PARLIN v. HOLMES et al
Filing
24
OPINION filed. Signed by Judge Freda L. Wolfson on 5/29/2015. (kas, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Michael Parlin,
Civil Action No. 12-3129 (FLW)
Plaintiff,
v.
OPINION
Christopher Holmes, et al.,
Defendants.
Wolfson, United States District Judge:
Petitioner, Michael Parlin (“Parlin” or “Petitioner”), filed the instant petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254, in which he claims, inter alia, (1) that the eleven-month
delay between the filing of charges and bringing of an indictment violated his Sixth Amendment
right to a speedy trial; (2) that this delay effectively denied him assistance of counsel for that time;
and (3) that the trial court erred by admitting both his and his victim’s videotaped statements into
evidence. For the reasons set forth below, the Petition is denied.
I.
BACKGROUND
The facts underlying Petitioner’s convictions are not in dispute. Petitioner was a lifelong
friend of DK, mother of LK, age ten. State v. Parlin, A-2576-08T3 at 2 (App. Div. 2011), ECF
No. 9, Ex. 51. On the night of December 28, 2005, Petitioner was playing video games and
watching television with DK’s ten-year old daughter, LK, in the family’s finished basement. Id.
DK then went to bed at around 10:00pm, and LK fell asleep on the couch in the basement alongside
1
All exhibits are contained within ECF No. 9, and thus will simply be listed as “Ex.”
1
Petitioner. LK awoke in the middle of the night to find “one of Petitioner’s hands down her pants
and the other under her shirt touching her breast.” Id.
Later that same morning, DK awoke and saw that LK’s bedroom light was on. LK then
“described in detail” what Petitioner had done in the basement. Id. DK subsequently ordered
Petitioner to leave the house, which he did. The following day, LK complained of pain during
urination and DK brought her to the police. During a videotaped conversation with a detective, LK
“explained and demonstrated on a doll that [Petitioner] had touched her breast and vaginal area.”
Id. at 3. On December 30, 2005, a detective from the State Police interviewed Petitioner after
Petitioner signed a written waiver of his Miranda rights. Id.
After the December 30, 2005 interview, Petitioner was given the option of taking a
polygraph test “at a later date.” Ex. 10 at 5. Petitioner agreed to take a polygraph test, which was
administered on January 2, 2006. Id. The polygraph “detected deception about sexual conduct.”
Id.; see also Ex. 5 at 4. Petitioner was advised of his Miranda rights before the polygraph was
administered. As explained by the Appellate Division on direct appeal,
Defendant then made the following admission:
I was sitting on the couch next to [the girl], I fell asleep, when I woke up my hand
was down the front of her pants . . . My other hand was on her breasts outside of
her shirt . . . I woke up, realized what I had done. I said whoa, and took my hand
off of her . . . I'm not proud of what I did.
Another detective entered the room to interrogate defendant further. He advised
defendant of his Miranda rights once again. Defendant signed a waiver form for a
third time and gave a videotaped statement in which he made admissions similar to
those quoted above.
2
State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at p. 4. On that same date, January 2, 2006,
Petitioner was charged with two counts of sexual assault and one count of endangering the welfare
of a child. See ECF No. 9 at 10.
At the time charges were filed, Petitioner was being held in the Ocean County Correctional
Facility on charges unrelated to the instant crime. Id. Eleven months later, on November 28, 2006,
Petitioner was indicted on first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), seconddegree sexual assault of a child under the age of thirteen, N.J.S.A. 2C:14-2b, and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4a. Through counsel, Petitioner filed a number
of pre-trial motions, including a motion to suppress his statements to police, a motion to suppress
LK’s videotaped statements, and a motion to dismiss based on a violation of Petitioner’s speedy
trial rights. Ex. 5 at 4-5. After testimony was taken on both motions, and oral argument held, the
motions were denied by the trial court. See generally Ex. 10.
A jury trial was conducted over six days in April, 2008, and both videotaped statements
(Petitioner’s and LK’s) were admitted into evidence. See Exs. 12, 13. The jury found Petitioner
not guilty of first-degree aggravated sexual assault, which required a finding of penetration, but
guilty of both second-degree sexual assault and third-degree endangering the welfare of a child.
