NAYEE v. D'ILIO et al
Filing
41
OPINION filed. Signed by Judge Peter G. Sheridan on 4/23/2021. (jem)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
ANIL NAYEE,
:
:
Petitioner,
:
Civ. No. 15-1288 (PGS)
:
v.
:
:
STEPHEN D’ILIO, et al.,
:
OPINION
:
Respondents.
:
_________________________________________ :
PETER G. SHERIDAN, U.S.D.J.
I.
INTRODUCTION
Petitioner, Anil Nayee (“Nayee” or “Petitioner”), is a state prisoner proceeding pro se
with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the
following reasons, the amended habeas petition is denied. A certificate of appealability shall only
issue on two of Petitioner’s claims.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background giving rise to Petitioner’s judgment of conviction in state court is
taken from the New Jersey Superior Court, Appellate Division’s July 5, 2007 opinion in
Petitioner’s initial direct appeal.
Defendant Anil Nayee appeals from a January 28, 2005 judgment
of conviction, entered following a trial by jury for murder, N.J.S.A.
2C:11-3a(a1), (2) (count one); possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4d (count two); and possession
of a prohibited weapon, N.J.S.A. 2C:39-5d (count three). The
judge sentenced the defendant to a prison term of fifty years with
an eighty-five percent parole disqualifier for count one and merged
the two remaining counts into the first. . . .
Defendant, an immigrant from India, came to America in 1980 to
live with his grandparents. He participated in an arranged marriage
that was not fulfilling, but both his parents and his wife’s parents
forbade a divorce. Nonetheless, defendant began to date Ann
Mendez, whom he met while they were both taking college classes
at Rutgers University in Newark. Mendez attended the university
part-time at night and worked during the day at a bank in Jersey
City. Defendant would often pick her up at the end of her work
shift, occasionally arriving up to two hours before the end of the
shift and waiting for her.
After defendant and Mendez had dated for approximately six
months without incident, their relationship faltered. For example,
one of Mendez’ coworkers noticed that she had bruises on her face,
which prompted the coworker to call defendant and to tell him that
if he ever hurt Mendez again, she would tell the police and would
help Mendez obtain a restraining order.
In addition, in Spring, 2001, after Mendez had changed jobs, she
was introduced to Mohammed Gayyoor, who was installing a new
computer system at her former bank. While he was working on the
project, they saw each other almost every day, and they maintained
a long distance relationship when Gayyoor returned to Oklahoma
at the completion of the project.
On October 11, 2001, at some point before 6:00 p.m., Mendez and
defendant were seen arguing on a street corner in Newark. Mendez
was attempting to get to her Account Fundamentals class, but
defendant blocked her path and would not let her pass. Defendant
seemed upset at Mendez and was raising his voice at her. Later,
when Mendez finally made it to class, defendant watched her
through the window in the door of the classroom. When class was
over, around 9:00 p.m., defendant was again seen arguing with
Mendez.
Gayyoor, who was familiar with Mendez’ class schedule, normally
received a call from Mendez during the break and at the end of her
class. However, on October 11, 2001, Mendez did not call him.
Gayyoor called her cell phone repeatedly, but no one answered the
phone. Eventually, he received a call from her phone, but someone
other than Mendez was on the line. It was a male, who identified
himself as Mendez’ ex-boyfriend. When Gayyoor responded that
he was her current boyfriend, the caller hung up. Following this
exchange, Gayyoor repeatedly called Mendez’ cell phone and
either no one would pick up or someone would answer and
immediately hang up. Later that night, the same male who had
called, answered Mendez’ phone and told Gayyoor that Mendez
was dead. Gayyoor then called Mendez’ mother and she called the
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Jersey City police department and told them her daughter was
missing.
On the morning of October 12, 2001, Lieutenant David LaPoint of
the Carteret Police Department received a phone call from a local
attorney, Louis Kady. Kady asked LaPoint to come to the parking
lot of his building on Washington Avenue. Upon his arrival,
LaPoint saw defendant in the parking lot near a Mitsubishi
automobile, talking on his phone. As he approached, LaPoint
noticed dried blood on the defendant’s hands, pants, undershirt and
on his neck. Defendant handed LaPoint his phone and said, “This
is my lawyer.”
After he arrested defendant, LaPoint looked inside the car where
he saw blood on the console and between the two seats. He opened
the door, moved a blanket that was in the back seat, and discovered
Mendez’ body. Thereafter, defendant’s clothing was seized as
evidence and DNA testing revealed that Mendez’ blood was on
defendant’s shirt and pants. Also seized was a receipt from a RiteAid store located on Market Street in Newark, dated October 11,
2001, which detailed the purchase of a utility knife, a screwdriver,
and a hammer at 6:23 p.m. that evening. Defendant’s vehicle was
impounded and, in it, police found a black bag containing a
screwdriver, blanket, utility knife and blade. Bloodstains on the
knife were determined to be from more than one sources.
Defendant was the primary contributor to those bloodstains, but
Mendez could not be excluded as a partial contributor.
Dr. