CHISOLM v. RICCI et al
Filing
22
OPINION filed. Signed by Judge Freda L. Wolfson on 12/2/2011. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PAUL CHISOLM,
Petitioner,
v.
MICHELLE RICCI, et al.,
Respondents.
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Civil Action No. 09-6374 (FLW)
OPINION
APPEARANCES:
PAUL CHISOLM, Petitioner Pro Se
417034-#38196B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
SARA BETH LIEBMAN, Attorney for Respondent
Union County Prosecutor’s Office
32 Rahway Avenue
Elizabeth, New Jersey 07202
Petitioner Paul Chisolm, a prisoner currently confined at New
Jersey State
Prison
in
Trenton,
New
Jersey,
has
submitted
a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The respondents are Michelle Ricci and the Attorney General of New
Jersey. For the reasons stated below, the Petition must be denied.
I. BACKGROUND
A. Factual Background
The facts of this case were recounted below and this Court,
affording the state court's factual determinations the appropriate
deference, see 28 U.S.C. § 2254(e)(1)1, will simply reproduce the
recitation as set forth in the unpublished opinion of the Superior
Court of New Jersey, Appellate Division, decided on April 7, 2009,
with respect to Petitioner's appeal from the trial court’s denial
of his petition for post-conviction relief:
In brief, defendant and his codefendant [Beth Smallwood]
(collectively, defendants) were charged with the
kidnapping and murders of two fellow drug dealers, Peter
Sizemore and Cathy Brown. Because the victims allegedly
had stolen drugs from defendants, they forced the victims
into a room in a boarding house where defendants had been
selling drugs. Witnesses heard thumping sounds and
muffled squeals from Brown. While Smallwood struck Brown,
defendant beat Sizemore unconscious. When Brown became
loud and hysterical, defendant threw her into a closet.
Then, Smallwood gave defendant a knife with which he
repeatedly stabbed Sizemore. Later, defendants moved the
bodies of Sizemore and Brown to the basement of the
boarding house, and then removed them to a park where
they burned them.
State v. Chisolm, 2009 WL 910414, at *2 (N.J.Super.App.Div. Apr. 7,
2009).
B. Procedural History
Petitioner was convicted of two counts of felony murder and
one count of kidnapping.
On February 19, 2001, Petitioner was
sentenced to an aggregate sentence of life imprisonment with a
30-year period of parole ineligibility.
The Superior Court of New
Jersey, Appellate Division, affirmed the conviction and sentence
1
Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding instituted by an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.”
2
and,
on
May
certification.
21,
2004,
the
New
Jersey
Supreme
Court
denied
State v. Chisolm, 180 N.J. 358, 851 A.2d 651
(2004).2
In August 2004, Petitioner filed his first state petition for
post-conviction relief.
The trial court denied relief and the
Appellate Division affirmed the denial of relief.
On June 18,
2009, the Supreme Court of New Jersey denied certification.
State
v. Chisolm, 199 N.J. 542, 973 A.2d 945 (2009).3
2
On direct appeal, Petitioner raised the following claims,
unsuccessfully:
POINT I-THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS THE COUNTS OF
THE INDICTMENT CHARGING KIDNAPPING AND FELONY MURDER.
POINT II-THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION [FOR] A NEW TRIAL
BASED UPON THE LACK OF SUFFICIENCY OF THE EVIDENCE OR IN THE ALTERNATIVE TO
DISMISS THE KIDNAPPING AND FELONY MURDER COUNTS OF THE INDICTMENT.
POINT III-THE COURT ERRED IN ADMITTING EVIDENCE OF THE DEFENDANT'S OTHER
CRIMES AND/OR BAD ACTS TOWARD THE DECEDENT PETER SIZEMORE.
POINT IV-THE COURT ERRED IN EXCLUDING THE STATEMENT OF KEISHA HOWELL WHICH
STATED THAT IF THE DEFENDANT WOULD HAVE BEEN PRESENT THESE CRIMES WOULD NOT
HAVE OCCURRED.
POINT V-UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT WAS DENIED
THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT VI-THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
POINT VII-THE SENTENCE WAS MANIFESTLY EXCESSIVE.
