent in the public trial right – that Petitioner receive a fair trial, that the
prosecutor and judge be made aware of their responsibilities to the parties and the public,
encouraging witnesses to come forward, and dissuading perjury. Id. Given these facts, this
Court concludes, as did the Appellate Division, that the closure involved in this case was entirely
too trivial to impugn Petitioner’s right to a public trial. Id. As such, the rulings of the state courts
were not contrary to nor involved unreasonable applications of applicable Supreme Court
precedent, and Petitioner’s public trial claim is therefore insufficient to warrant habeas relief.
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2. Petitioner’s “New evidence” Claim
Petitioner next claims that the state courts improperly denied his motion for a new trial
based on allegedly newly discovered evidence based on Laquan Jordan’s 2010 certification. The
State courts denied Petitioner’s motion under the standard set forth in State v. Ways, 850 A.2d 440
(N.J. 2004). As the New Jersey Supreme Court explained in Ways, in order to warrant a new trial
on a motion for a new trial or a PCR petition based on a claim of newly discovered evidence, the
“defendant must show that the evidence is 1) material, and not merely cumulative, impeaching, or
contradictory; 2) that the evidence was discovered after completion of the trial and was not
discoverable by reasonable diligence beforehand; and 3) that the evidence would probably change
the jury’s verdict if a new trial were granted.” Id. at 449 (internal quotations omitted); see also
State v. Carter, 426 A.2d 501, 508 (N.J. 1981). This standard mirrors that applied in federal
courts pursuant to Rule 33 for motions for a new trial brought by federal prisoners. See, e.g.,
United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (motion for new trial based on newly
discovered evidence requires that defendant prove that the evidence is newly discovered since the
conclusion of trial, there is evidence that he was diligent, the evidence is not merely cumulative or
impeaching, the new evidence is material to the issues involved in his trial, and that the evidence
is so strong that, had it been admitted at trial, it probably would have produced an acquittal).
In this case, the PCR court and Appellate Division both rejected Petitioner’s new trial claim
because the evidence offered by Q’s certification was entirely limited to impeachment evidence,
and, despite arguably being newly discovered evidence, that evidence was insufficient to show
that the verdict at Petitioner’s trial would have been different had Q so testified. In reaching that
decision, the State courts explained as follows:
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[t]he State provided two eyewitnesses who identified defendants,
one of whom knew [Petitioner’s co-defendant] for years. They
produced several other witnesses who identified defendants by
clothing, description, and/or facial tattoo. All of them had ample
opportunity to observe. None of these witnesses were damaged
significantly on cross[-]examination. Several did not have any bias
toward or against defendants, and were truly independent.
Simmons, 2014 WL 6677148 at *4, *6. Nothing in the State courts’ decisions appears to be based
on an unreasonable determination of the facts. Laquan Jordan’s certification provides nothing
more than impeachment evidence which would have contradicted the testimony of two
eyewitnesses.
As the State courts noted, there were two additional eyewitnesses who also
identified Petitioner as the person who argued with the victim in the club, although they did not
see the shooting. Both of the individuals who Laquan Jordan could have impeached were largely
consistent with each other, and both identified Petitioner and his co-defendant as the shooters
despite being shown arrays separately and at different times. In light of the eyewitness testimony,
and the broad stroke consistency between the testimony of Phelps, Young, and the club employees,
it is extremely doubtful that Laquan Jordan’s purported testimony would have changed the result
at trial. Given that fact, and the fact that Jordan’s testimony provides no more than impeachment
evidence, Petitioner’s motion for a new trial fails not only under the test set forth in Ways, but also
would fail were it considered under the federal analogue standard under Rule 33. Thus, there
does not appear to have been any error in the state courts’ rejection of Petitioner’s motion for a
new trial. As Petitioner has otherwise failed to argue, let alone show that the state courts’
decisions were contrary to or an unreasonable application of any clearly established federal law,
and as those decisions were clearly not based on an unreasonable application of the facts, Petitioner
has failed to show that he is entitled to habeas relief on this basis.
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3. Petitioner’s Ineffective Assistance of Counsel Claims
Petitioner raises several claims in which he asserts he received ineffective assistance of
counsel. 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
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
17
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’s prejudice prong, and [only provides] . . . unadorned
legal conclusion[s] . . . without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the
petitioner has not shown his entitlement to habeas relief. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because
failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s
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, 280-81 (D.N.J. 2015).
a. Petitioner’s Identification Related Claim
Petitioner first asserts that trial counsel proved ineffective in failing to request a
hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), in order to challenge the
identifications of Petitioner made by the victim’s brother and cousin. In order to show that he
was prejudiced by counsel’s failure to request a Wade hearing, he “must show that he would likely
have prevailed on [his] suppression motion and that, having prevailed, there is a reasonable
likelihood that he would not have been convicted.” Thomas v. Varner, 428 F.3d 491, 502 (3d Cir.
2005). The standards governing the admissibility of out of court identifications were set in the
Supreme Court’s opinion in Manson v. Brathwaite, 432 U.S. 98, 116 (1977). In Manson, the
Supreme Court held that an identification will violate due process and suppression will potentially
be warranted where the procedure used by the police to produce the identification was
“unnecessarily suggestive and . . . create[d] a substantial risk of misidentification.” United States
18
v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006); see also United States v. Anthony, 458 F. App’x
215, 218 (3d Cir. 2012). Suggestive procedures alone, however, will not warrant suppression of
an out of court identification, as “reliability is the linchpin in determining the admissibility of
identification testimony . . . The factors to be considered [in determining whether an identification
is reliable enough to be admitted] include the opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of attention, the accuracy of the prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between the crime
and the confrontation.
