SMITH v. JOHNSON et al
Filing
19
OPINION. Signed by Judge Madeline Cox Arleo on 6/27/2019. (sm)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-370 1 (MCA)
JAMA SMITH,
Petitioner,
OPINION
v.
STEVEN JOHNSON, et al.,
Respondents.
I.
INTRODUCTION
This matter has been opened to the Court by Petitioner’s filing of a habeas petition
pursuant to 28 U.S.C.
§
2254, raising nine separate grounds for relief As explained in this
Opinion, the Court deems Ground Six withdrawn and will deny the petition as to Grounds One,
Two, Three, Four, Five, and Eight. The Court will direct the parties to submit supplemental
briefing on Grounds Seven and Nine, which assert a claim pursuant to Lajier v. Cooper. 566 U.S.
156 (2012) (“the Lajier Claim”), and will reserve judgment on the Lajier Claim and the issuance
of a certificate of appealability until the briefing is complete.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
a. Factual Background1
On October 6, 2002, at approximately 1:00 am., Sergeant Stanley Rodriguez and Officer
Felix Arroyo of the Paterson Police Department were on routine patrol on River Street driving in
an unmarked police vehicle. A red bubble light on the dashboard was the only feature that could
possibly identify it as a police vehicle. While driving, Rodriguez observed what he believed to
The Factual Background is taken from the state court decision denying Petitioner’s direct
appeal. State v Smith, 2007 WL 3005342, at 1 (N.J. Super. App. Div. Oct. 17, 2007).
be a narcotics transaction. He observed an unidentified male hand paper that Rodriguez believed
was paper currency to another man, whom Rodriguez identified at trial as defendant. Rodriguez
then saw defendant hand the man a small object.
After observing that exchange, Rodriguez and Arrovo stopped their vehicle and exited.
Rodriguez, dressed in plain clothes but wearing a police badge around his neck, ordered both
men to stop. Neither obeyed. Defendant dropped a small plastic bag on the ground. and began
walking down River Street toward Fifth Avenue; the other man began walking up Sixth Avenue.
Rodriguez retrieved the plastic bag and found inside it what he believed was crack cocaine.
After Rodriguez advised Arroyo that he had recovered drugs, Arroyo immediately ordered
defendant to stop. Defendant fled.
During the ensuing foot chase, Rodriguez saw defendant reach into his waistband and
pull out a handgun. Rodriguez drew his service revolver, and while pointing it at defendant, he
repeatedly told defendant to drop his weapon. Rodriguez was able to apprehend defendant and
tackle him to the ground. Rodriguez testified that defendant struggled to avoid arrest by flailing
his arms and legs.
During that struggle, defendants gun slid under a white van parked near by. Arroyo
located and retrieved the gun, which was a .380 caliber semi-automatic weapon with one round
in the chamber. The serial number had been scratched off the weapon. The State produced
evidence demonstrating that at the time of arrest, defendant was within 1000 feet of a school.
Defendant testified on his own behalf and denied all of the allegations against him,
including having a gun or narcotics in his possession, threatening police officers with a gun.
engaging in a hand-to-hand drug sale, and struggling with Rodriguez at the time of arrest.
Defendant admitted that he fled upon seeing the police vehicle, but explained he did so only
2
because he feared he would be arrested for warrants for unpaid parking tickets, Defendant
testified that he was not tackled by police, but instead tripped onto the ground.
During his testimony, defendant acknowledged that he had been convicted of a firstdegree crime in 1995. for which he was sentenced to a fifteen-year term of imprisonment, with
five years before parole eligibility. He also acknowledged that in 1995, he was also convicted of
a third-degree crime for which he received a five-year sentence, with eighteen months of parole
ineligibility.
Defendant’s cousin, Michael Brown, testified that he and defendant were walking on
River Street when they saw a police car rapidly approach them and park. After one officer
jumped out of the unmarked car, Brown saw his cousin run up the street. Brown testified he did
not know why defendant ran, but believed it was because he was on parole. Brown watched as
the officer chased defendant across the street, and he saw defendant turn around and run back
toward Brown and Miguel Chappell. Brown did not see anything in defendant’s hand and
testified that defendant was not carrying a gun while running. According to Brown, the officer
did not tackle defendant. Instead, defendant tripped and fell to the ground about seven feet from
where Brown was standing. Before he hit the ground, defendant did not have a gun or any silver
object in his hand.
Brown also testified that at no time while he was with defendant in the two hours before
the police vehicle approached, did defendant sell drugs. Brown stated that he, defendant and
Chappell were merely standing in the general area of River Street near Sixth Avenue in the
minutes before police approached. Brown testified that defendant did not drop a bag of cocaine.
Chappell’s testimony corroborated that of Brown.
3
Petitioner was convicted of third-degree possession of a controlled dangerous substance
(CDS), N.J.S.A. 2C:35-lO(a)(1) (count one); third-degree possession of CDS with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); third-degree possession of
CDS with the intent to distribute within 1,000 feet of a school. N.J.S.A. 2C:35-7 (count three);
third-degree resisting arrest. NJS.A. 2C:29-2(a) (count seven); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine); second-degree possession of a
weapon while committing a narcotics offense, N.J.S.A. 2C:39-4.1 (count ten): fourth-degree
possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count eleven); and second-degree certain
persons not to possess weapons. N.J.S.A. 2C:39-7 (count twelve). The jury acquitted defendant
on counts four, five and six, which charged fourth-degree aggravated assault by pointing a
firearm, and two counts of third-degree assault on a police officer.
At sentencing, the judge granted the State’s motion to sentence defendant to a mandatory
extended term as a prior Graves Act offender pursuant to N.J.S.A. 2C:43-6(c). and as a prior
drug distribution offender pursuant to N.J.S.A. 2C:43-6(f)), and the trial court orally imposed an
aggregate sentence of 40 years with a 20-year parole disqualifier.
2
2 As explained below, Petitioner was orally sentenced to an aggregate term of 40 years with a 20year parole disqualifier, but the Judgment of Conviction (“JOC”) contained clerical errors. The
Appellate Division decision denying his direct appeal states that “[tjhe aggregate sentence
imposed totaled forty years imprisonment, with a fifteen-year parole ineligibility term.” Smith,
2007 WL 3005342, at * I. The Appellate Division’s decision affirming denial of PCR incorrectly
states that its direct appeal decision “noted the court imposed an aggregate sentence of forty
years, with a twenty-year period of parole ineligibility. Smith I, supra, slip op. at 3.) See State v.
Smith, 2016 WL 698565, at *3 n.2 (N.J. Super. App. Div. Feb. 23, 2016).
4
b. Procedural History
Petitioner appealed his convictions and sentence, and the Appellate Division affirmed the
convictions and mandatory consecutive term imposed on Count ten, but remanded for
resentencing in light of State
i
Natale (II), 878 A.2d 724 (N.J. 2005), and for the trial judge to
explain his reasons for imposing a consecutive sentence on Count twelve. State v. Smith, 2007
WL 3005342, at *10 (N.J. Super. App. Div. Oct. 17, 2007).
Petitioner filed a petition for certification, and the New Jersey Supreme Court granted
defendant’s petition for certification in part, “limited solely to reviewing defendant’s claim that,
to convict under N.J.S,A. 2C:39—3(d), the State must prove a defendant’s knowledge of
possession of the weapon and knowledge of the weapons defacement.” State v. Smith, 197 N.J.
325. 330 (2009) (citing State v Smith, 193 N.J. 584 (2008)). On January 27, 2009, the Supreme
Court affirmed defendant’s conviction. Id. at 339.
In the meantime, pursuant to the Appellate Division’s remand, Petitioner was
resentenced on October 3,2008, and the judge re-imposed the sentence from the previous
judgment of conviction. (ECF No. 10-37, Exhibit 37) Petitioner appealed the October 3, 2008
resentencing, and while the appeal was pending, on April 2, 2009, the New Jersey State Parole
Board sent a letter to the presiding judge of Passaic County requesting clarification of
Petitioner’s sentence, noting that it appeared that the sentence imposed was thirty years with a
10-year parole ineligibility term. (See ECF No. 17, at 141 (PA 41-42).) On May 14, 2010, the
trial judge conducted a hearing and determined that the original judgment of conviction
contained clerical errors, and that he had imposed a total aggregate sentence of 40 years with a
20-year parole ineligibility term. (ECF No. 10-38, Exhibit 38.) The trial judge amended the
5
JOC to reflect the sentence he actually imposed. (ECF No. 17, PA 53-55, Amended JOC dated
May 14, 2010).
An amended notice of appeal was filed, and the Appellate Division affirmed the sentence
in a per curiam opinion on July 28, 2011. (ECF No. 17 at PA56-69). The New Jersey Supreme
Court denied certification on Januar 19, 2012. (ECF No. 17, PA 70.)
Defendant filed a pro se PCR petition on or about March 17, 2010. (ECF No. 17, PA
120-125.) The PCR court denied the petition without a hearing as procedurally barred and
without merit on July 24, 2014. (ECF No. 17, PA 79-98.) On February 23, 2016, the Appellate
Division affirmed, State v Smith, 2016 WL 698565, at *1 (N.J. Super. App. Div. Feb. 23, 2016),
and the Supreme Court denied certification on May 6,2016. State v. Smith, 225 N.J. 340 (2016).
The instant Petition was docketed on June 22, 2016, and is dated June 14. 2016. The
Petition raises nine grounds for relief (See ECE No. 1.) Respondents’ answer was filed on
September 28, 2018 (See ECF No. 8; see also ECF No. 10), and Petitioner, proceeding pro se,
sought several extensions of time within which to file a traverse, which were granted by the
Court. (BCE Nos, 9, 11-13.) On April 9, 2019, John Vincent Saykanic, Esquire, entered a notice
of appearance on behalf of Petitioner, and, on May 29, 2019, he filed a traverse on Petitioner’s
behalf
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 claim in the petition. See Eley v.
Erickson. 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C.
6
§
2254, as amended by AEDPA
(28 U.S.C.
§
2244). federal courts in habeas corpus cases must give considerable deference to
determinations of state trial and appellate courts. See Renico v Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:
(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.
28 U.S.C.
§
2254(d).
Where a state court adjudicated a petitioner’s federal claim on the merits,3 a federal court
“has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was
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, 40-41 (2012) (quoting 28 U.S.C.
§
2254(d)).
“[CJlearly established law for purposes of 2254(d)(l) includes only the holdings, as
opposed to the dicta, of t[he Supreme Court’s] decisions,” as of the time of the relevant statecourt decision. White v, Woodall, 134 5. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529
“For the purposes of Section 2254(d), a claim has been ‘adjudicated on Ihe merits in State court
proceedings’ when a state court has made a decision that (1) finally resolves the claim, and (2)
resolves th[atj claim on the basis of its substance, rather than on a procedural, or other, ground.”
Shotts i Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks
omitted).
7
U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within 28 U.S.C.
§
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.” J’Villiams, 529 U.S. at 40506. 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.” Williams, 529 U.S. at 413. As to 28 U.S.C.
§
2254(d)(1), a federal court must confine its
examination to evidence in the record. 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 the AEDPA necessarily
apply. First, the AEDPA provides that
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 correctness by clear and convincing evidence.” 29 U.S.C.
Miller—El
i
§
2254(e)(1); see
Dretke, 545 U.S. 231, 240 (2005). Second, the 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).
In addition to the above requirements, 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)(l)(A). To do so, 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
Delaware Corr. Cut, 295 F.3d 361, 369 (3d Cir.
8
2002)). This requirement ensures that state courts “have ‘an initial opportunity to pass upon and
correct alleged violations of prisoners’ federal rights.” Id. (citing United States
Bendolph, 409
F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1,3(1981)).
Even when a petitioner properly exhausts a claim, a federal court may not grant habeas
relief if the state court’s decision rests on a violation of a state procedural rule. Johnson v.
Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule
is “independent of the federal question [presented] and adequate to support the judgment.”
Leyva, 504 F.3d at 365-66 (citing Na,v
Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also
Gray v Nether/and, 518 U.S. 152 (1996), and Coleman
If a federal
court
i’.
Thompson, 501 U.S. 722 (1991)).
determines that a claim has been defaulted, it may excuse the default only upon
a showing of “cause and prejudice” or a “fundamental miscarriage ofjustice.” Leyva, 504 F.3d at
366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally
defaulted, a court can nevertheless deny them as meritless under 28 U.S.C.
§ 2254(b)(2). See
Taylor v. 1-lorn, 504 F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of
[petitioner’sl claims on the merits, we need not address exhaustion”); Bronshtein v Horn, 404
F.3d 700, 728 (3d Cir. 2005) (considering procedurally defaulted claim, and stating that “[u]nder
28 U.S.C.
§ 2254(b)(2),
we may reject claims on the merits even though they were not properly
exhausted, and we take that approach here”).
IV.
ANALYSIS
The instant Petition raises nine grounds for relief In his traverse, Petitioner’s counsel
acknowledges that Ground Six of the Petition (lack of fingerprint testing on the gun) is
unexhausted (See ECF No. 17, Traverse at 88), and elects to withdraw Ground Six in order to
9
prevent the dismissal of the entire Petition as a mixed petition. (See id.) As such, the Court
deems Ground Six withdrawn, and the Court addresses the remaining claims for relief below.
a. Prosecutor’s Use of Post-Arrest Silence on Cross Examination (Ground One)
In Ground One, Petitioner asserts that the prosecutor structured his cross-examination of
defendant to tell the jury that defendant did not make a statement to police at the time of his
arrest, and that this line of questioning violated his due process rights to a fair trial. The
following exchange took place at trial during the State’s cross-examination of Petitioner:
Q:
What were you being charged with? You’re being charged with
drugs, possessing them with the intent to sell them and possession
of a handgun?
A: Yes.
Q: Did you at any time say to them, hey, man, what are you talking
about[DEFENSE COUNSEL]: Objection.
THE COURT: I’ll sustain the objection. Ladies and gentlemen,
you’ll disregard that question. Please step into the jury room....
After the jury stepped into the jury room, there was a discussion on the matter. (ECF No. 10-32,
4T1 94-25 to 200-22). The prosecutor explained that he had only intended to ask defendant why
he ran, since he had not done anything, and if he knew what he would be charged with. (Id. at
4T1 97-20 to 198-12). The judge then noted that nothing in the case indicated that defendant had
been questioned or Mirandized, and that no questioning in the area of defendant’s pre-arrest
silence would be permitted. (Id. at 4T198-13 to 25). Defense counsel asked, “What about some
type of limited instruction to the jury to try to ameliorate the damage that I think the question’s
already done?” (Id. at 4T199-1 to 3). The judge pointed out that he had given an immediate
instruction to disregard the question, and that the answer to the question had not been actually
elicited. (Id. at 4T199-4 to 7). The judge also ordered that the audiotape of the pertinent part of
10
the proceedings be played back. (Id. at 4T199-4 to 23). After hearing the tape, the judge
determined that there was no need for further instruction. (Id. at 4T1 99-24 to 200-22).
Petitioner raised Ground One on direct appeal, and the Appellate Division rejected the
claim as follows:
We need not decide whether the prosecutor’s cross-examination
ran afoul of State v Muhammad, 182 N.J. 551, 567 (2005), in
which the Court held that the State may not cross-examine a
defendant about his failure to have made an exculpatory statement
to police. Here, we are satisfied that the Court promptly instructed
the jury to disregard the question. If a trial judge orders the jury to
disregard a question, we assume that the jury followed the judge’s
instruction and that any prejudice that may have been caused by
the comment has been eliminated. State v Fan-eli. 61 N.J. 99. 107
(1972).
State
i
In addition to instructing the jury to disregard the question, the
judge also explained in his final charge that “[amy testimony that I
may have had the occasion to strike is not evidence and should not
enter into your deliberations. It must be disregarded by you.”
Under these circumstances, we are confident that the judges
immediate and forceful response negated any prejudice that might
otherwise have arisen. For these reasons, we reject defendant’s
contentions in Point 1.
Smith. 2007 WL 3005342, at *3_4 (N.J. Super. App. Div. 2007).
It is well-established that a state prosecutor may not seek to impeach a defendant’s
exculpatory story, told for the first time at trial, by cross-examining the defendant about his
failure to have told the story after receiving Miranda warnings at the time of his arrest. The
Supreme Court has held that “the use for impeachment purposes of petitioners’ silence, at the
time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the
Fourteenth Amendment” Doyle v. Ohio, 426 U.S. 610, 619 (1976). In Brecht v. Abrahamson,
507 U.S. 619, 638 (1993), the Supreme Court specifically addressed a Doyle error and held that
11
the Kottealcos4 harmless-error standard applies in determining whether habeas relief must be
granted because of constitutional error of the trial type.
Furthermore, as relevant here, the Supreme Court has held that there can be no Doyle
violation where the reference to post-arrest silence occurs in a single question and the trial court
sustains an objection to the improper question and provides a curative instruction to the jury.
thereby barring the prosecutor from using the silence for impeachment. See Greer v. Miller, 483
U.S. 756, 764—66 (1987) (finding that “[tjhe sequence of events in this case—a single question,
an immediate objection, and two curative instructions—clearly indicates that the prosecutor’s
improper question did not violate [petitioner’sl due process rights”).
In Greer v. Miller, Respondent Miller took the stand on direct examination he testified
that he had taken no part in the crime, but that the other two alleged participants, Armstrong and
Williams. had come to the trailer home after the murder was committed seeking Miller’s advice.
