Reininger v. Jenkins et al
Filing
36
OPINION filed. Signed by Judge Brian R. Martinotti on 7/30/2018. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DUSTIN REININGER,
Civil Action No. 14-5486-BRM
Petitioner,
v.
OPINION
ATTORNEY GENERAL OF THE STATE
OF NEW JERSEY, et al.,
Respondents.
MARTINOTTI, DISTRICT JUDGE:
Before this Court is the petition for a Writ of Habeas Corpus of Petitioner Dustin Reininger
(“Petitioner”), brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the reasons set forth below,
Petitioner’s habeas petition is DENIED, and Petitioner is DENIED a certificate of appealability.
I.
BACKGROUND
A. State Court proceedings
A Hunterdon County grand jury charged defendant Dustin Reininger with second-degree
unlawful possession of assault firearms, N.J. Stat. Ann. § 2C:39–5(f) (count one); second-degree
possession of handguns without a permit, N.J. Stat. Ann. § 2C:39–5(b) (count two); third-degree
unlawful possession of rifles, N.J. Stat. Ann. § 2C:39–5(c) (count three); third-degree unlawful
possession of shotguns, N.J. Stat. Ann. § 2C:39–5(c) (count four); fourth-degree possession of
hollow-nose bullets, N.J. Stat. Ann. § 2C:39–3(f) (count five); fourth-degree possession of a large
capacity ammunition magazine, N.J. Stat. Ann. § 2C:39–3(j) (count six); third-degree hindering
his own apprehension, N.J. Stat. Ann. § 2C:29–3(b) (count seven); and fourth-degree obstruction
of the administration of law, N.J. Stat. Ann. § 2C:29–1 (count eight). Count eight was dismissed
1
by the court prior to trial. Defendant was tried in absentia. See State v. Reininger, 430 N.J. Super.
517, 525 (App. Div. 2013).
In a published opinion affirming Petitioner’s conviction and sentence, the Superior Court of
New Jersey, Appellate Division provided the following summary of the facts underlying this
matter: 1
At approximately 3:25 a.m. on March 20, 2009, Patrolman
Gregory Wester of the Readington Township Police Department
was on routine patrol when he observed a Toyota sport utility
vehicle (SUV) with its lights off, parked behind a Wachovia Bank.
As Wester pulled into the bank’s parking lot to investigate, he turned
on his overhead lights, which activated a mobile video recorder on
his dashboard. After notifying the police dispatcher of his location,
Wester approached the vehicle with a flashlight.
Wester noticed that the vehicle had Texas license plates and
that an individual, later identified as defendant, was sleeping in the
driver’s seat under a blanket. Wester testified that when he woke
defendant, he appeared “nervous and tired.” According to Wester,
defendant “had trouble maintaining eye contact” and when asked “a
basic question he would think about it and stutter.”
Defendant provided Wester with a Texas driver’s license but
could not produce the vehicle registration or proof of insurance.
When Wester inquired about a Texas license plate on the floor near
the center console that was different from the plates on the SUV,
defendant said the plates on the vehicle had expired, and he had
difficulty installing the current plates which were in the vehicle.
Defendant also said he had been a police officer in Maine and had
stopped to rest while traveling from Maine to Texas, but defendant
was unable to produce any law enforcement identification.
Wester noticed several items “stacked” on the backseat of
the SUV, and he asked if there was anything illegal in the vehicle.
Defendant answered, “No.” Wester also asked defendant if he was
transporting any firearms, and defendant responded, “No, no, all
good.” At that point, Wester used his flashlight to illuminate the rear
1
See Reininger, 430 N.J. Super. at 525-31. The Appellate Division derived the relevant facts from
the video recording (which was shown to the jury), Wester’s affidavit in support of a search
warrant, grand jury testimony, pretrial motion hearings, and trial testimony. Id. at 526 n.1.
2
passenger compartment, and he saw two nylon firearm cases on the
backseat of defendant’s vehicle. Wester again asked if there were
any firearms in the SUV, and defendant again answered, “No.”