Against these factors is to be weighed the corrupting effect of the
suggestive identification itself.” Anthony, 458 F. App’x at 218 (quoting Manson, 432 U.S. at
114).
In this matter it is clear that, even had counsel requested a Wade hearing, the identifications
in question would not have been suppressed and the outcome of Petitioner’s trial would not have
changed. Here, Petitioner presents little other than speculation to suggest that the identifications
in this case were in any way subject to suggestive procedures. The testimony provided at trial,
however, indicates that the opposite is true – that the police used standard recommended
procedures which were not in any way suggestive as to all of the photo arrays used. The only
showing of photographs that could in any way be said to have been less than ideal was Phelps’s
identification of Petitioner while viewing random photographs based on his description of the
shooter. The testimony at trial, however, suggests that this was done for lack of leads, and that
although this process was conducted by the investigator involved in this case, the detective could
not have known that Petitioner was part of the array, or was in fact the shooter. Instead, the
testimony indicates that Petitioner viewed many photos and identified no one, but when
19
Petitioner’s photo finally appeared after an adjustment to the skin color setting on the computer,
Phelps immediately identified him. Detective Bzik then took him to another room, calmed him
down, and had another, uninvolved detective show Petitioner another photo array which was
adjusted to prevent any contamination resulting from Petitioner’s tattoos. All told, this procedure
does not appear to have been unduly suggestive, and thus it is doubtful that a Wade hearing would
have been granted if requested.
Even if such a hearing had been granted, however, it is clear that the identifications in this
case were all more than sufficiently reliable to ensure their admissibility. All of the witnesses
who identified Petitioner testified that they had ample opportunity to observe Petitioner from fairly
short distances in decent lighting, and were certain that he was the person either involved in the
altercation in the club or was the shooter in this case. All of these facts clearly indicate that the
identifications in this case were more than sufficiently reliable to be admissible even if this Court
were inclined to find Bzik’s showing of the computer photos in some way suggestive. The
identifications would thus have been admissible at trial even if Petitioner’s counsel had secured a
Wade hearing, and thus it is clear that the outcome of Petitioner’s trial would have been no
different. Petitioner’s Wade related ineffective assistance claim is thus without merit. Thomas,
428 F.3d at 502.
b. Petitioner’s Alias Related Ineffective Assistance Claim
Petitioner also asserts that counsel was ineffective in agreeing to a stipulation as to
Petitioner’s alias. The parties in this matter agreed to a stipulation that Petitioner was also known
by the name Rakhil Shakyer. (See Document 8 attached to ECF No. 9 at 39). That stipulation
20
was necessary because several of the photographs of Petitioner which were used during the photo
arrays were identified in the police databases as belonging to the Shakyer alias rather than to
Petitioner’s actual name. Thus, it is clear that the alias was relevant to the testimony in the case
as it explained that Shakyer and Petitioner were one and the same, and by admitting this fact via
stipulation, counsel avoided any testimony which may have led to speculation as to why Petitioner
made use of this alias. Given the lack of any testimony suggesting that this alias was indicative
of a criminal history, the stipulation does not appear to have prejudiced Petitioner in any way. As
such, Petitioner cannot show that he was prejudiced by counsel’s agreement to the stipulation.
Because Petitioner cannot show that the result of trial would have been different absent the
stipulation, he cannot show Strickland prejudice and as such his ineffective assistance of counsel
claim based on the alias is without merit.
Petitioner also attempts to argue that he was denied a fair trial by the admission of his alias
into evidence. Petitioner provides little other than speculation to support this assertion. Because
habeas relief is not available for state law errors, and because evidentiary rules are largely a
creature of state law, the allegedly erroneous admission of evidence, such as Petitioner’s alias, at
trial will not support a habeas claim unless that admission was so erroneous that it could be said
to amount to a violation of Due Process. See Estelle v. McGuire, 502 U.S. 62, 67-70 (1991); see
also Wilson v. Vaughn, 533 F.3d 208, 213-14 (3d Cir. 2008), cert. denied, 556 U.S. 1170 (2009);
Keller v. Larkins, 251 F.3d 408, 413, 416 n.2 (3d Cir.), cert. denied, 534 U.S. 873 (2001). A state
evidentiary ruling will only rise to that level where the error in question was so grave or pervasive
that it denied Petitioner a fundamentally fair trial. Keller, 251 F.3d at 413.
21
It is clear that the admission of Petitioner’s alias did not deprive him of a fair trial. As
discussed above, the alias was relevant insomuch as it explained the disparity in names associated
with the various photos of Petitioner used in the photo arrays, and, given the lack of any testimony
suggesting the alias was somehow the result of criminality, does not appear to have been
prejudicial. Petitioner provides nothing more than his own assertion that his having the Shakyer
alias in any way suggested that he was guilty, and nothing in the record supports that assertion.
Nothing in the record suggests that the admission of the alias via stipulation deprived Petitioner of
a fundamentally fair trial, and as such the admission of the alias does not amount to a Due Process
violation, and Petitioner is thus not entitled to habeas relief on that basis. Id.
