LUNSFORD v. JOHNSON et al
Filing
21
OPINION. Signed by Judge Susan D. Wigenton on 3/30/21. (jc, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERIC LUNSFORD,
Civil Action No. 18-8039 (SDW)
Petitioner,
v.
OPINION
STEVEN JOHNSON, et al.,
Respondents.
WIGENTON, District Judge:
Presently before the Court is the amended petition for a writ of habeas corpus of Eric
Lunsford (“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court
convictions (ECF No. 3). Following this Court’s Order to Answer, the State filed responses to the
petition (ECF Nos. 5-6, 17-19), to which Petitioner has replied (ECF No. 9, 20). Also before the
Court Petitioner’s motion seeking an evidentiary hearing, the appointment of counsel, and to
expand the record. (ECF No. 16). For the following reasons, this Court will deny Petitioner’s
motion, deny the petition, and deny Petitioner a certificate of appealability.
I. BACKGROUND
In its opinion affirming Petitioner’s conviction and sentence, the Superior Court of New
Jersey – Appellate Division provided the following summary of the factual basis of this matter:
At the time of this incident, Jeffrey King and Everett Stephenson
lived in the second-floor apartment of a three-unit building in
Newark. Derrick Keitt lived on the first floor.
On August 16, 2008, at around 6:30 p.m., Keitt heard
banging on his door. He looked through the peephole but did not
recognize the two men at his door. Keitt ran out the back door and
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up the stairs to the second-floor apartment where King and
Stephenson were.
King retrieved a gun from the back room and all three men
went downstairs. At the bottom of the stairs, they noticed the front
door had been kicked in. King noticed a man standing on the front
porch and pointed his gun at him. When Stephenson and King
observed a gun in the man’s waistband they retrieved it after a brief
struggle. As Stephenson was about to hit the man again, he was shot
in the back. A second gunman, later identified as [Petitioner], came
through the doorway and told Stephenson and King to let the first
gunman go.
[Petitioner] fired three or four times, hitting both Stephenson
and King in the back. [Petitioner] and the first gunman then fled.
Stephenson realized he could not walk and dragged himself over to
where King was lying. The first gunman began walking back
toward the porch steps and Stephenson fired his gun at him, causing
him to leave.
Before the shooting began, Keitt ran from the house toward
the street. While he was running, he heard three or four shots. Once
Keitt realized he was not being followed, he looked back and saw
[Petitioner] and the first gunman get into a car with a third man and
drive away. Keitt ran back to the house where he found Stephenson
and King shot, but both were conscious.
King and Stephenson wanted Keitt to remove King’s gun
from the porch. Keitt mistakenly picked up the gun left by the first
gunman and hid it in the backyard of another home. King’s gun was
left on the porch.
King and Stephenson were taken to the hospital where King
died later that night. Stephenson underwent extensive rehabilitation
and was unable to walk for several months.
At the police station, Keitt described the shooter and [about
six] weeks later identified [Petitioner] from a photo array. At trial,
Stephenson was unable to identify [Petitioner] but Keitt again
identified him as the shooter. [Petitioner] did not testify.
The jury found [Petitioner] not guilty of the murder of
Jeffrey King, but guilty of the lesser-included offense of aggravated
manslaughter (count one); not guilty of the attempted murder of
Everett Stephenson, but guilty of the lesser-included offense of
aggravated assault (count two); guilty of the fourth-degree assault
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with a firearm (count three); guilty of second-degree unlawful
possession of a weapon without the required permit to carry same
(count four); and guilty of second-degree possession of a weapon
with the intent to use it against the person or property of another
(count five).
[Petitioner] was sentenced to twenty-five years for
aggravated manslaughter, subject to the No Early Release Act
(NERA), [N.J. Stat. Ann. §] 2C:43-7.2. On the aggravated assault
charge, [Petitioner] received ten years to run consecutively with the
sentence on count one. [Petitioner] also received a sentence of
eighteen months on count three, to run concurrently with the
sentence on counts on and two. He was sentenced to five years on
count four, to run concurrently with the sentence for counts one and
two, and five years for count five, to run concurrently with counts
one, two, and four.
