SIMMS v. BARTOWSKI et al
Filing
22
OPINION filed. Signed by Judge Mary L. Cooper on 3/16/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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THOMAS SIMMS,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
CIVIL ACTION NO. 10-6084 (MLC)
O P I N I O N
COOPER, District Judge
Petitioner, Thomas Simms, petitions for a writ of habeas
corpus under 28 U.S.C. § 2254.
For the reasons stated below, the
Petition will be denied.
I.
BACKGROUND
A.
Factual Background
The relevant facts are set forth in the opinion of the New
Jersey Appellate Division.1
The charges against defendant arose from an incident
occurring on October 19, 2000, on Throckmorton Street
in the Borough of Freehold. The evidence adduced by
the State, if credited, disclosed the following.
That evening, Anthony Parrish, Amin Suluki and Marcus
Bailey were at the home of Timothy Parrish at 79
Throckmorton Street. At approximately 10:00 p.m.,
co-defendants Michael Simms and Jamaal Sconiers drove
to Throckmorton Street and parked in the driveway of a
neighbor of Timothy Parrish. A verbal argument ensued
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.” 28 U.S.C. § 2254(e)(1)
between the two groups, but there was no physical
confrontation.
Michael Simms and Sconiers got back in the car and
left, driving over to the area of Ford Avenue in
Freehold. When Michael Simms saw his brother - the
defendant - he exited the vehicle and they had a
conversation, during which Michael Simms asked
defendant “if he had a gun on him.”
At defendant’s direction, Sconiers drove Michael Simms
and defendant to a house located on Center Street where
defendant had been renting a room. Defendant and
Michael Simms went inside the house and, when they
emerged, defendant was wearing a dark colored
sweatshirt. Defendant then told Sconiers to drive them
to the corner of Ford and Lloyd Avenues, where they
picked up co-defendant John Simms, the uncle of the
Simms brothers. Sconiers then drove them all to the
Parrish house on Throckmorton Street.
When they arrived, defendant alighted from the vehicle
and engaged Anthony Parrish in an aggressive verbal
argument; Michael Simms, John Simms and Sconiers also
exited the vehicle. Anticipating a physical fist fight,
Anthony instructed Amin to go inside the Parrish house
and tell Timothy to come outside. When Timothy and Amin
emerged from the house, Anthony took off his leather
jacket and threw it to the ground.
Defendant then took out a nine-millimeter pistol he had
concealed on his person and shot Anthony behind his
left ear. Defendant then shot Bailey in the face,
Timothy in the face, and Amin in the buttocks as he was
attempting to run away. None of the victims was armed,
nor had they threatened anyone with a weapon. Anthony,
Bailey and Timothy sustained severe and lifethreatening injuries, but survived. Amin sustained
injuries that required abdominal surgery and removal of
a portion of his intestines; he also survived.
After the shootings, defendant, Michael Simms, and John
Simms entered Sconiers’ vehicle, and all four drove
away. At defendant’s instruction, Sconiers drove them
to the home of his friend Velisse Hamilton, in the
Cliffwood Beach/Matawan area. Defendant convinced
Hamilton to loan him her car, although Hamilton knew
nothing about the shootings. Defendant, Michael Simms,
and John Simms then drove to New York City and rented a
motel room in Manhattan. At defendant’s request, his
girlfriend Ramona Hickman brought approximately $1,000
2
in cash and a cell phone to him in the motel room. The
next day, they moved to a motel in Yonkers, New York.
Meanwhile, Sconiers had turned himself in to the police
and ultimately testified at the trial of defendant and
Michael Simms. John Simms and Michael Simms later
turned themselves in, and defendant was apprehended in
Asbury Park on October 30, 2000.
After his capture, defendant gave a statement to the
police, admitting he had shot all four victims. At
trial, however, defendant denied shooting Timothy or
Amin, and relied on self-defense, testifying he had
shot Anthony and Bailey after he saw them reaching for
what he thought were weapons...
State of New Jersey v. Simms, No. A-1781-02T4 (N.J. App.Div. Feb.
18, 2005.)
B.
Procedural History
Petitioner was indicted on March 21, 2001 by a Monmouth
County Grand Jury, which charged Petitioner with four counts of
attempted murder; four counts of aggravated assault; four counts
of aggravated assault with a deadly weapon; four counts of
aggravated assault, pointing a firearm; possession of a weapon
for an unlawful purpose; unlawful possession of a weapon;
acquiring a handgun without a permit to purchase; evidence
tampering; hindering apprehension; and conspiracy to commit
murder. (Resp’ts Br., Ex. 14, Pet’r’s Br. Direct Appeal, Da1-13,
Monmouth County Indictment No. 01-03-0487, Docket Entry No. 19-18.)
From May 7, 2002 through May 23, 2002, Petitioner and his
co-defendant, Michael Simms, were tried jointly in New Jersey
Superior Court, Law Division, before the Honorable Ira E.
Kreizman, J.S.C. and a jury.
(Id. at Ex. 1-12.)
3
On May 23,
2002, the jury found Petitioner guilty of two counts of attempted
murder, two counts of attempted passion/provocation manslaughter,
and all of the remaining charges in the indictment except for
acquiring a handgun without a permit to purchase and conspiracy
to commit murder.
(Id. at Ex. 14, Da14-27.)
Petitioner moved for a new trial arguing: (1) the charge as
to attempted passion/provocation manslaughter was incomplete since
it did not include instructions on “course of ill treatment” or
“mutual combat”; and (2) the verdict was inconsistent.
(Id. at
Ex. 13, Mot. New Trial Tr. 10:11-16:19, Docket Entry No. 19-17.)
On September 27, 2002, Judge Kreizman denied Petitioner’s
motion for a new trial and imposed sentence.
41:2.)
(Id. at 28:6 -
Petitioner received an aggregate sentence of forty years
of imprisonment subject to an 85% parole disqualifier.
(Id. at
Ex. 14 Da28-30, Judgment of Conviction.)
On or about December 9, 2002, a Notice of Appeal was filed
on Petitioner’s behalf in the New Jersey Appellate Division.
(Id. at Ex. 14 Da31, Notice of Appeal.)
pro se appellate brief.
Petitioner also filed a
(Id. at Ex. 16, Pet’r’s Pro Se Br.)
On
February 18, 2005, the Appellate Division affirmed Petitioner’s
conviction and the imposition of consecutive terms on the
attempted murder counts, but vacated Petitioner’s sentences and
remanded for re-sentencing in accordance with Blakely v.
Washington, 542 U.S. 296 (2004), as interpreted and applied in
4
State v. Natale, 861 A.2d 148 (N.J. App.Div. 2004), aff’d in part
& rev’d in part, 878 A.2d 724 (N.J. 2005).
Both the State and
Petitioner’s counsel petitioned for certification to the New
Jersey Supreme Court.
(Id. at Exs. 20 & 21.)
On September 23, 2005, the New Jersey Supreme Court granted
the State’s petition for certification, but summarily remanded
the matter to the trial court for re-sentencing in accordance
with State v. Natale.
(Id. at Ex. 34 Da 68-69.)
The New Jersey
Supreme Court denied Petitioner’s cross-petition for
certification.
(Id.)
On November 29, 2005, pursuant to Natale, Judge Kreizman resentenced Petitioner and imposed the original sentence.
Ex. 27, Tr. Re-Sentencing 18:1-20:18.)
(Id. at
Petitioner appealed and
on February 6, 2007, the Appellate Division’s Excessive
Sentencing Panel affirmed Petitioner’s sentence.
Tr. Excessive Sentencing Oral Arg. 72:21-73:2.)
(Id. at Ex. 29,
On April 20,
2007, Petitioner filed a pro se petition for post-conviction
relief (“PCR”).
(Id. at Ex. 34.)
Petitioner was subsequently appointed counsel to represent
him in the PCR proceedings, and, on August 19, 2008, counsel
filed a brief in support of Petitioner’s PCR petition. (Id. at
Ex. 31.)
The State opposed the PCR application.
On November 13,
2008, Judge Kreizman denied the petition. (Id. at Ex. 33, Tr. PCR
Proceedings.)
On April 22, 2009, Petitioner filed a Notice of
5
Appeal and brief in support with the Appellate Division.
Ex. 34, Pet’r’s Br. Supp. PCR Appeal.)
pro se supplemental brief.
Supp. PCR Appeal.)
(Id. at
Petitioner also filed a
(Id. at Ex. 35, Pet’r’s Pro Se Br.
On May 14, 2010, the Appellate Division
affirmed the order of the trial court denying PCR for
substantially the reasons expressed by Judge Kreizman in his
November 13, 2008 opinion.
App. Div. May 14, 2010.)
State v. Simms, 2010 WL 1929780 (N.J.
On October 7, 2010, the New Jersey
Supreme Court denied Petitioner’s petition for certification.
On or about November 22, 2010, Petitioner filed a petition
for a writ of habeas corpus with this Court, arguing:
Ground One: Confusing jury instructions, sequential
verdict sheet, on charges of passion, forced jury to
consider passion only after finding defendant not
guilty of attempted murder in violation of defendant’s
Fourteenth Amendment, Due Process and Fair Trial
Right’s [sic].
Ground Two: Trial court refused to charge continuing
course of ill treatment [sic] in passion/provocation
instruction, depriving defendant of Due Process and
Fair Trial Rights.
Ground Three: Confusing and misleading jury
instructions, in violation of defendant’s Rights to
Fair Trial and Due Process
Ground Four: Sentencing court was not guided by general
provisions while imposing consecutive sentence, and
punishment does not fit the crime
Ground Five: The trial court erred in failing to
precisely identify what help was needed regarding
question from the jury during deliberations,
consequently furnishing an inappropriate response that
did not deliver the guidance needed. Counsel was
ineffective for failing to object to same.
Ground Six: Sentencing court abused its discretion in
consecutive sentence, undermining the mitigating facts
6
found by the jury, in violation of defendant’s
Constitutional Right to a Trial by Jury.
Ground Seven: Defendant was prejudiced by accumulation
of errors collectively impacting jury deliberations and
the outcome of trial, impeding on defendant’s Rights to
Due Process and Trial by Jury.
Ground Eight: Denial of effective assistance of
appellate counsel, in violation of defendant’s
Constitutional Right to Counsel.
Ground Nine: Verdict pattern produced by jury proves
the jury adhered to erroneous instructions while
deliberating primary offenses, in violation of
defendant’s Rights to Trial by Jury and Due Process.
Petitioner states in his petition that the claim raised in
Ground Nine is unexhausted.
On November 22, 2010, Petitioner
moved to stay his habeas petition and hold it in abeyance so that
he could return to state court to exhaust the allegedly
unexhausted claim in Ground Nine.
(Docket Entry No. 2.)
On
February 2, 2011, Petitioner filed a second petition for PCR in
New Jersey Superior Court, Law Division, arguing:
(1) Appellate counsel’s performance on direct appeal
was deficient due to failure to include evidence of
deliberating process jury followed in erroneous
instruction issue, and failure to preserve other
meritorious issues suitable for direct appeal for
habeas review, in violation of Defendant’s
constitutional right to counsel;
(A) Verdict pattern produced by jury proves jury
adhered to erroneous instruction while deliberating
primary offenses, in violation of defendant’s Rights to
Trial by Jury and Due Process;
(B) Appellate counsel’s failure to raise ineffective
assistance of trial counsel issue, hinders appellate
relief and prevents Federal review;
(C) Appellate counsel failed to raise meritorial [sic]
issue that consecutive terms of attempted murder
impedes on findings of the jury;
7
(D) Appellate counsel failed to raise meritorial [sic]
issue that isolated jury deliberations of multiple
counts of passion precluded consideration of evidence
connecting all victims to provocation, absent specific
instructions.
(Resp’ts Br., Ex. 37, 38; Pet’r’s Mot. to Stay, Attach. 1, 6-14.)
This Court issued a notice to Petitioner on February 18,
2011, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
advising him that he may either: (1) “have [his] ending § 2254
Petition ruled upon as filed; or (2) [w]ithdraw [his] pending §
2254 Petition and file one all-inclusive § 2254 Petition subject
to the one-year statute of limitations.”
Also on that date, this
Court entered an Order directing Respondents to submit a response
to Petitioner’s motion for a stay within 45 days.
On March 1,
2011, Petitioner filed a request for a 90-day extension of time
in which to make a decision regarding his options under the Mason
Order.
On March 15, 2011, Petitioner submitted a response to the
Mason Order, stating that he chose to withdraw his pending § 2254
Petition and file one all-inclusive § 2254 Petition subject to
the one-year statute of limitations but that choice was expressly
contingent on the denial of his request for the extension and if
the Court denied Petitioner’s request for a stay.
No. 8.)