Petitioner also challenges the admission of a second pseudonym that he gave to the Virginia
police when they stopped him for a moving violation. This second name, Rasheed Rosier, came
into evidence when Detective Bzik testified about her attempts to locate Petitioner to arrest him,
ultimately resulting in his being apprehended in Virginia during a motor vehicle stop. Petitioner
contends that the admission of his giving a pseudonym to Virginia police served no purpose other
than to suggest his guilt. Consciousness of guilt in the form of flight, of course, was the exact
reason that Petitioner’s arrest in Virginia was admitted into evidence, and that incident, including
the giving of a false name, ultimately formed the basis for a flight charge. Despite the flight
charge, it is clear that, given the considerable eye-witness testimony identifying Petitioner as the
shooter, the result of Petitioner’s trial would not have been different had the Virginia incident not
been admitted into evidence, and that any error in admitting the second alias would therefore have
been harmless. See Fry v. Piller, 551 U.S. 112, 116 (2007) (on collateral review, errors of even
a constitutional dimension will be considered “harmless unless [they] had a substantial and
22
injurious effect or influence in determining the jury’s verdict”); see also Brecht v. Abrahamson,
507 U.S. 619, 631 (1993). As the admission of this testimony was ultimately harmless, it cannot
form the basis for habeas relief even if this Court were to assume that some error had occurred.
Thus, none of Petitioner’s alias related claims entitle him to relief, whether considered
independently or as the basis for an ineffective assistance of counsel claim.
In a related claim, Petitioner also asserts that counsel was ineffective in failing to oppose
the state’s request for a flight charge based on Petitioner’s arrest in Virginia. Petitioner also
suggests counsel failed to adequately oppose the admission of his Virginia arrest photograph and
alleged hearsay testimony from Detective Bzik regarding Petitioner’s arrest in Virginia. Initially,
the Court notes that counsel did, in fact, oppose the flight charge, arguing that Petitioner’s presence
outside of New Jersey was not indicative of his flight or an attempt to avoid apprehension. (See
Document 10 attached to ECF No. 9 at 23-24). The trial court rejected that argument, finding the
question of whether Petitioner’s presence in Virginia constituted flight was a question for the jury
to decide. Thus, counsel certainly could not be said to have failed to oppose the flight charge.
Ultimately, given the eyewitness testimony in this case and the relative unimportance of the flight
charge’s permitting the jury to consider Petitioner’s flight, if flight they found it to be, indicative
of cognizance of guilt in this case, this Court concludes that Petitioner has failed to show that he
was prejudiced by the flight charge, or the admission of the information regarding his being
arrested in Virginia, including the alleged hearsay and Petitioner’s mug shot which led to that
charge. This Court concludes that even if that information been stricken and not considered by
the jury, there is no reasonable likelihood that the jury would have reached a different result given
23
the eyewitness testimony in this case, and as such Petitioner did not suffer Strickland prejudice.
He has thus failed to show ineffective assistance of counsel as to these claims as well.
c. Petitioner’s Manslaughter charge related claim
Petitioner also asserts that his attorney was ineffective in failing to request that the jury be
provided a passion/provocation manslaughter charge as a potential lesser included offense. Under
New Jersey law, a trial court “’shall not charge the jury with respect to an included offense unless
there is a rational basis’ to convict a defendant of [that] lesser included offense.” State v. Savage,
799 A.2d 477, 491 (N.J. 2002) (quoting N.J. Stat. Ann. § 2C:1-8(e)). Passion-provocation
manslaughter, which is a lesser included offense of murder, has the following elements: “(1)
reasonable and adequate provocation; (2) no cooling-off time in the period between the
provocation and the slaying; (3) a defendant who actually was impassioned by the provocation;
and (4) a defendant who did not cool off before the slaying.” State v. Josephs, 803 A.2d 1074,
1109 (N.J. 2002).
Generally, “words alone, no matter how offensive or insulting, do not
constitute [sufficient] provocation.” State v. Crisantos, 508 A.2d 167, 171 (N.J. 1986).
In this case, the facts adduced at trial do not provide any basis for a passion-provocation
manslaughter charge. As the defense itself highlighted, the testimony at trial indicated only that
the victim and Petitioner got into an argument inside of the club, that the two exchanged heated
words, and were then promptly separated by the club staff, with Petitioner and his co-defendant
being escorted out and the victim being escorted to the bathroom so all would have an opportunity
to calm down. Several minutes then passed before the victim left the club, only to be shot once
outside. According to the defense theory of the case, it was persons unknown who did that
24
shooting, whereas Petitioner and his co-defendant were found to be the shooters by the jury.
Given these facts, even viewed in a light most favorable to Petitioner, there was no basis for a
passion provocation charge. The only “provocation” here was the heated exchange of words
between Petitioner and the victim in the club, which are legally insufficient to constitute sufficient
provocation. Crisantos, 508 A.2d at 171. Likewise, there was ample time for cooling off – the
two were separated and then Petitioner was calmly escorted out of the club by club staff, and some
time passed between his being escorted out and the victim exiting the club at closing time.
Because there was no reasonable and adequate provocation, and because there was ample cooling
off time according to the testimony provided at trial, there was no factual basis for a passionprovocation manslaughter charge in this matter. As such, any request by counsel for such a charge
would have been futile, and the failure to request the charge cannot be considered ineffective
assistance of counsel. Indeed, a passion-provocation charge would have flown in the face of
counsel’s entire defense strategy – to argue that Petitioner had no reason to shoot the victim, had
left before the shooting, and that the police failed to locate the real killers and simply placed the
blame on Petitioner based on the brief and innocuous argument between the two in the club.