Miller testified that Armstrong confessed that he and Williams had beaten and robbed Gorsuch.
and that they had killed him to avoid being identified as the perpetrators.
The prosecutor began his cross-examination of Miller as follows
“Q:
Mr. Miller, how old are you?
“A: 23.
“Q:
Why didn’t you tell this story to anybody when you got
arrested?”
Defense counsel immediately objected. Out of the hearing of the jury, Miller’s lawyer requested
a mistrial on the ground that the prosecutor’s question violated Miller’s right to remain silent
after arrest. The trial judge denied the motion, but immediately sustained the objection and
Kotteakos v. United States. 328 U.S. 750 (1946).
12
instructed the jury to “ignore [the] question, for the time being.” The prosecutor did not pursue
the issue further, nor did he mention it during his closing argument. At the conclusion of the
presentation of evidence, defense counsel did not renew his objection or request an instruction
concerning the prosecutor’s question. Moreover, the judge specifically instructed the jury to
“disregard questions
...
to which objections were sustained.” Miller was convicted of murder,
aggravated kidnapping, and robbery, and sentenced to 80 years in prison. See Greer, 483 U.S. at
75 8—5 9.
In finding no Doyle violation under these facts, the Supreme Court stated as follows:
.the trial court in this case did not permit the inquiry that Doyle
forbids. Instead, the court explicitly sustained an objection to the
only question that touched upon Miller’s postarrest silence. No
firther questioning or argument with respect to Millers silence
occurred, and the court specifically advised the jury that it should
disregard any questions to which an objection was sustained.
Unlike the prosecutor in Doyle, the prosecutor in this case was not
“allowed to undertake impeachment on,” or “permit[tedj to call
attention to,” Miller’s silence. 426 U.S., at 619, and n. 10,96 S.Ct.,
at 2245, and n. 10. The fact of Millers postarrest silence was not
submitted to the jury as evidence from which it was allowed to
draw any permissible inference, and thus no Doyle violation
occurred in this case.
...
Greer, 483 U.S. at 764—65.
The facts of this case are similar to what occurred in Greer. Petitioner’s counsel objected
to the prosecutor’s single question regarding his post-arrest silence, the objection was sustained,
and the judge later instructed the jury to disregard any evidence where he had sustained an
objection. Although Petitioner’s counsel sought a more detailed limiting instruction at the time
the objection was sustained and the trial court declined to give it, this fact alone does not warrant
departure from the Supreme Court’s analysis in Greer. As noted by the Appellate Division, the
judge gave a general instruction that the jury should disregard evidence if the judge had
sustained an objection. For these reasons, the Appellate Division did not unreasonably apply
13
clearly established federal law when it denied Petitioner’s claim regarding cross-examination
about his post-arrest silence, and habeas relief is not warranted on Ground One.5
b. Failure to Grant Mistrial after Other Crimes Evidence Heard by Jury
In Ground Two. Petitioner argues that the trial court erred when it denied his motion for a
mistrial after a defense witness commented during cross-examination that defendant was on
parole at the time of the instant offense. The following testimony was elicited during crossexamination of defense witness Michael Brown:
Q: But either way when the police officers came up on the
scene your first cousin took off running; correct, that’s what you
told us?
A: Yes, sir, that’s what I told you.
Q:
Yes, okay. And you told us that you don’t know why.
A: Yeah.
Q:
Correct? Sir, to this day you don’t know why your first
cousin took off running when the[DEFENSE COUNSELj: Objection
Q:
-police came up to the scene?
[DEFENSE COUNSEL]:-relevance,
THE COURT: No, I’ll permit it.
A: Nope.
‘The Court notes that Petitioner’s counsel appears to have reframed Ground One as
prosecutorial misconduct. It does not appear that Grounds One was fairly raised as prosecutorial
misconduct to the state courts and Petitioner may not or raised raise unexhausted claims for the
first time in federal court or amend his Petition though his Traverse. A court may also deny an
unexhausted claim on the merits. The Supreme Court has recognized that prosecutorial
misconduct may “so infec[t] the trial with unfairness as to make the resulting conviction a denial
of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due
process violation, the prosecutorial misconduct must be “of sufficient significance to result in
the denial of the defendants right to a fair trial.” United States v. Bag?ey, 473 U.S. 667, 676
(1985) (quoting United States Agurs, 427 U.S. 97, 108 (1976)). Even if the Court were to
analyze Grounds One as prosecutorial misconduct, the prosecutor’s single question regarding
Petitioner’s post-arrest silence did not violate due process where the objection was sustained, and
the trial court instructed the jury to disregard the question.
14
BY THE STATE:
Q:
To this day you still don’t know why your first cousin
took off running?
A: Well, I don’t know-I believe because he was on parole[DEFENSE COUNSELI: Objection, speculation.
THE COURT: Strike the answer. Its nonresponsive to the
question.
[PROSECUTOR]: I’ll move on, Judge.
BY THE STATE:
Q:
He goes off-
THE COURT: The jury will disregard the last answer.
(ECF No. 10-32, 41105-14 to 106-10.) The trial judge later denied Petitioner’s motion for a
mistrial. (Id. at 4T106-14 to 15; 41134-7 to 139-18; 4T172-23 to 174-11.)
On direct appeal, Petitioner argued that the prosecutor’s question constituted the
introduction of other crimes evidence that did not satisfy the four-part test established in State v.
Cofield, 127 N.J. 328 (1992), and had not been the subject of a N.J.R.E. 104(a) hearing outside
the presence of the jury. The Appellate Division rejected his claim as follows:
For several reasons, we disagree that such a hearing was required.
First, as the judge properly concluded, Brown’s remark
“wasn’t occasioned by any conduct by the prosecutor wasnt
responsive to the question[.][a]nd it was purely volunteered by the
witness.” Stated differently, the prosecutor could not have
anticipated that Brown would have given that answer when the
prosecutor asked why defendant was running. Accordingly, we
reject defendant’s argument that the question represented a
conscious effort by the State to elicit information of defendant’s
prior conviction.
...
Second, the judge promptly instructed the jury to disregard
Brown’s remark about defendant being on parole. The jury is
presumed to have followed that instruction. State v. Muhammad,
145 N.J. 23, 52(1996).
Third. we defer to the judge’s conclusion that Brown was
mumbling and speaking so softly at the time he made the remark
that it was unlikely the jury heard it in any event. Fourth, during
his direct testimony. defendant acknowledged, as we have already
15
explained, that he was sentenced in 1995 to a fifteen-year term of
imprisonment, with five years to be served without eligibility for
parole. The judge later explained to the jury that the evidence of
defendant’s prior conviction could only be used to assist the jury in
evaluating defendant’s credibility. In light of the lengthy sentence
defendant received in 1 995, it does not strike us as unreasonable
that the jury would have concluded that defendant might still have
been on parole on October 6, 2002, which was only seven years
later. Because the jury might well have assumed that defendant
would be on parole in 2002, we conclude that little, if any,
prejudice resulted from Brown’s off-hand remark.
Even though the judge directed the jury to disregard
Brown’s comment that defendant might have been on parole at the
time he ran from police, defense counsel moved for a mistrial,
which the court denied. In situations such as this, where a witness
blurts out inadmissible evidence, the trial judge must determine
whether the “inadmissible evidence is of such a nature as to be
susceptible of being cured by a cautionary or limiting instruction,
or instead requires the more severe response of a mistrial.” State v.
Winter, 96 N.J. 640, 647 (1984). The trial court’s decision to grant
or deny a motion for a mistrial is a discretionary determination,
warranting great deference. Ibid.
Here, the following factors lead us to conclude that the
judge acted well within his discretion when he denied the motion
for a mistrial: the judge’s instruction to the jury that the comment
should be disregarded; the judge’s later instruction that defendant’s
convictions were admissible only to assist the jury in evaluating
credibility; the prosecutor’s inability to predict that Brown would
have given such an answer; and the testimony that defendant was
sentenced in 1995 to a fifteen-year term of imprisonment. If there
was any prejudice to defendant from Brown’s remark, it was
clearly capable of being cured by the judge’s instruction to
disregard the remark. The denial of defendant’s motion for a
mistrial did not constitute a misapplication of the judge’s
discretion.
Smith, 2007 WL 3005342, at *3..5
Ground Two does not warrant habeas relief. As an initial matter, “the Due Process
Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of
state evidentiary rules.” Marshall v. Lonberger. 459 U.S. 422. 438 n. 6(1983). The
admissibility of evidence is generally a question of state law which is not cognizable under
16
habeas review. See Keller v. Larkins, 251 F.3d 408, 416 n. 2 (3d Cir. 2001) (“A federal habeas
court, however, cannot decide whether the evidence in question was properly allowed under the
state law of evidence”); Hickey
i
Jeffes. 571 F.2d 762, 766 (3d Cir. 1978); Velez v Lagana, No.