(Docket Entry
Petitioner further stated that “in the event of an
extension and/or granting of the motion to stay, [his] decision
to withdraw pending § 2254 Petition shall become null and void.”
On April 4, 2011, Respondents filed their response to the motion
to stay.
8
On May 24, 2011, this Court entered an opinion and order
denying Petitioner’s motion for a stay, and gave Petitioner 30
days to inform the Court whether he still wished to withdraw his
petition, as he had previously stated he wished to do if the stay
were denied.
(Docket Entry Nos. 11 & 12.)
Petitioner responded
and stated that he wished to have his petition ruled upon as
filed.
(Docket Entry No. 13.)
The Court entered an order to
answer, and Respondents filed their answer.
19.)
Petitioner replied.
II.
(Docket Entry No.
(Docket Entry No. 20.)
DISCUSSION
A.
Legal Standard
As amended by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254 provides:
(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–
(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
9
the applicant to exhaust the remedies available in the
courts of the State...
(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.
“A state-court decision is contrary to this Court’s clearly
established precedents if it applies a rule that contradicts the
governing law set forth in our cases, or if it confronts a set of
facts that is materially indistinguishable from a decision of
this Court but reaches a different result.”
U.S. 133, 141.
Brown v. Payton, 544
The “unreasonable application” prong of AEDPA
applies when a “state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts.”
Adamson v. Cathel, 633
F.3d 248, 255-56 (3d Cir. 2011) (quoting Wiggins v. Smith, 539
U.S. 510, 520 (2003)).
The test is “an objective one and does
not permit a court to grant relief simply because the state court
might have incorrectly applied federal law to the facts of a
certain case.”
Id. (citing Wiggins, 539 U.S. at 520–21).
A state court may render an adjudication on the merits of a
federal claim by rejecting the claim in an order unaccompanied by
10
an opinion explaining the reasons relief has been denied.
See
Harrington v. Richter, 131 S.Ct. 770, 784 (2011) (“state court
need not cite or even be aware of [Supreme Court] cases.... Where
a state court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there was
no reasonable basis for the state court to deny relief.”)
As to claims presented to, but not adjudicated by, the state
courts, however, a federal court may use pre-AEDPA independent
judgment.
See Hameen v. State of Delaware, 212 F.3d 226, 248 (3d
Cir. 2000); Purnell v. Hendricks, 2000 WL 1523144, at *6 n.4
(D.N.J. Oct. 16, 2000).
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,
590 F.3d 223, 231 (3d Cir. 2009) (citing 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
case law, “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)).
11
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
Erickson v. Pardus,
551 U.S. 89, 94 (2007) (citing 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. Att’y Gen.,
878 F.2d 714, 721-22 (3d Cir. 1989).
B.
Analysis
1. Jury Charge (Grounds One, Two, Three, Five, and Nine)
Petitioner here challenges the jury instructions given at
trial.
Generally, a jury instruction that is inconsistent with
state law does not merit federal habeas relief.
Where a federal
habeas petitioner challenges jury instructions given in a state
criminal proceeding,
[t]he only question for us is “whether the ailing
instruction by itself so infected the entire trial that
the resulting conviction violates due process.” It is
well established that the instruction “may not be
judged in artificial isolation,” but must be considered
in the context of the instructions as a whole and the
trial record. In addition, in reviewing an ambiguous
instruction...we inquire “whether there is a reasonable
likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution.
And we also bear in mind our previous admonition that
we “have defined the category of infractions that
violate ‘fundamental fairness’ very narrowly.” “Beyond
the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.”
Estelle v. McGuire, 502 U.S. 62, 72–73 (1991) (citations
omitted).
Thus, the Due Process Clause is violated only where
12
“the erroneous instructions have operated to lift the burden of
proof on an essential element of an offense as defined by state
law.”
Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997); see In re
Winship, 397 U.S. 358, 364 (1970) (“Due Process Clause protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged”); Sandstrom v. Montana, 442 U.S. 510,
523 (1979) (instructions that suggest jury may convict without
proving each element of crime beyond reasonable doubt violate
constitutional rights of accused).
Such a constitutional error is generally subject to “harmless
error” analysis.
Smith v. Horn, 120 F.3d at 416–17; Neder v.
United States, 527 U.S. 1, 8–11 (1999).
“[I]f the [federal
habeas] court concludes from the record that the error had a
‘substantial and injurious effect or influence’ on the verdict,
or if it is in ‘grave doubt’ whether that is so, the error cannot
be deemed harmless.”
U.S. 2, 5 (1996)).
Id. at 418 (citing California v. Roy, 519
In evaluating a challenged instruction:
a single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context
of the overall charge. If the charge as a whole is
ambiguous, the question is whether there is a reasonable
likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.
Middleton v. McNeil, 541 U.S. 433, 437 (2004) (internal quotes
and citations omitted).
Further, “a state court’s conclusion
that evidence does not justify an instruction on manslaughter is
13
purely a matter of state law, and cannot be challenged in federal
habeas corpus proceedings.”
Sanabria v. Morton, 934 F.Supp. 138,
144 (D.N.J. 1996) (citing Kontakis v. Beyer, 19 F.3d 110 (3d Cir.
1994)).
Petitioner raised the issues related to the jury
instructions and verdict sheet on direct appeal.
The Appellate
Division stated the following in denying Petitioner’s appeal:
Here, the trial judge provided the jurors with a
fourteen page, sequential verdict sheet, and then
instructed the jury on the four attempted murder
charges contained in counts one through four,
essentially in conformity with the model charge for
attempted murder. See Model Jury Charges (Criminal),
Attempted Murder (December 7, 1992). The judge then
explained attempted passion/provocation manslaughter as
a lesser-included offense of attempted murder, and
described the four factors necessary to find that
offense. The judge repeatedly instructed the jury that
the burden to disprove passion/provocation remained, at
all times, with the State.
Although the judge initially stated the jury was to
consider passion/provocation manslaughter only after
considering and finding defendant not guilty of the
primary offense, he explained:
If the State has disproved at least one of
the factors of passion/provocation
manslaughter, you can go back to the
attempted murder. If the State has failed to
prove any of those, has failed to prove all
four of those, if you find that there is
passion/provocation manslaughter, then you
find the defendant guilty of
passion/provocation manslaughter which is a
lesser offense than attempted murder.
However, later in the charge, the trial judge then
instructed as follows:
In each of the counts, count one, for
example, question number one. If you find
Thomas Simms not guilty of attempted murder
14
of Anthony Parrish, you go to . . .
