MCSWAIN v. WARREN et al
Filing
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OPINION filed. Signed by Judge Joel A. Pisano on 2/7/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWIN McSWAIN,
Petitioner,
v.
CHARLES WARREN et al.,
Respondents.
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Civil Action No. 11-5658 (JAP)
OPINION
Pisano, District Judge:
Petitioner Edwin McSwain (“Petitioner”) filed a Petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2254(a), challenging a judgment of conviction entered by the Superior Court
of New Jersey upon Petitioner’s guilty plea. See Docket Entry No. 1, at 2. Following this Court’s
order advising Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
Respondents were directed to file an answer and duly complied. See Docket Entries Nos. 2 and 12.
Petitioner was advised of – but waived – his opportunity to traverse.
For the reasons expressed below, the Court will dismiss the Petition with prejudice and will
decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c), 2254(a), (b), (c).
I. BACKGROUND
Since Petitioner took a guilty plea, the factual predicate underlying his conviction was not
extensively detailed during his state proceedings. Mainly, that information came to light when the
trial judge was taking his plea. See Docket Entry No. 12-15. The transcript of that plea hearing is
directly relevant to Petitioner’s challenges here, and it reflects the following exchange:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Trial judge:
Petitioner:
...
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
[Petitioner,] I show you a plea form and ask, is that your signature on the
form?
Yes.
Are the answers to the questions on the form your answers?
Yes.
Did you understand all the questions you answered?
Yes.
Did your attorneys also review this form and explain it to you?
Yes.
Do you have, any questions about anything contained on this form or your
answers, thereto?
No.
It’s indicated on the plea form that you wish to enter a guilty plea to a charge
of murder in the first degree. . . .
Yes.
It's also indicated you wish to enter a guilty plea to first-degree armed
robbery. . . .
Yes.
It’s indicated on the plea form that the State at sentencing is going to seek a
sentence of life with 30 years no parole, as part of a plea agreement . . . . Is
that your understanding of this plea offer in this case?
Yes.
Has anyone promised you anything other than that to get you to plead guilty?
No.
Now, . . . on July 24th, 2002, you were in Lakewood and in the presence of
one John McGee. Is that so?
Yes.
[O]n July 24th, 2000, did you go over to the Jefferson Hotel?
Yes.
Did you go to see Mr. McGee about trying to get your room back there?
Yes.
He told you you couldn’t stay there anymore?
Yes.
You were armed at the time?
Yes.
What did you have with you?
A knife.
When Mr. McGee told you you couldn’t stay at the Jefferson anymore, did
you stab him?
Petitioner:
Yes.
Petitioner’s counsel: You stabbed him in the neck?
Petitioner:
Yes.
2
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
Petitioner’s counsel:
Petitioner:
...
Trial judge:
Petitioner:
Trial judge:
Petitioner:
Petitioner’s counsel:
He fell down then?
Yes.
And you took his wallet out of his pocket?
Yes.
There was money in it?
Yes.
You took the money?
Yes.
Was your purpose in stabbing him to kill him?
No.
Was your purpose in stabbing him to cause serious bodily injury?
No.
[W]hen I say you stabbed Mr. McGee, what you did, in fact, was slash his
throat; correct?
Petitioner:
Yes.
Petitioner’s counsel: Now, you knew when you slashed him in the throat you were going to hurt
him; correct?
Petitioner:
Yes.
Petitioner’s counsel: In fact, you knew that it was probable that he was going to die; correct?
Petitioner:
Yes.
Petitioner’s counsel: Okay. So when you stabbed him or slashed his throat, you knew that was
going to kill him; right?
Petitioner:
Yes.
...
Trial judge:
How do you plead to the charge of murder?
Petitioner:
Guilty.
Trial judge:
How do you plead to the charge of robbery?
Petitioner:
Guilty.
Trial judge:
I'm satisfied that there is a factual basis for the Court to accept the plea
[since] the defendant's freely, voluntarily and knowingly giving up his right
to trial by jury, and entering a guilty plea based . . . on the record.
Id. at 5-9.