12-0430. 2015 WL 2344674, at *6 (D.N.J. May 14, 2015).
The parties have not provided the Court with Petitioner’s direct appeal brief. As such,
the Court is unable to determine whether Petitioner raised this claim as a violation of his federal
due process rights or merely argued that the Court’s rulings violated state law. The admission of
‘other crimes’ evidence provides a ground for federal habeas relief only if ‘the evidence’s
probative value is so conspicuously outweighed by its inflammatory content, so as to violate a
defendant’s constitutional right to a fair trial.’
“
Bronshtein v. Horn, 404 F.3d 700, 730 (3d Cir.
2005) (quoting Lesko v. Oti ens, 881 F.2d 44,52 (3d Cir. 1989) );Alfordv. Warden New Jersey
State Prison. 2019 WL 1418121, at *4 (D.N.J. Mar. 29, 2019) (same). Here, Petitioner is unable
to meet that standard because the objection to the evidence was sustained, and the trial judge
instructed the jury to disregard it, and there is nothing in the record to suggest that the jury did
not follow the trial court’s instruction. As such, even if Petitioner did raise the claim as a
violation of his due process rights, he would not be entitled to habeas relief.6
Petitioner also argues that habeas relief is warranted because the trial court misapplied
state law in denying his motion for a mistrial. Even if the trial court erred in applying state law,
such error would not warrant federal habeas relief The Third Circuit dealt with a very similar
Nor does Ground Two warrant relief as an instance of prosecutorial misconduct that denied
Petitioner a fair trial where the objection to the evidence was sustained, and the trial judge
instructed the jury to disregard it, and there is nothing in the record to suggest that the jury did
not follow the trial court’s instruction. Furthermore, the state courts rejected Petitioner’s
assertion that the prosecutor attempted to elicit the remark from Brown and found that Brown
blurted it out.
17
claim in Minett v. Hendricks, 135 F. App’x. 547, 552-54 (3d Cir. 2005). In denying that
petitioner’s claim, the Third Circuit noted that the Supreme Court has held that courts should
“normally presume that a jury will follow an instruction to disregard inadmissible evidence
inadvertently presented to it. unless there is an ‘overwhelming probability’ that the jury will be
unable to follow the court’s instructions, and a strong likelihood that the effect of the evidence
would be ‘devastating’ to the defendant.” Id. at 553 (quoting Greer v. Miller, 483 U.S. 756. 766
n.8 (1987)). The Third Circuit also noted that the Supreme Court has on several occasions
refused to find that improperly admitted other crimes evidence fails to constitute a denial of due
process where a limiting instruction has been provided, even where that limiting instruction is
itself deficient. Id.; see also Estelle v McGuire, 502 U.S. 62(1991); Spencer v Texas, 385 U.S.
554 (1967). The Third Circuit in A’finert therefore rejected that petitioner’s claim that the
inadvertent admission of his other crimes evidence warranted habeas relief because he could not
show that the state court’s refusal to grant a mistrial amounted to a denial of due process. Minett
135 F. App’x. at 553-54. Here, Petitioner has not shown that his due process rights were
violated by the failure to grant a mistrial, and the Court will deny relief on Ground Two.
c. Errors in Jury Instructions
In Ground Three. Petitioner argues that the jury charge was deficient in a number of
respects, and therefore denied him the right to a fair trial.
The Supreme Court has held that an error in a jury instruction is a “trial error,” not a
“structural error,” meaning that it is subject to a harmless error analysis. California v. Roy, 519
U.S. 2, 5 (1996). There, the Court specifically held that an “omission” on a jury charge was to be
analyzed under the harmless error standard announced in Kotteakos v. United States, 328 U.S.
750, 776 (1946). An error is harmless unless it “had substantial and injurious effect or influence
18
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In
determining whether there is harmless error. we examine the impact of the error on the trial as a
whole. Yohn, 76 F.3d at 523. Thus, we ask whether the error had a substantial influence on the
verdict despite sufficient evidence to support the result apart from the error. Id.
When evaluating a jury instruction, the instruction “must be considered in the context of the
instructions as a whole and the trial record.” Waddington v. Sarausad, 555 U.S. 179, 191 (2009).
Additionally, federal habeas precedent places an especially heavy burden on a defendant who
seeks to show “error from a jury instruction that quotes a state statute.” Id. at 190. Further, an
omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the
law. See Henderson v. Kibbe, 431 U.S. 145. 156-57 (1977). Finally, the determination of
whether a jury would have reached a different verdict but-for the omitted instruction cannot be
based purely on speculation. See Ed. at 157.
The Appellate Division summarized the jury instruction claims as follows:
III. THE JURY INSTRUCTIONS, WHICH FAILED TO
DEFINE AN ELEMENT OF RESISTING ARREST AND
POSSESSION OF A DEFACED FIREARM AND EXPLAINED
A DEFENSE NOT RAISED BY DEFENDANT. DENIED
DEFENDANT A FAIR TRIAL. (Not Raised Below)
A. The Trial Court Failed to Define the Element of
Physical Force or Violence in its Instruction on Resisting Arrest.
B. The Trial Court Omitted the Element of Knowledge of
Defacement in its Instruction on Possession of a Defaced Firearm.
C. The Court Erred in Giving the Jury a Charge on
Identification Where Identity Was Not An Issue.
Smith, 2007 WL 3005342, at *2.
19
Regarding the trial court’s failure to define physical force or violence, the Appellate
Division rejected this argument, finding that “‘[t]he terms ‘physical force or violence’ are given
their ordinary meaning. State v. Brannon, 178 N.J. 500, 510-11 (2004). Accordingly. it ‘as not
necessary for the judge to give the jury a special definition. Smith, 2007 WL 3005342 at *6
(citing id). The state court did not unreasonably apply clearly established federal law in finding
that physical force or violence did not require a special definition and any failure provide such a
definition would be hanuless in light of the ordinary meaning of the terms.
The Appellate Division also rejected Petitioner’s argument that the identification charge
prejudiced him because such charge would lead the jury to expect defendant to present evidence
that someone else had possessed the drugs and gun, finding that the contention lacked merit
because
[t]he judge’s instruction plainly told the jury otherwise. In the
identification charge, the judge instructed the jury that “[tjhe
defendant has neither the burden nor the duty to show that the
crime, if it was committed at all, was committed by someone else
or to prove the identity of that person.” Under these circumstances,
the identification charge was not error.
Smith, 2007 WL 3005342, at *6. Because the instruction informed the jury that defendant did
not have the burden of showing that the crime was committed by someone else or to prove the
identity of that person, the Appellate Division did not violate any clearly established federal law
in rejecting Petitioner’s claim regarding the identification charge.
After extensive discussion, the Appellate Division also rejected Petitioner’s argument
that the trial court erred in omitting the element of knowledge of defacement in its instruction on
possession of a defaced firearm. See Smith, 2007 WL 3005342, at 6—l0, The New Jersey
Supreme Court granted certification on this issue, State
20
i’.
Smith, 193 N.J. 584 (2008), limited to
reviewing a claim regarding the proof required for a conviction for possession of a defaced
firearm. See State v. Smith. 197 N.J. 325 (2009).
The Supreme Court. in the last reasoned decision on this issue, set forth the following
relevant facts in considering this claim:
At trial, Detective Antonio Urena testified about the
weapon’s defacement. When asked if he was able to discern the
weapon’s serial number, Urena answered in the negative because
the serial number had been “scratched out.” Pointing to a specific
area of the gun’s frame, the detective testified that “[there were]
serial numbers right here on the frame right below the slide. But
[they are now] indiscernible.” Based on his experience, Urena
labeled the weapon a “defaced” firearm.7
At the conclusion of the trial testimony, the court instructed
the jury as follows on the defaced weapon offense:
In Count lithe defendant is charged with possession of a
defaced firearm contrary to the provisions of New Jersey law on
October 6th, 2002[,] in the City of Paterson.
The statute upon which this charge is based reads as
follows [:1
Any person who knowingly has in his possession any
firearm which has been defaced is guilt[y] of a crime.
In order to convict the defendant of this charge the State
has the burden of proof beyond a reasonable doubt of each of the
following elements;
First, that there is an item in evidence which is, in fact, a
firearm.
Second, that the firearm was defaced.
Third, that the defendant possessed the same knowingly at
the time of the event on October 6th, 2002.
The same definition that I previously gave you with regard
to a firearm applies and that includes any handgun, rifle, shotgun,
machine gun, automatic or semi-automatic rifle or any gun, device
or instrument in the nature of a weapon from which may be fired
or ejected any solid projectile ball, slug, pellet, missile, or bullet or
“A defaced firearm includes one whose serial number or other identifying mark has been
removed or altered. N.J.SA. 2C:39—l(b) defines ‘deface’ as ‘to remove, deface, cover, alter or
destroy the name of the maker, model designation, manufacturers serial number or any other
distinguishing identification mark or number on any firearm.” Id. at 328.