State v. Chisolm, 2009 WL 910414, *1-*2.
3
On appeal from the denial of post-conviction relief, Petitioner raised
the following issues:
POINT I-THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) TRIAL COUNSEL FAILED TO CROSS EXAMINE KEISHA HOWELL IN AN EFFECTIVE MANNER.
B) TRIAL COUNSEL FAILED TO REQUEST A CHARGE ON AN AFFIRMATIVE DEFENSE TO
FELONY-MURDER.
C) TRIAL COUNSEL FAILED TO CONSULT AND PRESENT THE TESTIMONY OF EXPERTS.
3
This
Petition
followed.
Here,
Petitioner
asserts
the
following grounds for relief:
GROUND ONE: The State Court Misapplied Strickland and
Cumulative Errors.... Trial Counsel failed to object and
move for mistrial, and cumulative-error issues concerning
record, suppressed confrontation violations, excessive
other-crimes evidence, and a complete lack of curative
and limited-use instructions.
GROUND TWO: Cumulative Error: The combination of the
various confrontation violations and uncured/unlimited
other crimes resulted in a denial of a fair trial as a
result of ineffective counsel and denial of appellate
consideration due to post-trial ineffectiveness.
(Pet., ¶ 12.)
Petitioner asserted that both of these grounds for relief were
raised in his state petition for post-conviction relief.
He also
alleged that he has pending in state court a motion to file a
second state petition for post-conviction relief.
Petitioner did
D) TRIAL COUNSEL FAILED TO MOVE FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL
BASED ON THE VERDICT BEING AGAINST THE WEIGHT OF THE EVIDENCE.
E) TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE THE CASE.
F) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT REGARDING A WADE HEARING.
POINT II-THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III-THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE
CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV-THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON A DEFENSE SUA
SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT V-THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN
EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VI-THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE
DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
State v. Chisolm, 2009 WL 910414, *2.
4
not assert the grounds he raised, or intends to raise, in the
second state petition.
In
response
to
this
Court's
Notice
and
Order
advising
Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d
Cir. 2000), Petitioner filed a Motion for Stay and Abeyance.
(Docket Entry No. 3.)
In the Memorandum of Law in support of the
Motion, Petitioner asserted that “he recently realized that his
ineffective-assistance-of-counsel claims contain both exhausted and
unexhausted claims, and that some of his claims had not been
presented
in
state-court
proceedings.”
(Mem.
of
Law
at
5.)
Petitioner asserted that he is “nearly prepared” to file papers in
state court raising these un exhausted claims. Petitioner did not,
however, describe the allegedly unexhausted claims, nor did he
provide any explanation for the delay in asserting those claims in
state court.
In an Opinion and Order dated July 20, 2010, this Court denied
Petitioner’s request for a stay.
(Docket Entry Nos. 5&6.)
The
Court advised Petitioner that “within 30 days after entry of this
Order, Petitioner shall advise the Court whether he wishes to
withdraw his unexhausted claims and proceed with his exhausted
claims...failure to so advise the Court may result in dismissal
without prejudice of the Petition, as a mixed petition, without
further notice from the Court.”
(Docket Entry No. 6.)
In
response, Petitioner filed a letter stating that he wished to
5
proceed only with his exhausted claims.
(Docket Entry No. 7.)
The
Court entered an order to answer and Respondents filed an answer.
(Docket Entry Nos. 8&17.)
On December 29, 2010, Petitioner filed
a motion for an extension of time to file his reply.
No. 18.)
(Docket Entry
The Court granted his request and he was given until
March 7, 2011 to file his reply.
(Docket Entry No. 19.)
The Court
did not receive any reply from Petitioner, but thereafter, he sent
a letter to this Court stating that he had sent a reply but had not
received confirmation that the Court received it.
No. 20.)
(Docket Entry
On May 18, 2011, the Court entered an order giving
Petitioner an additional thirty days to submit his reply.
Entry No. 21.)
(Docket
To date, the Court has not received any reply or
other further filings from Petitioner.