Upon taking this plea, Petitioner appealed; his counseled brief asserted that his sentence was
excessive in light of his mental, social and emotional impairments. That appeal was denied. See
Docket Entry No. 12-6 (opinion dated March 9, 2006). The Supreme Court of New Jersey denied
him certification. See Docket Entry No. 12-7 (order dated July 11, 2006).
3
Petitioner then filed an application seeking post-conviction relief (“PCR”). See Docket
Entries Nos. 12-8 to 12-10 (reflecting his two counseled and one pro se submissions). There,
[Petitioner] claimed ineffective assistance of trial and appellate counsel and a variety of
generalized errors by the court . . . . [He] claimed trial counsel failed to adequately
investigate his innocence and the existence of other possible suspects . . . , and appellate
counsel failed to raise all trial errors on appeal. [He] also claimed trial counsel failed to
ensure [Petitioner] made a knowing, intelligent and voluntary plea in light of his
psychological impairments and the trial court erred in accepting his plea [since Petitioner
maintains he] had only repeated the answers trial counsel had prepared for him . . . .
Docket Entry No. 12-13, at 3-4 (Appellate Division’s decision dated November 9, 2010).
The trial court held oral arguments, with Petitioner present, and denied him PCR relief.
The [court found that Petitioner] only made “bald assertions” of ineffective assistance . . .
. The [court] pointed out that “by [Petitioner’s] own account, trial counsel took steps to
investigate any claims of [Petitioner’s] innocence, any potential suspects, and any evidence
tending to mitigate his exposure to capital punishment.” Moreover, [Petitioner] presented
no facts to show what trial counsel should have uncovered or presented regarding witnesses
or an alibi. Most critically, . . . [Petitioner] failed to show that . . . [he] would have foregone
a guilty plea and proceeded to trial. [The court found that] trial counsel investigated
[Petitioner’s] state of mind by having him examined by two psychologists prior to his
entering a guilty plea. . . . [N]either expert opined that [Petitioner’s] psychological condition
prevented him from entering a knowing and intelligent guilty plea. . . . [T]he record
demonstrated [that Petitioner] “did not answer ‘yes’ to every question, but intelligently
responded to each question that was asked.” . . . The court additionally found [that
Petitioner] offered no evidence to support his claim of lack of understanding of the length
. . . of his sentence, noting [Petitioner’s] signature on the plea form and his acknowledgment
of the specific consequences of his plea at sentencing. In regard to the assertion that
appellate counsel should have raised issues other than an excessive sentence, the court stated
that an appellate counsel “need not raise every colorable claim suggested by a client. In fact,
winnowing out weaker arguments is the hallmark of effective appellate advocacy.”
Id. at 3-5; accord Docket Entries Nos. 12-18 and 12-19 (transcripts of PCR arguments).
Petitioner appealed, and the Appellate Division affirmed the trial court’s findings. See id.
at 7. The Supreme Court of New Jersey denied certification as to his PCR challenges. See Docket
Entry No. 12-14. The instant Petition followed, raising four alternative Grounds.
4
In his Ground Two (repeated, as a heading and without any elaboration, by his Ground
Three), Petitioner asserted that his “trial counsel failed to ensure that Petitioner’s guilty plea was
entered knowingly, intelligently, and voluntarily.” Docket Entry No. 1, at 8 (capitalization removed).
In support of that assertion, Petitioner: (a) noted that the two psychologists retained by his trial
counsel found Petitioner’s intelligence at the “borderline” level or within the range of “mild mental
retardation”; (b) alleged that he merely parroted the answers prepared by his trial counsel; and (c)
claimed that his lack of intelligent and voluntary plea should be deduced from the very fact that the
bulk of his answers were “yes” or “no.” Id. Petitioner’s Ground One maintained that his counsel
should have investigated the possibility of Petitioner’s alibi by trying to: (a) probe the two persons
whom Petitioner suspected of being at odds with the victim; and/or (b) find some alternative
suspects. See id. at 5-6. His remaining Ground Four is limited to a mere statement that his
“appellate counsel was ineffective.” Id. at 11 (capitalization removed).
II. STANDARD OF REVIEW
The general standard of federal habeas review is long-established, and it sets forth a
narrowly-tailored test. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“As amended by
AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an application
for a writ of habeas corpus on behalf of a state prisoner”).