21
any case vapor or other noxious thing by means of a cartridge of
[sic] shell or by the action of an explosive or the igniting of
flammable or explosive substances.
The word deface means to remove, cover, alter, or destroy
the name of the maker, model, manufacture, serial number or other
distinguishing identification mark or number on any firearm.
So the State must prove, first of all, that there was a
firearm.
Second that the firearm was defaced. And—
Third, that the defendant knowingly possessed that firearm.
Again, knowingly means a person acts with—knowingly
with respect to his conduct if he’s aware that his conduct is of
that—is of that nature
The State must prove that the defendant was aware that he
possessed the firearm. Since knowingly is a state of mind that
cannot be seen and can only be determined by inference from
conduct, words or acts it is rarely susceptible of direct proof. And,
therefore, it’s not necessary that witnesses be produced by the State
to testiPy that an accused said that he knowingly possessed a
firearm. His knowledge may be gathered from his acts and his
conduct and from all that he said and did at a particular time and
place and from all the surrounding circumstances reflecting the—
reflected in the testimony.
Thus, after careful consideration of all the evidence in this
case you find that the State has failed to prove beyond a reasonable
doubt any of the elements charged than [sic] you must find the
defendant not guilty.
If. on the other hand, you’re satisfied that the State has
proven beyond a reasonable doubt that there is a firearm, that the
firearm was defaced and that the defendant knowingly possessed
the same at the time of this event on October 6th. 2002[,] in the
City of Paterson than [sic] you must find the defendant guilty.
State v Smith, 197 N.J. at 327—29.
The New Jersey Supreme Court next summarized Petitioner’s argument on appeal and
the Appellate Division’s decision as follows:
Defendant appealed and asserted, among other things, that the trial
court erred by omitting the element of knowledge of defacement in
its instruction on possession of a defaced firearm. In support of his
claim of instructional error, defendant relied on a January 9, 2006,
revision to the Model Jury Charge on possession of a defaced
22
weapon, a revision that had not occurred until a year and a half
after his conviction. The changed instruction requires the State to
prove that the defendant possessed the weapon knowing that it was
defaced.
In an unpublished opinion, the Appellate Division rejected
defendant’s argument that knowledge of the weapon’s defacement
is an element of the offense, and held that knowingly possessing a
weapon that happens to be defaced is sufficient for conviction
under N.J.S.A. 2C:39—3(d). In construing subsection (d), the panel
noted the parallel language and proximity of N.J.S.A. 2C:39—3’s
subsections (a), (b) and (c), which respectively prohibit the
possession of destructive devices, sawed-off shotguns, and firearm
silencers. To convict under those offenses, the State must prove
only that the defendant knew that he possessed the prohibited item.
The Appellate Division reasoned that the Legislature intended, in
the case of the similarly worded subsection (d) offense, that the
State must prove only the fact of possession of the defaced firearm.
As for the defendant’s reliance on the changed language of the
Model Jury Charge, the panel noted that there had not been any
legislative changes to N.J.S.A. 2C:39—3(d) orto case law
interpreting and applying the statute, which could have supported a
revised view of the proofs necessary to convict under the offense.
The panel concluded, therefore, that the change to the Model Jury
Charge, which incorporated a knowledge-of-defacement element,
had been made in error.
Id. at 329—30.
The New Jersey Supreme Court next set out the relevant statutory provision and the
parties’ arguments:
In this matter we must interpret what the term “knowingly”
modifies in N.J.S.A. 2C:39—3(d). That provision, proscribing the
possession of a defaced firearm, states that
[amy person who knowingly has in his possession any firearm
which has been defaced, except an antique firearm or an antique
handgun, is guilty of a crime of the fourth degree.
Defendant argues that the term “knowingly” in that provision
could be read sensibly in two ways. Under one interpretation,
“knowingly” could be read to modify “possession,” requiring only
that the State prove defendant’s knowledge of the fact of
possession in order to convict for possession of the prohibited item
(the defaced firearm). Under the other. “knowingly” could be read
to modify the entire phrase, “possession of any firearm which has
been defaced.” Under the second interpretation, the State would be
23
required to prove defendant’s knowledge of a firearm’s defacement
in order to convict. Defendant asserts that the Legislature did not
plainly establish that the offense would be a per se offense and
that, therefore, a “knowing” level of culpability should be held to
apply to the fact of the firearm’s defacement.
In light of the two plausible interpretations, defendant further
argues that the language is ambiguous. Thus, he claims that
examination of the statute’s legislative history and the recent
interpretation given to the statute by the Supreme Court Model
Criminal Jury Charge Committee, provide further support for the
proposition that the Slate must prove his knowledge of the gun’s
defacement. Last, defendant seeks application of the rule of lenity
in his case because of the statute’s ambiguity.
The State argues that the plain language and syntax of the
provision support a single reasonable interpretation, that
“knowingly” modifies “possession” and that, therefore, proving
possession of the prohibited item suffices for a conviction. The
State emphasizes that the same interpretation has been long
ascribed to related, and similarly worded subsections of the statute
and that the Legislature has acquiesced to the courts’ interpretation
of those provisions of N.J.S.A. 2C:39—3 asperse offenses. Further,
the State disputes that legislative history provides any support for
defendant’s interpretation of the statute.
Id. at 331.
Applying well-established principles of statutory construction, the New Jersey Supreme
Court reasoned as follows:
In the provision in question, the Legislature placed the term
“knowingly” immediate]y before the phrase, “has in his possession
a firearm.” There then follows another, subordinate phrase. “which
has been defaced,” that describes further the nature of the
proscribed item. Were we to accept defendant’s interpretation, we
would, in effect, be required to read the provision to proscribe
knowing “possession of any firearm which [he knows] has been
defaced.” Plainly, courts are not to read into a statute words that
were not placed there by the Legislature. As we have noted before,
“[ut is not the function of this Court to rewrite a plainly-written
enactment of the Legislature or [1 presume that the Legislature
intended something other than that expressed by way of the plain
language.” Ibid. (internal citations and quotations omitted).
Moreover, in this instance it is notable that the Legislature placed
the modifying phrase, “which has been defaced,” in an attenuated
position from the word “knowingly.” The Legislature could have
24
chosen to express itself differently in respect of a firearm’s
defacement. It could have chosen to use an adjective (“knowingly
has in his possession a [defacedi firearm”) to modify the term
“firearm,” instead of using a passive phrase that further attenuates
the fact of defacement from the term. “knowingly.” Although that
alternative phraseology would not have compelled a different
conclusion, particularly in light of the similar phrasing of other
subsections of N.J.S.A. 2C:39—3, the suggested alternate language
would have provided stronger support for defendant’s preferred
interpretation. As the statute actually reads, the legislative choice
of phraseology better supports the interpretation urged by the State
in that it suggests that the Legislature meant for “knowingly” to
focus on the possession of the prohibited item, and not the illicit
nature of the object.
Judging from the wording that the Legislature used to express itself
in N.J.S.A. 2C:39—3(d), it appears that the State has the better
argument as to the likely legislative intent, namely that
“knowingly” modifies only “possession” of the proscribed item.
Id. at 333.
The court further determined that even if the statutory language were deemed ambiguous,
the court’s prior decision in State v. Lee, 96 N.J. 156 (1984) provided further support for the
conclusion that N.J.S.A. 2C:39-3(d) applied as a per se statutory offense. See Id. at 335 (“We
presume that the Legislature, for nearly twenty-five years now, as agreed with the view,
expressed in Lee, that N.J.S.A. 2C:39-3(b) intended to make the possession of certain illicit
weapons, such as a sawed-off shotgun, a per se offense,” and finding that this reasoning applied
to subsection (d)). Finally, nothing in the legislative history of N.J,S.A. 2C:39-3(d) weighed
against the court’s finding that the Legislature meant for subsection (d) to be a per se possessory
offense. (Id. at 338.)
In sum, after analyzing the text, related provisions, and legislative history of N.J.S.A.
2C:39—3(d), the New Jersey Supreme Court held “that the term “knowingly” in N.J.S.A. 2C:39—
3(d) modifies ‘possession’ of a firearm which has been defaced” and that “[tjhe State was not
25
required to prove that, at the time that he knowingly possessed the firearm, defendant also knew
that it was defaced.” State v. Smith, 197 N.J. at 338—39. The New Jersey Supreme Court
therefore rejected Petitioner assertion that the trial court’s charge was in error, and affirmed his
conviction for possession of a firearm that had been defaced.8 Id.
In his Petition for habeas relief, Petitioner argues that the trial court failed to instruct the
ury on each element of the offense of possession of a firearm which had been defaced; however,
the Supreme Court of New Jersey, after extensive analysis of the criminal statute, held otherwise,
and Petitioner has not shown that the New Jersey Supreme Court’s interpretation of N.J.S.A.