II. DISCUSSION
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application
for a writ of habeas corpus in 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.
(b)(1) 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 unless it appears
that--
6
(A) the applicant has exhausted the remedies available in
the courts of the State; or
(B)(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts
of the State.
(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon
the requirement unless the State, through counsel,
expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within
the meaning of this section, if he has the right under
the law of the State to raise, by any available
procedure, the question presented.
(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.
(e)(1) In a proceeding instituted by an application for
a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to
be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence...
7
28 U.S.C. § 2254.
A
state
court
decision
is
“contrary
to”
Supreme
Court
precedent “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases,” or “if the state
court
confronts
a
set
of
facts
that
are
materially
indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [the Court's] precedent.”
Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
A state court
decision “involve[s] an unreasonable application” of federal law
“if the state court identifies the correct governing legal rule
from [the Supreme] Court's cases but unreasonably applies it to the
facts of the particular state prisoner's case,” and may involve an
“unreasonable application” of federal law “if the state court
either unreasonably extends a legal principle from [the Supreme
Court's] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply,” (although the Supreme Court expressly
declined to decide the latter). Id. at 407–09.
To be an “unreasonable application” of clearly established
federal law, the state court's application must be objectively
unreasonable.
Id. at 409.
In determining whether the state
court's application of Supreme Court precedent was objectively
unreasonable, a habeas court may consider the decisions of inferior
federal courts.
Matteo v. Superintendent, 171 F.3d 877, 890 (3d
8
Cir. 1999).
Even a summary adjudication by the state court on the
merits of a claim is entitled to § 2254(d) deference.
Janecka,
302
F.3d
107,
116
(3d
Cir.
2002)
Angelone, 528 U.S. 225, 237 (2000)).
Chadwick v.
(citing
Weeks
v.
With respect to claims
presented to, but unadjudicated by, the state courts, however, a
federal court may exercise pre-AEDPA independent judgment.
See
Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000);
Purnell v. Hendricks, 2000 WL 1523144, *6 n. 4 (D.N.J. 2000). See
also Schoenberger v. Russell, 290 F.3d 831, 842 (6th Cir. 2002)
(Moore, J., concurring) (and cases discussed therein).
In such
instances, “the federal habeas court must conduct a de novo review
over pure legal questions and mixed questions of law and fact, as
a court would have done prior to the enactment of AEDPA.”
Appel v.
Horn, 250 F.3d 203, 210 (3d Cir. 2001) (citing McCandless v.
Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)).
“However, § 2254(e)(1)
still mandates that the state court's factual determinations are
presumed correct unless rebutted by clear and convincing evidence.”
Appel, 250 F.3d at 210.
The deference required by § 2254(d) applies without regard to
whether the state court cites to Supreme Court or other federal
caselaw, “as long as the reasoning of the state court does not
contradict relevant Supreme Court precedent.”
Priester v. Vaughn,
382 F.3d 394, 398 (3d Cir. 2004) (citing Early v. Packer, 537 U.S.
3 (2002); Woodford v. Visciotti, 537 U.S. 19 (2002)).
9
Finally, a pro se pleading is held to less stringent standards
than more formal pleadings drafted by lawyers.
Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721–22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969).
B.
Analysis
Petitioner’s
claims
for
relief
appear
to
be
ineffective
assistance of trial counsel and ineffective assistance of appellate
counsel.
1. Ineffective Assistance of Trial Counsel
With regard to trial counsel, it appears that Petitioner is
arguing that counsel was ineffective due to his failure to move for
a mistrial and cumulative errors, including “record supported
confrontation violations, excessive other crimes evidence, and a
complete lack of curative and limited use instructions.” (Pet. at
¶ 12a.)
In his petition for post-conviction relief, Petitioner raised
an ineffective assistance of trial counsel argument based on
counsel’s failure to request a charge to the jury on an affirmative
defense to
properly
the
felony
cross-examine
murder
count
Keisha
10
and
Howell,
counsel’s
a
witness
failure
to
for
the
prosecution.
The trial court denied the petition on all grounds.
(Docket Entry No. 17-8, Pet.’s Br. Supp. PCR Appeal at 19.)