(Document 6 attached to ECF No. 6 at 3-5).
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
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, 772-73
(2010).
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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 firmly
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 the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
B. Analysis
1. Petitioner’s Ineffective Assistance of Counsel Claims
In his petition, Petitioner raises several claims which assert that he suffered ineffective
assistance of trial. The standard applicable to 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
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‘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 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).
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a. Petitioner’s Identification-related Ineffective Assistance Claims
Petitioner first asserts that his trial attorney erred in failing to request a hearing pursuant to
United States v. Wade, 388 U.S. 218 (1967), so that Petitioner could seek to suppress Keitt’s
identification of Petitioner several weeks after the shooting in this matter. Petitioner also asserts
that he is entitled to habeas relief notwithstanding counsel’s failings as the admission of Keitt’s
identification violated Due Process. In order to show that he was prejudiced by counsel’s failure
to seek to suppress Keitt’s identification via a Wade hearing, a petitioner “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 Supreme Court set the standard for determining the admissibility of an out of court
identification in Manson v. Brathwaite, 432 U.S. 98, 116 (1977). In Manson, the Court held that
an identification procedure violates due process and the resulting identification is therefore
inadmissible where the procedure used by the state was “unnecessarily suggestive and . . . create[d]
a substantial risk of misidentification.” United States 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). Although
reliability is “the linchpin in determining the admissibility of identification testimony,” Manson,
432 U.S. at 114, the question of whether an identification is reliable need only be addressed where
the procedures used to procure that identification were themselves suggestive. Id. at 107-14; see
also State v. Henderson, 208 N.J. 208, 218-220 (2011) (Under New Jersey law a Wade hearing
need only be held where a criminal defendant “can show some evidence of suggestiveness”).
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In this matter, Petitioner utterly fails to show that the procedures used to obtain Keitt’s
identification was in any way impermissibly suggestive. As the Appellate Division observed on
direct appeal,
[a]lthough more than a month elapsed between the incident and
Keitt’s viewing of the photographs [used in his identification of
Petitioner], that, in itself, is not sufficient to constitute impermissible
suggestiveness or inadmissibility. . . .
The process employed by the Newark Police Department
comported with the New Jersey Attorney General’s guidelines
concerning photo identification procedures. These guidelines
contain two important procedural recommendations meant to further
diminish any apparent suggestion in the process. The first is to use
someone other than an investigator involved in the case to conduct
the photo identification process to ensure any possible non-verbal
cues are eliminated. Detective Guy Trogani, who was not involved
in the investigation, was chosen to show the photo display to Keitt.
The second recommended procedure is to show the photographs in
sequence, displaying one photo . . . at a time to the witness. Keitt
was shown six photographs, one at a time, and asked to sign the one
he recognized. After Keitt picked the photo of [Petitioner], he
signed the photo. On a separate form, each of the photographs
shown to Keitt was attached.
(Document 6 attached to ECF No. 6 at 8-9, internal quotations and citations omitted).
As all of these observations are well supported by the record in this matter, it is clear that
Petitioner has failed to present any evidence whatsoever that the procedures used in Keitt’s
identification of him were in any way suggestive, let alone impermissibly so. Absent any evidence
of suggestive procedures, any discrepancies in Keitt’s testimony go only to the weight or
credibility of Keitt’s identification, and do not affect the admissibility of his identification.
Manson, 432 U.S. at 107-14. Petitioner has thus failed to show that he would have been entitled
to a Wade hearing had counsel requested one, and his claim that counsel was ineffective in failing
to seek either a Wade hearing in particular or the suppression of Keitt’s identification in general
must fail as Petitioner cannot show that he was prejudiced by counsel’s decision not to pursue that
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course.
Thomas, 428 F.3d at 502.