Thus, Section 2254(a) permits a federal court to entertain only claims alleging that a person
is held in state custody “in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). The AEDPA further limits a federal court’s authority to grant habeas relief by
providing that, when a state court has adjudicated a petitioner’s federal claim on the merits, a district
court “has no authority to issue the writ of habeas corpus unless the [state court’s] decision ‘was
5
contrary to, or involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.’” Parker
v. Matthews, 132 S. Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)).
Consequently, the starting point of federal habeas review under § 2254(d)(1) is to determine
the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S.
652, 660 (2004). A decision is “contrary to” a Supreme Court holding, within the meaning of 28
U.S.C. § 2254(d)(1), if: (a) the state court outright “contradicts the governing law set forth in [the
Supreme Court] cases”; or (b) the state court “confronts a set of facts that are materially
indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different]
result.” Williams, 529 U.S. at 405-06. Under the “‘unreasonable application’ clause of §
2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from th[e Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. Notably, under §
2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of
federal law.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at 410).
Correspondingly, the standard posed by federal habeas review “difficult to meet, [since it is
a] highly deferential standard for evaluating state-court rulings, [and that standard] demands that
state-court decisions be given the benefit of the doubt.” Cullen, 131 S. Ct. at 1398 (citations and
internal quotation marks omitted).
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III. DISCUSSION
The standard for determining the validity of a guilty plea is “whether the plea represents a
voluntary [and] intelligent choice among the alternative courses open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970); see also Boykin v. Alabama, 395 U.S. 238, 242 (1969).
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty
is entered in a state criminal trial[,]” including the defendant’s privilege against compulsory
self-incrimination, his right to trial by jury, and his right to confront his accusers. Boykin, 395 U.S.
at 243. The voluntariness and intelligence of one’s decision to accept a plea is determined by
“considering all of the relevant circumstances surrounding it.” Brady v. United States, 397 U.S. 742,
749 (1970). Relevant circumstances include the petitioner’s statements during the plea colloquy:
[T]he representations of the defendant, his lawyer, and the prosecutor at [the plea]
hearing, as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn declarations in
open court carry a strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Paramountly, once a voluntary and intelligent guilty plea has been entered by a criminal
defendant, all other non-jurisdictional defects in the proceedings prior to the plea are waived,
including all claims of “denial of fair trial,” inadequacies in conduct of the presiding tribunal,
ineffective assistance of counsel – “except insofar as such inadequacies or ineffectiveness is alleged
to have rendered the guilty plea itself “involuntary” and/or “unintelligent.” United States v. Glinsey,
209 F.3d 386, 392 (5th Cir. 2000). As the Supreme Court summarized:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal
process. When a criminal defendant has solemnly admitted in open court that he is in fact
7
guilty of the offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty
plea. He may only attack the voluntary and intelligent character of the guilty plea by showing
that the advice he received from counsel was not within the standards set forth in McMann.
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (referring to McMann v. Richardson, 397 U.S. 759
(1970)).
Thus, when a petitioner challenges the voluntariness and/or intelligence of his/her plea based
upon allegations of ineffective assistance of counsel, the two-prong standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984), applies. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); see also
Premo v. Moore, 131 S. Ct. 733, 737-38 (2011) (identifying Strickland as the clearly established
federal law governing a habeas petitioner’s challenge to his conviction obtained through a plea
bargain). To obtain relief under Strickland, a petitioner must establish that: (1) “counsel’s
representation fell below an objective standard of reasonableness,” and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
In a plea situation, the focus of Strickland’s performance prong is “whether counsel’s advice
‘was within the range of competence demanded of attorneys in criminal cases.’” Hill, 474 U.S. at
56-57 (quoting McMann, 397 U.S. at 771). “Judicial scrutiny of counsel’s performance must be
highly deferential,” and courts should make every effort to “eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Representation is
8
ineffective only if counsel commits “serious derelictions” of his duty when advising the accused.
