COOPER v. RICCI
Filing
21
OPINION filed. Signed by Judge Anne E. Thompson on 4/2/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID COOPER,
Petitioner,
v.
MICHELLE R. RICCI,
Respondent.
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Civil Action No. 10-2901 (AET)
OPINION
APPEARANCES:
Petitioner pro se
David Cooper
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Counsel for Respondent
Mary R. Juliano
Monmouth County Prosecutor’s Office
Monmouth County Court House
71 Monument Park
Freehold, NJ 07728-1261
THOMPSON, District Judge
Petitioner David Cooper, 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 respondent is Warden Michelle R. Ricci.
For the reasons stated herein, the Petition will be denied.
I.
A.
BACKGROUND
Factual Background
The relevant facts are set forth in the opinion of the
Supreme Court of New Jersey.1
On July 18, 1993, the six-year-old victim, L.G.,
her mother, R.G., and the victim's two sisters were at
the home of R.G.'s sister-in-law, M.W., in Asbury Park.
While M.W. was at the supermarket, R.G. sat on the
front porch of the house with her youngest daughter.
The victim and her other sister were with M.W.'s
daughter playing in the frontyard. After playing in the
frontyard for some time, the children moved into a
fenced-in backyard.
While they were playing in the backyard, defendant
lured the victim away from the other children and
eventually picked her up, lifted her over the fence,
and walked away with her. The other children went to
the frontyard and told R.G. what had occurred. R.G.,
joined by M.W., who had just returned from the
supermarket, began to search for and to call out to
L.G., but they could not locate her. Soon after,
neighbors joined in the search.
The Asbury Park Police Department was contacted
shortly after L.G.'s disappearance, and police officers
also joined the search. Within a few hours after the
victim had disappeared, her body was found under a
porch of an abandoned house. Defendant lived under that
porch. L.G. was found lying on her back on a mattress
with her shirt pulled up, her panties at her ankles, a
pair of men's boxer shorts over her face, and her
vaginal area exposed and bloodstained.
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
The police found clothing and a bloodstained paper
towel at arms's length from L.G.'s body. The police
also found a gym bag that contained a wallet. Inside
the wallet was defendant's social-security card.
Defendant's latent fingerprints were found on a paper
bag and on a malt-liquor bottle in the porch area.
Several letters, photographs, and other documents in
defendant's name were also found in the area.
That night, the police interviewed witnesses to
the abduction, and defendant became a suspect almost
immediately. Defendant was located the next day and was
taken to police headquarters for questioning. The State
concedes that defendant was in custody at that time. He
was read his Miranda rights, and he signed a form
waiving his rights to remain silent and to counsel. At
that time, defendant denied any involvement in the
child's death.
Soon thereafter, Detective John Musiello
confronted defendant with the evidence that the police
had against him and told him that they would seek a
court order to obtain forensic evidence from his
person. No law-enforcement officer, however, informed
defendant that he was facing a potential death
sentence. Instead, they told him that the perpetrator
was facing a term of life imprisonment with thirty
years of parole ineligibility.
Defendant then confessed to causing L.G.'s death.
According to slightly varying police testimony, he
dropped his head and stated either: (1) “It was an
accident. I did it. I was drunk;” or (2) “It's an
accident. I was drunk. I strangled her.” Defendant
explained that he had seen children playing at M.W.'s
house on his way to the porch of the abandoned house
and that he had told L.G. to come to him. He lifted her
over the fence and led her underneath the porch of the
abandoned house. Defendant then stated, “Then we had
sex, and I strangled her” and that he had left her body
underneath the porch. After further questioning,
defendant admitted that he had ejaculated and that he
had worn a condom which he later had discarded in a
nearby field.
Defendant subsequently signed a formal written
statement, in which he described the sexual penetration
of L.G. as vaginal and stated that she had bled from
3
her vagina during the penetration, causing blood to get
on defendant's clothes. He also told the police that he
had been on top of L.G. during the penetration and that
his hands had been on her neck.
An autopsy of L.G.'s body revealed dried blood on
the skin of her lower abdomen and external genitalia.
Numerous internal injuries were found in her vaginal
canal and cervix. Her hymen was not intact. Her anal
canal also showed signs of injury. The autopsy revealed
swelling in L.G.'s trachea and lungs, petechial
hemorrhages on the outer surface of the thymus, and
swelling in her brain.
The medical examiner concluded that the injuries
on and around L.G.'s neck, the edema in her lungs, and
the swelling in her brain were consistent with asphyxia
caused by manual strangulation. He also concluded that
pressure probably had been applied for approximately
four to six minutes because, for edema to form in the
lungs, pressure would have had to have been applied for
three to six minutes, and for irreversible brain damage
to occur from lack of oxygen, pressure would have had
to have been applied for four to six minutes.
The police obtained seven discarded condoms from a
field, close to the abandoned house, to which defendant
had led them, and obtained from defendant samples of
his hair, saliva, and blood. None of the condoms tested
positive for semen, although one had blood on it. Blood
was found on the paper towel discovered under the
porch, on the cushion on which L.G. had been found, on
two pairs of sneakers found under the porch, and on
defendant's jeans, t-shirt, and boxer shorts. No semen
was found on L.G.'s clothes or person. Four pubic hairs
found on L.G. were consistent with defendant's pubic
hair, although they could not be linked to him
conclusively.
State v. Cooper, 151 N.J. 326, 342-44 (1997).
B.
Procedural History
A Monmouth County Grand Jury indicted Petitioner on the
following charges:
purposeful-or-knowing murder by his own
conduct, contrary to N.J.S.A. 2C:11–3a(1) or (2) (count one);
4
felony murder, contrary to N.J.S.A. 2C:11–3a(3) (count two);
first-degree kidnapping, contrary to N.J.S.A. 2C:13–1b (count
three); and two counts of first-degree aggravated sexual assault,
contrary to N.J.S.A. 2C:14–2a(1) and 2C:14–2a(3) (counts four and
five alleging rape and sodomy).
Following a jury trial,
Petitioner was convicted on all counts.
Thereafter followed the penalty phase of the proceedings.
At the ensuing penalty phase before the same jury,
the State relied on three aggravating factors: (1) that
the murder was outrageously or wantonly vile, horrible,
or inhuman in that it involved depravity of mind,
N.J.S.A. 2C:11-3c(4)(c); (2) that the murder occurred
during the commission of an aggravated sexual assault
or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that
the purpose of the murder was to escape detection or
apprehension, N.J.S.A. 2C:11-3c(4)(f).
Defendant presented substantial mitigating
evidence focusing on his tragic childhood and resulting
emotional disturbance. Pursuant to the “catch-all”
mitigating factor, defendant submitted evidence of
eighteen mitigating circumstances relating primarily to
his flawed upbringing and its effect on his emotional
development and behavior.
Defendant's mitigating evidence demonstrated that
his sixteen-year-old mother drank heavily during her
pregnancy. Defendant was born with heart and
respiratory ailments, and he spent the fifty-four days
following his birth in the hospital. During that period
his parents allegedly visited him only three times.
Because of infectious and other congenital conditions,
defendant was hospitalized on nine other occasions
before his first birthday and required heart surgery
when he was two. Defendant's father was addicted to
alcohol and drugs and was a diagnosed schizophrenic. He
often abused defendant's mother and once broke her arm
in defendant's presence. When defendant was two years
old, his father was imprisoned for raping two of
defendant's older cousins.
5
Defendant's mother, also an alcoholic, apparently
was incapable of providing defendant with normal
maternal affection. She disclaimed her maternity,
referring to defendant as the child of his paternal
grandmother. She was violent and abusive to defendant,
on one occasion dangling him out of an apartment
window.