Wester testified, “Once I saw the firearms I didn’t say anything
about it. I didn't want to alert him. I immediately radioed for
backup.”
When a backup officer arrived, Wester confronted defendant
about the cases on the backseat of the vehicle. Wester said he saw
“a case in there that looks very, very similar to what I have in my
house for my long arm, so I’m going to ask you again [are] there any
firearms in the car.” This time, defendant admitted he had “long
arms that [he was] moving to Texas,” which were registered in
Texas. Defendant was ordered out of the vehicle and patted down
for weapons, but none were found.
After two more officers arrived, Wester asked for consent to
search the vehicle. Defendant denied consent. Wester asked how
many firearms were in the vehicle, and defendant answered, “Three
shotguns [and] an AR–15.” Wester also asked if there were any
handguns in the SUV. Defendant said he was “not sure,” even
though he acknowledged he had packed the vehicle.
Wester then opened the back door of defendant’s SUV and
removed the two nylon cases. Wester testified he did so “for safety
reasons” and to make sure the firearms were being “transported in a
safe manner.” As Wester was examining the cases, defendant told
another officer there were “approximately twelve firearms” in the
vehicle, including “a loaded Glock handgun” behind the driver’s
seat. Once defendant admitted there was a loaded handgun in his
vehicle, he was charged with hindering his own apprehension,
advised of his Miranda rights, and handcuffed. Wester then returned
the firearm cases to the vehicle, and it was towed to the Readington
Township Police Department. Later that same morning, Wester
applied for and obtained a search warrant.
A search of defendant’s vehicle revealed twenty-one
firearms, including rifles, shotguns, and handguns. In addition, the
police recovered hollow-nose bullets from the Glock handgun and a
large capacity magazine.
When Wester testified before the grand jury, he provided a
summary of the firearms and other items recovered from
defendant’s vehicle. He also stated that defendant’s SUV did not
have a trunk, but rather a “rear compartment,” and that defendant
did not have a New Jersey permit to purchase or carry firearms or a
New Jersey firearms purchaser ID card.
Wester explained that several of the rifles and shotguns were
located on the backseat of defendant’s vehicle and were stored in
3
either nylon or cloth cases that closed with zippers or Velcro flaps,
and none of the firearms were in locked containers. One of the grand
jurors asked whether defendant would have been charged if the
firearms were “locked in a box and separated.” The prosecutor
responded:
No. There are actually some exceptions to the requirements.
. . . Basically, if someone is moving . . . from Residence A [to]
Residence B, or transporting, say, for example, they just purchased
it, so they can transport it to their home, if they are properly secured,
locked in a trunk, locked in a special lockbox and unloaded, then
that would most likely provide an exception to these requirements,
and therefore a defense to being charged.
So, that is a factor to consider how the weapons were
contained and, again, whether they were loaded, whether they were
in a lockbox.
The prosecutor also read the exemption for transporting
firearms under [N.J. Stat. Ann.] § 2C:39–6(g), which requires a
firearm to “be carried unloaded and contained in a closed and
fastened case, gunbox, securely tied package, or locked in the trunk
of the automobile in which it is being transported.”
Defendant filed three pretrial motions: a motion to dismiss
the indictment, a motion to suppress evidence obtained with and
without a search warrant, and a motion to suppress his statements to
the police. Wester was the only witness to testify at the suppression
hearing. Except for dismissing count eight of the indictment, which
charged defendant with obstructing the administration of law, the
court denied the motions on March 8, 2010.
During a pretrial conference on April 16, 2010, the court
informed defendant of his right to be present at trial and that the trial
was scheduled for August 9, 2010. The court also informed
defendant that if he failed to appear, the trial could proceed in his
absence. Defendant stated that he understood. Nevertheless,
Defendant failed to appear for his trial, which began on August 9,
2010, and his attorney could not explain his absence.