At the sentencing hearing on September 4, 2008, the court merged Petitioner’s two convictions
and sentenced Petitioner to ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:437.2.2 Petitioner appealed to the Appellate Division, which affirmed both the convictions and the
N.J.S.A. 2C:43-7.2 mandates that a prisoner must serve at least 85% of a given sentence before
becoming eligible for parole.
2
3
sentence. Petitioner then filed a petition for a writ of a habeas corpus with this Court on May 18,
2012. He did not file a petition for post-conviction review in the state courts.
II.
STANDARD OF REVIEW
Section 2254 of Title 28, United States Code, provides that the district court “shall entertain
an 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.” 28 U.S.C. § 2254(a). Petitioner has the burden of establishing each
claim in the petition. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. §
2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244
(“AEDPA”), federal courts in habeas corpus cases must give considerable deference to
determinations of the state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus. The
statute reads as follows:
(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.
28 U.S.C. § 2254(d).
4
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court explained the
application of § 2254(d)(1). The Court analyzed subsection 1 as two clauses: the “contrary to”
clause and the “unreasonable application” clause. The Court held that under the “contrary to”
clause, “a federal court may grant the writ if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. A federal court
may grant the writ under the “unreasonable application” clause, if “the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id. at 413. Section 2254(d)(1) therefore applies
to questions of mixed law and fact.
With regard to 28 U.S.C. § 2254(d)(2), a federal court must confine its examination to
evidence in the record. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). In addition, the
state court record should be reviewed to assess the reasonableness of the state court’s factual
determinations. See id. Finally, federal courts are required to apply a “presumption of correctness
to factual determinations made by the state court.” Fahy v. Horn, 516 F.3d 169, 181 (3d Cir. 2008);
see also 28 U.S.C. § 2254(e)(1). The Third Circuit has ruled that this presumption of correctness
based upon state court factual findings can only be overcome by clear and convincing evidence.
See Lewis v. Horn, 581 F.3d 92, 109 (3d Cir. 2009). A state court decision is based on an
unreasonable determination of the facts only if the state court's factual findings are objectively
unreasonable in light of the evidence presented in the state-court proceeding. See Eley, supra, at
846 (internal quotations omitted).
III.
DISCUSSION
5
Petitioner raises five grounds for habeas relief in the instant Petition. The first three
grounds are all speedy trial-related claims. In Ground One, Petitioner contends that the state
“denied [him] reasonable notice of the charges against him,” arguing that he was not “served
notice” of the complaint filed against him until 316 days after the complaint had been filed. ECF
No. 1 at 6. Petitioner contends, in Ground Two, that he was denied access to counsel during this
316-day period, and additional days, in violation of his right to counsel. ECF No. 1 at 7. And, in
Ground Three, Petitioner raises contends that his trial did not take place until nearly a year after
he was assigned counsel in violation of the Speedy Trial Act. ECF No. 1 at 9. The last two grounds
raise evidentiary challenges. In Ground Four, Petitioner contends that the trial court erred in
“allowing the jury unfettered access to view the video-taped testimony and access to the transcripts
during deliberation placing prejudicial emphasis on that testimony.” ECF No. 1 at 10. Lastly, in
Ground Five, Petitioner contends that the trial court erred in “replaying the witness[’s] direct
testimony” without also replaying “cross testimony and other testrimony [sic] negating what the
jury was seeking.” ECF No. 1 at 12.
A.
Evidentiary Claims
At the outset, the Court addresses the evidentiary claims because they clearly do not merit
habeas relief. In Ground Four of the Petition, as noted, Petitioner contends that the trial judge
erred in allowing the jury to have “unfettered access” to view video-taped witness testimony and
transcripts during the jury’s deliberations. ECF No. 1 at 10. More specifically, Petitioner avers
that the trial court allowed the jury to view the videotapes over the objection of Petitioner’s defense
counsel because the court “was concerned with making it easier for the jury.” Id. In Petitioner’s
view, this unfettered access, outside of the confines of the courtroom, prejudiced him in violation
of the Due Process Clause of the Fourteenth Amendment. Id. at 11. While he does not state so in
6
his Petition, his brief accompanying the Petition suggests that he is challenging the use of the child
witness’s testimony in particular.3 See ECF No. 1-1 at 28-31.