When defendant was eight years old, he told his
social worker that he wanted to be removed from his
home. When he was nine years old, his mother died in an
automobile accident. By age eleven, defendant had lived
with at least ten different caregivers, including
various relatives and foster parents. In many of those
placements defendant was exposed to violence and
substance abuse.
Several experts testified on defendant's behalf
that his sickly and unstable childhood, his exposure to
violence, abuse and neglect, and the lack of any
affectionate relationship with his mother had reduced
his ability to understand cause and effect, limited his
capacity to empathize with others, and rendered him
hostile, aggressive, and prone to violence. In
addition, expert testimony was presented relating
defendant's emotional disturbance as an adult to his
flawed and oppressive childhood.
The jury unanimously determined that defendant had
committed the murder to escape detection, N.J.S.A.
2C:11-3c(4)(f), and had done so in the course of
committing aggravated sexual assault and kidnapping,
N.J.S.A. 2C:11-3c(4)(g). The jury rejected the State's
contention that the murder had involved torture or an
aggravated battery. N.J.S.A. 2C:11-3c(4)(c).
Concerning the mitigating factors proffered by
defendant:
Some or all of the jurors found the following
mitigating factors: (1) that defendant had been
denied nurturing as an infant (6 jurors); (2) that
he had been born to drug and alcohol-dependent
parents (12 jurors); (3) that drinking by his
mother during pregnancy had contributed to
defendant's physical and developmental
disabilities (2 jurors); (4) that his father had
abused members of the family when defendant was an
6
infant, thereby exposing him to violent and
abusive behavior (8 jurors); (5) that his mother
had abandoned him with relatives throughout his
youth (3 jurors); (6) that his mother had
neglected and abused him because of her own
upbringing and dependence on alcohol (10 jurors);
(7) that throughout his childhood, he had been
exposed to excessive amounts of domestic violence
and substance abuse (10 jurors); (8) that he had
suffered through multiple placements and
periodically had attended 11 different schools (10
jurors); (9) that he had been denied consistent
treatment throughout childhood despite
identification of emotional and psychological
problems (3 jurors); (10) that his background had
increased significantly his risk of engaging in
substance abuse and antisocial behavior
(8 jurors); (11) that he had been allowed to abuse
drugs and alcohol at an early age (6 jurors);
(12) that he had begun acting out during his
childhood because of unresolved and untreated
emotional disturbances (6 jurors); (13) that
during his childhood, he had been exposed
periodically to an unstable father (6 jurors);
(14) that he had been deprived of a stable
nurturing home throughout his childhood
(5 jurors); (15) that he had not been provided
with recommended and necessary therapy (4 jurors);
and (16) that the sudden death of his mother had
left him with unresolved grief issues that were
not addressed through therapy (6 jurors).
[Cooper, supra, 151 N.J. at 346, 700 A.2d 306.]
The following two mitigating factors were
unanimously rejected by the jury: (1) that defendant
had been denied exposure to proper role models during
his childhood; and (2) the “any other reasons not
mentioned” factor.
The jury unanimously found that the two
aggravating factors together outweighed the mitigating
factors beyond a reasonable doubt. Accordingly,
defendant was sentenced to death.
State v. Cooper, 159 N.J. 55, 66-68 (1999).
On May 17, 1995,
Petitioner was sentenced to death for the capital murder.
7
The
trial judge also imposed a consecutive term of 55 years
imprisonment with 25 years of parole ineligibility on the
kidnapping conviction, and a consecutive term of 20 years
imprisonment with ten years of parole ineligibility on the two
aggravated sexual assault convictions, which were merged into
each other.
On direct appeal, the Supreme Court of New Jersey affirmed
the murder conviction and capital sentence, as well as the
kidnapping conviction and sentence, but held that the aggravated
sexual assault convictions should have been merged into the
kidnapping conviction and vacated the aggravated sexual assault
conviction and sentence, remanding for entry of an appropriate
amended judgment.
State v. Cooper, 151 N.J. 326, 405-07 (1997).
The United States Supreme Court denied certiorari.
Cooper, 528 U.S. 1084 (2000).
State v.
On the separate proportionality
review, the Supreme Court of New Jersey upheld the death penalty.
State v. Cooper, 159 N.J. 55 (1999).
Petitioner then filed in the trial court a timely petition
for post-conviction relief (“PCR”).
Following an interlocutory
appeal with respect to discovery issues, see State v. Cooper, 175
N.J. 70 (2002), the PCR court conducted an evidentiary hearing on
the issue of whether Petitioner was deprived of his right of
allocution in the penalty phase and, on October 16, 2003,
dismissed that aspect of the PCR petition.
8
By order dated
October 24, 2003, the PCR court dismissed the balance of that
petition without an evidentiary hearing.
Petitioner appealed as of right to the Supreme Court of New
Jersey.
By order dated April 20, 2005, the Supreme Court of New
Jersey determined that a more expansive record was required for
fair resolution of several of the issues presented and, while
otherwise retaining jurisdiction, remanded the matter to the Law
Division “for a plenary hearing to explore fully the following
issues”:
(1) Whether trial counsel were ineffective because they
failed to call Dr. Adams or a substitute expert as a
witness at trial to support defendant's contention that
the victim's death was accidental and not intentional;
(2) Whether trial counsel were ineffective because they
failed to introduce evidence of defendant's
intoxication as a defense at trial;
(3) Whether trial counsel were ineffective because they
failed to introduce evidence of defendant's mental
disease or defect as a defense at trial; and
(4) Whether, in respect of 1, 2, and 3 above, trial
counsel had sufficient time to investigate and prepare
for trial after the removal of Diane Aifer, Esquire, as
counsel for defendant; [and]
(5) Whether additional psychological testing and access
to defendant's prison records were necessary for the
prosecution of defendant's post-conviction relief
petition in light of the earlier August 2001 order (i)
requiring production of defendant's prison records from
the archives of the New Jersey State Prison and (ii)
compelling prison officials to allow entry of Dr.
Atkins into the prison for the purposes of evaluating
defendant and obtaining prison records in connection
with that evaluation[.]
9
See State v. Cooper, 2009 WL 2778035, *2 (N.J. Super. App.Div.
Sept. 3, 2009).
On March 19, 2007, after several days of
evidentiary hearings, the PCR court again denied relief.
(Answer, Ex. 96.)
On December 16, 2007, the Governor commuted Petitioner’s
sentence to life imprisonment without the possibility of parole,
and on December 17, 2007, the Legislature abolished the death
penalty.
As a result, by order dated February 7, 2008, the
Supreme Court of New Jersey determined that all issues regarding
Petitioner’s death sentence had been rendered moot and remanded
the case to the Superior Court of New Jersey, Appellate Division,
for an initial review of all remaining issues.
State v. Cooper,
194 N.J. 258 (2008).
On September 3, 2009, the Superior Court of New Jersey,
Appellate Division, affirmed the denial of post-conviction
relief.
State v. Cooper, 2009 WL 2778035 (N.J. Super. App.Div.
Sept. 3, 2009), officially published in part, 410 N.J. Super. 43
(N.J. Super. App. Div. 2009).
On January 21, 2010, the Supreme
Court of New Jersey denied certification.
State v. Cooper, 201
N.J. 155 (2010).