The State presented testimony from Detective Donald
Mundorff, a member of the New Jersey State Police Firearms
Investigation Unit. He testified Defendant had not applied for a New
Jersey firearms ID card, pistol purchase permit, carrying permit, or
a permit for an assault weapon. Mundorff conceded on crossexamination, however, that a Maine resident who purchased
firearms in Maine would not be required to obtain New Jersey
permits or firearms purchaser’s ID cards to transport the firearms
through New Jersey, so long as the firearms were transported in
4
accordance with 18 U.S.C.A § 926A, which regulates the interstate
transportation of firearms. . . .
In addition, the State called Wester and Detective Sergeant
Ryan Neiber to document the location of the firearms and additional
items recovered from defendant's SUV through digital photography.
Wester testified the SUV did not have a trunk, and some rifles and
shotguns were in unlocked nylon or vinyl cases on the backseat of
defendant’s vehicle. According to Wester, the rest of the rifles and
shotguns were in “gun socks.” Wester testified the gun socks had
“an opening on one end with Velcro. Just open the Velcro and you
can slide the gun out of the gun sock.” Wester also testified that the
Glock handgun, recovered from behind the driver’s seat, was loaded
with hollow-nose bullets.
The State’s final witness, Detective Gary Mayer, a ballistics
expert with the Somerset County Prosecutor’s Office, was
responsible for determining whether the firearms were operable.
Except for one shotgun that was broken, Mayer examined and testfired each of the firearms and found them to be operational. Mayer
also testified that an ammunition magazine recovered from the
vehicle, which held approximately thirty bullets, was compatible
with two of the semi-automatic weapons he tested.
Defendant did not present any witnesses. Defense counsel
emphasized in his opening and closing statements that defendant
was in the process of traveling from his “old residence in Maine” to
his “new residence in Texas,” and that it was lawful for defendant
to transport his firearms from “one residence [to] another residence
while moving.” Defendant’s attorney also argued that some of the
firearms cases had zippers that were “closed and fastened” and the
cases that did not have zippers were not “any less worthy.”
Therefore, defendant “was within the exemptions of the federal
law.” In response, the State stressed that the Glock handgun was
loaded, none of the firearms were in locked containers, and the
firearms on the backseat of defendant's vehicle were readily
accessible from the driver’s seat.
The court instructed the jury to consider both state and
federal laws regulating the transportation of firearms. The jury was
instructed that defendant had a defense under New Jersey law,
N.J.S.A. 2C:39–6(g), if: (1) he was “carrying or transporting” the
firearms “from one residence to another or between his residence
and place of business”; (2) “the firearms being transported were
carried unloaded”; and (3) “the firearms were contained in a closed
and fastened case, gunbox, securely tied package, or locked in the
trunk” of defendant's vehicle. The jury was told to “consider the
evidence as it pertained to each firearm” in determining whether the
defense applied.
5
The jury was further instructed that defendant had a defense
under federal law if he was transporting the firearms, including any
assault firearms, “from one residence where he may lawfully
possess and carry” the firearms “to any other place where he may
lawfully possess and carry” the firearms; the firearms “being
transported were carried unloaded”; and neither the firearms nor any
ammunition were “readily accessible” or “directly accessible” from
the passenger compartment of the vehicle.
Reininger, 430 N.J. Super. at 525-31.
On August 13, 2010, the jury acquitted Petitioner of unlawful possession of assault firearms
and handguns without a permit (counts one and two) but convicted him of the remaining charges.
See id. at 524. On November 18, 2011, the court sentenced Petitioner as follows: on counts three
and four, to five years imprisonment with a mandatory minimum three-year period of incarceration
pursuant to the Graves Act, N.J. Stat. Ann. § 2C:43–6(c); on counts five and six, to eighteen
months imprisonment; and on count seven, to three years imprisonment. Id. The court ordered
the sentences to run concurrently. Id. Therefore, Petitioner was sentenced to an aggregate fiveyear term of imprisonment with a three-year period of parole ineligibility. Id. at 524-25.