Petitioner argues, in his brief, that allowing the jury unfettered access violates New Jersey
state law, including State v. Burr, 392 N.J.Super. 538 (App. Div. 2007), inter alia. ECF No. 1-1
at 28-31. He, further, cites case law outside of the Third Circuit in support of his argument, such
as United States v. Binder, 769 F.2d 595 (9th Cir. 1985) overruled in part on other grounds by
United States v. Morales, 108 F.3d 1031 (9th Cir. 1997). Id. He cites no Supreme Court law in
support of his position, and neither is Barr nor Binder rooted in Supreme Court law. Rather, they
are based on state law jurisprudence and circuit law, respectively—two types of law that may not
form the basis for habeas relief. To secure habeas relief, a Petitioner must demonstrate that a state
court ruling is contrary to or an unreasonable application of Supreme Court precedent. Bond v.
Beard, 539 F.3d 256, 263 (3d Cir. 2008), as amended (Oct. 17, 2008) (“AEDPA bars habeas relief
unless the state court decision is contrary to or an unreasonable application of clearly established
Supreme Court law ….”) (citations omitted). Because Petitioner has not made this threshold
showing, Ground Four necessarily fails.
To be sure, in the last reasoned state court decision addressing this evidentiary challenge,
the Appellate Division considered the matter only under state, and not federal, law. See State v.
Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at pp. 28-31 (discussing State v. Burr, 195 N.J. 119
(2008)). The appellate court held that the trial court’s decision to allow the jury access to the
videotaped testimony and transcripts during its deliberations was not an abuse of that court’s
discretion, and further concluded that, even if it was, Petitioner was not prejudiced. Id. at 29-30.
3
It is possible that Petitioner intended to also challenge his own testimony. To the extent this is
the case, the Court’s analysis applies with equal force to his testimony.
7
When the jury actually requested to see the transcript of the child witness’s testimony, the
transcript was unavailable and the jury was required to come into the courtroom to view the
videotaped version of the testimony instead. Id. at 30. Noticeably, Petitioner has not challenged
the factual finding (that the jury was required to view the videotaped testimony in court) by
pointing to clear and convincing evidence in the record, and “[a] state court's factual
determinations [are] presumed to be correct, rebuttable [only] upon a showing of clear and
convincing evidence.” Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009), as corrected (July 15,
2009); see also Bond, 539 F.3d at 263 (petitioner bears the burden of rebutting presumption of
correctness).
Ground Five fails for similar reasons. In Ground Five, Petitioner contends that the trial
court erred in replaying the child witness’s testimony in full when the jury may have been satisfied
with only a partial replay of specific excerpts. See ECF No. 1-1 at 34. Again, Petitioner cites to
Burr and other state court rulings in his papers, and does not point to any Supreme Court precedent
in support of his position. The Appellate Division, in its analysis of this ground, discussed state
law and, applying a plain error standard because the issue was not raised below before the trial
court, held that Petitioner was not prejudiced by the trial court’s ruling because the video was
replayed in open court. State v. Parlin, supra, Slip Op. at p. 30, n.2. As with Ground Four,
Petitioner has not challenged this factual finding, and it is entitled to deference. Accordingly,
Ground Five does not warrant federal habeas relief.
B.
Speedy Trial Related Claims
Turning to the speedy-trial related claims, the Court first addresses Ground Three—
Petitioner’s core claim that he was denied the right to a speedy trial.
1.
Ground Three – Speedy Trial
8
In his Petition, Petitioner contends that he was “powerless to assert his right” because he
was imprisoned and was not assigned counsel until his first court appearance in November of 2006.
ECF No. 1 at 9. He further contends that he properly asserted his right because, once he was
assigned counsel, his counsel raised the speedy trial issue in an omnibus motion on May 7, 2007,
and the trial did not take place until April 16, 2008, which was nearly a year following the motion.
Id. In his brief accompanying the Petition and in his Traverse, Petitioner identifies the governing
Supreme Court precedent for speedy trial claims: Barker v. Wingo, 407 U.S. 514 (1972).