This Petition followed.
following grounds for relief:
Here, Petitioner asserts the
(1) ineffective assistance of
trial counsel, for failing to present evidence, during the guilt
phase of the trial, that Petitioner suffered from Fetal Alcohol
10
Syndrome (Ground One); ineffective assistance of trial counsel
for suggesting that Petitioner appear before the jury pool,
during the first day of jury selection, dressed in jail clothes
and wearing metal handcuffs and shackles,2 and abuse of
discretion by the trial court for allowing this appearance
(Ground Two); and denial of the Sixth Amendment right to counsel
of choice.3
2
On the first day of jury selection, trial counsel
represented to the trial judge that the civilian clothes obtained
for Petitioner were too big, that Petitioner had torn one pair of
pants, and that Petitioner had said that he didn’t care and he
was just going to go in his prison garb. Trial counsel advised
the trial court that they were willing for Petitioner to appear
in prison garb and that they would attempt to obtain properlyfitting clothes for the next day. The trial court then had
Petitioner brought into court in his prison clothing. Petitioner
then absented himself from jury selection for several days, later
appearing in civilian clothing. (Answer, Exs. 10 at 3, 13 at 3,
16 at 3, 22 at 11-12.)
Petitioner asserts that he was never told that he had the
option to refuse to appear in prison clothing and to request an
adjournment until properly-fitting clothes could be obtained.
There is no evidence that Petitioner was restrained. (Ex.
L, Appendix (“Appendix”) to Defendant’s Brief to Supreme Court on
Appeal from Order Dismissing Motion for Post-Conviction Relief,
First Amendment to Verified Petition for Post-Conviction Relief,
at 17a-20a (no mention of physical restraints); Ex. M,
Certification of David Cooper, Appendix at 300a-301a (no mention
of physical restraints).
3
Petitioner has withdrawn his fourth ground for relief,
that one of the Supreme Court justices who acted on his petition
for certification should have recused himself. (Response to
Answer, Docket Entry No. 18, at 17-18.)
11
II.
28 U.S.C. § 2254
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.
With respect to any claim adjudicated on the merits in state
court proceedings, the writ shall not issue 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 determinated 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).
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) (O’Connor, J.,
for the Court, Part II).
A state court decision “involve[s] an
12
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 Cir. 1999).
Even a summary adjudication by the state court on the merits
of a claim is entitled to § 2254(d) deference.
Chadwick v.
Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v.
Angelone, 528 U.S. 225, 237 (2000)).
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),
cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL
13
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.”
Simmons v. Beard,
581 F.3d q158, 165 (3d Cir. 2009).
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)).
Although a petition for writ of habeas corpus may not be
granted if the Petitioner has failed to exhaust his remedies in
state court, a petition may be denied on the merits
notwithstanding the petitioner’s failure to exhaust his state
court remedies.
See 28 U.S.C. § 2254(b)(2); Lambert v.
14
Blackwell, 387 F.3d 210, 260 n.42 (3d Cir. 2004); Lewis v.
Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).
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),
cert. denied, 399 U.S. 912 (1970).
III.
A.
ANALYSIS
Ineffective Assistance of Trial Counsel
Petitioner argues that his trial counsel failed to provide
effective assistance in two particulars: failing to present
evidence of fetal alcohol syndrome during the guilt phase4 and
suggesting that he appear in prison garb and, possibly, shackles,
on the first day of jury selection.5,
6
4
Under New Jersey law, evidence that a defendant suffered
from a mental disease or defect is admissible to prove “that the
defendant did not have a state of mind which is an element of the
offense.” See N.J.Stat.Ann. 2C:4-2. Evidence of a mental
disease or defect may warrant a charge on diminished capacity
where such evidence could negate the “knowing” and “purposeful”
elements of murder. See State v. Moore, 113 N.J. 239, 287-88
(1988).
5
This Court does not construe the Petition as asserting
that Petitioner was deprived of effective assistance of counsel
15
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.”
U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.”
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)
(emphasis added).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel’s performance
fell below an objective standard of reasonable professional
assistance and that there is a reasonable probability that, but
for counsel’s unprofessional errors, the outcome would have been
different.
(1984).
Strickland v. Washington, 466 U.S. 668, 687, 694
A “reasonable probability” is “a probability sufficient
to undermine confidence in the outcome.”
Strickland at 694.
Counsel’s errors must have been “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Id. at 687.
“When a defendant challenges a conviction, the
by the replacement of his public defender after the start of jury
selection. To the extent the Petition could be so construed,
however, the Court notes that the Appellate Division addressed
that claim in the context of Petitioner’s other “ineffective
assistance” claims, and will, for the sake of completeness and to
set the context for Petitioner’s claim of deprivation of counsel
of choice, note in this discussion the Appellate Division’s
treatment of that claim.
6
This Court disagrees with Respondents’ contention that
Petitioner has failed to exhaust some of his claims of
ineffective assistance of counsel.
16
question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.”
Id. at 695.
The performance and prejudice prongs of Strickland may be
addressed in either order, and “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice ... that course should be followed.”
Id. at 697.
There is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
As a general matter, strategic
choices made by counsel after a thorough investigation of the
facts and law are “virtually unchallengeable,” though strategic
choices “made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.”
91.
Id. at 690-
If counsel has been deficient in any way, however, the
habeas court must determine whether the cumulative effect of
counsel’s errors prejudiced the defendant within the meaning of
Strickland.
See Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d
Cir. 1996).
Both the PCR court, following an evidentiary hearing, and
the Appellate Division exhaustively analyzed Petitioner’s claims
of ineffective assistance of counsel and found them meritless.
17
III.
Defendant claims that he was denied the effective
assistance of counsel at both the guilt and penalty
phases of his trial. ... “To establish a prima facie
claim of ineffective assistance of counsel, a defendant
must demonstrate a reasonable likelihood of succeeding
under the test set forth in Strickland v. Washington,”
466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984),
adopted in New Jersey in State v. Fritz, 105 N.J. 42,
519 A.2d 336 (1987). ...
There is no dispute that defendant had a
constitutional right to the effective assistance of
trial counsel, during both the guilt and penalty
phases, and to effective assistance of appellate
counsel. Evitts v. Lucey, 469 U.S. 387, 395-96, 105
S.Ct. 830, 836, 83 L. Ed.2d 821, 830 (1985); United
States v. Cronic, 466 U.S. 648, 653-55, 104 S.Ct. 2039,
2043-44, 80 L. Ed.2d 657, 664-65 (1984); ... However,
in evaluating a claim of ineffective assistance of
counsel, “[j]udicial scrutiny of counsel's performance
must be highly deferential,” Strickland, supra, 466
U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694, and
we must give substantial deference to the trial judge's
findings of fact on the issue if they are supported by
the record. ...
Decisions as to trial strategy or tactics are
virtually unassailable on ineffective assistance of
counsel grounds:
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually unchallengeable,
and strategic choices made after less than
complete investigation are reasonable precisely to
the extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigation 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.
18
[Strickland, supra, 466 U.S. at 690-91, 104 S.Ct.
at 2066, 80 L. Ed.2d at 695.]
...
It is well known that to establish a claim of
ineffective assistance of counsel, defendant must prove
two elements. First, defendant must prove that, with
respect to some specified issue, counsel's performance
was deficient in that it “fell below an objective
standard of reasonableness.” Strickland, supra, ... .
Second, he must prove prejudice, defined as a
“reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different.” Id. at 694 ... .
Before abolition of the death penalty, L. 2007, c.
204, the Strickland/Fritz standard applied to capital
trials, albeit “with some adjustment.” State v. Chew,
179 N.J. 186, 204, 844 A.2d 487 (2004). As to both
phases of capital trials, the first element of the
Strickland/Fritz analysis, deficiency of counsel's
performance, was adjusted to account for the
expectation that capital counsel would have expertise
in the unique issues presented in capital cases. Ibid.
... . The second prong of the Strickland/Fritz
analysis, prejudice, was not altered for the guilt
phase, while “a less demanding prejudice-prong
standard” was applied to the penalty phase. Ibid. To
prove ineffective assistance of counsel in the penalty
phase of a capital trial resulting in death, a
defendant was required to establish both that counsel's
performance was deficient and that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the jury's penalty-phase
deliberations would have been affected substantially.”