Likewise, because Petitioner cannot show suggestive
procedures, he likewise has failed to established that his Due Process rights were in any way
violated by the admission of Keitt’s identification. 1 Id.; Manson, 432 U.S. at 107-114; Henderson,
208 N.J. at 218-220. Thus, Petitioner’s identification related claim fails both as a direct claim for
relief and as a basis for an ineffective assistance of counsel claim, and provides no basis for habeas
relief.
In his supplemental briefs before this Court (ECF Nos. 10, 16) and in his second PCR
petition, Petitioner also argued that his trial counsel was ineffective in failing to challenge the Keitt
identification because of a conflict of interest. In essence, Petitioner argues that his trial counsel
once represented Lawrence Parks, an individual whom Petitioner was found guilty of killing in a
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Petitioner also briefly suggests that the trial court’s admission of the identification was faulty
because the trial court “did not [sua sponte] charge the jury . . . that [they] could consider Keitt’s
stress when he saw the man with the gun” in evaluating his credibility. A jury charge will only
warrant habeas relief where “the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Duncan v. Morton, 256 F.3d 189, 203 (3d Cir.), cert.
denied, 534 U.S. 919 (2001). In this matter, the trial court extensively charged the jury to critically
evaluate the credibility of the identifications made in and out of court by considering factors
including the observations made, the circumstances under which those observations were made,
the ability of the witness to make those observations under the circumstances including the
opportunity the witness had to view the perpetrator at the time of the shooting given the
surrounding events, as well as the witness’s degree of attention to the perpetrator at the time of the
shooting. (See Document 23 attached to ECF No. 6 at 88-90). It is thus clear, in context, that the
trial court gave the jury a charge which addressed the concerns Petitioner now raises, and that the
jury instruction therefore did not “so infect” the trial as to deny Petitioner his right to Due Process.
Id. Thus, to the extent Petitioner intended to raise a claim regarding the instruction, that claim is
also without merit.
Petitioner also belatedly attempts in his reply brief to re-raise his Wade claim by asserting
that appellate counsel was ineffective in raising the claim on the merits on direct appeal rather than
as a basis for PCR relief, but has not provided any facts which would show that his claim would
have been any more successful as a claim for relief on PCR than on direct appeal. In any event,
because Petitioner has failed to show any basis for relief as to his Wade claim regardless of whether
it was raised on PCR or direct appeal, Petitioner has failed to show he was prejudiced by appellate
counsel’s decision and his late raised ineffective assistance of appellate counsel claim is therefore
without merit.
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separate criminal matter, prior to representing Petitioner in the underlying matter in this case, and
counsel’s failure to challenge Keitt’s identification was the result of a conflict of interest between
counsel’s alleged loyalty to the deceased Parks and his duty to represent Petitioner. Initially, the
Court notes that the Appellate Division determined that all of the claims raised in Petitioner’s
second PCR petition were both untimely and in any event procedurally barred. (See Document 7
attached to ECF No. 17 at 11).
As such, Petitioner’s conflict of interest related claim is
procedurally defaulted before this Court, and can therefore not provide Petitioner a basis for relief
unless he can show actual innocence, cause and actual prejudice for his procedural faults, or that
a failure to review his claim would result in a miscarriage of justice – showings Petitioner has not
even attempted to make. See, e.g., Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004).
Plaintiff’s claim is thus procedurally barred in this matter.
Even putting aside the procedural default issue, however, the Appellate Division rejected
Plaintiff’s bald assertion that counsel’s previous representation of Parks in any way affected his
representation of Petitioner, finding as follows:
[Petitioner’s] trial counsel, Roberts, did not represent
[Petitioner] in the prosecution of Parks’ death. By the same token,
Parks had nothing to do with the violent home invasion which is at
the heart of the current [matter]. Indeed, he was already dead when
the complaint on the home invasion was issued. Parks, in other
words, was not a victim in the case in which Roberts represented
[Petitioner], and Roberts did not represent [Petitioner] in the Parks
shooting case. Furthermore, the record does not indicate how and
in what matter Roberts had once represented Parks. . .