Petitioner appealed, and on May 20, 2013, the Appellate Division affirmed his conviction
and sentence in a published opinion. See id. at 539. Petitioner sought certification, and his petition
was denied on December 6, 2013. State v. Reininger, 216 N.J. 367 (2013).
B. Habeas Proceedings
Petitioner’s habeas petition was docketed on August 26, 2014, in the Southern District of
Texas, where Petitioner resides. 2 (See ECF No. 1.) Because Petitioner challenged firearms and
related convictions entered in the Superior Court of New Jersey, the District Court for the Southern
2
Petitioner was still on parole supervision in New Jersey at the time he filed his Petition and was
subject to supervision by the Texas parole authorities. (See ECF No. 8, Order of the Honorable
Nelva Gonzales Ramos, dated August 29, 2014 at pages 1-2.) Thus, he meets the custody
requirement for habeas petitions. See Jones v. Cunningham, 371 U.S. 236, 242 (1963).
6
District of Texas transferred the matter to this District. (See ECF Nos. 8-9.) The Petition raises
twelve grounds for relief. (See ECF No. 1, Pet. at 3-15.)
On September 18, 2014, Petitioner submitted what he characterized as an “Amendment”
to his Petition that did not raise any additional grounds for relief. (ECF No. 12.) On September
26, 2014, the Court advised Petitioner of his rights pursuant to Mason v. Meyers, 203 F.3d 414 (3d
Cir. 2000), and Petitioner elected to have his Petition ruled on as filed. (ECF Nos. 14, 17.) The
Court ordered Respondent to file an Answer to the Petition. (ECF No. 18.) On December 12,
2014, Respondent filed its Answer, arguing in part that certain claims were unexhausted and that
the petition should be dismissed as a mixed petition. (ECF Nos. 20, 22.) Petitioner sought and
received several extensions of time within which to file his traverse and filed his traverse on July
1, 2015. (ECF Nos. 26, 28.)
On October 7, 2015, Judge Sheridan recused himself and the matter was assigned to the
Honorable Freda L. Wolfson. (ECF No. 31.) On August 8, 2016, the matter was reassigned to the
undersigned. (ECF No. 32.)
On August 9, 2017, the Court determined some of Petitioner’s claims were unexhausted
and issued an Order directing Petitioner to show cause as to why his Petition should not be
dismissed as a mixed petition. (ECF No. 33.) The Court provided Petitioner with thirty days to
either withdraw his unexhausted claims and have the Court rule on his remaining claims or request
a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). On September 6, 2017, Evan Feit
Nappen, Esquire, entered an appearance on behalf of Petitioner, and informed the Court that
Petitioner elected to withdraw his unexhausted claims and proceed on his exhausted claims. (See
ECF Nos. 34, 35.)
7
II.
LEGAL STANDARD
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n 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.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition. See Price v. Vincent, 538 U.S. 634, 641 (2003); Harrington v. Richter,
562 U.S. 86, 98 (2011). District courts are required to give great deference to the determinations
of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(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)(1)–(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). “When reviewing state
criminal convictions on collateral review, federal judges are required to afford state courts due
respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual determination of
the state courts, “a determination of a factual issue made by a State court shall be presumed to be
correct [and the] applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
8
In addition to the above requirements, a federal court may not grant a writ of habeas corpus
under § 2254 unless the petitioner has “exhausted the remedies available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all federal claims to the
highest state court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This
requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173
(3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)). Nevertheless, to the extent
that a petitioner’s constitutional claims are unexhausted, a court can nevertheless deny them on the
merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007);
Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).
III.