In his
appeal of the denial of the PCR petition, Petitioner raised several
grounds, including counsel’s failure to properly cross-examine
Keisha Howell and failure to request an affirmative defense charge.
(Id. at 23-33.)
It does not appear that Petitioner raised his
ineffective assistance of trial counsel claim based on failure to
move for a mistrial, excessive other crimes evidence and failure to
request curative and limited use instructions.
Since Petitioner
elected to withdraw any unexhausted claims, the Courts finds that
these claims have been withdrawn.4
As such, only the ineffective
assistance of trial counsel claim regarding a jury charge on an
affirmative defense to the felony murder count and counsel’s
failure to properly cross-examine Keisha Howell remain.
The Sixth Amendment, applicable to states through the Due
Process Clause of the Fourteenth Amendment, guarantees the accused
the “right ... to have the Assistance of Counsel for his defense.”
U.S. Const. amend. VI.
effective
assistance
defendant
of
assistance.
the
The right to counsel is the right to the
of
right
counsel,
by
and
failing
to
counsel
render
can
deprive
adequate
a
legal
See Strickland v. Washington, 466 U.S. 668, 686
(1984).
4
As stated above, pursuant to this Court’s Order of July 20, 2010,
Petitioner filed a letter stating that he wished to proceed only with his
exhausted claims. (Docket Entry No. 7.)
11
A claim that counsel's assistance was so defective as to
require reversal of a conviction has two components, both of which
must be satisfied.
See Strickland, 466 U.S. at 687.
First, the
defendant must “show that counsel's representation fell below an
objective standard of reasonableness.”
Id. at 687-88.
“[C]ounsel
should be ‘strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment.’”
Cullen v. Pinholster, 131 S.Ct. 1388,
1403 (2011)(citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052).
“To overcome that presumption, a defendant must show that counsel
failed to act ‘reasonabl[y] considering all the circumstances.’”
Id. (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052).
Further, a “convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment.”
Id. at 690.
The court must then determine whether, in
light of all the circumstances at the time, the identified errors
were
so
serious
that
they
were
professionally competent assistance.
outside
the
wide
range
of
Id.
To satisfy the prejudice prong, the defendant must show that
“there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
Id. at 695.
“It is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding’...Counsel's
12
errors must be ‘so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.’” Harrington v. Richter,
131 S.Ct. 770, 788 (2011)(citing Strickland, 466 U.S. at 687, 104
S.Ct. 2052).
As the Supreme Court explained,
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and
factual findings that were affected will have been
affected in different ways. Some errors will have had a
pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and
some will have had an isolated, trivial effect. Moreover,
a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors
than one with overwhelming record support. Taking the
unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a
court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the decision
reached would reasonably likely have been different
absent the errors.
Strickland, 466 U.S. at 695-96.
The Supreme Court instructs that a court need not address both
components of an ineffective assistance claim “if the defendant
makes an insufficient showing on one.”
697.
Strickland, 466 U.S. at
“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”
Id.
Petitioner presented his ineffective assistance of counsel
claims in his petition for post-conviction relief. After listening
to arguments by counsel, Judge Malone denied the petition in an
13
oral opinion stating, in relevant part:
The affirmative defense to felony murder requires a
showing of the four factors. And all must be present for
that defense to be available.
In this case based on the evidence that was present, it
simply was not in the case, this affirmative defense.
The evidence was substantial that there was no basis in
fact to present to a jury the affirmative defense simply
not supported by the evidence. The fact that counsel did
not raise that affirmative defense does not to my view
raise to the level of ineffective. The counsel certainly
was acting as the counsel required by the Sixth
Amendment. And simply faced with a set of facts within
the case, facts about the presence of a weapon, the
intent to harm the victims, that simply did not permit
the affirmative defense to be raised.
And as to the cross-examination of Keisha Howell, as I
said, we can all Monday morning quarterback and you can
pick through a transcript and perhaps think of a question
or two questions or even five questions that you might
have posed to Keisha Howell. But in this case, I cannot
conclude that the overall performance of counsel in
cross-examining Ms. Howell, and Mr. Devine is right on
when he said that she was a critical witness to the
State’s case, she absolutely was a critical witness to
the state’s case.