2C:39-3, which is state criminal statute, violated any clearly established federal right as
established by the Supreme Court of the United States. “Absent extraordinary circlLmstances, the
state courts will have the final word on the substantive criminal law.” Gillespie v. Ryan, 837
F.2d 628, 632 (3d Cir. 1988); see Knight v. Beyer, No. 88—3180, 1989 WL 68618, at *4 (D.N,J.
June 22, 1989) (“[Al state court’s interpretation of a state criminal statute is binding on a federal
court reviewing the merits of a habeas corpus petition.”); see also Buehl v. Vaughn, 166 F.3d
163, 175—76 (3d Cir. 1999) (holding that state court’s interpretation of its own statute is only
unconstitutional if it is an “obvious subterfuge to evade consideration of a federal issue” or
“plainly untenable”) (citing Mullaney v. Wilbur, 421 US. 684, 691 n.1 1(1975) & Ward
i’.
Love
Cty., 253 U.S. 17,22(1920)). Here, Petitioner has not shown that the state’s interpretation is a
subterfuge designed to evade a federal issue or that its interpretation of N.J.S.A. 2C:39-3(d) is
plainly untenable.
8
The court further directed that the Model Jury Charge Committee correct its instruction for the
offense of possession of a defaced firearm and reexamine the model charges for offenses under
N.J.S.A. 2C:39—3’s other subsections to ensure that the model charges are consistent with the
court’s opinion.
26
Because the Appellate Division did not violate any clearly established federal law in
rejecting his jury instruction claims, the Court will deny habeas relief on Ground Three.
ci. Prosecutorial Misconduct
In Ground Four of the Petition, Petitioner alleges that he is entitled to habeas relief based
on several instances of alleged prosecutorial misconduct in the state’s summation. In Petitioner’s
direct appeal, the Appellate Division summarized these claims as follows:
IV. WHEN THE PROSECUTOR VOUCHED FOR HIS
WII’NESSES, EXPRESSED HIS PERSONAL BELIEF IN
DEFENDANT’S GUILT, MISSTATED THE FACTS AND LAW,
AND MOCKED DEFENSE COUNSEL, HE DENIED
DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Raised in
Part Below)
A. The Prosecutor Vouched for the Credibility of His
Witnesses and Misstated the Law.
B. The Prosecutor Shifted the Burden of Proof.
C. The Prosecutor Misquoted the Facts.
D. The Prosecutor Disparaged Defense Counsel.
Smith, 2007 WL 3005342, at *2. The Appellate Division rejected these arguments, finding that
they “lack[ed] sufficient merit to warrant discussion in a written opinion. R. 2:1 l-3(e)(2).” Id. at
*10.
Petitioner first highlights several passages of the prosecutor’s summation where the
prosecutor improperly expressed his personal belief in the credibility of the state’s witnesses and
also misstated the law:
[Officerl Rodriguez approached this unknown make.
Do you recall his testimony? When they both walked up on these
two guys, do you remember what he said. He startled them. They
had no idea a cop was going to roll up on them. They turn around
boom, two cops. What’s he do? He does the dropsy. He drops the
bag containing 50 baggies of crack cocaine, drops it to the ground.
27
Now [Officer] Rodriguez and [Detectivej Arroyo told us
that they saw him drop something and begin to walk northbound
on River Street. Well, I submit to you that I find that credible.
What is the glaring difference? Never had the drugs, never
had the gun. Interesting. I submit to you that someone is lying.
Clearly.
You have to decide whether it’s two police officers; both
on the force for 10 years, engaged in a conspiracy against the
defendant Jama Smith, this conspiracy beginning on October 6,
2002. This conspiracy continuing with Sergeant Rodriguez when
he went before the Passaic County Grant Jury and his conspiracy
continued till last week when both Sergeant Rodriguez and
Detective Arroyo took the witness stand in this courtroom and,
again, lied to you under oath. This conspiracy to plant this 380
semi automatic handgun on this defendant, and it is not complete,
because you heard their testimony. This conspiracy that lasted
almost two years
I don’t know, ladies and gentlemen. Based upon your
common sense, your understanding of how people operate in life
does that seem reasonable? I submit to you[,j you heard no
Well, I
testimony that these officers even knew the defendant.
guess if you believe this conspiracy theory they just happened to
pick out the defendant, they happened to pick out Jama Smith on
October 6, 2002 at about 1:10 in the morning who just happened to
be standing in front of 596 River Street to be a focus of this great
conspiracy to convict this defendant of these rather serious
charges. They never. I submit to you, knew him prior to that. And
I submit to you, they probably don’t know him even to this day.
But he just happened to be at the wrong place at the wrong time for
these evil police officers to frame him.
.
.
.
Are you prepared to accept that theory in this case? That’s
what you have to decide. Because if you believe these witnesses
everything happened basically the way the cops said it happened,
but for the gun and but for the drugs. Well where did they come
from? Where did the objects come from? Clearly, defendant said
he didn’t have them. His witnesses said they didn’t have them or
stay that he didn’t have them, Well, only one of them really said
that, and I’ll get to that in a minute. So it had to be from the cops.
(ECF No. 10-34, 6T37-6 to 17;6T45-l2 to 47-10.)
28
Petitioner also argues that the Prosecutor shifted the burden of proof by stating the
following: “According to the defendant, which again, I submit to you has never been proven,
never been indicated, the defendant ran because he had motor vehicle warrants.” (Id. at 6146-1 0
to 13.) Defense counsel’s objection was overruled. (Id at 6T94-4 to 9511: 6T95-16 to 96-16.)
Petitioner also argues that the prosecutor misquoted the facts by stating that Petitioner’s
witness Chappell simply didn’t recall whether Petitioner had drugs or a gun on him (Id at 6T484 to 11), when the testimony reflects that it was the prosecutor who asked Chappell if he
“recalled” whether Petitioner had drugs or a gun and ChappeH unequivocally stated thai he did
not see Petitioner with a gun on October 6, 2002. (See ECF No. 10-32, 41149-7 to 150-25;
41163-11 to 165-5.)
Finally, Petitioner also argues that the prosecutor disparaged defense counsel. At trial,
defense counsel adduced testimony that there had been no fingerprint testing done on the
weapon. During summation, the prosecutor compared the need for fingerprinting testing in
Petitioner’s case to the need for DNA evidence where there is a videotape of the crime. (See
ECFNo. 10-34, 6T53-16 to 54-9.)
The Supreme Court has held that prosecutorial misconduct is insufficient to overturn a
conviction unless it “so infect[sl the trial with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v DeChriszoforo, 416 U.S. 637, 643 (1974). It is not enough to
show that a prosecutor’s remarks were inappropriate or even deserving of universal
condemnation. Dan/en v. Wainwright, 477 U.S. 168, 181 (1986). A reviewing court must
“examine the prosecutor’s offensive actions in context and in light of the entire trial, assessing
the severity of the conduct, the effect of the curative instructions, and the quantum of evidence
against the defendant” to determine if prosecutorial conduct rises to a level that infects the trial
29
with such unfairness as to make the resulting conviction a denial of due process. Moore v
Morton, 255 F.3d 95, 107 (3d Cir.2001).
The Court has reviewed the prosecutor’s summation in its entirety and in the context of
the evidence presented at trial, and finds that these comments did not rise to the level that would
deprive Petitioner of a fair trial. As such, the New Jersey courts did not unreasonably apply
clearly established federal law in rejecting his claims of prosecutorial misconduct, and the Court
will deny relief on Ground Four.
e. Excessive Sentence (Ground Five)
In Ground Five, Defendant contends that his sentences, all maximums, most with
maximum parole ineligibility, are excessive and must be reduced. Petitioner alleges that the trial
judge erred in running his most serious sentences consecutively and this error violated his due
process rights under the Fourteenth Amendment. As a general rule, federal courts will not
review state sentencing determinations that fall within statutory limits. Jones v. Superintendent of
Raliway State Prison, 725 F.2d 40,43 (3d Cir. 1984). Matters of procedure and sentencing are
generally matters of state law and cannot justify the federal intervention of habeas corpus relief
Jones, 725 F.2d at 43. Petitioner has not provided any reasons that the Court would depart from
this general rule.
To the extent Petitioner challenges the trial court’s correction of the clerical errors in his
sentence, he does not have “a constitutionally protected liberty interest in a miscalculated release
date.” Evans v. Sec5 Pa. Dep’t of Corrs., 645 F.3d 650, 652 (3d Cir, 2011) (finding no violation
of inmates Fourteenth Amendment rights when Department of Corrections corrected an inmate’s
sentence status summary sheet almost eleven years after petitioner’s conviction; inmate did not
have a fundamental right to be released from prison on or about a certain date). Correcting a
30
mistake does not violate a petitioner’s procedural or substantive due process. Id. at 659—667.
Here, the sentenced imposed was not changed, and Petitioner’s liberty and due process rights
were not implicated when the clear clerical error was corrected to reflect the unambiguous
sentence the trial judge actually orally imposed. Therefore, the Court will therefore deny habeas
relief on Ground Five.
f.
Ineffective Assistance under Lafler v. Cooper, 566 U.S. 156 (2012) (Ground Seven &
Nine)
In Grounds Seven and Nine, Petitioner asserts that he received ineffective assistance of
counsel during the plea-bargaining stages as counsel failed to advise Petitioner accurately
regarding the maximum parole disqualifier he faced as a result of rejecting the state’s plea offer
and proceeding to trial where he ultimately received a significantly higher sentence. Petitioner
argues that the state courts unreasonably appLied the constitutional standards for effective
assistance of counsel laid out in Strickland v. Washington, 466 U.S. 668 (1984) as articulated by
the United States Supreme Court in Lqfler v. Cooper, 566 U.S. 156 (2012).
Petitioner exhausted this claim in his PCR. which was filed on or about March 12, 2010,
In a certification dated June 21, 2013, Petitioner asserted that he received ineffective assistance
of counsel because his trial attorney failed to accurately inform him of the maximum period of
parole ineligibility he faced if he proceeded to trial and was convicted of all of the charges.
Defendant certified that had he known he could receive twenty years of parole ineligibility,
rather than the thirteen years discussed during the Rule 3:9—1 proceeding and in paragraph
numbered five of the pretrial memorandum, he would have accepted the State’s plea offer
instead of going to trial. (See ECF No. 17, PA 76-78.)
The PCR court rejected this claim as procedurally barred under Rule 3:22-12 because it
was filed approximately four months beyond the 5-year deadline for bringing a PCR petition.
31
The PCR court also addressed the merits and determined that Petitioner failed to meet the test
under Strickland, finding that Petitioner was aware that he faced a “far greater sentence if
convicted after trial” and because Petitioner maintained his innocence during trial and at
sentencing and would not be able to provide a factual basis had he accepted the plea deal. (See
ECF No. 10-39, PCR Hearing Tr. 34-5 to 34-21; 30-1 Ito 33-6.)
On appeal of denial of PCR, the Appellate Division addressed this claim as follows:
We first address defendant’s contention that the PCR court erred in
rejecting the claim that his trial counsel was ineffective by failing
to accurately inform him regarding the maximum period of parole
ineligibility he faced if convicted of the charges after trial.
Defendant asserted that if he had been accurately informed of the
maximum period of parole ineligibility, he would have accepted
the States plea offer and not proceeded to trial.
We are convinced the PCR court properly rejected defendant’s
argument and denied the petition. Where it is claimed that trial
counsel’s mistaken advice regarding potential sentencing exposure
caused a defendant to reject a plea offer and proceed to trial, the
defendant establishes prejudice under the second prong of the
Strickland standard by demonstrating that he would have accepted
the plea offer if he had been aware of his sentencing exposure, that
his guilty plea would have been accepted by the court, and that the
conviction and sentence he would have received under the plea
offer would have been less severe than those resulting from the
132 S.Ct. 1376, 1385, 182
U.S.
trial. Lafier v Cooper.
L. Ed.2d 398, 407 (2012).
,
As the PCR court correctly found here, even assuming trial counsel
had accurately advised defendant he could receive a twenty-year
period of parole ineligibility, the court could not have accepted the
proposed plea agreement because defendant could not have
provided a factual basis supporting convictions for the offenses to
which he was required to plea under the agreement. Defendant
maintained his innocence throughout the matter and testified under
oath at trial that he did not possess CDS or the handgun, did not
point a handgun at the officers, did not resist arrest, and did not
engage in a hand-to-hand drug transaction.
The [New Jersey] Supreme Court has stated:
If a trial court cannot accept a guilty plea that is known to be false,
then it would be strange indeed for a PCR court to vacate a jury
verdict following a fair trial on the ground that defendant would
32
have taken an advantageous plea offer with a limited sentence
exposure if only he had been given the opportunity to lie under
oath. A court cannot give its imprimatur to perjury or in any way
suggest that the requirement of a truthfi.il factual basis at a plea
colloquy is an empty formality.
[Taccetta, supra, 200 N.J. at 197.]
Our court rules require that there be a factual basis supporting a
plea of guilty and that, to accept a guilty plea, “a judge must be
‘satisfied from the lips of the defendant that he committed the acts
which constitute the crime.” Id. at 196 (quoting State v. Slater,
198 N.J. 145, 155 (2009)).
“Even if a defendant wished to plead guilty to a crime he or she did
not commit, he or she may not do so. No court may accept such a
plea.” Taccetta, supra, 200 N.J. at 196 (quoting State v. Sinullen.
118 N.J. 408, 415 (1990)). Defendant here could not have entered
a plea of guilty to any of the charges pursuant to the State’s plea
offer, “for the simple reason that a defendant does not have the
right to commit perjury in giving a factual basis for a crime he
insists he did not commit.” Id. at 194. He denied under oath at trial
committing all of the offenses charged in the indictment. Even
assuming defendant satisfied “the first prong of the
Strickland/Fritz standard—that his counsel was constitutionally
ineffective for giving him mistaken advice about the sentencing
consequences of proceeding to trial—defendant [did not] satisfy
the second prong of that standard, which require[ed] a showing of
prejudice” because the court could not have accepted defendant’s
guilty plea. Id. at 194—95.
We are convinced the PCR court correctLy found that defendant did
not demonstrate prejudice under the second prong of the Strickland
standard and, as a result, did not establish a prima facie case of
ineffective assistance of counsel. Defendant was therefore not
entitled to an evidentiary hearing. Marshall, supra, 148 N.J. at 158.
We also reject defendant’s argument that the court erred in finding
that the PCR petition was time barred under Rule 3:22—12. Rule
3:22—12(a) requires a defendant to file a petition for PCR within
five years of the entry of the judgment or sentence unless the
defendant shows that the delay “beyond said time was due to
defendant’s excusable neglect and that there is a reasonable
probability that if the defendant’s factual assertions [are] found to
be true enforcement of the time bar would result in a fundamental
injustice.” “The [ ] time limitation[ j shall not be relaxed, except as
provided” in Rule 3:22—1 2. R. 3:22—12(e); see R. 1:3—4(c)
(“Neither the parties nor the court may [] enlarge the time
specified by R. 3:22—12.”).
...
33
Defendants judgment of conviction was entered on November 12,
2004, and his PCR petition was required to have been filed by
November 12, 2009. Defendant filed his petition on March 17,
2010, four months beyond the deadline contained in Rule 3:22—12.
Defendant acknowledges that the five-year time bar commenced
upon the entry of his judgment of conviction and was neither tolled
nor stayed by the prior appellate proceedings. See, e.g., State v.
Dugan, 289 NJ. Super. 15, 19 (App .Div.), certif denied, 145 N.J.
373 (1996). He contends, however, that his failure to timely file the
petition should be excused under Rule 3:22—12(a)(1) because he
appeared pro se and the attorneys who represented him on his
various direct appeal proceedings did not advise him of the
deadline for filing a PUR petition. We disagree.
Defendant’s pro se status does not provide a basis to permit his late
filing of his PCR petition. Any claimed “[ijgnorance of the law and
rules of court does not qualify as excusable neglect.” State v.
Merola, 365 N.J. Super. 203, 218 (Law Div.2002) (citing State v
Murray, 162 N.J. 240. 246 (2000)), affd o.b., 365 N.J. Super. 82,
84 (App.Div.2003), certif. denied, 179 N.J. 312 (2004).
We do not consider defendant’s contention that the purported
failure of his direct appeal counsel to advise him of the filing
deadline constitutes excusable neglect under Rule 3:22—12. We
caimot consider defendants argument because it is founded upon
facts which are not supported by an affidavit or certification. See
State v Jones, 219 N.J. 298, 312 (2014) (“[Tjhe Court Rules [J
require that factual assertions in a petition for post-conviction
relief be made by affidavit or certification in order to secure an
evidentiary hearing.”); R. 3:22—10(c).
Moreover, we decline to consider the argument because it was not
raised below and does not involve jurisdictional or public interest
concerns. Zaman v Fe/ton, 219 N.J. 199, 226—27 (2014); see also
Nieder v. Royal Indern. Ins. Co., 62 N.J. 229, 234 (1973) (“[Ojur
appellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a
presentation is available ‘unless the questions so raised on appeal
go to the jurisdiction of the trial court or concern matters of great
public interest.’ “(quoting Reynolds Offiet Co., Inc. v. Summer, 58
N.J. Super. 542, 548 (App. Div.l959), certg denied, 31 N.J. 554
(1960))).
Even assuming defendant made a showing of excusable neglect
under Rule 3:22—1 2(a)( 1), he failed to demonstrate that
enforcement of the time bar would result in a fundamental
injustice. Defendant could not demonstrate a fUndamental injustice
because, as noted, he failed to establish a prima facie case of
ineffective assistance of counsel under the Strickland standard.