DECISION
A. Unexhausted Claims
The Court first addresses the unexhausted claims. To satisfy the exhaustion requirement,
“state prisoners must give the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate review process.” O'Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). “The burden is on the habeas petitioner to prove
exhaustion.” DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005). The exhaustion doctrine
mandates that the claim “must have been ‘fairly presented’ to the state courts.” Bronshtein v. Horn,
404 F.3d 700, 725 (3d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “Fair
presentation means that a petitioner must present a federal claim’s factual and legal substance to
the state courts in a manner that puts them on notice that a federal claim is being asserted.” Rainey
v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (citations omitted). In sum, the exhaustion doctrine
9
requires the petitioner to afford the state courts “the opportunity to resolve the federal
constitutional issues before he goes to the federal court for habeas relief.” Id. (quoting Zicarelli
v. Gray, 543 F.2d 466, 472 (3d Cir.1976)); see also Gould v. Ricci, No. 10-1399, 2011 WL
6756920, at *2 (D.N.J. Dec. 19, 2011) (explaining same). The exhaustion doctrine thus requires
a petitioner challenging a New Jersey conviction under § 2254 to have fairly presented each federal
ground that is raised in the petition to all three levels of the New Jersey courts, that is, the Law
Division, the Appellate Division, and the New Jersey Supreme Court. See O'Sullivan, 526 U.S.
at 838; Rose v. Lundy, 455 U.S. 509 (1982).
In its Answer, Respondent argued the Petition must be dismissed as a mixed petition
because Grounds Four, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve are unexhausted, as
Petitioner failed to raise these issues to the New Jersey Supreme Court in his Petition for
Certification. (See Petition for Certification to the New Jersey Supreme Court (ECF No. 22-7).)
Indeed, Grounds Four, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve appear unexhausted
because Petitioner did not raise them as grounds for relief in his Petition for Certification. 3 Instead,
Petitioner raised the following three errors:
POINT I
EITHER A CITIZEN IS REQUIRED TO SURRENDER HIS FOURTH AMENDMENT
RIGHTS WHEN EXERCISING HIS SECOND AMENDMENT RIGHT, OR THE
3
Ground Four raises a Miranda claim; Ground Six challenges the warrants obtained to search his
vehicle; Ground Seven challenges characterizations by the Appellate Division, including a
statement that Petitioner had a “loaded firearm;” Ground Eight challenges statements made by the
Prosecutor to the grand jury and at trial; Ground Nine alleges Petitioner’s Equal Protection rights
were violated when he was allegedly profiled for being a Texas resident; Ground Ten alleges his
conviction for possession of a large capacity ammunition magazine violates the Second
Amendment; Ground Eleven alleges his conviction for possession of hollow-point bullets violates
the Second Amendment; and Ground Twelve alleges his constitutional rights were violated by his
trial by jury in absentia. (Pet. ECF No. 1 at 7-15.)
10
APPELLATE DIVISION ERRED IN ITS APPLICATION OF THE PLAIN VIEW
DOCTRINE.
POINT II
EVEN IF THE PLAIN VIEW DOCTRINE APPLIED IN THIS MATTER, THE OFFICER
STILL VIOLATED THE PETITIONER’S FOURTH AMENDMENT RIGHTS WHEN HE
ENTERED THE VEHICLE AND SEIZED PETITIONER’S PROPERTY WITHOUT A
WARRANT, CONSENT, OR EXIGENCY, AND THE APPELLATE DIVISION
DECISION IS IN CONFLICT WITH EXISTING CASE LAW ON THIS ISSUE.
POINT III
PETITIONER’S TRANSPORTATION OF HIS LAWFULLY OWNED FIREARMS
FROM HIS PRIOR HOME IN MAINE TO HIS NEW HOME IN TEXAS WAS
PROTECTED BY THE SECOND AMENDMENT.
(Pet. for Certification, ECF No. 22-7 at 8-19.)
In response to the Order to Show Cause issued by this Court, Evan Feit Nappen, Esquire,
entered an appearance on behalf of Petitioner on September 6, 2017, and informed the Court
Petitioner has elected to withdraw these unexhausted claims and proceed on his exhausted claims.