Marshall, supra, 148 N.J. at 250, 690 A.2d 1. ... This
“equates with ‘a probability sufficient to undermine
confidence in the outcome.’” Marshall, supra, 148 N.J.
at 250, 690 A.2d 1 (quoting Strickland, supra, 466 U.S.
at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698).
The reason for applying the “less demanding”
prejudice-prong standard to the penalty phase was “the
unique function and responsibility” of a capital jury,
which had broad discretion “in deciding between life
and death,” as well as “the realistic limitations on
appellate review of jury penalty-phase deliberations.”
19
Marshall, supra, 148 N.J. at 248-51, 690 A.2d 1. In
other words, a less stringent standard was applied
because “death is different.” Gregg v. Georgia, 428
U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L. Ed.2d 859,
883 (1976).
Because of the principles applicable when this
case was tried and the fact that defendant is now
serving life imprisonment without parole as a result of
the verdict which resulted in the imposition of capital
punishment, we continue to apply those standards in
this case. Based on those standards, we find that the
record supports the conclusions of Judge Ira Kreizman
in denying PCR.
IV.
We explore the issues warranting discussion in a
written opinion and summarily reject any others. R.
2:11-3(e)(2). We first address issues in common to both
phases of the trial, and thereafter those unique, or
more related, to the guilt phase and penalty phase
respectively. We start, however, with a description of
the evidentiary basis for the claims as developed at
the PCR hearing.
In addition to specific claims of ineffective
assistance, defendant asserts that he was denied the
effective assistance of counsel because of the removal
of Diane Aifer as his trial counsel shortly before the
trial began.[FN5] Aifer was the head of the Monmouth
Regional office of the Public Defender's Office when
defendant was arrested in July 1993. Aifer assigned
herself to work on defendant's case together with David
Donnelly and staff investigators. Donnelly was admitted
to practice in 1966, and he had been employed in the
Public Defender's office since 1982.
FN5. The evidentiary hearing on this issue
followed the Supreme Court's remand order.
Aifer and Donnelly divided the work on the various
aspects of defendant's case. Donnelly was essentially
to handle the guilt phase, and Aifer was principally
responsible for developing the evidence, including
expert evidence, to be presented during the penalty
phase. However, some of the expert evidence she
developed was also relevant to the guilt phase. For
20
example, evidence to contradict expected testimony of
the medical examiner regarding the intentional nature
of the victim's death was relevant to both phases. In
the guilt phase, Aifer also was responsible for
addressing the DNA evidence, and she was expected to
cross-examine the medical examiner.
Before defendant's case, Aifer had tried “several
dozen” noncapital criminal cases, and she had worked on
three other capital cases. She had also consulted on
another capital case that was resolved as a noncapital
case, and she had received training on the handling of
capital cases. Donnelly was also an experienced
criminal defense attorney and had prior experience on
one capital case in which he had worked with Aifer.
Jury selection began on January 30, 1995. By that
time, Aifer had been gathering evidence for use in the
penalty phase and developing theories for the
presentation of mitigating evidence. She had obtained a
social history report and several psychological
evaluations of defendant prepared by experts. However,
her work was not complete, particularly with respect to
development of the issue of fetal alcohol syndrome
(FAS), a subject to be discussed at length hereinafter.
She planned to continue working on her investigation
through jury selection, and she believed she would have
sufficient time to complete her work because she did
not believe that the trial, “or the penalty phase
certainly,” would begin until “two to three months”
after jury selection had begun.
On February 9, 1995, Aifer resigned from the
Public Defender's Office as a result of a dispute with
her supervisors in Trenton. She believed that the
Public Defender “had absolutely no confidence in [her]
ability to handle the capital case.” At the time Aifer
resigned, jury selection was ongoing. She continued
with jury selection in the days after February 9,
pending resolution of motions related to her removal as
an attorney for defendant.
The Public Defender moved to relieve Aifer as
counsel, and for a stay of trial for ninety days, which
the State opposed. On February 14, 1995, the trial
court denied both motions. The Public Defender then
moved before this court for leave to appeal and for a
stay of jury selection and trial. According to
21
Donnelly, the goal was “to buy as much time” as
possible for Aifer's replacement to familiarize himself
with the case. The defense asked for ninety days, but
Donnelly “was hoping” to get between forty-five and
sixty. We granted leave to appeal and relieved Aifer as
defendant's counsel. However, we declined to stay jury
selection. Rather, we stayed the commencement of the
guilt phase for thirty days following conclusion of the
jury selection process and before the jury was sworn,
“to allow defense counsel adequate time to prepare for
the guilt and penalty phases of the trial.”
The State then filed a motion with the Supreme
Court for leave to appeal, to challenge the removal of
Aifer as defendant's counsel and the resulting stay of
the trial. Defendant, through the Public Defender,
opposed the motion and the Supreme Court denied it.
John McMahon was assigned as Aifer's replacement,
with the division of responsibilities between Donnelly
and McMahon as they had been between Donnelly and
Aifer. McMahon was to work on the penalty phase of the
trial. He was relieved of responsibility for his other
caseload. In addition, Steven Kirsch was assigned to
work on any appellate legal issues that arose. Both
McMahon and Kirsch are known to us as exceptional
attorneys who practice full-time with the Public
Defender.
McMahon was admitted to practice in 1989 and began
working in the Public Defender's Office in 1990. Prior
to defendant's case, he had worked on only one capital
case that actually went to trial. His role in that case
had been to prepare the guilt phase.
McMahon began working on defendant's case
immediately after his assignment in February 1995. He
spoke with Aifer and, with the assistance of a
volunteer intern, organized Aifer's files and became
familiar with them. He also met defendant, worked with
the assigned investigators, requested additional
resources, and contacted both expert and fact
witnesses. McMahon was present on all days of jury
selection after his assignment, between February 21 and
March 21, 1995.
After jury selection, pursuant to our order, there
was a thirty-day adjournment of the proceedings to
22
permit defense counsel to prepare for trial. During
that period, McMahon worked with the “mitigation
specialist,” prepared “mitigation materials,” and
worked to “get the witnesses lined up.” He met with the
defense experts Aifer had retained, and he retained
additional experts as well. He also participated to
some degree in Donnelly's preparation of the guilt
phase witnesses. In particular, he worked with Donnelly
to retain Dr. John Adams, whom the defense planned to
call as a guilt phase witness regarding the cause of
the victim's death. McMahon expected that Adams's
testimony would also be relevant in the penalty phase.
On April 24, 1995, at the end of the thirty-day period,
the guilt phase commenced. McMahon believed he was present
at all guilt phase proceedings. Donnelly could not recall if
McMahon had been present on all days. McMahon cross-examined
one witness during the guilt phase, and continued to gather
evidence for use during the penalty phase.
The guilt phase was completed after six trial
days, on May 2, 1995, and the penalty phase began six
days later, on May 8-three months after McMahon was
assigned to the case. He had devoted his time
exclusively to the case following his assignment.
During the penalty phase, defense counsel made a
strategic decision to limit the presentation of
mitigating evidence to the time before defendant's
eighteenth birthday, in order to focus on defendant's
experiences as a child. The record reflects that
defendant had a terrible childhood, which included
parents and caregivers who were addicted to alcohol and
other drugs, and who were physically, sexually, and
verbally abusive. He did not have a stable home life;
he constantly was moved between family members and
foster care placements in New Jersey, Florida, and
Pennsylvania. Defendant's alcoholic mother died when he
was about nine years old, and his alcoholic and violent
father was in and out of prison. He also suffered from
physical disabilities relating to his premature birth.
At an early age, he developed psychological, emotional,
and behavioral problems, became addicted to alcohol and
drugs, and got into trouble with the law. State v.