In these circumstances, we do not believe that [Petitioner]
has established that Roberts was foreclosed from representing
[Petitioner] due to a concurrent conflict of interest. . . [as] the former
representation of Parks was not directly adverse to [Petitioner]’s
interests[.]
....
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Furthermore, as the PCR court found, [Petitioner] in the
present case has failed to show that there is a significant risk that
Robert’s representation of [Petitioner] was materially limited by his
former representation of Parks . . . . Indeed, [Petitioner] has not
explained how Roberts was limited at all, much less materially
limited, in zealously representing [Petitioner]’s interests by reason
of his prior representation of parks. The two cases are simply
unrelated.
(Document 7 attached to ECF No. 17 at 13-17).
Criminal defense counsel will be found to be constitutionally ineffective based on conflicts
of interest only where counsel “’actively represented conflicting interests,’ and an actual conflict
of interest adversely affected the lawyer’s performance. Hess v. Mazurkiewicz, 135 F.3d 905, 910
(3d Cir. 1998) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). Where a criminal defendant
can show an actual, conflict of interest adversely affected the lawyer’s performance, prejudice will
be presumed. Id. Where the petitioner instead only shows “a potential conflict of interest,” he
will still be required to prove prejudice. Id.
Here, Petitioner has failed to show any actual active conflict of interest. As indicated by
the Appellate Division, counsel’s representation of Parks – the nature of which is at best vaguely
asserted – had clearly ended by the time he represented Petitioner – indeed, Parks was already dead
by the time of the representation at issue here. Petitioner has not shown any continuing conflict
of interest, nor that any alleged conflict had any effect upon counsel’s representation here.
Although Petitioner asserts – without support – that counsel’s “failure” to challenge Keitt’s
identification was the result of this alleged conflict, he has drawn no connection between them.
Ultimately, because Petitioner has utterly failed to show any active conflict of interest nor actual
impact upon his defense, the Appellate Divisions’ rejection of his conflict of interest claim is
neither contrary to, nor an unreasonable application of, federal law. Thus, even if Petitioner had
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shown an entitlement to evade his procedural default, this claim would still serve as no basis for
habeas relief.
b. Petitioner’s alibi related ineffective assistance claim
Petitioner next asserts that counsel proved ineffective in failing to discover, investigate,
and present an alibi claim. Specifically, Petitioner asserts that he had an alibi for the night of the
shooting – that he was with the mother of his child, Jasmine Walker, at the time – and that had
counsel asked him about his defense he would have told counsel about this potential alibi. During
both his first PCR and in this Court, however, Petitioner has utterly failed to present any
certification or signed affidavit setting forth what testimony, if any, Ms. Walker would have
provided had she testified at his trial. The state PCR courts rejected this claim in Petitioner’s first
PCR both because Petitioner failed to allege that he even told counsel about the alleged alibi and
because Petitioner failed to provide any information as to what testimony Ms. Walker could have
provided which prevented him from being able to show Strickland prejudice. (See Document 13
attached to ECF No. 6 at 7).
As this Court has explained,
[i]n Strickland, the Supreme Court held that trial counsel “has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments.”
466 U.S. at 691. “The failure to investigate a critical source of
potentially exculpatory evidence may present a case of
constitutionally defective representation,” and “the failure to
conduct any pretrial investigation generally constitutes a clear
instance of ineffectiveness.” United States v. Travillion, 759 F.3d
281, 293 n. 23 (3d Cir. 2014) (internal quotations omitted); see also
United States v Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that
a complete absence of investigation usually amounts to ineffective
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assistance because a counsel cannot be said to have made an
informed, strategic decision not to investigate); United States v.
Baynes, 622 F.2d 66, 69 (3d Cir. 1980).
Where a Petitioner can show that counsel's failure to
investigate amounts to deficient performance, he must still show
prejudice. In order to do so,
a defendant basing an inadequate assistance claim on
his or her counsel's failure to investigate must make
“a comprehensive showing as to what the
investigation would have produced. The focus of the
inquiry must be on what information would have
been obtained from such an investigation and
whether such information, assuming admissibility in
court, would have produced a different result.