[question] 1A . . . How do you find the
defendant Thomas Simms on the lesser-included
offense of attempted passion/provocation
manslaughter.
If you have answered number one guilty, you
just move right on, you don’t consider it. If
you find him not guilty, you consider the
attempted passion/provocation manslaughter.
That goes for each of the defendants in
regard to all four victims, counts one
through eight. Each have a lesser included
offense of attempted passion/provocation
manslaughter.
This instruction was clearly improper because it gave
“the jury the impression that it need [consider]
passion/provocation manslaughter only if it fails to
find that purposeful and knowing [attempted] murder
occurred [.]” Heslop, 135 N.J. at 322.
Deliberations began but were interrupted when the jury
requested that it be re-instructed on the elements of
attempted murder and attempted passion/provocation
manslaughter. The judge reiterated his previous
explanation of attempted murder and then moved on to
attempted passion/provocation manslaughter, instructing
in pertinent part:
If the State has proven those elements [of
attempted murder] to you beyond a reasonable
doubt, you find the defendant guilty. If you
find that the State has failed to prove any
of those elements, you find him not guilty as
to each of the four counts; that, as to the
four victims.
The next thing you asked me to give the
elements of passion/provocation manslaughter.
Defendant is charged with attempted murder.
He is not charged with attempted
passion/provocation manslaughter.
The defendant says you should find me not
guilty because passion/provocation
manslaughter is a lesser-included offense and
then move on to that if you find the
defendant not guilty of attempted murder.
The defendant has raised his defense that he
was provoked to act and his actions were done
15
in the heat of passion. Therefore, if you
find defendant not guilty of attempted
murder, then you consider the lesser-included
offense of attempted passion/provocation
manslaughter.
In order for the State to carry its burden,
it must prove beyond a reasonable doubt that
the provocation was insufficient to arouse
the passion of an ordinary person beyond his
power or control.
Again, the State must prove that the
provocation was inadequate. Remember I told
you at the beginning of the case the State
has the burden of proving the defendant’s
guilt. The defendant could raise defenses but
the State has the burden of overcoming those.
So the State has to prove one of those four
factors is not present.
Although again incorrect, the parties did not object to
the recharge and deliberations resumed until the jury
submitted the following...question later that day, as
related by the trial judge:
At 3:10 I received the following question:
Should the jury consider [question] 1 and
[question] 1A on all counts regarding the
attempted murder and attempted passion/
provocation manslaughter as alternatives that
should be considered at the same time or must
the jury find the defendant not guilty on the
attempted murder charge before discussing,
considering guilty or not guilty on the 1A
attempted passion/provocation manslaughter?
The trial judge provided the following response:
Our law is set up, the most serious charge,
we work down and the attempted murder is the
most serious charge. . .
So the answer is that the first thing you
have to do is make a determination as to
whether or not the defendant is guilty . . .
or not guilty of attempted murder of each of
the four victims. . . .If you find no, if you
make a determination that he . . . [is] not
guilty of whatever the counts are, then your
deliberations are finished. With regard to 1
and 1A . . . and so forth, move on down.
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If you determine the defendant [is] guilty of
attempted murder, then you consider whether
or not the State has disproved any of the
elements of passion/provocation.
So you are going to make a determination
first as to whether or not the State has
proven beyond a reasonable doubt that the
defendant [is] . . . guilty of attempted
murder. If your answer is no, you move out of
the attempted murder count of the indictment,
you move on to the next.
If you find yes, then
factors as to whether
attempted murder down
manslaughter which is
you understand? Okay,
back into the room. .
you consider those four
or not you reduce the
to passion/provocation
a lesser offense. Do
all right, you can go
. .
Again, this instruction was defective. The jury then
resumed deliberations. Upon inquiry immediately after
providing the instruction, counsel for defendant
expressed the following objection:
The only thing I’m a little concerned is that
the jury, if they determine the
lesser-included offense of attempted
passion/provocation manslaughter, when they
check off that box guilty of that, are they
going to check off attempted murder guilty
also? In other words, they’ll say guilty of
attempted murder?
At that point, the trial judge acknowledged that the
jury - almost immediately after having been given the
last instruction - had another question, and he
instructed that they write it out. Upon receipt of that
question, the judge stated:
The question came back, “Your answer is
inconsistent with what is written on the
verdict sheet. Is the verdict sheet
incorrect and if so should we get a revised
sheet?”
In response, the judge informed the jury, as follows:
It was brought to my attention as you walked in
that one of the attorneys said the same thing.
The verdict sheet, first question, how do you find
the defendant Thomas Simms on the first count
17
which charges he did commit the crime of attempted
murder, et cetera.
Let me just say it again. If you find that the two
elements of attempted murder for any of the counts
have been proven to you beyond a reasonable doubt,
you next have to consider passion/provocation and
you would consider as to whether or not the State
has proven one of those elements is not present
beyond a reasonable doubt, then that would fail.
If the State proves one of those elements to you
beyond a reasonable doubt, then
passion/provocation would fail and if you find the
elements of attempted murder, then attempted
murder, the verdict would be guilty.
If you find the State had failed to prove any of
those four and you find that passion/provocation
manslaughter is appropriate, you would find the
defendant not guilty of the attempted murder but
guilty of passion/provocation manslaughter.
Upon inquiry, there was no objection by counsel to this
clarifying instruction, which informed the jurors they
should consider whether defendant purposefully or
knowingly attempted to cause the death of the victims
and, if so, whether defendant acted under adequate
provocation. The circumstances presented are unique,
if not extraordinary. The jury displayed remarkable
intelligence and persistence in seeking proper
direction from the trial judge. We are satisfied, as
were counsel, that this last charge adequately
ameliorated the prior erroneous instructions, and that
the jury fully understood its obligation to first
consider whether the State had proven beyond a
reasonable doubt that the purposeful killing was not
the product of passion/provocation before considering
the attempted murder charges.
The jury’s questions astutely recognized the initial
confusing nature of the charge given, and the
supplemental charge by the trial judge following their
last question focused the jury’s deliberations on
consideration of the elements of attempted passion/
provocation manslaughter together with the attempted
murder element of purposeful and knowing conduct. See
Heslop, supra, 135 N.J. at 322-28 (holding that
although the challenged instruction contained the same
“sequential” error disapproved in Coyle, supra, 119
N.J. at 224, the recharging of appropriate instructions
18
sufficiently corrected the error). Moreover, we note
that the instructions of the trial judge consistently
placed the burden on the State to disprove the
passion/provocation elements by making it clear that
the State had to demonstrate beyond a reasonable doubt
that defendant was not adequately provoked.