Cooper, supra, 151 N.J. at 345, 700 A.2d 306 and
Cooper, supra, 159 N.J. at 66-68, 731 A.2d 1000.
23
Defendant's legal expert on PCR, Carl Herman, is
an attorney experienced in capital litigation. Herman
believed that defense counsel's performance was
adequate in the guilt phase, but ineffective in the
penalty phase of the trial. He believed that defense
counsel did not have sufficient time to prepare for the
penalty phase, particularly to obtain the necessary
experts on fetal alcohol syndrome and mental disease or
defect. In addition, he believed that counsel erred by
limiting the penalty phase evidence to events before
defendant's eighteenth birthday, by not addressing the
mitigating factor of intoxication, and by not calling a
physician to challenge the medical examiner's testimony
about the length of time the victim suffered.
According to Herman, the penalty phase was the
most significant phase of defendant's trial because
“frankly ... they were going to lose” the guilt phase.
The evidence of defendant's guilt was “[v]ery powerful
... including his own confession.” Thus, “there was no
way they were going to win the guilt phase of the case.
Mr. Cooper was going to be convicted no matter what Mr.
Donnelly did....”
The sole defense presented during the guilt phase
of trial was that defendant had accidentally, and not
purposefully or knowingly, killed the victim. As the
Supreme Court noted on defendant's direct appeal:
At trial, the defense conceded defendant's
guilt of felony murder, kidnapping, and
aggravated sexual assault. The defense
contested, however, that the murder was
purposeful or knowing. Instead, defendant
contended that the killing had occurred
accidentally during the course of an
aggravated sexual assault. Thus, he claimed
that there had been no intent to strangle the
child but rather that death had been caused
by unintentionally placing pressure on her
carotid artery for about thirty seconds.
[Cooper, supra, 151 N.J. at 342, 700 A.2d
306.]
The basis for this defense was the contents of
defendant's confession, in which he maintained that the
24
victim's death was an accident. Id. at 343, 731 A.2d
1000. ...
As we have noted, in his testimony, defendant's
legal expert, Herman, opined that the guilt phase
verdict was not adversely affected by counsel's failure
to call an expert witness on the issue of accidental
death. A guilty verdict was virtually assured because
defendant had confessed to the crime, and the evidence
of his guilt was very strong. In Herman's words:
I can't say that the guilt phase performance was
deficient. I can't imagine even if they presented
the testimony of Dr. Spitz or Dr. Adams that it
probably would have made a big difference in the
jury's minds. It's possible. But I'm not relying
on that. And I wouldn't say I don't think the
guilt, the outcome of the guilt phase would have
been different had they presented this type of
testimony. I think it would be helpful and there
would have been some carryover in the penalty
phase, but I don't have any fault with them,
particularly in the guilt phase.
Defense counsel did not present an intoxication
defense in the guilt phase. Nor did they pursue
defendant's intoxication at the time of the crime as a
mitigating factor in the penalty phase. See N.J.S.A.
2C:11-3(c)(5)(d) (repealed Dec. 17, 2007, L. 2007, c.
204). At the PCR hearings, Donnelly and Aifer testified
that, immediately upon their assignment to the case,
they investigated all aspects of defendant's life.
Among the issues they investigated were defendant's
intoxication at the time of the crime, and his history
of alcoholism and drug dependency. Ultimately, based
upon the expert evidence they developed, Donnelly,
Aifer, and McMahon all concluded that an intoxication
defense was unsupportable.
At counsel's request, psychologist Dr. Frederick
Rotgers evaluated defendant before trial and issued a
report dated July 7, 1994. There was no scientific
evidence establishing defendant's level of intoxication
at the time of the crime. Therefore, Rotgers was forced
to rely upon anecdotal evidence. Rotgers concluded
“within a reasonable degree of professional certainty,”
that defendant's blood alcohol level at the time of the
offense would have rendered him “legally intoxicated.”
25
However, according to Aifer, Rotgers also concluded
that defendant's faculties were “probably not” impaired
by his level of intoxication “because of his extensive
abuse of alcohol from a very, very early age.”
Therefore, defendant's intoxication was “not sufficient
... to diminish or eliminate his capacity to form the
requisite mental states of culpability for the offenses
with which he is charged.” See State v. Cameron, 104
N.J. 42, 53-54, 514 A.2d 1302 (1986).
Rotgers further concluded that, based upon
defendant's ability to provide a “clear, unqualified
and lucid account” of his interrogation, it was
“unlikely” that defendant was significantly impaired at
the time of his arrest and his statement to police.
Therefore, his level of intoxication did not prevent
him from “understand[ing] or knowing[ly] and
voluntarily waiv[ing] his Miranda rights prior to
giving his statement to the police investigators.”
Rotgers' conclusions were consistent with the PCR
testimony of John Musiello, John Dyott, and Valerie
Hussein, detectives employed or formerly employed by
the Monmouth County Prosecutor's Office. These
witnesses stated that, at the time of his arrest and
interrogation, defendant did not smell of alcohol, did
not appear to be under the influence of alcohol or any
other drug, and was able to give a clear and consistent
description of his activities on the date of the crime.
At the PCR hearings, defense counsel did not
present any testimony or argument that took issue with
trial counsel's failure to pursue an intoxication
defense in the guilt phase. Rather, they pursued an
argument that trial counsel had erred by not pursuing
intoxication as a mitigating factor in the penalty
phase. In this regard, they presented the testimony of
Dr. Robert Pandina, “an expert in developmental
neuropsychology and psychopharmacology with an
expertise in the effects of alcohol on human physiology
and human behavior.” Pandina agreed with Rotgers that
defendant's blood alcohol level at the time of the
offense would have been approximately .17 percent. At
that level of intoxication, defendant would have been
impaired, but not significantly so, and his past
alcohol abuse would have prevented him from feeling his
impairment. Therefore, Pandina agreed with Rotgers that
defendant's intoxication would not have diminished his
26
culpability for his crimes. However, he believed it
would have been relevant to mitigation during the
penalty phase in conjunction with “potential functional
deficits resulting from fetal alcohol exposure,” an
issue to which we now turn.
In their investigation of defendant's life
circumstances in advance of trial, counsel considered
whether defendant's culpability for his crimes should
be diminished, or whether his punishment should be
mitigated, as a result of fetal alcohol syndrome or
some other mental disease or defect. In pursuit of such
claims, Aifer arranged for defendant to be evaluated by
multiple psychological and psychiatric experts,
including Rotgers, who had analyzed the intoxication
defense, and Drs. Jonathan Willard-Mack and Robert
Sadoff.
Rotgers evaluated defendant and issued reports
dated December 2, 1994 and April 21, 1995. He also
issued an updated report in 2001 with respect to the
petition for PCR. In his 1995 report, Rotgers concluded
that defendant suffered from “impaired frontal lobe
functioning,” which resulted in difficulty engaging in
higher order executive functioning, including cognitive
flexibility and adjusting one's behavior to changing
external circumstances. He suggested that, given
defendant's history, he may have “suffered, either
prenatally as a result of fetal alcohol exposure or as
a result of his heart condition, subtle cerebral damage
that has reduced brain functioning....”
Rotgers advised defense counsel to consider fetal
alcohol effects as a possible diagnosis. However, he
could not testify to that issue because it was beyond
his area of expertise. He opined that defendant's
cognitive deficits were consistent with antisocial
personality disorder with borderline traits, albeit
with some possible relationship between that diagnosis
and fetal alcohol exposure. He stated:
It seems likely that some of the behavior
that forms the basis of the Axis-II [Antisocial
Personality Disorder with Borderline Traits]
diagnosis is due to neurological dysfunction
resulting from prolonged substance use, early
cerebral anoxia, and possible fetal alcohol
effects. Thus, this may be more correctly
27
categorized as a Personality Change Due to a
General Medical Condition. That would clearly be
the diagnosis if a structural neurological basis
for the cognitive deficits documented by
neuropsychological screening is found.