In Barker, the Supreme Court developed a balancing test comprised of four factors that
courts are to consider in assessing speedy trial claims: “[l]ength of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530. Regarding
the first factor, the Supreme Court explained “[u]ntil there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Id.
at 530-31. The second factor—the reason for the delay—involves a determination as to which
party bears responsibility for the delay. For example,
[a] deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant. Finally, a valid reason,
such as a missing witness, should serve to justify appropriate delay.
Id. at 531. For the third factor, the “defendant's assertion of his speedy trial right . . . is entitled to
strong evidentiary weight in determining whether the defendant is being deprived of the right,”
and a defendant’s failure to assert his right “makes it difficult” for him to prove that he was denied
it. Id. at 531-32. Lastly, the fourth factor of prejudice is “assessed in the light of the interests of
9
defendants which the speedy trial right was designed to protect.” Id. at 532. More specifically,
the three interests courts must consider when determining if the defendant was prejudiced are: “(i)
to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense will be impaired.” Id. To prevail on a speedy trial
claim, all four factors need not be demonstrated; rather, these are guiding factors for courts to
consider in a totality-of-the-circumstances fashion, along with other factors courts deem relevant.
Id.
Here, the Appellate Division did not set forth any reasoning in denying Petitioner’s speedy
trial claim on the merits. It noted that the claim was without sufficient merit to warrant discussion.
State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at pp. 8, 33. Therefore, the Court will look
to the trial court’s oral discussion of this issue, in connection with the omnibus motion, as the last
reasoned state court decision on the merits.
To provide context for its ruling, the trial court first detailed the pertinent procedural
history. The court explained that Petitioner was charged with the crimes that led to the instant
conviction in January of 2006, a time at which he was already being held at Ocean County
Correctional Facility on unrelated charges. Ex. 11 at 144. Then, the trial court noted, Petitioner
remained at the Ocean County facility until November 2, 2006, when he was transported to
Hunterdon County Jail. The court recited that Petitioner was indicted by the grand jury on
November 28, 2006, and subsequently arraigned on February 15, 2007.4 Id. at 144-45. According
to the court’s recitation, several status conferences were held after that date. Id. at 145.
4
Although the trial transcript reflects February 15, 2006, it is clear from the context of the trial
judge’s discussion that the transcript should indicate 2007 instead.
10
In rejecting Petitioner’s speedy trial claim, the trial court properly recited the four factors
set forth in Barker v. Wingo, along with state law cases interpreting Barker. See Ex. 11 at 153-54.
The trial court then gave its reasons on the record for denying the claim:
[D]efendant has failed to show that there was no legitimate reason for the delay in
presenting the charges to the grand jury and has also failed to show how the delay
unduly prejudiced defendant. Despite this lack of showing this Court notes that the
state attributes the delay to the complexity of the case, the involvement of numerous
agencies, the time needed to describe the other three statements involved and then
to prepare the case for presentation to a grand jury. Approximately 11 months
passed from the time defendant was charged to the time he was indicted for the
same offenses. During this time[,] defendant remained incarcerated on unrelated
charges and still has two detainers lodge[d] against him. This is the first time
defendant is asserting his right to a speedy trial. This Court is satisfied that
defendant has not suffered any undue prejudice as a result of a reasonable 11 month
delay by the state to present the case to the grand jury. For these reasons[,]
defendant’s motion . . . is denied.
Id. at 154-55.
On federal habeas review, this Court’s role is to first assess whether the state court applied
the proper Supreme Court precedent in a manner consistent with that precedent. See Fahy, 516
F.3d at 189 n.20 (quoting Shelton v. Carroll, 464 F.3d 423, 436-37 (2006)). Only when the state
court’s ruling is contrary to the Supreme Court precedent should the federal court proceed to the
second question of whether the state court’s ruling was an unreasonable application of Supreme
Court law. Id. “A state court decision is contrary to Supreme Court precedent . . . if the state court
reached a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Id.
In this case, the trial court’s decision is not contrary to Supreme Court law. The trial judge
clearly identified the proper Supreme Court precedent, Barker v. Wingo, and applied the four
factors set forth by that Supreme Court decision. With respect to the first factor, length of the
11
delay, he noted that Petitioner experienced an 11 month delay. Moving to the second factor, the
reason for the delay, the trial judge agreed with the State of New Jersey that the delay was due to
“the complexity of the case, the involvement of numerous agencies, the time needed to describe
the other three statements involved and then to prepare the case for presentation to a grand jury.”