See Stano v. Dugger, 921 F.2d 1125, 1150-51 (11th Cir. 1991).1
To meet Strickland’s prejudice prong in a plea situation, a petitioner must establish that
“counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill,
474 U.S. at 59. “It is not enough for [petitioner] to show that the errors had some conceivable effect
on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Rather, the petitioner must
demonstrate a reasonable probability that, but for counsel’s errors, he would not have pled guilty at
all. See Hill, 474 U.S. at 58-59. “Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 130 S. Ct. 1473, 1485 (2010). “Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S. Ct. at 788.
As the Richter Court explained:
The standards created by Strickland and § 2254(d) are both “highly deferential,” and when
the two apply in tandem, review is “doubly” so. The Strickland standard is a general one,
so the range of reasonable applications is substantial. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
1
See also, Strickland, 466 U.S. at 689 (“Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy”); Thomas v.
Varner, 428 F. 3d 491, 499 (3d Cir. 2005) (“To overcome the Strickland presumption that, under the
circumstances, a challenged action might be considered sound trial strategy, a habeas petitioner must
show either that: (1) the suggested strategy (even if sound) was not in fact motivating counsel or, (2)
that the actions could never be considered part of a sound strategy”).
9
Id. (citations omitted).2
Here, Petitioner asserts that his counsel provided him with ineffective assistance during the
plea proceedings because: (a) the psychologists retained by this counsel found Petitioner’s
intelligence “borderline” or at the level of “mild retardation”; (b) Petitioner now claims that he
merely parroted the answers prepared by his counsel; and (c) his lack of voluntariness and intelligent
acceptance of the plea should be deduced from the mere fact that the bulk of his answers were “yes”
or “no.” See Docket Entry No. 1, at 8.
Petitioner’s position is without merit. At the outset, it appears warranted to mention that
none of Petitioner’s above-listed allegations actually challenge the trial counsel’s performance: rather
these challenges appear to attack Petitioner’s plea itself. However, whether perceived as an attack
on the plea or on the counsel’s assistance, these challenges fail to merit habeas relief.
The mode of plea questioning is typically such that it invites defendant to respond, mostly,
by “yes” and “no” answers rather than by narrative accounts; this occurs regardless of the
defendant’s level of intelligence. See, e.g., Blackledge v. Allison, 431 U.S. 63, 65 (1977) (“In
accord with the procedure for taking guilty pleas . . . , the judge in open court read from a printed
form 13 questions, generally concerning the defendant’s understanding of the charge, its
2
In the recent past, the Supreme Court examined the intersection of voluntariness and
intelligence of a criminal defendant’s plea agreement and the Strickland standard on numerous
occasions. See, e.g., Premo, 131 S. Ct. 733 (holding that an inmate was not entitled to habeas
relief based on ineffective assistance of counsel since it was not unreasonable to find that counsel
did not perform deficiently by failing to move to suppress a confession before advising the
inmate to plead guilty or to find no prejudice in light of a second, admissible confession).
Hence, Premo underscored the long-established two-prong principle namely, that: (a) what had or
might have occurred during the trial has no relevance to the issue of voluntariness and
intelligence of a criminal defendant’s decision to take or reject a plea; and (b) a viable challenge
to one’s decision to take a plea must be based on a showing that, absent counsel’s errors, the
defendant would have not pled guilty at all. See Hill, 474 U.S. at 58-59.
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consequences, and the voluntariness of his plea. [The defendant] answered ‘yes’ or ‘no’ to each
question, and the court clerk transcribed those responses on a copy of the form, which [the
defendant] signed. So far as the record shows, there was no questioning beyond this routine”).
Moreover, one’s “yes” or “no” statement does not become less knowing, voluntary or intelligent if
it is repeated throughout a proceeding. See, e.g., McDonald v. Burke, 1998 U.S. App. LEXIS 13160
(6th Cir. June 17, 1998) (examining a plea transcript consisting of systemic “yes” and “no” answers
rendered by a defendant having substantial mental limitations); accord Bennerman v. Howes, 2010
U.S. Dist. LEXIS 21436 ( E.D. Mich. Mar. 9, 2010) (same, dismissing a Section 2254 petition within
the context of the petitioner’s claims that his psychotropic medications rendered him unable to make
a knowing, intelligent and voluntary plea).