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)
(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));
see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)
(“[w]hen a petitioner alleges that counsel's failure to investigate
resulted in ineffective assistance, the petitioner has the burden of
providing the court with specific information as to what the
investigation would have produced”); United States v. Green, 882
F.2d 999, 1002 (5th Cir. 1989) (“A defendant who alleges a failure
to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have
altered the outcome” of Petitioner's case); accord Untied States v.
Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).
Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016).
Where a petitioner’s claim of failure to investigate is based on counsel’s failure to
investigate or call a certain witness at trial, a showing of prejudice has an additional requirement
– the provision of a sworn affidavit or testimony from the witness regarding what testimony would
have been provided had the witness been called at trial. See Judge, 119 F. Supp. 3d at 285; see
also Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001), cert. denied, 534 U.S. 919 (2001).
Because a showing of Strickland prejudice “may not be based on mere speculation about what . .
. witnesses . . . might have said,” Duncan, 256 F.3d at 201-02 (quoting Gray, 878 F.2d at 712), a
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petitioner’s failure to provide a sworn statement from the alleged witness is fatal to the petitioner’s
ability to make out a claim of prejudice based on the failure to call that witness. Judge, 119 F.
Supp. 3d at 285; Duncan, 256 F.3d at 202. Here, Petitioner failed to present any sworn affidavit
from Ms. Walker regarding her proposed testimony in his first PCR, and the state courts thus
rejected his claim on the merits as he had failed to allege he had raised the issue with counsel and
had in any event failed to show prejudice by failing to include an affidavit from the proposed
witness. That decision was neither contrary to, nor an unreasonable application of federal law,
and the PCR courts’ rejection of that claim during Petitioner’s first PCR petition therefore provides
no basis for habeas relief. Judge, 119 F. Supp. 3d at 285; Duncan, 256 F.3d at 202; see also
Palmer, 592 F.3d at 395.
Although Petitioner does not appear to have provided any copies of the document to this
Court, during his second PCR proceedings he did provide the PCR court with a sworn statement
from Ms. Walker regarding her ability to testify in Petitioner’s defense at trial, and in his reply
brief here he suggests that his failure to provide an affidavit from her to this Court or the first PCR
court should therefore be excused. The state court, however, dismissed that claim during the
second PCR proceeding as procedurally barred both because that claim had been raised and
rejected in Petitioner’s first PCR petition and because the facts Petitioner failed to present in his
first PCR petition – the certification from Ms. Walker – were known to Petitioner and were readily
discoverable during the first PCR process. The state court thus found the claim procedurally barred
and time barred in the second PCR petition litigation. (See Documents 4 and 7 attached to ECF
No. 17). Because this version of Petitioner’s claim – including a purported certification from Ms.
Walker – was dismissed on procedural grounds by the state court, this Court may not grant relief
on this version of the claim absent a showing of some basis for evading the procedural default bar
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to habeas relief such as actual innocence or cause and actual prejudice. Hubbard, 378 F.3d at 338.
Petitioner attempts to make no such showing, and as such, this Court is barred from granting any
relief on this version of Petitioner’s claim. Id.
c. Petitioner’s mistrial motion related ineffective assistance claim
In his final ineffective assistance of counsel claim, Petitioner asserts that his counsel proved
constitutionally defective in “disparaging” a motion for a mistrial made following a juror being
confronted by an individual who made comments about her brother’s case and the assistant
prosecutor involved in Petitioner’s trial while the juror was in the courthouse waiting to resume
jury deliberations. According to the juror, while near an elevator in the courthouse, a woman
approached her, stated that her brother was “locked up” and made comments about the assistant
prosecutor and stated that the public defender was “rude” and that she had to “call and curse him
out and . . . call[] his supervisor.” (Document 21 attached to ECF No. 6 at 5-6). The woman
continued to speak despite the juror attempting to ignore her, but did not mention Petitioner or
identify her brother. The trial court thereafter interviewed all of the jurors, all of whom stated they
would be willing to proceed impartially notwithstanding this occurrence. (Id. At 6-50). Because
one juror other than the one who was approached felt that this incident was meant to intimidate
the jury, the trial judge excused that juror in response. (Id. at 50-55).