Ex. 11 at 154. By “the three statements,” it appears that the court was referring to Petitioner’s
initial unwillingness to provide truthful testimony about the incident and his subsequent
inculpatory testimony. Addressing the third factor, the trial judge noted that Petitioner did not
raise the speedy trial issue until he filed his omnibus motion. And, in considering the final factor
of prejudice, the trial judge reasoned that an 11-month delay was reasonable, and noted that
Petitioner was already being detained on existing charges. Id. at 154-55.
By considering each of the factors set forth in Barker v. Wingo, the trial court applied the
proper legal standard. Moreover, the Supreme Court denied speedy trial habeas relief in Barker v.
Wingo on much more compelling facts than those presented here. In Barker, the defendant had
been delayed for five years and the bulk of that delay was directly attributable to the state. 407
U.S. at 534. Yet, the Supreme Court still found that no speedy trial violation had occurred.
Because the trial court’s ruling considered the relevant Barker factors, and did not decide
Petitioner’s case differently than the Supreme Court has on a set of materially indistinguishable
facts, Petitioner has not shown that the state court’s ruling is contrary to Supreme Court law.
Both Petitioner and Respondent spend considerable time in their papers arguing the
substance of each Barker factor; however, as noted, this Court’s inquiry is limited to whether the
state court’s ruling was contrary to existing Supreme Court precedent, or an unreasonable
application of that precedent. Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (“[T]he only question
that matters under § 2254(d)(1) [is] whether a state court decision is contrary to, or involved an
12
unreasonable application of, clearly established federal law.”) This Court is not at liberty to
conduct its own de novo analysis of the factors. More to the point, it is not enough for this Court,
or the parties for that matter, to simply disagree with the state court’s ruling. “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling
on the claim being presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Petitioner has not satisfied this
rigorous standard here.
2.
Ground One – Notice of Criminal Complaint
Petitioner’s Ground One is also without merit. In Ground One, Petitioner contends that,
although the initial complaint was filed against him in January of 2006, he was not served with
notice of the complaint until over 300 days later in November of 2006. Petitioner states in the
brief accompanying his Petition that the prosecutors claim that warrants were sent to Ocean County
facility in January of 2006, and a detainer was lodged against him at that time. However, Petitioner
further notes that the prosecutors blame the Ocean County facility for not making Plaintiff aware
of the charges when the facility initially received notice. ECF No. 1-1 at 6. Just as with his core
speedy trial claim, the Appellate Division noted that this claim was without sufficient merit to
warrant discussion in a written opinion. State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at
pp. 8, 33.
Petitioner cites to various state laws that he argues were violated by the state’s failure to
serve him sooner than in November of 2006, as well as the out-of-circuit decision of United States
v. Osunde, 638 F.Supp. 171 (N.D.Cal. 1986). As noted above, this Court may grant habeas relief
only for state court rulings that are contrary to or an unreasonable application of Supreme Court
13
law. And, while Petitioner cites to several Supreme Court cases—Brown v. Mississippi, 297 U.S.
278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); McNabb v. United States, 318 U.S. 332
(1943); Mallory v. United States, 354 U.S. 449 (1957); Chambers v. Mississippi, 410 U.S. 284
(1973); Matthews v. Eldridge, 424 U.S. 319 (1976)—none of those cases address notice. See
Brown, 297 U.S. at 279 (addressing admissibility of confessions procured by police brutality);
Chambers v. Florida, 309 U.S. at 227 (same); McNabb, 318 U.S. at 613 (excluding confessions
taken during delay in arraigning defendant, based on state law rule); Mallory, 345 U.S. at 455-56
(same, based on federal rule)5; Chambers v. Mississippi, 410 U.S. at 285, 294 (addressing
admission of repudiated testimony and the right to cross-examine); Matthews, 424 U.S. at 901
(post-deprivation hearings required by procedural due process). Therefore, Petitioner’s Ground
One necessarily fails because he has not demonstrated that the state court denial was contrary to
or an unreasonable application of Supreme Court precedent.
3.
Ground Two – Denial of Counsel
Finally, Petitioner contends in Ground Two that he was denied access to counsel during
the 316-day period during which he was being held at the Ocean County Facility. ECF No. 1 at 7.