34
State v. Smith, 2016 WL 698565, at *5_7 (N.J. Super. App. Div. Feb. 23, 20l6). The Supreme
Court of New Jersey denied the petition for certification. State v. Smith, 225 N.J. 340 (N.J.
2016).
The New Jersey’s Appellate Division’s resolution of Petitioner’s PCR appeal implicates
the doctrine of procedural default. Procedural default occurs when a claim has not been fairly
presented to the state courts (i.e., is unexhausted) and there are no additional state remedies
available to pursue, see Wenger v Frank, 266 F.3d 218, 223—24 (3d Cir. 2001); or, when an
issue is properly asserted in the state system but not addressed on the merits because of an
independent and adequate state procedural rule, see McCandless v. Vaughn, 172 F.3d 255, 260
(3d Cir. 1999). “Ordinarily, violation of firmly established and regularly followed state rules
will be adequate to foreclose review of a federal claim. There are, however, exceptional cases in
which exorbitant application of a generally sound rule renders the state ground inadequate to stop
consideration of a federal question.” Lee v Kemna, 534 U.S. 362, 376 (2002) (internal quotation
marks and citations omitted).
°
Respondents argue that the Appellate Division also rejected Petitioner’s claim that his attorney
misinformed him about his maximum parole disqualifier. See ECF No. 8, Respondent’s Answer
at 45.) The Court disagrees, as the Appellate Division detennined that the “PCR court correctly
found that defendant did not demonstrate prejudice under the second prong of the Strickland
standard” and did not address whether counsel was deficient. See it!. at 6. Indeed, the Appellate
Division further stated:
Because defendant failed to establish prejudice under the second
prong of the Strickland standard, it was unnecessary for the PCR
court to resolve the issue of whether defendant’s response in
paragraph numbered six on the pretrial memorandum provided
adequate notice that he faced a twenty-year period of parole
eligibility if convicted of all of the charges at trial.
Id. at *5, n. 3.
35
In this case, the Appellate Division first addressed Petitioner’s Lqfler Claim on the
merits, relying primarily on state law, and subsequently agreed with the PCR court that
Petitioner’s La/icr Claim was also barred by N.J. Ct. R. 3:22-12.
In Harris v. Reed, 489 U.S. 255 (1989), the Supreme Court considered the application of
the adequate and independent state ground doctrine to claims on habeas review and held that a
procedural default does not bar consideration of a federal claim on
.
.
.
habeas review unless the
last state court rendering a judgment in the case “‘clearly and expressly” states that its judgment
rests on a state procedural bar.” Id. at 263. In Harris, the Supreme Court established a “plain
statement” rule that there would be no procedural default, for purposes of federal habeas review,
unless “the last state court rendering judgment in the case ‘clearly and expressly’ states that its
judgment rests on a state procedural bar.”° 489 U.S. at 263. The Court in Harris expressly
noted, however, that state courts may both rely on state procedural bars and reach federal
substantive questions in denying habeas relief:
Moreover, a state court need not fear reaching the merits of a
federal claim in an alternative holding. By its very definition, the
adequate and independent state ground doctrine requires the
federal court to honor a state holding that is a sufficient basis for
the state court’s judgment, even when the state court also relies on
federal law. See Fox Film Coip, v Muller, 296 U.S. 207, 210 [56
S.Ct, 183, 80 L.Ed. 158] (1935). Thus, by applying this doctrine to
habeas cases,
reconsideration of the federal issue on federal
habeas [is curtailedi as long as the state court explicitly invokes a
state procedural bar rule as a separate basis for decision. In this
way, a state court may reach a federal question without sacrificing
its interests in finality, federalism, and comity.
.
.
.
10
Harris’ plain statement rule was subsequently narrowed by Coleman v. Thompson, 501 U.S.
722. 735 (1991), which clarified that the first step is to determine whether the decision of the last
state court to which the petitioner presented his federal claims “fairly appears to rest primarily on
federal law, or to be interwoven with the federal law.” Only then, if there is such a reliance on
federal law, do we look at whether the state court clearly and expressly based its ruling on a state
procedural ground.’° Id; see also Johnson v. Finchak. 392 F.3d 551, 557 (3d Cir. 2004.)
36
Harris, 489 U.S. at 264 n. 10; see also Cabrera v Barbo, 175 F.3d 307, 314 (3d Cir.1999)
(holding that the fact that Appellate Division also addressed the lack of merit in the ineffective
assistance of counsel claim “does not undermine our conclusion that the state courts rejected
Cabrera’s claim on an independent and adequate state basis, as the comment at most was an
alternative holding”). In Rolan v. Coleman, 680 F.3d 311, 320 (3d Cir. 2012),’’ the Third Circuit
explained that the Harris footnote “suggests that where a holding provides sufficient basis for the
state court’s judgment, it should be upheld by the federal court”, and that “[t]he Supreme Court’s
language [in the Harris footnote] does not limit the federal court’s consideration based upon
whether such state court articulation form the primary basis for its decision, or an alternate and
sufficient basis for the decision.” Id.
Neither Respondent nor Petitioner has addressed whether Grounds Seven and Nine are
procedurally defaulted or whether the New Jersey Appellate Division, which issued the last
reasoned decision on this claim, otherwise relied on an adequate and independent state law
ground in denying the Lafler Claim.’2 Indeed. “[tjhis rule applies whether the state law ground is
substantive or procedural.” See Coleman, 501 U.S. at 729-730. A state procedural rule is
“independent” if it is separate from the federal issue. See Cabrera v. Barbo, 175 F.3d 307, 313
(3d Cir. 1999) (“[T]he basis for the state court’s rejection of the ineffective assistance of counsel
claims was state court procedural default
...
Clearly, this disposition was an independent state
ground.”). Moreover, a state procedural rule is adequate if it was “firmly established and
The Third Circuit has also held that AEDPA deference, rather than de novo review, applies
when a state court decides a claim on procedural grounds and, alternatively, on the merits. See
Rolan, 680 F.3d at 319 (addressing claim using AEDPA deference after determining that
procedural default did not apply).
12
The Court notes that the state appellate court cites to Lafler but also appears to rely on New
Jersey law to resolve the issue.
37
regularly followed” at the time of the alleged procedural default. Fordv. Georgia, 498 US. 411,
424 (1991).
A procedural default generally bars review of a federal habeas corpus petition absent a
showing of cause and prejudice. Wainwrighl v. Sykes, supra, 433 U.S. 72; Moscato v. Federal
Bureau of Prisons, 98 F.3d 757. 761 (3d Cir. 1996). “[T]he existence of cause for a procedural
default must ordinarily turn on whether the prisoner can show that some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). Cause, therefore, can be established by showing, for
example. that the factual or legal basis for a claim was not reasonably available to counsel or that
govenmtent interference made compliance with the procedural rule impracticable. Id.; Hull v.
Freeman, 991 F.2d 86, 91 (3d Cir. 1993). Attorney error may constitute cause only where such
error rises to the level of ineffective assistance of counsel in violation of the Sixth Amendment.
Murray, 477 U.S. at 488—89.
Because these issues have not been briefed by Respondents or Petitioner, the Court will
reserve judgment on Grounds Seven and Nine, and set a briefing schedule for the parties to
address the issue of procedural default. In addition to procedural default, the parties shall also
address the merits of this claim, including whether the New’ Jersey Appellate Division
unreasonably applied La,fler in finding that Petitioner failed to establish prejudice under
Strickland.
g. Denial of PCR of Procedural Grounds (Ground Eight)
Finally, in Ground Eight, Petitioner asserts that the state courts erred in denying
Defendant’s PCR petition, in part, on procedural grounds under N.J. Ct. R. 3:22-12. This claim
is not cognizable under
§
2254 as it pertains only to the application of state procedural rules.
38
Estelle
i
MeGuire. 502 U.S. 62,66(1991) (observing that “federal habeas corpus relief does not
lie for errors of state law” (quoting Lewis v. Jeffers, 497 U.S. 764, 780(1990))); see also Green
v. D Rio, 2019 WL 290550, at *2 (D.N.J. Jan. 23, 2019). As such, the Court denies relief on
Ground Eight.
V.
CONCLUSION
For the reasons explained in this Opinion, the Court deems Ground six withdrawn and
will deny the petition as to Grounds One, Two, Three, Four, Five, and Eight. The Court will
direct the parties to submit supplemental briefing on Grounds Seven and Nine (the Lajier Claim)
and reserves judgment on the Lajier Claim. The Court will administratively terminate this
matter pending the supplemental briefing and will separately issue a determination on the
certificate of appealability when it issues its decision on Grounds Seven and Nine. An
appropriate Order follows
Madel4e Cox Arleo, District Judge
United States District Court
DATED:
R
39
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