The verdict itself suggests the jury fully understood
these final instructions and was not misled, since it
found defendant guilty of attempted passion/provocation
manslaughter for the shootings of Anthony Parrish and
Marcus Bailey, the two victims defendant believed had
weapons, and guilty of attempted murder of Timothy
Parrish and Amin Suluki, the two men defendant conceded
had made no threats or threatening motions. We also
note that the record does not contain “overwhelming
evidence of passion/provocation as the singular and
distinctive factor” that led to the attacks by
defendant. Heslop, supra, 135 N.J. at 327. As in
Heslop, viewing the jury instructions as a whole “a
review of the factual record does not suggest the
likelihood that the court’s explanation of the law of
[attempted] murder and [attempted passion/provocation]
manslaughter, the manner in which the jury
deliberations should progress, and the State’s burden
of proof resulted in or contributed to an improper
verdict.” Id. at 328.
(Answer, Ex. 31, Pet’r’s PCR Br. Da 58-67, State v. Simms, No. A1781-02T4 (N.J. App.Div. February 18, 2005).)
As to the course of ill treatment instruction, Petitioner
raised this issue in his motion for a new trial before the trial
judge immediately prior to sentencing on September 27, 2002.
(Answer, Ex. 13, Sentencing Tr., Sept. 27, 2002, Docket Entry No.
19-17.)
The trial judge denied his request, stating:
I find that the facts do not support the need to include
a mutual combat and ill treatment charge with regard to
attempted passion/provocation manslaughter. . . .
This was not a fight at the Freehold Borough football
field. This was not a fight where two sides said we’ll
meet you outside of town and we’ll have a fight.
19
In this case, Thomas Simms and Michael Simms and two
others drove up to the victim’s house on Throckmorton
Street uninvited. He was the aggressor. He was the
one who went face to face with Anthony Parrish. Yes,
there were heated words exchanged and there was some
shoving involved.
I find that heated words and shoving do not amount to
evidence to invoke the charge of mutual combat. Ill
treatment, this is not a case of ill treatment. Thomas
Simms was not wronged; maybe members of his family felt
that they were. But this was not a course of conduct
aimed at Thomas Simms.
I find that there was insufficient evidence to support
an instruction on a continuing course of ill treatment
or upon mutual combat. The cases of [State v. Erazo,
594 A.2d 232 (N.J. 1991)]; [State v. Guido, 191 A.2d 45
(N.J. 1963)]; [State v. Viera, 787 A.2d 256 (N.J.
Super.Ct. App. Div. 2001)]; and [State v. Vigilante,
608 A.2d 425 (N.J. Super.Ct. App. Div. 1992)] are all
helpful in making that determination as to the
consistency of the verdicts.
This jury had the opportunity to assess the credibility
of the various witnesses. The defendant, Thomas Simms,
was incredible. As I reviewed his testimony again, and
as I reviewed his statement, it was apparent that he
was making it up as he went along when he testified
here in court. It was in tremendous contradiction to a)
the facts, and b) his earlier statement.
This jury had the opportunity to make the same kinds of
observations. And the jury made the determination that,
it appeared to me anyway, that Thomas [Simms] should be
found not guilty of attempted murder [of] Anthony
Parrish, but that he should be found guilty of
attempted passion/provocation manslaughter because
there was some pushing and shoving and words between
Thomas [Simms] and Anthony Parrish. Anthony had taken
off his jacket, getting ready to fight.
In regard to Tim, he testified that he just walked off
the porch. The woman with whom he lived testified to
pretty much the same thing. Other people, lots of
people, testified that he just walked off the porch and
was shot. He was shot between the eyes.
In regard to Randall Bailey, Marcus Bailey, the jury
determined that Thomas should be found not guilty of
attempted murder. They made the assessment that he was
20
somewhat involved in the pushing and shoving and that
he should be, that Thomas should be found guilty of
attempted passion/provocation manslaughter of Randall
or Marcus Bailey; that there was some aggressive
behavior by Marcus.
The jury determined that Thomas should be found guilty
of attempted murder of Amin Suluki. Well, Amin was
shot from about eight feet, his back turned, running
away, shot in the buttocks and the jury found that he
was not involved in passion/provocation; that there was
an attempt to take his life by the defendant. I don’t
find that to be at all inconsistent.
The jury was able to discern what happened out there.
And it is just as logical that they made the same
conclusion I just did as what the defense has suggested.
He says that there are two levels of culpability
arising from a single incident, the involvement of the
victims was different. And the jury made that
determination. Is it a compromised verdict? It is not.
(Id. at 34:21-38:7.)
The Appellate Division affirmed on appeal:
After analyzing the record in the light of the written
arguments advanced by the parties, we conclude this
issue is without sufficient merit to warrant extensive
discussion in a written opinion, [N.J. Ct. R.
2:11-3(e)(2)], and we reject same substantially for the
reasons articulated by the trial judge on September 27,
2002, in his oral opinion denying defendant’s motion
for a new trial. The evidence at trial, including
defendant’s own testimony, supports the finding of the
trial judge that there was an insufficient showing of a
continuing course of ill treatment toward defendant or
that he was objectively provoked by the prior incidents
related at trial, sufficient to warrant the requested
charge.
(Answer, Ex. 31, Pet’r’s PCR Br. Da 66-67, State v. Simms,
No. A-1781-02T4 (N.J. App.Div. Feb. 18, 2005).)
The New Jersey Appellate Division ruled that the challenged
jury instructions, viewed in their entirety, correctly conveyed
the governing state law principles to the jury.
21
This Court finds
that Petitioner has not demonstrated that the entire trial and
the conviction were so prejudiced by the charge as to violate the
principles of fundamental fairness and due process.
There was
ample evidence against Petitioner to justify his conviction,
including his own confession and the testimony of several
witnesses.
Further, as stated by the Appellate Division, the
findings of the jury as to the victims Petitioner believed had
weapons as compared to those victims Petitioner did not believe
had weapons, show that the jury ultimately understood the
instructions given.
The conviction was neither fundamentally
unfair, nor violated due process.
Furthermore, the decision of the state court was neither
contrary to, nor an unreasonable application of, clearly
established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented.
That the jury chose to believe the State’s version over
Petitioner’s version does not render the trial unfair.
“substantial and injurious effect” exists.