In the December 1994 report, Dr. Rotgers
recommended “[a] SPECT [Single Photon Emission Computed
Tomography] or other sophisticated brain imaging
assessment [be conducted] to clarify any structural
deficits....”
Dr. Willard-Mack evaluated defendant and issued a
report dated January 10, 1995. He concluded that
defendant was “an extremely psychologically disturbed
individual,” suffering from numerous psychiatric
disorders including substance abuse and dependence, a
personality disorder, and depression, which made him
“prone to poorly controlled and poorly modulated
violent, angry and impulsive behavior.” He also
believed that defendant suffered from “a mild, diffuse,
static encephalopathy” and suggested “the possibility
of brain damage due to fetal exposure to alcohol.” Like
Rotgers, he suggested that a brain scan might be
helpful in assessing defendant's condition.
Upon these recommendations, Aifer made efforts to
obtain a PET scan of defendant's brain. Ultimately,
however, only a SPECT was performed. The SPECT was
performed in April 1995, after McMahon's assignment to
the case, and it demonstrated “very small, subtle focal
areas” of decreased brain activity of uncertain
etiology. “Correlation with a CT and/or a MRI” was
recommended. McMahon did not pursue a PET scan, nor did
he pursue an MRI or a CT scan, although he could not
recall why. He stated that it may have been a tactical
decision, or it may simply have been a function of lack
of time.
Willard-Mack stated that the SPECT confirmed “the
presence of a cognitive disorder, not otherwise
specified, secondary to chronic, developmental brain
injury.” He believed that this was an issue to be taken
into consideration as a mitigating factor weighing
against a death sentence.
In a revised report, dated January 24, 2002, and
prepared in the context of the PCR hearings,
28
Willard-Mack diagnosed defendant as suffering from a
cognitive disorder. In his 2002 opinion, he also went
much further than he had in his pretrial report,
concluding that defendant's mental disorder related not
only to the mitigating factors but also to his guilt or
innocence of the crimes. In this regard, Willard-Mack
concluded:
In addition to mitigating factors, the
neurological diseases of the brain, in combination
with intoxication at the time of the crime in
question, raise the issue that [defendant] may
well have met the criteria for diminished capacity
for the murder in question due to not fully
knowing the nature of his criminal acts due to the
combined effects of brain damage and drug and
alcohol intoxication.
In his earlier 1995 report, Willard-Mack had not
issued any such diagnosis or conclusion.
Finally, Dr. Robert Sadoff, a psychiatrist, also
evaluated defendant, and issued a report to the defense
on January 23, 1995. Sadoff noted Willard-Mack's
finding that defendant suffered from “a mild
encephalopathy.” Nevertheless, Sadoff concluded that
there was “[i]nsufficient evidence to support a
diagnosis of fetal alcohol syndrome,” although he
believed that “clearly” defendant was “affected by” his
mother's drinking “and the unstable life that he was
exposed to.”
In Sadoff's opinion, defendant's psychological
problems and his intoxication at the time of the
offense were relevant to the mitigating factors and
thus the penalty phase of defendant's trial. However,
they did not affect defendant's “capacity to conform
his conduct to the requirements of the law ...
sufficient to constitute a defense to prosecution,” and
thus they were not relevant to the guilt phase of his
trial.
Ultimately, based upon these experts' conclusions
on the issue of mental disease or defect, Aifer
determined that there was no viable diminished capacity
defense to defendants' crimes. However, at the time she
was relieved from the case, Aifer intended to continue
pursuing the issue of fetal alcohol syndrome because,
29
although the experts were unable to diagnose the
syndrome, they all agreed that defendant had been
affected by his mother's alcohol abuse.
Picking up on Aifer's work, McMahon pursued the
issue of fetal alcohol syndrome for purposes of
mitigation. However, the experts he contacted either
could not work with him in the limited time frame
available, or they could not support a fetal alcohol
syndrome diagnosis. In the end, defense counsel did not
present any evidence regarding defendant's brain damage
or neurological deficits caused by fetal alcohol
syndrome or otherwise, believing they had achieved
enough through their cross-examination of Dr.
Michals.[FN8]
FN8. Dr. Rotgers attended Michals' testimony and
helped frame the cross-examination.
At the PCR hearings, defendant took issue with
trial counsel's failure to adequately pursue the issue
of fetal alcohol syndrome. He called numerous witnesses
who testified to the likelihood that defendant suffered
from the syndrome, and to the fact that trial counsel
had erred in not calling witnesses on the subject. We
shall develop the evidence presented at the PCR hearing
in the relevant portion of the opinion.
V.
A.
Defendant argues that the Public Defender denied
him effective assistance of counsel by removing Aifer
as his attorney in the midst of jury selection, without
his knowledge or consent, and substituting McMahon
without demanding an adjournment of sufficient length
to prepare adequately for the penalty phase of the
case, particularly because, at the time of Aifer's
removal, her investigations and preparations were
incomplete.
According to defendant, as a result of McMahon's
relative inexperience at the time, he pursued an
uninformed mitigation strategy which focused
exclusively on defendant's life up to the age of
eighteen, and this strategy precluded consideration of
the statutory mitigating factor of defendant's
intoxication at the time of his offense. Defendant
30
further contends that McMahon had insufficient time to
develop significant areas of mitigation evidence,
including defendant's fetal alcohol syndrome and brain
damage, and the sexual abuse he suffered as a child.
According to defendant, McMahon should have requested a
continuance when he became aware of how much work still
needed to be done in advance of the penalty phase.[FN9]
FN9. We reject the State's “invited error”
argument premised on the Public Defender's refusal
to permit Aifer to remain in the case after her
resignation and defendant's opposition to the
State's endeavor to oppose her removal. According
to the State, Aifer's removal from the case
constitutes “invited error,” something defense
counsel aggressively pursued and succeeded in
obtaining. The issue of Aifer's representation was
decided by the Public Defender independent of
defendant, and he can now raise the issue even
though his trial counsel, assigned by the Public
Defender, did not. In any event, defendant's claim
is premised on the quality of representation he
actually received from the attorneys that
ultimately represented him.
Judge Kreizman found that defendant was not denied
effective assistance of counsel as a result of Aifer's
removal from the case. He found that “counsel had
sufficient time to explore intoxication as a defense,
and whether the death was accidental or
non-intentional.” He concluded that additional time
would not have resulted in any credible expert willing
to testify in defendant's favor on either of those
subjects, and defense counsel's failure to call their
available witnesses on these subjects did not affect
the outcome of the case. In this regard, Judge Kreizman
noted the amount of effort and resources Aifer and
Donnelly had put into the case before Aifer resigned,
stating:
It must be understood that this was not a capital
murder case where a defense team was ordered to
trial quickly and without sufficient time to
adequately prepare. Monmouth County Public
Defenders' office geared up early for this trial.
The attorneys were assigned almost immediately
upon defendant's arrest. Ms. Aifer and Mr.
Donnelly embarked on a plan to create an effective
31
defense, realizing at an early date that this
would be a case where it was almost a certainty
that the penalty phase would be reached. They
spared no expense in hiring experts, collecting
all of defendant's biographical and medical
information, located and interviewed relatives and
friends of defendant. They used their
investigators, their Appellate Division counsel
and all of their resources of the office.
They agreed on a strategy as to how to
proceed in both the guilt and penalty phases. They
even used the focus group to try out their trial
philosophy and tactics. They really left no stone
unturned. Defendant was interviewed, consulted
throughout.