Ultimately, it is clear that there was no basis for the manslaughter charge and that counsel was
therefore not ineffective in failing to request that charge.
d. Petitioner’s “gang” language related claim
Petitioner also argues that counsel was ineffective in failing to discern the importance of
the gang-related meaning of the phrase “what’s crackin, what’s poppin,” which he claims would
have supported a passion/provocation manslaughter charge. Petitioner, however, utterly fails to
25
explain how that language somehow shows that he was strongly provoked, or what meaning that
phrase has in this context. There is nothing in the record to suggest that the jury had any reason
to conclude that this phrase was a provocation or had some hidden gang-related meaning, indeed,
defense counsel used the testimony about this phrase to suggest that Petitioner was not the shooter
because it was insufficient to give him any reason to shoot the victim. Given the relatively
innocuous nature of the phrase, and the lack of anything in the record to suggest some hidden,
darker meaning for the phrase, it is difficult to imagine what relevance it would have had to
Petitioner’s passion/provocation argument. As Petitioner has utterly failed to explain how this
alleged secret meaning for the phrase affected his trial, he has failed to show that he was in any
way prejudiced by counsel’s alleged failure to understand the hidden meaning of “what’s crackin,
what’s poppin” and has thus failed to show that he suffered ineffective assistance of counsel as a
result. Palmer, 592 F.3d at 395 (vague allegations as to Strickland prejudice insufficient to
warrant habeas relief).
e. Petitioner’s inconsistency related claim
Petitioner’s final ineffective assistance of counsel argument asserts that counsel failed to
capitalize on the inconsistencies between the various eye witnesses’ versions of events on the night
of the shooting, and thus failed to adequately defend him. This assertion is patently without merit
and completely contradicted by the record. In his summation, counsel focused on two points –
the poor investigation conducted by Irvington police, and the inconsistencies between the
testimony of Phelps and Young and the allegedly more reliable testimony of the club employees
who counsel asserted had no dog in the fight. (Document 10 attached to ECF No. 9 at 38-42).
26
After summarizing the testimony of the club bouncer that he had seen Petitioner walking away
from the club prior to the shooting, counsel turned to Phelps and Young, presenting the following
argument:
How many inconsistent statements were made by Sharif Phelps,
Tashon Young? That door didn’t work. That door didn’t open. I
was standing outside when he was standing next to me. He wasn’t
standing next to me. He was down the street. He was up the street.
And all of these statements were taken within hours of this event.
It wasn’t as if they’re trying to necessarily remember these things
two years later. Hours after the event, they didn’t know where they
were standing, who was standing, where they were, which door they
came out of, who was with them and who was Q. And [all these
inconsistencies were] multiplied by the ineptitude of the
investigation.
(Id. at 41-42).
Clearly, counsel did present an argument based on the inconsistent testimony, and argued
that the jury should take the word of the club bouncer over that of Phelps and Young. That
counsel likewise addressed many of these same supposed inconsistencies on cross examination, as
did counsel for Petitioner’s co-defendant, further demonstrates that Petitioner has already received
the benefit of the argument he now argues counsel should have made. All of those inconsistencies
were brought to the jury’s attention through cross examination and the closing statements of both
defense attorneys in this matter, and the jury still convicted both defendants. It is thus clear that
counsel was not deficient insomuch as he did argue that the inconsistencies weighed in favor of
rejecting the testimony of Phelps and Young in favor of that of the bouncer, and that Petitioner
was in any event not prejudiced as the result of this matter would not have changed had counsel
presented further argument along this line as the jury was presented with and rejected that
27
argument at trial. Thus, Petitioner’s final ineffective assistance of counsel claim is without merit
and provides no basis for habeas relief.
4. Petitioner’s Vouching Claim
Petitioner also asserts that the prosecutor in this matter improperly vouched for the
credibility of Phelps and Young during his summation. A prosecutor improperly vouches for a
witness when he assures the jury of that witness’s credibility on the basis of his personal knowledge
or some other information outside of the testimony and evidence presented at trial. Judge, 119 F.
Supp. 3d at 288. As the Third Circuit has explained,
A prosecutor’s vouching for the credibility of a government
witness raises two concerns: (1) such comments can convey the
impression that evidence not presented to the jury, but known to the
prosecutor, supports the charges against the defendant and can thus
jeopardize the defendant’s right to be tried solely on the basis of the
evidence presented to the jury; and (2) the prosecutor’s opinion
carries with it the imprimatur of the Government and may induce
the jury to trust the Government’s judgment rather than its own view
of the evidence.
....
Our case law indicates that to find vouching two criteria
must be met: (1) the prosecutor must assure the jury that the
testimony of a Government witness is credible; and (2) this
assurance is based on either the prosecutor’s personal knowledge or
other information not contained in the record. Thus, it is not
enough for a defendant . . . to assert that the prosecutor assured the
jury that a witness’ testimony was credible. The defendant must be
able to identify as the basis for that comment an explicit or implicit
reference to either the personal knowledge of the prosecuting
attorney or information not contained in the record. It follows that
where a prosecutor argues that a witness is being truthful based on
the testimony given at trial, and does not assure the jury that the
credibility of the witness based on his own personal knowledge, the
28
prosecutor is engaging in proper argument and is not vouching.
Likewise, prosecutorial comment that points to a lack of evidence in
the record which supports a defendant’s argument that the witness
is not credible is proper so long as the comment does not constitute
an assurance by the prosecutor that the witness is credible.
United States v. Walker, 155 F.3d 180, 184, 187 (3d Cir. 1998); see also United States v. Lore,
430 F.3d 190, 211-12 (3d Cir. 2005); Judge, 119 F. Supp. 3d at 288.
Petitioner takes issue with the following comments of the prosecutor during summations
at his trial made in response to defense counsel’s attacks on the credibility of Phelps and Young:
Now, this is an identification case. This case comes down to the
veracity, the integrity, the believability, the credibility of the
identification of the shooters; in this case [by] Sharif Phelps and
Tashon Young. Obviously there are two other witnesses from the
bar who did not witness the shooting and have other information.