(See ECF Nos. 34, 35.) Because Grounds Four, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve
are unexhausted, and Petitioner has elected to withdraw these claims and proceed on his remaining
claims, the Court will now deem these claims withdrawn and address the remaining claims.
B. Petitioner’s Remaining Habeas Claims
i. Petitioner’s Conduct is Not Protected by the Second Amendment or
The Firearm Owners’ Protection Act, 18 U.S.C. § 926A (Ground One)
In Ground One of the Petition, Petitioner argues his convictions under New Jersey’s “gun
control scheme” violate the Second Amendment. Petitioner raised this argument on direct appeal
and in his Petition for Certification, and the Appellate Division rejected it as follows:
In his final argument, defendant claims his convictions
should be reversed because “New Jersey’s gun control scheme”
violates his right under the Second Amendment of the United States
Constitution to keep and bear arms. We disagree. The Second
Amendment does not create “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.”
District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783,
2816, 171 L.Ed.2d 637, 678 (2008). Furthermore, the Second
11
Amendment does not preclude the State from regulating the manner
in which firearms and related accessories must be transported. See
e.g., State v. Hatch, 64 N.J. 179, 188–89, 313 A.2d 797 (1973)
(applying New Jersey's statutory requirements to a Massachusetts
resident driving through New Jersey on his way to Pennsylvania).
State v. Reininger, 65 A.3d 865, 878 (App. Div. 2013).
Petitioner’s argument relies primarily on District of Columbia v. Heller, 554 U.S. 570
(2008) and McDonald v. Chicago, 561 U.S. 742 (2010). In Heller, the Supreme Court held that
the District of Columbia’s “ban on handgun possession in the home . . . [and] its prohibition against
rendering any lawful firearm in the home operable for the purpose of immediate self-defense”
violated the Second Amendment. Heller, 554 U.S. at 635. In so holding, the Court found the
Second Amendment “conferred an individual right to keep and bear arms.” Id. at 595. In
McDonald, the Court held “the Second Amendment right is fully applicable to the States.” 561
U.S. at 750. The holdings of Heller and McDonald, however, dealt exclusively with guns in the
home. Petitioner appears to ask the Court to view his truck as an extension of his home and/or
extend Heller’s limited recognition of the right to keep and bear arms to the transportation of
firearms; however, for state law prisoners seeking relief under § 2254, federal law is clearly
established only where it is clearly expressed in the holdings of the opinions of the United States
Supreme Court. See Woods, 135 S. Ct. at 1376. Here, the Appellate Division did not unreasonably
apply Heller and McDonald by finding that these decisions do not extend to gun possession outside
the home or the manner in which guns may be transported. As such, Petitioner is not entitled to
habeas relief on his claim that his convictions under the New Jersey’s gun control scheme violate
the Second Amendment.
In Ground One of the instant Petition, Petitioner also argues his conduct was protected by
The Firearm Owners’ Protection Act (“FOPA”), 18 U.S.C. § 926A, and appears to contend the
12
trial court erred in denying his motion to dismiss the indictment. Petitioner raised his challenge
to the indictment on direct appeal, and the Appellate Division rejected it as follows:
In his first point, defendant argues the trial court erred in
denying his motion to dismiss the indictment. Defendant primarily
claims the indictment is defective because the prosecutor failed to
instruct the grand jury on 18 U.S.C.A. § 926A. The trial court
rejected this argument and so do we.