While Petitioner presents this Ground as a denial of counsel claim, it is, in essence, a rehashing of
the notice argument he makes in Ground One. Indeed, Petitioner acknowledges in his Traverse
that he “is not claiming ineffective assistance of counsel in the normal sense.” ECF No. 12 at 3.
Rather, he argues that he was denied counsel at a critical stage in his criminal proceedings. He
cites to Gideon v. Wainwright, 372 U.S. 335 (1963), and United States v. Cronic, 466 U.S. 648
(1984), in support of his position, but does not explain how the state court ruling contravened these
5
Both McNabb and Mallory have been superseded by statute as stated in Corley v. United
States, 556 U.S. 303, 307, 322 (2009).
14
cases. Petitioner’s briefing on this ground does explain what information he believes his counsel
could have gathered between January and November 2006, such as information as to why the child
victim’s mother did not have her undergo a medical examination and why no clothes were
collected during the criminal investigation process. ECF No. 1-1 at 14.
As with Petitioner’s other speedy-trial related claims, on Petitioner’s direct appeal, the
Appellate Division did not explicate its reasoning for denying this claim, instead noting that it did
not warrant discussion. Neither did the trial court engage in a discussion of this issue during its
oral ruling on the omnibus motion below. Therefore, this Court is charged with “determin[ing]
what arguments or theories . . . could have supported [ ] the state court's decision; and . . . whether
it is possible fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102.
The Supreme Court cases to which Petitioner cites do not support his contention and, more
to the point, he has not demonstrated that the state court’s ruling is contrary to these decisions.
Gideon stands for the general proposition that indigent state defendants are entitled to the
appointment of counsel. See 372 U.S. at 343-45. It does not address at which stage in the criminal
prosecution process that counsel must be appointed. Cronic, which is a case about counsel
competency, notes that a defendant is entitled to counsel during critical stages of his trial, but does
not specifically speak to the provision of counsel prior to arraignment, which is the factual scenario
present here. 466 U.S. at 658-62. To be sure, there is Supreme Court precedent requiring that
counsel be provided at the time of arraignment, see Hamilton v. Alabama, 368 U.S. 52 (1961), and
Petitioner was afforded counsel at that critical stage in his prosecution. Petitioner has not pointed
to, nor has this Court’s research revealed any Supreme Court precedent mirroring the factual
scenario of this case (where a defendant did not immediately receive notice of a criminal detainer
15
lodged against him and was not appointed counsel during the pre-arraignment phase), and
concluding that a defendant was denied the right to counsel.6 Therefore, Petitioner has not
demonstrated that the state court’s denial of his Ground Two claim is contrary to or an
unreasonable application of Supreme Court law.
Accordingly, for the reasons set forth above, Petitioner is not entitled to relief on Grounds
One through Three of the Petition.
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to AEDPA, an appeal may not be taken to the Court of Appeals from a district
court’s order entered in a § 2254 proceeding unless a judge issues a certificate of appealability.
Such a certificate is issued where “the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also 28 U.S.C. § 2255(d); Gonzalez v. Thayer, -- U.S. ---, 132 S. Ct. 641, 648 (2012). In this case, the Court denies a certificate of appealability
because jurists of reason would not find it debatable that Petitioner has failed to make a substantial
showing of the denial of a constitutional right.
V. CONCLUSION
For the foregoing reasons, Petitioner’s habeas petition is DENIED. An appropriate Order
accompanies this Opinion.
6
Moreover, to the extent that Petitioner intimates in his brief that he was not apprised of his
right to counsel when he gave his videotaped testimony to the investigating officers, such an
intimation is not supported by the record. In ruling on the omnibus motion, the trial judge took
testimony on whether Petitioner was properly Mirandized. After hearing from the detectives who
interviewed Petitioner in December of 2005 and January of 2006, contrasting their testimony with
that of Petitioner, and considering a documented counsel waiver signed by Petitioner, the trial
judge concluded that Petitioner had, indeed, signed a counsel waiver and willingly participated in
the interview. See Ex. 11 at 157-170.
16
/s/
Freda L. Wolfson
Hon. Freda Wolfson, U.S.D.J.
Dated: May 29, 2015
17
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