You must decipher in the case when a witness takes the stand and
you consider his testimony . . . material – is he . . . intentionally
trying to deceive me by saying to me something of significance,
something of importance that isn’t true, or are inconsistencies, if you
find any[,] about matters that are collateral, are about outside, not
germane to the issue[.] If you found, for example, that Sharif
Phelps intentionally misled you as to the identification then reject
what he says; then reject what he says.
You have to decipher between the material
misrepresentation to you or attempt to do that and something that is
insignificant in the proofs of the case. . . .
[The prosecutor then argued extensively that the failure of the
township to dispatch a crime scene forensics unit in this case did not
affect the credibility of the witnesses, and regarding the testimony
as to police investigation in this matter, ultimately suggesting that
none of those issues were relevant to the question whether the
identifications in this case were accurate.]
One witness [in this case] said he heard shots. Then he saw
the people with the guns, Sharif Phelps [testified to that]. You
know, not everybody is exactly where they’re planted. If you had
Sharif Phelps and Tashon Young come in here and tell you I was
29
exactly here, he was exactly here, the shooter was exactly there, then
you would say to yourself that sounds a little fishy to me. It is more
credible and believable when there are differences, again, on
immaterial things.
What’s material, what is significant, what is important is the
identification of the shooters, not if I turn this way, I turn that way.
[Counsel then further discussed the physical evidence found at the
scene.]
. . . If something was vastly different between what Sharif Phelps
said and Tashon Young said, vastly different – you know, four guys
came up in a car – and one of them didn’t say that – then you say to
yourself okay. But the major consistencies are there.
....
You must look at the veracity of the identification in the
case. Now, from the beginning the – consider that incident in the
bar, and consider not what happened, it’s no big deal, really. But
inside the bar Sharif Phelps and Tashon Young had an opportunity
there to look at and see [Petitioner]; remembered him because he
had an argument with [the victim] or was having this argument with
him; afterwards described him’ didn’t know him; described him
[and his] tattoo. And I had him stand up here not to embarrass him
– all right – so you could see the facial markings which were
described by many witnesses. Bur right after it happened, Sharif
Phelps doesn’t know [Petitioner], yet he describes him; [his] jacket,
light skin, you know, the facial markings, but I do know the other
guy.
So when you consider the veracity of the identification here,
consider why would Sharif Phelps, of all the people in the world, of
all the people he knows, take a guy [he] went to tenth grade with,
and [try to] put this murder on him? Why would Sharif Phelps do
that? Not a guy he had a problem with in high school. So he says
I know that guy. That’s Malik Simmons. I went to high school
with him. I went to high school with one of the shooters.
So [detective] Bzik doesn’t go out and arrest Malik
Simmons. She gets a photo display. She takes photos of people,
of Malik Simmons and people who look like Malik Simmons by age,
by hairstyle and other factors. You’re going to have the pictures.
30
You look at them. And she puts it in a photo array, and [s]he says
she has another detective [show it to Phelps], and [Phelps] says
that’s Malik Simmons, and picks him out. In all of these photos
you have to consider the identification, and you must consider these
out-of-court identifications. [On 11/27/04], Sharif Phelps sits
down with a detective; this case Detective Gregory. [Detective]
Bzik first gives Detective Gregory six photos of people, one of
whom is Malik Simmons. She doesn’t tell Detective Gregory who
Malik Simmons is. She didn’t tell Detective Gregory, hey, our
suspect’s number whatever. Why? So there’s no possibility of
suggestion. There’s no possibility of the detective on the case
[influencing the outcome of the identification by pointing out the
suspect].
[Counsel then reiterated that the witnesses were all given proper
instructions during the various photo arrays, and noting that a
different uninvolved detective conducted each array.]
Sharif Phelps picks out a picture, signs the back, and the
picture he picks out is Malik Simmons. On the second page he
writes that’s the person that shot my brother.
So when you consider the veracity of the identification,
consider why would Sharif Phelps pick out a picture of a guy he was
in tenth grade with because he knew him from tenth grade.
Perhaps, he did that because [the shooter] is the person he knew from
tenth grade.
After that, Tashon Young is shown a phot array with Malik
Simmons’ picture in it. He is at headquarters that night. He
doesn’t even want to get involved at first, and his cousin got shot.
Fear. But he comes to headquarters, and [Detective Bzik] gives a
photo array on that date that is shown to Tashon Young by . . .
Detective Harold Wallace. Again, look at the photos. They talk
about after they go over the instructions, Harold Wallace signed it,
Tashon Young signed it. They put the pictures out one at a time to
see if the witness identifies him. Harold Wallace doesn’t know
who Malik Simmons is. Harold Wallace doesn’t know anything
about the case. He doesn’t know even if [detective] Bzik has
included a suspect in this package. And Tashon Young, who
doesn’t know Malik Simmons, who does not know him, picks him
out as the shooter. Ask yourselves, [were] the procedures used [for
these] out-of-court identifications . . . fair? I submit to you they
31
were.
Did you observe during the course of this case any real
challenges to those procedures? I submit to you that you did not.
And there’s a reason for that. Because they were fair. And given
the instructions, given the photos used, given the detectives, a
variety of detectives who are not involved in [this case].
[Detective] Bzik shows those pictures to Mr. Gibbs. He says I can’t
be sure. The question is asked of Detective Gregory, well, so what
Mr. Gibbs said is . . . Malik Simmons, wasn’t involved in this case.