The purpose of the grand jury is to “determine whether the
State has established a prima facie case that a crime has been
committed and that the accused has committed it.” State v. Hogan,
144 N.J. 216, 227, 676 A.2d 533 (1996). The grand jury “is an
accusative rather than an adjudicative body,” and requiring it “to
weigh inculpatory and exculpatory evidence would alter the grand
jury’s historical role.” Id. at 229–30, 676 A.2d 533. Accordingly, a
prosecutor’s duty to present exculpatory evidence “arises only if the
evidence satisfies two requirements: it must directly negate guilt and
must also be clearly exculpatory.” Id. at 237, 676 A.2d 533. In this
case, defendant’s SUV did not have a trunk. Therefore, the
exemption under the federal statute, 18 U.S.C.A. § 926A, only
applied if defendant’s firearms were stored “in a locked container
other than the glove compartment or console” of his vehicle. In
addition, the federal exemption did not apply because the firearms
in the unlocked gun cases on the backseat of the SUV and the loaded
handgun behind the driver’s seat were “directly accessible” to
defendant. Thus, the prosecutor did not improperly interfere with the
grand jury’s decision-making process by failing to explain the
federal exemption available to interstate travelers, and the trial
court’s refusal to dismiss the indictment was not an abuse of
discretion.
Reininger, 430 N.J. Super. at 531–32. Although Petitioner raised this issue on direct appeal, he
did not raise this issue in his Petition for Certification, and, therefore, this aspect of Ground One
appears to be unexhausted. The Court, however, is free to deny this claim on the merits pursuant
to 28 U.S.C. § 2254(b)(2). See Taylor, 504 F.3d at 427; Bronshtein, 404 F.3d at 728.
By way of background, FOPA allows gun owners licensed in one state to carry firearms
through another state under certain circumstances. See Revell v. Port Auth. of New York, New
Jersey, 598 F.3d 128, 130, 139 (3d Cir. 2010). The relevant statutory provision reads as follows:
13
Notwithstanding any other provision of any law or any rule or
regulation of a State or any political subdivision thereof, any person
who is not otherwise prohibited by this chapter from transporting,
shipping, or receiving a firearm shall be entitled to transport a
firearm for any lawful purpose from any place where he may
lawfully possess and carry such firearm to any other place where he
may lawfully possess and carry such firearm if, during such
transportation the firearm is unloaded, and neither the firearm nor
any ammunition being transported is readily accessible or is directly
accessible from the passenger compartment of such transporting
vehicle: Provided, That in the case of a vehicle without a
compartment separate from the driver’s compartment the firearm or
ammunition shall be contained in a locked container other than the
glove compartment or console.
18 U.S.C. § 926A. By its plain language, FOMA allows an individual to transport a gun if it is
unloaded and neither the gun nor ammunition is readily accessible from the passenger
compartment. In the case of a vehicle without a compartment separate from the passenger’s
compartment, the gun must be in a locked container.
Petitioner contends the trial court erred in denying his motion to dismiss the indictment
based on the § 926A defense. In a federal criminal case, “[a]n indictment returned by a legally
constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge
on the merits.” Costello v. United States, 350 U.S. 359, 363 (1956); see also United States v. Vitillo,
490 F.3d 314, 320 (3d Cir. 2007). “As a general matter, a district court may not dismiss a [federal]
indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Bank
of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). “[D]ismissal of the indictment is
appropriate only ‘if it is established that the violation substantially influenced the grand jury’s
decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free from the
substantial influence of such violations.” Id. at 256 (citation omitted).
Notably, the Fifth Amendment right to a grand jury presentation in felony cases is not
applicable to the states. Alexander v. Louisiana, 405 U.S. 625, 633 (1972). Thus, any claim of
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defect in a state grand jury proceeding is a claim of a state-law error that does not raise federal
constitutional concerns unless it rises to the level of a due process deprivation. See Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Cf. U.S. v. Console, 13 F.3d 641, 671–72 (3d Cir .1993) (with
the exception of a claim of racial discrimination in the selection of grand jurors, a petit jury’s guilty
verdict renders harmless any prosecutorial misconduct before the indicting grand jury) (citing
Vasquez v. Hillery, 474 U.S. 254 (1986)). Where any error in a state grand jury proceeding is
rendered harmless by a subsequent petit jury verdict, there is no due process deprivation. See, e.g.,
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.1989); United States v. Mechanik, 475 U.S. 66, 72–73
(1986) (involving a violation of Fed.R.Crim.P. 6(d)); see also Vandever v. Atty. Gen. for State of
New Jersey, No. 04-0877, 2006 WL 1541035, at *6 (D.N.J. June 2, 2006) (explaining same).