Furthermore, Petitioner’s two “no” answers initially rendered in response to the trial court’s
inquiry as to Petitioner’s mens rea – when the trial judge utilized the word “purpose” in its legal,
technical sense – contradict Petitioner’s assertion that he was just parroting the answers prepared for
him by the trial counsel. See Docket Entry No. 12-15, at 9-10 (“Was your purpose in stabbing him
to kill him?” “No.” “Was your purpose in stabbing him to cause serious bodily injury?” “No.”
“[W]hen I say you stabbed Mr. McGee, what you did, in fact, was slash his throat; correct?” “Yes.”
“Now, you knew when you slashed him in the throat you were going to hurt him; correct?” “Yes.”
“In fact, you knew that it was probable that he was going to die; correct?” “Yes.” “Okay. So when
you stabbed him or slashed his throat, you knew that was going to kill him; right?” “Yes”). Indeed,
had Petitioner been parroting the prepared-by-counsel answers, he would have no reason two answer
these two “no’s” – he would have answered “yes” right away, without obtaining any clarifications
as to the nature of the trial judge’s questions.
11
Finally, and paramountly here, Petitioner’s chain of “yes” and “no” answers neither
establishes nor even suggests that his counsel’s advice to take the plea was outside “the range of
competence demanded of attorneys in criminal cases,” nor does this chain of “yes” and “no” answers
demonstrate a reasonable probability that Petitioner would not have pled guilty at all. See Hill, 474
U.S. at 56-59; accord United States v. Hodge, 412 F.3d 479, 490 (3d Cir. 2005) (“[G]iven the nature
of our criminal justice system, . . . plea bargains are an ‘essential part. ‘While confronting a
defendant with the risk of more severe punishment clearly may have a discouraging effect on the
defendant's assertion of his trial rights,’ . . . ‘the imposition of these difficult choices [is] an
inevitable . . . attribute of any legitimate system which tolerates and encourages the negotiation of
pleas. [A] defendant plea is not rendered involuntary [if] he enters it to save himself . . . .”) (quoting
Santobello v. New York, 404 U.S. 257, 261 (1971), and United States v. Marquez, 909 F.2d 738,
742 (2d Cir. 1990), and citing Blackledge v. Allison, 431 U.S. 63, 71 (1977)).
With the same token, the fact of Petitioner having “borderline” intelligence or “mild
retardation” does not mean he was prevented from making a constitutionally valid choice to take the
plea. See Garner v. Mitchell, 557 F.3d 257 (6th Cir. 2009) (finding a knowing and intelligent waiver
on the part of a defendant who was determined by a clinical psychology expert to have “borderline
intelligence, functional (i.e., organic) brain impairment, abusive and socially depraved background,
and long history of impulsivity”); cf. James v. Cain, 2010 U.S. Dist. LEXIS 119898 (E.D. La. Nov.
9, 2010) (dismissing a habeas petition on the bases of statements made, during state proceedings, by
a psychology expert who testified that he examined the defendant and found his intelligence
“borderline to mildly mentally retarded,” with the overall IQ of 65 and primitive responses under
stress); Bennerman, 2010 U.S. Dist. LEXIS 21436, at *13 (citing Shanks v. Wolfenbarger, 387 F.
12
Supp. 2d 740, 749 (E.D. Mich. 2005), for the observation that “a habeas petitioner bears a heavy
burden of rebutting the presumption that his or her guilty plea, as evidenced by the plea colloquy,
is valid”). The record shows that both psychologists retained by his trial counsel duly evaluated
Petitioner and found his level of mental development sufficient to understand and appreciate the plea
bargain offered to him and to assess its pros and cons accordingly. Relying on that record, the state
courts found Petitioner’s level of mental competence sufficient for the purposes of taking the plea.
Federal courts “must presume that the factual findings of both state trial and appellate courts are
correct, a presumption that can only be overcome on the basis of clear and convincing evidence to
the contrary.” Stevens v. Delaware Correctional Center, 295 F.3d 361, 368 (3d Cir. 2002). Here,
Petitioner offers this Court nothing to counter the state courts’ factual findings as to sufficiency of
his competence; all he offers are his unsupported beliefs that: (a) his mental capacity should have
been deemed inadequate; and (b) his trial counsel should have tried to verify his capacity “more.”