No, that’s not what Mr. Gibbs said. Mr. Gibbs didn’t identify
Malik Simmons; not saying he was there, not saying he wasn’t.
The fact that you have in this case ID’s not made, to me, I
would argue to you demonstrates [the] credibility of the officers who
did the ID’s. If this was some grand conspiracy against Malik
Simmons because maybe, you know, somebody was mad at him
from tenth grade, don’t you think all the ID’s would be positive?
Oh, yeah, Mr. Gibbs didn’t identify Malik Simmons as being
there. The fact that Mr. Gibbs didn’t identify Malik Simmons from
being there shows the credibility and the integrity of the procedures
used to show the witnesses photos in this case. And Sean Dubose
didn’t identify [either defendant], but he . . . doesn’t mean they
weren’t there by his account; it means [he couldn’t say that they
were]. And those lack of ID’s demonstrate the integrity [of the
process].
Then they call them in on the 29th because [Detective] Bzik
is still trying to figure out who the second guy was. She knows he
has a tattoo under his eye. She knows he has some tattoos on the
neck. She knew she had a description of what he was wearing, and
she doesn’t have a name. So she calls Sharif Phelps, the eye
witness to his brother’s death. She calls him into [the prosecutor’s
office], and she puts certain criteria in[to a computer such as] age,
skin coloring, tattoos, markings and so forth, and she comes up with
a criteria, and he looks at a bunch of photos and he doesn’t recognize
anybody. And then she tweaks the criteria. She’s doing what
she’s supposed to do. She’s continuing the investigation to find the
other shooter in the case. And in looking at the picture of
[Petitioner] there is, by Sharif Phelps, an emotional outburst. Now
he’s not going to sit here and tell you he was crying. He’s a 20something-year-old guy, a little upset.
32
Her testimony is he spits at the machine. He says that’s the
person who shot my brother, or words to that effect. It’s an
emotional response.
She did not characterize her investigation based on
emotional responses, but that unsolicited response, I submit to you,
demonstrates the veracity of the ID. Whose picture is it that he
reacted to like that? [Petitioner’s.] But she doesn’t stop there.
Now [Detective Bzik] gets, or attempts to get pictures of
[Petitioner] and people who look like him so she can do one of these
photo arrays with the witnesses and that individual. And she can’t
find pictures with the same tattoos and so forth. She takes
photocopies and makes them all look similar. That’s fair to the
person who is the suspect. That’s more fair certainly than just
putting a person with a tattoo in and other people without. So she
takes that extra effort to make sure they look alike. And now Sharif
Phelps calms down, and [Detective] Frisk goes over with him the
photographs, and he picks out [Petitioner’s photo]. And don’t
forget in these photo arrays the name Rakhil Shakyer is also used
interchangeably with [Petitioner’s] name. And one at a time these
pictures are shown, and these are the actual ones shown, and he
signed the back of the person he said shot his brother, and he filled
out a form that indicated that. That was on the 29th of November
2004. [Detective] Frisk, [is] not involved in the investigation[,] . .
. doesn’t know who [Petitioner] is, [who] Rakhil Shakyer is; doesn’t
know even if Detective Bzik included a suspect in this; doesn’t
know what stage her investigation is, or what the status of it is.
That’s another out-of-court procedure. There has been no
challenge to those . . . procedures[.] And ask yourself, why would
Sharif Phelps just pick [Petitioner] out of the blue?
So then [Detective] Bzik gets original photos of people who
look like [Petitioner], who have similar facial markings to
[Petitioner], and takes them to Irvington where Detective . . . Holmes
reviews them with Michael Gibbs, the bouncer. Michael Gibbs, we
know, didn’t see the shooting, never said he did. And Michael
Gibbs picks out a picture. On this form it says [he picked
Petitioner] as the individual he saw have an argument [with the
victim], and who he escorted out. That’s corroboration of Sharif
Phelps’ ID. And, again, Detective Holmes was not involved in [the
case.] And why would Sharif Phelps just pick this individual out
33
who then happens to be the same individual Michael Gibbs
identifies as having an argument with [the victim]?
When you look at all of these procedures in the case, the
photo procedures – again, Tashon Young, on January 12th, is shown
a photograph display by [Detective] Jackson in the Prosecutor’s
Office with a picture containing [Petitioner]. On all these photos
[Detective] Bzik goes to great pains to make sure all the photos look
alike, whether it’s putting marks on everybody’s neck or to make
them all look similar.
Tashon Young doesn’t know who Sharif Phelps picks out,
and he picks out a picture of [Petitioner]. So there has been very
little challenge to those identifications; certainly not to the
procedures.
In court, . . . Sharif Phelps was asked to identify the person
or persons who shot his brother, and he pointed out [Petitioner] out
here. Tashon Young was asked to identify the shooter or shooters,
and he pointed [Petitioner] out. Both individuals pointed Malik
Simmons out as well.
So when you look at the believability and the veracity of the
investigation, I submit to you there was an opportunity for each
individual, Tashon Young and Sharif Phelps, to view the people in
the bar, to view [Petitioner] and Malik Simmons in the bar, outside
the bar. There was enough light. There’s motive.
I don’t have to prove motive. It’s not a good motive, of
course, to kill somebody, but there was some kind of a dispute
between [Petitioner], Malik Simmons who was with him, and [the
victim].
Everything is consistent also when you look at other
evidence in the case; not who was standing where, and if everybody
was in a line, and all this inconsequential nonsense, but look at some
hard evidence in the case. The day it happened, or thereabouts,
Sharif Phelps and Tashon Young said there were revolvers used.