Although all parties agreed to the excuse of the juror who believed that the incident was an
attempt at jury intimidation, Petitioner’s trial counsel went further and made a motion for a mistrial
by stating the following:
I agree with [the State] about that juror. I think he has to go, but I
have to make a motion for the entire – you know, as repugnant as it
is for me to do this, I have to make a motion to have a mistrial.
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This last juror [who the trial court excused] feels that there
was an approach to influence a juror. He says he can be fair and I
don’t see how that’s possible, and just the fact that a juror was
approached, even with the Court’s charge which we know will be a
strong one and the elimination which we have to do with a juror, I
think there’s a real potential for a taint here.
Obviously, I don’t have to say this to anybody, or the
importance in this case for everybody concerned and if there’s any
chance that the jury may be tainted by this, it would have to be
dismissed and I would make that motion.
(Id. at 51-52). Counsel thereafter argued that “if there’s even a slight chance of contamination of
a jury” a mistrial should be granted and that the fact that one juror felt that this was an attempt to
influence the jury such a chance of contamination existed notwithstanding the other jurors denying
having heard this belief from the excused juror. (Id. at 55). The judge denied that motion.
Petitioner’s entire argument on that issue is that, by referring to making a motion for a
mistrial as being “repugnant,” his trial attorney disparaged and ultimately weakened a motion that
otherwise would have been successful. As the PCR appellate court noted, that argument entirely
ignores the context and the thoughtful argument on the issue provided by trial counsel. Trial
counsel’s statement that making such a motion could be “repugnant” was nothing more than a
recognition of the gravity of a motion for a mistrial whose success would likely require the trial
court to repeat Petitioner’s entire trial, and in context it is clear that counsel did not “disparage”
his own motion for a mistrial. Instead, the record makes it clear that counsel pursued that motion
and supported it with a cogent and thoughtful argument in support of the granting of a mistrial.
Counsel’s use of the word “repugnant” had no effect upon the outcome of his motion, and in
context in no way disparaged the mistrial motion. Petitioner’s contention is thus belied by the
record and is utterly without merit. Petitioner has failed to show that the outcome of the motion
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would have been different absent the use of the word repugnant, and as such his claim must fail.
Strickland, 466 U.S. at 692-94. Petitioner is thus not entitled to habeas relief.
2. Petitioner’s prosecutorial misconduct claim
In addition to the ineffective assistance claims considered above, Petitioner also argues that
he was denied Due Process by alleged prosecutorial misconduct during the questioning of the
surviving victim, Everett Stephenson. The duty of a prosecutor in a criminal proceeding is to see
that justice is done rather than to secure convictions, and as such prosecutors must “refrain from
[the use of] improper methods calculated to produce a wrongful conviction.” Berger v. United
States, 295 U.S. 78, 88 (1935); see also United States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016).
While a prosecutor “may strike hard blows [during his summation], he is not at liberty to strike
foul ones.” Berger, 295 U.S. at 88; Bailey, 840 F.3d at 124. A criminal conviction, however, “is
not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the
statements or conduct must be viewed in context; only by so doing can it be determined whether
the prosecutor’s conduct affected the fairness of the trial.” United States v. Harris, 471 F.3d 507,
512 (3d Cir. 2006) (quoting United States v. Young, 470 U.S. 1, 11 (1985). Prosecutorial
misconduct will therefore only warrant habeas relief where it “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168,
181 (1986); see also Copenhefer v. Horn, 696 F.3d 377, 392 n. 5 (3d Cir. 2012).