Petitioner’s challenges fail to meet either prong of the Strickland test, since his trial counsel’s
actions were reasonable, and Petitioner failed to show any prejudice. See Hill, 474 U.S. at 56-59.
Petitioner provides this Court with no basis for finding that Petitioner’s plea proceedings could have
been different had the trial counsel tried “more,” e.g., if Petitioner was examined by one more
psychology expert or had Petitioner been question more extensively by his trial judge or his counsel
about Petitioner’s decision to take the plea. Thus, the state courts’ denial of Petitioner’s challenges
was not an unreasonable application of Supreme Court precedent.
13
The aforesaid finding, in and by itself, concludes the Court’s review. See Tollett, 411 U.S.
at 26. However, taking notice of Petitioner’s Grounds One and Four, the Court notes, in passing, that
these remaining Grounds also fail to merit habeas relief.
Petitioner's next argument is that [his defense counsel’s] performance was deficient because
[the defense counsel] failed to locate and present [certain testimonial evidence.] Petitioner
speculates that [such testimonial evidence] might have [created an alibi for him,] and he
deduces from that speculation that [his defense counsel’]s failure to locate [such evidence]
and investigate [it] was an act of ineffective assistance within the meaning of the Strickland
standard. In . . . Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006). . . . [the Court of Appeals]
underscores two key principles governing this type of inquiry: (a) counsel is not obligated
to chase after the wind (e.g., by striving to locate [long-shot evidence]) in hopes of stumbling
upon a [piece of evidence that] might turn out favorable; and (b) habeas relief may be
warranted only upon the petitioner’s showing that [such evidence was actually in existence
and] so favorable to the petitioner that lack thereof resulted in prejudice to the petitioner’s
case within the meaning of the second prong of Strickland. See Strickland, 466 U.S. at
690-91; see also Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); accord Lewis v.
Mazurkiewicz, 915 F.2d 106 (3d Cir. 1990) (expressly adopting Strickland and Kimmelman
rationale for the purposes of failure-to-investigate analysis).
Echols v. Ricci, 2011 U.S. Dist. LEXIS 93833, at *98-102 (D.N.J. Aug. 19, 2011), aff’d, 2012 U.S.
App. LEXIS 14803 (3d Cir. July 19, 2012) (quoting Strickland, 466 U.S. at 691, for the observation
that “counsel has a duty to make [only] reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary”).
In light of this standard, the state courts’ dismissal of Petitioner’s Ground One (asserting that
his trial counsel should have investigated two persons whom Petitioner suspected of being at odds
with his victim, or that his trial counsel should have chased after some unspecified leads in hope to
find witnesses that could have offered alternative murder suspects) was not an unreasonable
application of Supreme Court precedent.
14
Finally, the state courts’ dismissal of Petitioner’s Ground Four (challenging assistance of his
appellate counsel on the basis of that counsel’s selection of only one claim that appeared potentially
viable) was in full accord with Smith v. Robbins, 528 U.S. 259, 285 (2000) (appellate counsel need
not raise every non-frivolous issue on appeal; he “may select from among them in order to maximize
the likelihood of success on appeal”), and Jones v. Barnes, 463 U.S. 745, 750 (1983) (rejecting “per
se rule that appellate counsel must raise every nonfrivolous issue”).
Since state courts’ findings were not an unreasonable application of Supreme Court precedent
with regard to Petitioner’s Ground One, Ground Two (Ground Three, which simply recited Ground
Two) and Ground Four, all these Grounds warrant no habeas relief.
Therefore, his Petition will be dismissed..
IV. CERTIFICATE OF APPEALABILITY
The Court denies a certificate of appealability because Petitioner has not made “a substantial
showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See Miller-El v.
Cockrell, 537 U.S. 322 (2003).
V. CONCLUSION
Based on the foregoing, the Court dismisses the Petition with prejudice and declines to issue
a certificate of appealability under 28 U.S.C. § 2253(c).
/s/ Joel A. Pisano
JOEL A. PISANO,
United States District Judge
Dated: February 7, 2013
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