No
Petitioner is not
entitled to relief on these grounds.
2.
Sentencing Claims (Grounds Four and Six)
In Ground Four, Petitioner argues that the sentencing court
“was not guided by general provisions when chosing [sic] to
impose consecutive sentences on Defendant.”
He argues:
1. Sentencing court did not provide separate statement
of facts to support its discretion to impose
consecutive sentences.
22
2. The court failed to consider various elements
supporting concurrent sentence, including;[sic] (a) The
crimes and their objectives were not predominantly
independent of each other, (b) Victims were injured in
single episode of violence, (c) The crimes were not
committed at separate times or places, and (d)
Convictions for sentences imposed were not numerous.
3. Sentencing court improperly used aggravating factor
number one, to impose maximum term for offenses, where
factor does not apply to facts of case.
4. Sentencing court improperly used aggravating factor
number two, to impose maximum and/or consecutive term
for offenses, where factor does not apply to facts of
the case.
5. Sentencing court used aggravating factor to enhance
sentence, where factor was the element of offense.
6. The court fashioned consecutive sentence to arrive
at the longest period of incarceration, impeding on
mitigating factors found by the jury.
7. The jury found that the law holds Anthony Parrish
accountable for the role he played in facilitating the
crime committed against him. That mitigation is
required to reduce culpability of defendant.
8. The jury found Marcus Bailey accountable for
facilitating, thus requiring mitigation of defendant’s
liability.
9. Sentencing court exceeded punishment parameters
implied by the jury as fact finders.
(Pet. 5-6.)
Petitioner raises nearly identical arguments in
Ground Six of his petition.
As stated above, the violation of a right created by state
law is not cognizable as a basis for federal habeas relief.
Estelle, 502 U.S. at 67-68 (“We have stated many times that
‘federal habeas corpus relief does not lie for errors of state
law.’” (quoting Lewis v. Jeffers, 497 U.S. 764, 680 (1990))); see
28 U.S.C. § 2254(a) (“district court shall entertain an
23
application for a writ of habeas corpus on 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”).
Accordingly, based on
the supporting facts Petitioner alleges for this ground, which
relate only to alleged violations of state law, Petitioner is not
entitled to federal habeas relief.
To the extent Petitioner is alleging that the imposition of
consecutive terms violates his Sixth Amendment rights, that
argument would also fail.
As discussed above, on November 29,
2005, pursuant to State v. Natale, Judge Kreizman re-sentenced
Petitioner and imposed the original sentence.
appealed.
Petitioner
On February 6, 2007, the Appellate Division’s Excessive
Sentencing Panel affirmed Petitioner’s sentence, stating that:
“[h]aving considered the record and argument of counsel and
appearing that the issues on appeal relate solely to sentence,
we’re satisfied the sentence is not manifestly excessive.
not unduly punitive.
It’s
It doesn’t constitute an abuse of
discretion and the judgment is affirmed.”
(Answer, Ex. 31., Tr.
Excessive Sentencing Oral Arguments 72:21-73:2, February 6, 2007,
Docket Entry No. 19-33.)
A federal court’s ability to review
state sentences is limited to challenges based upon “proscribed
federal grounds such as being cruel and unusual, racially or
ethnically motivated, or enhanced by indigencies.”
24
See Grecco v.
O’Lone, 661 F.Supp. 408, 415 (D.N.J. 1987) (citation omitted).
Thus, a challenge to a state court’s discretion at sentencing is
not reviewable in a federal habeas proceeding unless it violates
a separate federal constitutional limitation.
See Pringle v. Ct.
of Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984); see also 28
U.S.C. § 2254(a); Estelle, 502 U.S. at 67.
Apprendi v. New Jersey, 530 U.S. 466 (2000), holds that
pursuant to the Sixth Amendment right to trial by jury, “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
Id. at 490.
Blakely reversed a sentence imposed under Washington
state’s sentencing system, explaining that “the relevant
statutory maximum is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose
without any additional findings.”
quotations omitted).
542 U.S. at 302 (internal
United States v. Booker, 543 U.S. 220
(2005), applied the rule of Apprendi to the United States
Sentencing Guidelines, finding the Guidelines unconstitutional,
and rendering them merely advisory, rather than mandatory.
In State v. Natale, the New Jersey Supreme Court evaluated
the constitutionality of the New Jersey sentencing system in view
of the Apprendi line of cases.
As it allowed for sentencing
beyond the statutory maximum presumptive term, the New Jersey
Supreme Court found the state sentencing system to be
25
unconstitutional and determined that the appropriate remedy would
be to follow the lead of Booker and abolish the presumptive
terms.
“Without presumptive terms, the ‘statutory maximum’
authorized by the jury verdict or the facts admitted by a
defendant at his guilty plea is the top of the sentencing range
for the crime charged, e.g., ten years for a second-degree
offense.”
Natale, 878 A.2d 724 (citation omitted).
The New Jersey appellate courts have rejected the argument
that the imposition of consecutive sentences implicates the
Blakely line of cases or otherwise violates the Sixth Amendment
right to a jury trial.
Under our sentencing scheme, there is no presumption in
favor of concurrent sentences and therefore the maximum
potential sentence authorized by the jury verdict is
the aggregate of sentences for multiple convictions.
See N.J.S.A. 2C:44-5(a). In other words, the sentencing
range is the maximum sentence for each offense added to
every other offense....
In that vein, consecutive sentences do not invoke the
same concerns that troubled the Supreme Court in
Apprendi, supra, Blakely, supra, and Booker, supra. As
in any indeterminate sentencing scheme, the jury
verdict in this case allowed the judge to impose a
consecutive or concurrent sentence within the maximum
range based on the sentencing court's discretionary
findings. Unlike a trial court that engages in
factfinding as the basis for exceeding the sentence
authorized by a jury's verdict, the court here imposed
consecutive sentences that were supported by the jury's
separate guilty verdicts for each offense. With the
exception of merged offenses, defendant knew that he
potentially could be sentenced to the sum of the
maximum sentences for all of the offenses combined.
State v. Abdullah, 878 A.2d 746, 756-57 (N.J. 2005); see State v.
Pittman, 2006 WL 561278, at *2 (N.J. App.Div. Mar. 9, 2006).
26
Petitioner was sentenced in accordance with state law.
Where, as here, there is no presumption under state law in favor
of concurrent sentences, consecutive sentences do not exceed the
prescribed statutory maximum sentence.