Finally, the judge concluded that defendant was
not prejudiced by counsel's not having developed and
presented evidence on fetal alcohol syndrome or mental
disease or defect in either phase of the trial because
an expert on that issue would not have affected the
result. As we will hereinafter develop at length with
respect to defendant's petition for PCR concerning the
penalty phase, although there was substantial evidence
at the PCR hearing that defendant suffered from fetal
alcohol syndrome, Judge Kreizman concluded that there
were “no demonstrable physical irregularities in Mr.
Cooper's brain” resulting from the syndrome. Finally,
Judge Kreizman noted that, even without evidence of
fetal alcohol syndrome in particular, the jury had been
presented with a great deal of information regarding
defendant's life, including the tragic effects of his
pre- and post-natal exposure to alcohol. However, that
evidence had not swayed the jury to a non-death
sentence.
We reject the suggestion that Aifer's removal from
the case warrants reversal of either the conviction or
penalty phase disposition. We are satisfied that the
replacement of Ms. Aifer did not result in the
deprivation of the effective assistance of counsel.
First, as to the guilt phase, there is no dispute that
it was going to be handled principally by Mr. Donnelly,
and Mr. Donnelly testified that he asked for more time
than needed to replace Ms. Aifer. He was given thirty
days after jury selection was concluded before the
trial was commenced. Ms. Aifer was focusing on death
32
penalty issues designed to spare defendant's life. Even
defendant's expert, Carl Herman, could not find a basis
for supporting defendant's claim of ineffective
assistance at the guilt phase.
We add only that the Public Defender represented
defendant and, in the absence of prejudice, had the
right to substitute counsel before the jury was sworn
and empanelled. See, e.g., United States v.
Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557,
2561, 165 L. Ed.2d 409, 416 (2006) (discussing “right
of a defendant who does not require appointed counsel
to choose who will represent him.”); State ex rel.
S.G., 175 N.J. 132, 141, 814 A.2d 612 (2003). In any
event, the real issue in determining whether defendant
was deprived of the effective assistance of counsel
must relate to the assistance he actually received. As
to that, we find that Mr. McMahon, like Mr. Donnelly,
cannot be faulted for his defense of a matter that
involved the sexual assault and death of a
six-year-old.
B.
We reject the contentions that defendant's
conviction and penalty verdict must be reversed because
he appeared before the jury in prison clothes, and
counsel was ineffective for not preparing him to appear
in civilian clothes that fit him.[FN10]
FN10. There appears to be no contest that
defendant was observed by jurors in his prison
clothing or jumpsuit during some part of the jury
selection. By virtue of the individual voir dire
in a capital case, those jurors were told
defendant was facing the death penalty and,
therefore, would undoubtedly believe he was in
prison at the time. See Cooper, supra, 151 N.J. at
351-53, 700 A.2d 306; R. 1:8-3(a).
We bypass any issue of waiver and lack of
compulsion, and note that the issue of such an
appearance could have been raised on the direct appeal.
See R. 3:22-4. See generally State v. Artwell, 177 N.J.
526, 533-34, 832 A.2d 295 (2003). We have not the
slightest doubt that any reasonable juror would have
expected defendant to be incarcerated while on trial
for capital murder.
33
State v. Cooper, 2009 WL 2778035, *6-*18 (N.J. Super. App.Div.
Sept. 3, 2009).
In its further discussion of Petitioner’s claims of
ineffective assistance during the penalty phase of the trial, the
Appellate Division set forth in great detail the testimony of
competing experts presented at the PCR hearing regarding fetal
alcohol syndrome, concluding that Petitioner had failed to
establish that there was a reasonable probability that the
deliberations -- regarding either guilt or penalty -- would have
been affected substantially if the omitted evidence had been
presented, that is, that Petitioner had failed to meet the second
prong of the Strickland test.
2009 WL 2778035 at *24-*30.
This Court finds that the decision of the Appellate
Division, with respect to those claims of ineffective assistance
of trial counsel that were addressed on the merits, is neither
contrary to nor an unreasonable application of the Strickland
standard, nor is the decision based on an unreasonable
determination of the facts in light of the evidence presented in
state court.
With respect to Petitioner’s claim of ineffective assistance
based on the decision to permit him to appear before the jury in
prison garb, the state court determination that the claim was
procedurally barred precludes this Court from granting relief.
A procedural default occurs when a prisoner’s federal
claim is barred from consideration in the state courts
34
by an “independent and adequate” state procedural rule.
See, e.g., Doctor[ v. Walters, 96 F.3d 675, 683 (3d
Cir. 1996)]. Federal courts may not consider the
merits of a procedurally defaulted claim unless the
applicant establishes “cause” to excuse the default and
actual “prejudice” as a result of the alleged violation
of the federal law or unless the applicant demonstrates
that failure to consider the claim will result in a
fundamental “miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991).
Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).
On habeas review of state prisoner claims, a federal court
“will presume that there is no independent and adequate state
ground for a state court decision when the decision ‘fairly
appears to rest primarily on federal law, or to be interwoven
with the federal law, and when the adequacy and independence of
any possible state law ground is not clear from the face of the
opinion.’”
Coleman, 501 U.S. at 734-35 (quoting Michigan v.
Long, 463 U.S. 1032, 1040-41 (1983)).7
Only a “firmly
established and regularly followed state practice” is adequate to
prevent subsequent habeas review in federal court.
Kentucky, 466 U.S. 341, 348-351 (1984).
James v.
See also Lee v. Kemna,
534 U.S. 362, 376 (2002) (“Ordinarily, violation of ‘firmly
established and regularly followed’ state rules ... will be
adequate to foreclose review of a federal claim.” (citations
7
A state court’s reliance on a procedural bar as an
alternate holding is sufficient to trigger the “cause” and
“prejudice” test. See United States ex rel. Caruso v. Zelinsky,
689 F.2d 435, 440 (3d Cir. 1982).
35
omitted)).
Generally speaking, “[a] state court’s refusal to
address a prisoner’s federal claims because he has not met a
state procedural requirement is both independent and adequate.”
Cabrera v. Barbo, 175 F.3d 307, 312 (3d Cir. 1999) (citations
omitted).
The “cause” standard requires a petitioner to show that some
objective factor external to the defense impeded his efforts to
comply with the state procedural rule.
See Coleman, 501 U.S. at
752 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).
In the
absence of a Sixth Amendment violation, the petitioner bears the
risk in federal habeas for all attorney errors made in the course
of the representation.
Coleman, 501 U.S. at 754.
Neither a pro
se prisoner’s ignorance of the procedural rule nor inadvertence
satisfies the cause standard.
Murray at 485-87.
Failure of the
state court to “bend the rules” for a pro se litigant is not
cause.
Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir. 1992).
To establish “prejudice,” a petitioner must prove “‘not
merely that the errors at ... trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimension.’”
Murray v. Carrier, 477 U.S. 478, 494
(1986) (quoting United States v. Frady, 456 U.S. 152, 170
(1982)).
36
In the alternative, in order to establish that failure to
review an otherwise procedurally defaulted claim will result in a
“miscarriage of justice,” a petitioner must show that “a
constitutional violation has probably resulted in the conviction
of one who is actually innocent.”
Carrier, 477 U.S. at 496.
“Thus, to establish a miscarriage of justice, the petitioner must
prove that it is more likely than not that no reasonable juror
would have convicted him.”
Werts, 228 F.3d at 193 (citing Schlup
v. Delo, 513 U.S. 298, 326 (1995)).
Case law suggests that Rule 3:22-4 is a “firmly established
and regularly followed state practice.”
The notable exception
involves claims of ineffective assistance of counsel that depend
upon facts not appearing in the record.
See, e.g., Cabrero v.
Barbo, 175 F.3d 307, 312-14 (3d Cir. 1999) (dicta).