And I think that was not a point
missed by Mr. Florczak.
Mr. Florczak approached this case knowing full well that
the defense of the serious charges in this case depended
upon an attack on Keisha Howell. A cross examination of
her testing her credibility and raising questions before
the jury that the defense would hope would be sufficient
to raise reasonable doubt. There was a lengthy cross
examination of Ms. Howell. Ms. Howell’s own criminal
involvement was certainly raised and I believe every
reasonable effort by a defense counsel to put before the
jury sufficient questions, sufficient doubt about Ms.
Howell’s credibility was made. Every effort to do that
was made. The jury faced with what was essentially a case
based strongly on circumstantial evidence, nevertheless,
chose to make the findings that they did based on the
evidence that was presented.
But I cannot conclude that either with respect to the
14
charge or with respect to the cross examination of Ms.
Howell that counsel was deficient as that term is defined
by our cases. Accordingly, this post conviction relief
petition must be denied.
(Resp.’s Ex. 24, Tr. PCR Mot 17:7 - 19:7.)
After
citing
Strickland
and
applying
the
relevant
legal
standard, the Appellate Division affirmed, stating in relevant
part:
Upon review of a PCR decision, this court defers to the
PCR court's factual findings if they were supported by
“adequate, substantial and credible evidence.” State v.
Harris, 181 N.J . 391, 415, 859 A.2d 364 (2004), cert.
denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed.2d 898
(2005). The PCR court's legal conclusions, however, are
reviewed de novo. Id. at 416, 859 A.2d 364.
Here, defendant's primary argument is that trial counsel
failed to adequately cross-examine the prosecution's key
witness, Keisha Howell. We reject that argument for the
reasons expressed by Judge Malone in his March 30, 2007
opinion from the bench. No additional discussion as to
that issue is required.
We further conclude that trial counsel was not
ineffective for failing to request a jury instruction as
to the affirmative defense to felony murder as set forth
in N.J.S.A. 2C:11-3a(3); and that the trial court did not
commit plain error by not sua sponte providing such an
instruction. The PCR court barred that argument pursuant
to Rule 3:22-4 because defendant should have raised it on
direct appeal...
We agree with Judge Malone that defendant is procedurally
barred from raising this issue. Defendant has failed to
show that the issue could not have been previously
raised, that enforcement of the procedural bar would
result in fundamental injustice, or that enforcement
would be contrary to the State or federal constitution.
We also conclude that substantively, defendant's claim is
without merit, and trial counsel's failure to request
such a charge was not ineffective. Where a defendant is
15
not the only participant in the underlying crime, an
affirmative defense to felony-murder is available if the
defendant:
(a) [d]id not commit the homicidal act or in any way
solicit, request, command, importune, cause or aid the
commission thereof; and
(b) [w]as not armed with a deadly weapon, or any
instrument, article or substance readily capable of
causing death or serious physical injury and of a sort
not ordinarily carried in public places by law-abiding
persons; and
(c) [h]ad no reasonable ground to believe that any other
participant was armed with such a weapon, instrument,
article or substance; and
(d) [h]ad no reasonable ground to believe that any other
participant intended to engage in conduct likely to
result in death or serious physical injury.
[ N.J.S.A. 2C:11-3a(3).]
The affirmative defense to felony-murder
showing of all four factors. Ibid.
requires
a
Here, the evidence simply does not support the statutory
criteria to have warranted the affirmative defense to
felony murder charge. Witnesses saw defendant leave the
room where the victims were apparently murdered after the
screaming coming from the room had ceased. The police
found DNA consistent with Sizemore's blood in defendant's
rented car. In the boarding house where defendants
operated their drug business, the police found Sizemore's
blood in the room where defendant allegedly murdered him,
as well as on mattress filler in the boarding house's
basement. The police also found hairs, consistent with
Brown's, in the trunk of defendant's rented car. Thus,
adequate evidence existed to support the PCR court's
finding that defendant could not show that all four
factors of the affirmative defense were present.