Petitioner was re-
sentenced by the trial court in accordance with Natale, and the
sentence was upheld by the Appellate Division’s Excessive
Sentence Panel.
The decision of the state court was neither
contrary to, nor an unreasonable application of, clearly
established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented.
Petitioner’s rights under the Sixth Amendment have not been
violated and Petitioner has not provided this Court with any
justification to grant habeas relief and upset the state court
proceedings as to his state law sentence.
3.
Ineffective Assistance of Counsel Claims (Grounds
Five, Seven and Eight)
In Grounds Five and Seven, Petitioner alleges ineffective
assistance of trial counsel because counsel failed to: (1) object
to the erroneous jury instructions and verdict sheet; (2)
“adequately prepare for trial by sufficiently researching
guidelines governing passion/provocation manslaughter to protect
the rights of defendant in affirmative defense;” (3) “object to
the numerous errors of the court’s jury charge, including
sequential jury deliberations of offenses involving questions of
passion, what type of verdict would deliberations of passion
27
follow, lack of clear instructions directing the jury how to
acquit defendant of attempted murder and lesser included offense,
and failure of the court to advise the jury how circumstantial
evidence could be applied to offenses and transcend independent
deliberations of various victims to address any associations to
the provocation;” and (4) “object to the sentencing court’s
deviation of facts found by the jury in the manner that
consecutive sentence was fashioned.”
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.
The right to counsel is the
right to the effective assistance of counsel, and counsel can
deprive a criminal defendant of the right by failing to render
adequate legal assistance.
See Strickland v. Washington, 466
U.S. 668, 686 (1984).
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.
Id. at 687.
First, Petitioner 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,
28
1403 (2011) (citing Strickland, 466 U.S. at 690).
“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).
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.”
Strickland, 466 U.S. 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 outside the
wide range of professionally competent assistance.
Id.
To satisfy the prejudice prong, Petitioner 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
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).
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
29
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.
A court need not address both components of an ineffective
assistance claim “if the defendant makes an insufficient showing
on one.”
Strickland, 466 U.S. at 697.
“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 raised the issues as to trial counsel in his PCR
petition.
The PCR court found that Petitioner did not raise a
claim of ineffective assistance of trial counsel on direct appeal
but he did raise the jury instructions issue, which is the
underlying basis for his claim of ineffective assistance of
counsel.
(Answer, Ex. 33, Tr. PCR Hr’g 19:4-7, Docket Entry No.
19-37.)
The PCR court found that Petitioner “could not avoid the
preclusive effect of [N.J. Ct. R. 3:22-5] by simply cloaking
arguments made and rejected in the Appellate Division as
‘ineffective assistance of counsel...’ [and as such] defendant’s
argument regarding the jury instruction is procedurally barred
and therefore will not be considered.”
(Id. at 19-14 to 19-24.)
Petitioner’s claims regarding trial counsel’s failures at
sentencing and to prepare were raised in his “accumulation of
30
errors” argument.
The PCR court also denied this ground,
stating: “I don’t find that there were errors. I don’t find that
there [are] any grounds for post conviction relief, based upon an
alleged accumulation of errors which didn’t exist.”
(Id. at Ex.
33 (28:13-22.)
Petitioner appealed the PCR court’s rulings, but the
Appellate Division affirmed, stating:
On appeal, defendant again argues ineffective
assistance of trial counsel, again focusing primarily
on trial counsel's failure to object to the jury
instruction on passion/provocation manslaughter. We
have considered defendant's arguments in light of the
record and applicable law. We conclude that the
arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We
affirm substantially for the reasons expressed by Judge
Kreizman in his thorough and well-reasoned oral opinion
rendered November 13, 2008.
State v. Simms, 2010 WL 1929780, at * 2 (N.J. App. Div. May 14,
2010.)
The Court finds that the decision of the state court as to
Petitioner’s ineffective assistance of trial counsel claims was
neither contrary to, nor an unreasonable application of, clearly
established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented.
The state court found that the underlying claims for Petitioner’s
ineffectiveness claims, jury instructions and sentencing, were
without merit.
Therefore, it was reasonable for trial counsel
not to raise said arguments.
Petitioner has not met his burden
and as such, his petition will be denied on these grounds.
31
In Grounds Seven and Eight, Petitioner alleges that he
suffered ineffective assistance of appellate counsel because
appellate counsel: (1) “failed to argue that the jury wasn’t
guided by curative effort of the court in erroneous jury
instruction claim;” (2) “failed to raise issue that court’s
denial of jury’s request to unrestrict deliberations of passion
was prejudicial to defendant;” (3) “failed to raise issue that
sentencing court impeded on the jury’s findings where convictions
of attempted passion/provocation manslaughter were not honored in
consecutive sentence;” (4) “neglected to present existing proof
showing the jury was not guided by curative effort of the court,
regarding the manner in which to deliberate offenses containing
questions of passion, on issue of erroneous jury instruction;”
(5) “neglected to raise issue that defendant was prejudiced by
the court restricting simultaneous jury deliberations of multiple
counts containing questions of passion;” (6) “failed to raise
issue that defendant was prejudiced by fashion of sentencing
court’s consecutive sentence;” (7) “failed to raise issue that
deliberating process precluded the jury’s consideration of
evidence that various victims were connected to the provocation
found to have impassioned the defendant;” (8) “failed to file
defendant’s motion for reconsideration of appeal, where motion
contained claims that elements of pro se issue remained
unadjudicated as errors argued therein existed outside the scope
32
of the court’s curative effort;” and (9) “failed to raise issue
of ineffective assistance of trial counsel on direct appeal.”
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 right to the effective
assistance of counsel.
Evitts, 469 U.S. at 396.
The Strickland
ineffective assistance of counsel standard applies to a 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 a 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.”
Id. at 478.
Petitioner raised his claim of ineffective assistance of
appellate counsel before the PCR court in a pro se brief, arguing
33
that appellate counsel failed to: (1) raise a due process
argument regarding improper jury instructions to deliberate
Counts One through Four concerning passion/provocation in a
sequential manner; (2) clarify the distinction between the
arguments raised in Petitioner’s pro se appellate brief; and (3)
move for reconsideration of the Appellate Division’s opinion on
the basis of Petitioner’s pro se appellate arguments.
Ex. 34, Pet’r’s Pro Se Br. Da73-80.)