In this claim, Petitioner takes issue with the prosecution asking the surviving victim in this
matter whether he came to trial voluntarily, a question which resulted in an objection and sidebar
during which the State agreed only to ask whether the victim had been subpoenaed rather than any
other questions about the voluntary nature of the victim’s appearance at Petitioner’s trial. (See
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Document 20 attached to ECF No. 6 at 30-32). During the sidebar, the State explained that the
question was meant to pre-empt any questions from Petitioner about the State having paid to have
the victim brought to trial, although the State had not paid him for any testimony. (Id.). The State
denied any intent to suggest that the victim was afraid of Petitioner. (Id.). Following the sidebar,
the prosecutor asked Stephenson whether he was present because he had been subpoenaed, which
Stephenson answered affirmatively. (Id. at 32). The prosecution thereafter did not mention the
voluntariness or lack thereof of Stephenson’s appearance, but did discuss with him his recovery
process. (Id. at 52). During that testimony, Stephenson stated that he was taken to the hospital in
an ambulance following the shooting, spent four days in the hospital, and was then sent to the
Kessler Institute for rehabilitation for approximately a month. (Id.). When Stephenson then
testified that he had moved out of state, the prosecution asked him where he went following the
Kessler institute but specified that Stephenson didn’t “have to be specific as to which state.” (Id.).
Petitioner contends that these few questions, separated by twenty pages of direct examination and
which do not mention fear of Petitioner in any way, amount to an improper suggestion by the
prosecution that Stephenson was hiding from Petitioner out of fear.
Taken in context, it is clear that these few questions in no way deprived Petitioner of a fair
trial. While the prosecution asked a few questions that concerned Stephenson’s having been
subpoenaed and the fact that he left the state for further treatment, nothing in the record suggests
that these few questions, taken in the context of a lengthy direct examination, in any way suggested
that Stephenson, who did not identify Petitioner, was afraid or was otherwise in danger because of
his testimony. Instead, the questions merely addressed why Stephenson appeared – because he
was subpoenaed – and provided the jury with the context of the lengthy period of recovery and
rehabilitation Stephenson required to recover from his injuries. It is thus clear that these questions
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did not “so infect[] the trial with unfairness as to make the resulting conviction a denial of due
process,” Darden, 477 U.S. at 181, and that Petitioner has therefore failed to show that these
comments amounted to prosecutorial misconduct. Petitioner has thus failed to show that he is
entitled to habeas relief and his claim must therefore be denied.
C. Petitioner’s motions seeking counsel, an expansion of the record, and a hearing
Following his efforts to exhaust his conflict of interest related claim in his second PCR
proceeding, Petitioner filed in this Court a motion (ECF No. 16) seeking the appointment of
counsel, to expand the record to include a disciplinary opinion against his trial counsel completely
unrelated to the alleged conflict of interest in this matter, and for an evidentiary hearing to flesh
out his conflict claim. Because all of Petitioner’s claims are either clearly procedurally barred,
without merit, or both, for the reasons expressed above, Petitioner has failed to show that he is
entitled to an evidentiary hearing in this matter and his requests for a hearing or the appointment
of counsel are therefore denied. Palmer, 592 F.3d at 395. Petitioner’s request to expand the record
is likewise denied as the document he wishes the court to consider – a New Jersey disciplinary
opinion regarding his trial counsel unrelated to the alleged conflict of interest in this matter – is
irrelevant to the claims presented and would have no effect upon the outcome of those claims were
this Court to consider it. Petitioner’s motion (ECF No. 16) is therefore denied.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
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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 Petitioner’s habeas claims are all without merit, procedurally barred, or both for the
reasons set forth above, he has failed to make a substantial showing of a denial of a constitutional
right, and his petition is not adequate to receive encouragement to proceed further. This Court
therefore denies Petitioner a certificate of appealability.
IV. CONCLUSION
For the reasons stated above, Petitioner’s amended petition for a writ of habeas corpus
(ECF No. 3) is DENIED, Petitioner is DENIED a certificate of appealability, and Petitioner’s
motion seeking the appointment of counsel, to expand the record, and an evidentiary hearing (ECF
No. 16) is DENIED. An appropriate order follows.
Dated: March 30, 2021
s/Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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