Now, they didn’t know what would be recovered from the crime
scene. The fact that they said there were revolvers used, the fact
there’s no shell casings because revolvers don’t leave shell casings
is indicative of their credibility. When they said it – and you have
to keep in . . . mind – the times people said things. When they said
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it, they didn’t know [what the investigation would produce]. Do
you think if there were shell casings all around here you wouldn’t
be hearing they said there were revolvers used, and yet there were
shell casings. So that couldn’t be true.
I say the flip side. When you’re looking at the veracity of
their identifications, of the credibility of them, look at what else is
in the case that supports what they say. And that’s something
significant, I submit to you, that supports what they said that day.
They said [Petitioner] shot first in the leg area. He was shot in the
leg. Now, he was shot a number of times. You may say, well,
coincidence. They – Sharif Phelps indicates I think Malik
Simmons shot him in the chest. He was shot in the chest. The
bullet didn’t – you know, as you recall the ME talked about it going
into the right side, outside the left. You will see pictures of all this.
[The victim was} shot in the chest. I mean, is that just a good
guess? I submit to you it wasn’t. That’s consistent with the
physical evidence in the case. He was shot in the leg. The ME has
it down here as C-2. He was shot in the right hip, and he was shot
in the back. And so when you examine the credibility, look at what
else is out there. Not who was standing where. Who would
remember that? How can you possibly know where exactly
everybody is facing and what angle everybody is at? He knew the
guy from high school.
He thought, you know, we kind of made up inside. Things
are cool. He was wrong.
So they walked out. You look at what Sean Dubose said,
how he was in the bathroom, and Tashon Young said that on the
stand. We went in the bathroom, kind of, you know, I think it was
making up. Sean Dubose said something similar, shake hands,
whatever.
You know what? You could sit here and make fun of these
witnesses – whatever, whatever – with the way they talk. You
know, it’s really irrelevant. What matters is your assessment, your
assessment of them on the stand; their demeanor, whether they were
being up front with you with what happened or not.
I submit to you they’re consistent in all the major facts of
this case. Who shot first? [Petitioner] did. Then Malik Simmons
started shooting. And then I can’t say, Sharif Phelps said, how
35
many shots or who shot where. Can you imagine the horror?
We sit here two and a half years later, and what are we
talking about, did he have a hat on. That’s ridiculous. You
imagine the horror of hearing a bunch of gunshots and seeing your
brother die, seeing your brother with blood coming out of his mouth,
and we’re talking two and a half years later about a hat.
Think of the significant important details. If you think that
Sharif Phelps and Tashon Young got up and lied to you about who
they identified as the shooter, and who they picked out in all of these
photo arrays, then reject the case. If that’s what you think, then
reject the case. But don’t get hung up on crime scene, and what
should have been done by Irvington when it doesn’t matter. It
doesn’t matter to the integrity of this investigation, and it doesn’t
matter to the integrity of the identification. Because guess what?
Crimes were committed. Crimes were solved. Trials were had
before CSI ever came on TV. It’s a lot of nonsense thrown out
there. And it doesn’t – like I said, it comes down – [Defense
counsel] said it. I say it. The heart and soul of this case is the
integrity of their identification and their credibility. I submit to you
it’s only two witnesses. You don’t need 20 if you find these
witnesses believable. These were the witnesses we have. These
were the witnesses that came forward. And look at how their
identification from day one, what they said, it fits with the medical
evidence. It fits with the ballistics or lack of ballistics evidence.
There aren’t shell casings found; not because crime scene
did a bad job. There aren’t shell casings found because the killers,
[Petitioner] and Mr. Simmons, used revolvers. Revolvers were
their weapons of choice.
There were no guns found because the killers took the guns
with them.
And so when you look at the identification, they’re not
sophisticated people. They’re young men. But their story . . . on
the stand as to what happened and how it happened is consistent
from the first day it was told until every identification procedure
until now, and I submit to you that is proof beyond a reasonable
doubt that [Petitioner] and Malik Simmons were out there; were the
shooters.
36
And then you must consider, if you get to that identification,
and I submit to you the facts are sufficient that you should, given all
the evidence in the case to positively identify these two individuals
as the shooters, not because they had a prior argument in the bar.
Because they’re the shooters. Because they’re the people who –
[the prosecutor then referred to the testimony of Phelps and Young]
did you see them with a gun? Yes, I did. Did you see them firing
a gun? Yes I did.
(Document 10 attached to ECF No. 9 at 57-80).
Viewing the prosecutor’s statements in context, it is clear that her statements do not
constitute improper vouching. The prosecutor did not suggest that the eyewitnesses were credible
based on her own opinions, or based on evidence or witnesses not provided, but instead argued at
length that they were credible based on the broad strokes consistency of their testimony, the
consistency of that testimony to the available physical evidence, and that there was no improper
police identification procedures used to color their testimony with any suggestion of coercion in
their identifications. All of these comments were made in direct response to arguments made by
defense counsel focusing on minor inconsistencies in their stories and statements regarding hats,
placement, and the like, as well as on the lack of physical evidence found on the scene. In this
context, it is clear that the prosecutor did not improperly vouch for the witnesses, and that her
comments were fair responses to the arguments of the defense during summation. Although
somewhat meandering, counsel’s summation focused on the evidence in the record as to police
procedure, statement consistency, and the physical evidence to argue that both Phelps and Young
were credible witnesses, and that their testimony should be accepted. Indeed, counsel even
suggested that, should the jury not believe them, they should reject the State’s entire case. It is
thus clear that the prosecutor’s arguments did not constitute improper vouching, were entirely fair
37
comment, and provide no basis for habeas relief.