(Answer,
PCR counsel raised the
following issues in his brief: (1) “counsel failed to meet with
the defendant at all prior to the Appellate Division rendering an
opinion;” (2) “counsel did not argue the merits of defendant’s
pro se brief;” (3) “counsel refused to file for reconsideration
of the appeal;” and (4) “counsel failed to raise the issue that
the trial court erred in instructing the jury to view each victim
as a separate crime as opposed to permitting the jury to
deliberate the actions as one event with a passion/provocation
defense as the defendant believes the legislature intended.”
The PCR court denied the petition on these grounds, stating:
Defendant also claims that he was denied effective
assistance of appellate counsel. He says that
appellate counsel failed to meet with him and to
present the issues argued by Mr. Simms in his pro se
appellate brief to the Appellate Division.
First, it must be noted that the arguments found in
defendant’s pro se appellate brief were specifically
reviewed by the Appellate Division and each one was
rejected. And I find that such arguments are
procedurally barred.
Whether counsel argued those claims before the
Appellate Division really is irrelevant since they were
34
reviewed and rejected on direct appeal by our Appellate
Division. I find defendant has failed to establish a
prima facie case of ineffective assistance with regard
to appellate counsel...
(Answer, Ex. 33, Tr. PCR Hr’g 26:3-18.)
As stated above, the
Appellate Division affirmed for substantially the reasons
expressed by Judge Kreizman.
Simms, 2010 WL 1929780, at *2.
As stated above as to the trial counsel claims, the state
court found that the underlying claims for Petitioner’s
ineffectiveness claims, jury instructions and sentencing, were
without merit.
Therefore, it was reasonable for counsel not to
raise said arguments at trial or on appeal.
Further, as to his
arguments raised on pro se appellate grounds, the Appellate
Division acknowledged that Petitioner had filed a pro se brief in
support of his direct appeal (Answer, Ex. 31, Opinion of
Appellate Division Da55), and also specifically stated that “[t]o
the extent we have not discussed any additional arguments
presented by defendant, we find them to be without merit to
warrant discussion in this opinion.”
Appellate Division Da72.)
(Answer, Ex. 31, Opinion of
The Court finds that the decision of
the state court as to these ineffective assistance of appellate
counsel claims was neither contrary to, nor an unreasonable
application of, clearly established federal law, nor was it based
on an unreasonable determination of the facts in light of the
evidence presented.
Petitioner has not met his burden and as
such, his petition will be denied on these grounds.
35
As to the claims that Petitioner does not appear to have
raised before the state courts, the Court finds said claims to be
meritless.
Specifically, Petitioner’s claims that appellate
counsel (1) “neglected to present existing proof showing the jury
was not guided by curative effort of the court, regarding the
manner in which to deliberate offenses containing questions of
passion, on issue of erroneous jury instruction”, and (2) “failed
to raise issue of ineffective assistance of trial counsel on
direct appeal”, do not appear to have been raised directly with
the state courts.
Petitioner appears to be referring to the verdict sheet when
he states that appellate counsel neglected to present “existing
proof” to show that the jury was not guided by the curative
instructions.
But appellate counsel attached the final verdict
sheet to the brief he submitted on direct appeal as well as
arguing in his brief that the “erroneous instructions and the
sequential nature of the verdict sheet combined to preclude and/or
inhibit proper consideration of passion/provocation manslaughter
as a lesser-included offense of first degree attempted
murder...in violation of Mr. Simms’ Fourteenth Amendment due
process and fair trial rights.”
Br. 27-41; Da 14-27.)
(Answer, Ex. 14, Pet’r’s App.
As such, Petitioner’s arguments that
appellate counsel failed to present the verdict sheet and its
implications to the court are without merit.
36
Petitioner has
failed to show that appellate counsel’s representation fell below
an objective standard of reasonableness in this regard and he has
also failed to show prejudice.
Therefore, the petition will be
denied on this ground.
Petitioner argues that appellate counsel was ineffective for
failing to raise trial counsel’s ineffectiveness on direct
appeal.
As discussed above, the underlying basis for this claim,
the ineffectiveness of trial counsel, was reviewed and denied by
the state courts.
Further, as also stated above, this Court does
not find that decision to be either “contrary to,” or an
“unreasonable application” of, established Supreme Court
precedent.
Therefore, the Court finds that Petitioner has failed
to show that counsel’s representation fell below an objective
standard of reasonableness.
Further, in light of the state
court’s holdings regarding the jury instructions and sentencing
issues, as well as with regard to trial counsel’s performance,
Petitioner cannot show any prejudice as a result of appellate
counsel’s failure to raise this argument on appeal.
Therefore,
Petitioner is not entitled to habeas relief on this claim.
4.
Cumulative Errors Claim
In Ground Seven, Petitioner argues that he was “prejudiced
by accumulation of errors collectively impacting jury
deliberations and the outcome of trial, impeding on defendant’s
Rights to Due Process and Trial by Jury.”
37
The test for a “cumulative error” claim is whether the overall
deficiencies “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.”
See Hein v.
Sullivan, 601 F.3d 897, 917 (9th Cir. 2010) (relying on Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974)); Thornburg v. Mullin,
422 F.3d 1113, 1137 (10th Cir. 2005) (relying on Donnelly); see
also Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (“Cumulative
errors are not harmless if they had a substantial and injurious
effect or influence in determining the jury’s verdict, which
means that a habeas petitioner is not entitled to relief based on
cumulative errors unless he can establish ‘actual prejudice’”).
Petitioner raised his cumulative error claim in his state
PCR proceedings.
(Answer, Ex. 31, Pet’r’s PCR Br. 43-52.)
The
PCR court concluded that this claim was meritless, stating that
“I don’t find that there were errors. I don’t find that there
[are] any grounds for post conviction relief, based upon an
alleged accumulation of errors which didn’t exist.”
(Answer, Ex.
33, Tr. PCR Hr’g 28:13-28:22.)
Petitioner does not make any assertions suggesting actual
prejudice, and this Court, after carefully examining the
extensive underlying record, cannot find any aspect of
Petitioner’s criminal proceedings suggesting, singularly or
cumulatively, anything more than a hypothetical possibility of
prejudice.
Correspondingly, Petitioner’s Ground Seven challenges
do not merit habeas relief, since the state court’s dismissal of
38
Petitioner’s cumulative error argument was not an unreasonable
application of Supreme Court precedent.
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.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Jurists of reason here would not disagree with this Court’s
finding that Petitioner has failed to make a substantial showing
of the denial of a constitutional right.
No certificate of
appealability shall issue.
IV.
CONCLUSION
The Petition will be denied.
The Court will issue an
appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
March 16, 2012
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