State v. Chisolm, 2009 WL 910414, at *3-5 (N.J.Super.App.Div. April
7, 2009).
The foregoing shows that the New Jersey courts reasonably
applied the Supreme Court's holding in Strickland and its progeny.
16
Petitioner has demonstrated neither that counsel's performance was
deficient, nor that the results of the trial would have been
different had the attorney acted as Petitioner now suggests.
Specifically, the New Jersey courts pointed to ample support for
the decision not to assert an affirmative defense to the felony
murder charge.
Further, this Court has reviewed the transcripts
and it is clear from the record there was substantial crossexamination of Ms. Howell and the state courts were correct in
their holdings.
Accordingly, the New Jersey courts' adjudication
of Petitioner's ineffective assistance of trial counsel claims was
not contrary to, or an unreasonable application of Strickland and
other Supreme Court holdings.
2. Ineffective Assistance of Appellate Counsel
It appears that Petitioner also alleges that he received
ineffective assistance of appellate counsel.
Specifically, that
appellate counsel was ineffective for failing to raise the issue of
trial counsel’s ineffectiveness.
The
Fourteenth
Amendment
guarantees
a
criminal defendant
pursuing a first appeal as of right certain “minimum safeguards
necessary to make that appeal ‘adequate and effective,’” Evitts v.
Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois, 351
U.S.
12,
20
(1956)),
including
the
assistance of counsel, Evitts at 396.
right
to
the
effective
The ineffective assistance
of counsel standard of Strickland, 466 U.S. at 686, applies to a
17
claim that
appellate
counsel
was
ineffective.
See
Smith v.
Robbins, 528 U.S. 259, 285 (2000); United States v. Cross, 308 F.3d
308, 315 (3d Cir. 2002).
Defense counsel has a constitutionally
imposed duty to consult with the defendant about whether to appeal
when “there is reason to think either (1) that a rational defendant
would want to appeal (for example, because there are nonfrivolous
grounds
for
appeal),
or
(2)
that
this
particular
defendant
reasonably demonstrated to counsel that he was interested in
appealing.”
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). The
term “‘consult’ convey[s] a specific meaning-advising the defendant
about the advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant's wishes.”
Flores-Ortega at 478.
In
this
case,
the
New
Jersey
courts'
adjudication
of
Petitioner's ineffective assistance of appellate counsel claim was
not contrary to, or an unreasonable application of Strickland and
other Supreme Court holdings.
Specifically, it appears that
Petitioner’s appellate counsel did raise an ineffective assistance
of counsel claim on direct appeal and the Appellate Division did
not address this claim, stating that petitioner could raise it in
a petition for post-conviction relief.
(Resp.’s Br., Ex. 3, State
of New Jersey v. Chisolm, A-4637-00T4, at *25 (N.J.Super.App.Div.
December 8, 2003.)
It appears that this claim was raised in
Petitioner’s
of
appeal
the
trial
18
court’s
denial
of
his
PCR
petition, which was denied by the Appellate Division.
As such,
Petitioner failed to meet the first prong.
Even if the Court were to assume arguendo that Petitioner had
met the first prong of Strickland, Petitioner failed to show any
prejudice as a result of the alleged ineffectiveness.
Therefore,
he did not meet the requirements for an ineffective assistance of
appellate counsel claim and the petition will be denied on this
ground.
See Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999)
(rejecting state petitioner's § 2254 claim that right to effective
assistance of counsel on direct appeal was violated by appellate
counsel's
failure
to
argue
that
trial
counsel
had
rendered
ineffective assistance).
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254. A
certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
537 U.S. 322, 327 (2003).
19
Miller-El v. Cockrell,
Here, Petitioner has failed to make a substantial showing of
the
denial
of
a
constitutional
right.
No
certificate
of
appealability shall issue.
IV.
CONCLUSION
For the above reasons, this Court finds that the § 2254 habeas
petition must be denied, and a certificate of appealability will
not issue. An appropriate Order follows.
DATED: December 2, 2011
s/Freda L. Wolfson
FREDA L. WOLFSON
UNITED STATES DISTRICT JUDGE
20
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