5. Petitioner’s jury claim
Petitioner next claims that his trial’s verdict was compromised because “extraneous
influence” entered the jury room. Petitioner bases this assertion on the following colloquy
involving the trial court and defense counsel, shortly after the trial court reiterated that the jury
was to discuss the case only during deliberations in the jury room:
[Defense Counsel]: Judge, if I may, I appreciate your cautioning
the jurors regarding any extrinsic deliberations, but I am advised –
obviously secondhand – by somebody who was outside the
courthouse yesterday that, in fact, there was a conversation between
supposedly two jurors; one who could be recognized immediately,
and another who was described but not recognized until that person
is seen again in some form or another discussing some aspects of the
case.
I don’t really know if I have an application at this point of
any sort. I just want to draw it to the Court’s attention so that in the
event that – my concern is that there were extrinsic deliberations
outside the courtroom which obviously were against the Court’s
rulings and, of course, against the Rules of Court. I don’t know
which way, one way or the other, if that’s beneficial to the
defendants or State or vice versa. The point is it’s inappropriate.
[The Court]: Well, I have addressed the jurors continually
with regard to that, and I have no – taking your word, Mr. Simms,
based upon the information that was relayed to you, and I don’t think
I have a need to voir dire the jurors at this time.
I have several concerns, and I gave a very strict admonition
this morning with regard to it because we’re at a sensitive point in
the case. That’s one of my concerns is juror discussions outside the
deliberation room.
A second concern is that someone from the defendants’ side
was close enough to a juror outside the building to overhear some
38
type of a conversation.
So what we may have to do is let the jurors go, and then
maybe 15 minutes later disperse the audience, especially because
there was some type of a discussion outside the hallway yesterday
that got kind of heated among several individuals who were in the
gallery. So I’m not saying that the information you got from an
individual, that that person was wrong, but that tells me that they are
a little too close to some jurors. That’s a concern too. . . .
[Defense counsel]: And I agree, Judge, and the problem is
not – the problem, the fact of the matter is there is a lot of people
observing this trial which is perfectly acceptable, both sides, and
people do leave at the same time.
[The Court]: Yeah, but see we have the – my officers escort
the jurors out first. We don’t allow the other individuals to leave at
the same time. So maybe we’ll have to wait even more time to do
that. And, again, I’m not saying that the person was wrong [about]
what happened here, that it was an intentional situation, but it tells
me there might be a little bit too much close contact, and we’ll keep
our eye on that too.
[Defense counsel]: Thank you.
....
[The Court]: [Counsel], if this individual appears, and you get
additional information, we’ll address it on the record.
(Document 11 attached to ECF No. 9 at 7-8).
In Remmer v. United States, 347 U.S. 227, 229 (1954), the Supreme Court held that, in a
criminal case, “any private communication, contact, or tampering directly or indirectly, with a
juror during a trial about the matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions
and directions of the court made during the trial, with full knowledge of the parties. The
presumption is not conclusive, but the burden rests heavily upon the Government to establish . . .
39
that such contact with the juror was harmless to the defendant.” As the Third Circuit has
explained, however, courts should apply that presumption “only when the extraneous information
is of a considerably serious nature.” United States v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001).
“In particular, [courts] have tended to apply the presumption of prejudice when a juror is directly
contacted by third-parties.” Id.
In this case, the only suggestion in the record of any improper behavior involving the jury
is a secondhand account of someone claiming to defense counsel that two jurors were discussing
the case outside of the jury room. No sworn testimony to that effect was offered, nor any type of
sworn statement. Even assuming, as the trial court did, that defense counsel was accurately
recounting what this unknown person alleged to have occurred between these two jurors, it is clear
that neither the judge nor defense counsel viewed the actions of the two jurors to be “considerably
serious.” There were no allegations, let alone evidence of any contact by third-parties to the
jurors, only that two jurors discussed the case themselves. Indeed, the court had only just finished
reiterating that the jurors should only discuss the case in deliberations when these allegations were
raised. It is clear to this Court that the vague, secondhand allegations offered by defense counsel,
even if accepted as true, are not of a sufficiently serious nature that they would raise the specter of
the Remmer presumption, and as such, without more, were insufficient to require that the trial court
further inquire as to the allegations, nor was the State therefore required to rebut a presumption of
prejudice. Given the vague nature of the allegations, there is no evidence of any prejudice to
Petitioner in the record, nor does Petitioner present any basis for a finding of prejudice other than
the inapplicable Remmer presumption. Given the vague allegations, the trial court’s reiteration
that jurors were not to discuss the matter outside of deliberations, and the lack of third-party
40
involvement or any sufficiently serious extraneous contact, there is no basis in the record to
conclude that Petitioner suffered any prejudice, and thus his claim is insufficient to warrant habeas
relief as the state court’s rejection of his claim was neither contrary to nor involved an unreasonable
application of, federal law.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because all of Petitioner’s habeas claims are without merit for the reasons set forth above, he has
failed to make a substantial showing of a denial of a constitutional right. Likewise, because jurists
of reason could not disagree with this Court’s conclusion that all of Petitioner’s claims are without
merit, the petition is not adequate to receive encouragement to proceed further. This Court shall
therefore deny Petitioner a certificate of appealability.
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IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is DENIED
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
Dated: November 10, 2016
_s/ Susan D. Wigenton_____
Hon. Susan D. Wigenton,
United States District Judge
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