That
exception does not apply, here, however, because the Appellate
Division held that Petitioner could have asserted, in earlier
proceedings, the ineffective assistance of counsel claim asserted
here arising out of Petitioner’s appearance in prison garb. Thus,
the PCR court denied relief on an independent and adequate state
ground, precluding review here of Petitioner’s remaining claims
unless he can meet the “cause” and “prejudice” standard or
demonstrate that failure to consider the claims will result in a
miscarriage of justice.
37
Here, Petitioner has failed to establish cause and prejudice
for his procedural default and there is no reason to conclude
that failure to consider the claim would result in a fundamental
miscarriage of justice.
Petitioner attempts to bolster his
assertion of “fundamental miscarriage of justice,” under the
Carpenter standard, by claiming that he appeared not only in
prison garb but also in handcuffs and/or shackles.
Cf., e.g.,
Deck v. Missouri, 544 U.S. 622 (2005) (Due Process Clause
prohibits routine use of physical restraints visible to jury
during guilt phase of criminal trials).
Careful review of the
record, however, reveals that Petitioner failed to establish in
state court that he was so restrained.
Indeed, he failed even to
unambiguously assert that he was so restrained, as long as
fourteen years after his conviction.
(Answer, Ex. Y, Defendant’s
Petition for Certification in the Supreme Court of New Jersey,
dated October 5, 2009, at 18, without citation, “the transcript
suggests that he may have been brought before the full panel in
shackles as well”.)
It is too late for Petitioner credibly to
establish here that he was shackled.
If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the
[federal] court shall not hold an evidentiary hearing
on the claim unless the applicant shows that -(A) the claim relies on -(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
38
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable fact-finder would have found the
applicant guilty of the underlying offense.
28 U.S.C. § (e)(2).
Having failed to establish in state court
that he was shackled when brought before the jury on the first
day of jury selection, Petitioner cannot now expand the record.8
8
In any event, the claim is meritless. "The law has long
forbidden routine use of visible shackles during the guilt phase;
it permits a State to shackle a criminal defendant only in the
presence of a special need." Deck v. Missouri, 544 U.S. 622,
626-29 (2005) (citing Estelle v. Williams, 425 U.S. 501 (1976)
and Illinois v. Allen, 397 U.S. 337 (1970) (recognizing that a
criminal defendant is prejudiced when he appears before the jury
in shackles during entire trial)). Nevertheless, where a court,
without adequate justification, orders a defendant to wear
shackles that will be seen by a jury, the error is subject to
harmless-error analysis pursuant to Chapman v. California, 386
U.S. 18, 24 (1967). Id. at 635. See also United States v.
Salehi, 2006 WL 1759855 at *13-14 (3d Cir. June 28, 2006).
Numerous courts, moreover, have distinguished the situation
in which a criminal defendant in shackles while being transported
is briefly observed by jurors, generally finding such encounters
harmless. See, e.g. , U.S. v. Lattner, 385 F.3d 947 (6th Cir.
2004), cert. denied, 543 U.S. 1095 (2005); United States v.
Olano, 62 F.3d 1180, 1190 (9th Cir. 1995); Wright v. Texas, 553
F.2d 185 (5th Cir. 1976).
Here, there is no suggestion that Petitioner was shackled
during the entire trial; rather, the suggestion is that he was
seen in shackles in the courtroom during some portion of the
first day of jury selection. In light of the overwhelming
evidence of Petitioner’s guilt, this Court can discern no
prejudice resulting from any fleeting appearance in shackles.
39
To the extent the state court’s refusal to consider the
ineffective-assistance claim based upon Petitioner’s appearance
in court in prison garb might not be based upon an independent
and adequate state ground, it is nevertheless meritless.
As
noted by the Appellate Division, any “reasonable juror” would
have expected Petitioner to have been incarcerated while on trial
for capital murder.
For all the foregoing reasons, Petitioner is not entitled to
relief on his claims of ineffective assistance of trial counsel.
B.
Trial Court Discretion Regarding Appearing in Jail Clothes
Petitioner asserts that the trial court abused its
discretion, in violation of his due process right to a fair
trial, by permitting him to appear in prison garb on the first
day of jury selection.
In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme
Court established that a defendant cannot be compelled to stand
trial before a jury in identifiable prison garb.
The Court
reasoned that to force a defendant to appear in such fashion
would impair the constitutional presumption of innocence while
furthering no vital state interest.
425 U.S. at 505.
A
represented defendant’s failure to object at trial to appearing
in prison garb, however, “is sufficient to negate the presence of
compulsion necessary to establish a constitutional violation.”
425 U.S. at 512-13.
Additionally, even where a defendant is
40
compelled to wear prison clothes at trial, that constitutional
error is subject to harmless error analysis.
See, e.g., United
States v. Hurtado, 47 F.3d 577, 581 (2d Cir.) (collecting cases),
cert. denied, 516 U.S. 903 (1995).
Here, as noted above, the Appellate Division found that
Petitioner had procedurally defaulted on his claim of a
constitutional violation arising out of his appearance before the
jury in prison clothing, precluding consideration of the claim by
this Court.
In any event, there is no evidence that Petitioner
was compelled by the trial court to appear in prison clothing.
Finally, any constitutional violation that may have occurred was
clearly harmless.
Again, as noted by the Appellate Division, any
reasonable juror would have known that Petitioner was
incarcerated at the time of his trial.
In any event, the
appearance in prison clothing occurred only on the first day of
jury selection.
For all the foregoing reasons, Petitioner is not entitled to
relief on this claim.
C.
Sixth Amendment Right to Counsel of Choice
Finally, Petitioner asserts that he was deprived of his
Sixth Amendment right to counsel of choice when the Public
Defender replaced Ms. Aifer without Petitioner’s knowledge or
consent.
The Appellate Division rejected this claim.
41
We add only that the Public Defender represented
defendant and, in the absence of prejudice, had the
right to substitute counsel before the jury was sworn
and empanelled. See, e.g., United States v. GonzalezLopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165
L.Ed.2d 409, 416 (2006) (discussing “right of a
defendant who does not require appointed counsel to
choose who will represent him.”); State ex rel. S.G.,
175 N.J. 132, 141, 814 A.2d 612 (2003).
State v. Cooper, 410 N.J. Super. 43, 75 (N.J. Super. App.Div.
2009).
The Sixth Amendment to the U.S. Constitution provides that
"[i]n all criminal prosecutions, the accused shall enjoy the
right ... to have the Assistance of Counsel for his defence."
"[A]n element of this right is the right of a defendant who
does not require appointed counsel to choose who will represent
him."
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)
(emphasis added) (citing Wheat v. United States, 486 U.S. 153,
159 (1988)).
Erroneous deprivation of the right to counsel of
choice is a "structural error," not subject to "harmless error"
analysis.
Gonzalez-Lopez, 548 U.S. at 150.
“[T]he right to
counsel of choice[, however,] does not extend to defendants who
require counsel to be appointed for them.”
Id. at 151.
Here, Petitioner was represented by the Public Defender.
Accordingly, he had no constitutional right to choose the
appointed counsel who would represent him.
entitled to relief on this claim.
42
Petitioner is not
IV.
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.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, Petitioner has failed to make a substantial showing of
the denial of a constitutional right.
Nor would jurists of
reason find it debatable whether this Court was correct in its
43
procedural rulings regarding Petitioner’s procedurally defaulted
claims.
Accordingly, no certificate of appealability will issue.
V.
CONCLUSION
For the reasons set forth above, the Petition shall be
denied.
No certificate of appealability will issue.
An
appropriate order follows.
/s/ Anne E. Thompson
ANNE E. THOMPSON
United States District Judge
Dated:
April 2, 2013
44
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