Here, the petit jury was presented with and instructed on the § 926A defense, see Reininger,
430 N.J. Super. at 529-31, and found Petitioner guilty of the crimes charged beyond a reasonable
doubt, rendering harmless any potential error in the state grand jury proceedings. Thus, Petitioner
is not entitled to relief on this claim.
ii. Review of Petitioner’s Fourth Amendment Claims (Grounds Two,
Three & Five) is Precluded by Stone v. Powell, 428 U.S. 465, 494
(1976)
In Grounds Two, Three, and Five, Petitioner contends he was denied his rights under the
Fourth Amendment when police searched his vehicle and seized his firearms, and that his
statement following the illegal search and seizure should have been suppressed as fruit of the
poisonous tree. The Supreme Court has held that violations of the Fourth Amendment do not
provide grounds for federal habeas corpus relief from a state conviction if the petitioner has had a
full and fair opportunity to litigate such claims at the state level. See Stone v. Powell, 428 U.S.
465, 494 (1976). In Stone v. Powell, the Court announced the following rule:
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[W]here the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at
his trial.
428 U.S. at 494 (footnotes omitted); Gilmore v. Marks, 799 F.2d 51, 54 (3d Cir. 1986). “While
the federal courts are not thus deprived of jurisdiction to hear the claim, they are—for prudential
reasons—restricted in their application of the exclusionary rule.” Marshall v. Hendricks, 307 F.3d
36, 81 (3d Cir. 2002) (citing Stone, 428 U.S. at 494 n.37).
The Third Circuit has recognized limited instances in which a full and fair opportunity to
litigate was denied to a habeas petitioner, such as cases “where a structural defect in the system
itself prevented [the Petitioner’s] claim from being heard.” Marshall, 307 F.3d at 82 (citing Boyd
v. Mintz, 631 F.2d 247, 250–51 (3d Cir. 1980); Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir.1986)
(observing that a state’s “failure to give at least colorable application of the correct Fourth
Amendment constitutional standard” might amount to a denial of the opportunity for full and fair
litigation)). As explained by the Third Circuit in Marshall, “[a]n erroneous or summary resolution
by a state court of a Fourth Amendment claim does not overcome the bar.” Id. (citation omitted).
Likewise, allegations “that the Fourth Amendment claims were decided incorrectly or
incompletely by the New Jersey courts” are “insufficient to surmount the Stone bar.” Id. By
“summar[il]y” or even “erroneous[ly]” addressing a petitioner’s Fourth Amendment suppression
claim, state courts bar federal review. Marshall, 307 F.3d at 82.
Here, there is no question the trial court and the Appellate Division heard and rejected
Petitioner’s Fourth Amendment claims. (See Hearing Transcripts dated 2/17/10, 2/18/10, 3/8/10
(ECF Nos. 22-14, 22-15, 22-16)); see also Reininger, 430 N.J. Super. 533-38. Because the state
courts heard and considered Petitioner’s Fourth Amendment claims, Petitioner was afforded a full
and fair opportunity to litigate them. Accordingly, federal habeas corpus review of Petitioner’s
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Fourth Amendment claims is precluded by Stone v. Powell, and habeas relief is denied on Grounds
Two, Three, and Five.
C. Certificate of Appealability
Petitioner has not made a substantial showing of the denial of a constitutional right; as
such, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See Fed. R.
App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
IV.
CONCLUSION
For the reasons stated above, the Court deems Grounds Four, Six, Seven, Eight, Nine,
Ten, Eleven, and Twelve of the Petition to be withdrawn; the remaining claims are DENIED,
and Petitioner is DENIED a certificate of appealability. An appropriate order will follow.
Date: July 30, 2018
/s/ Brian R. Martinotti
_____
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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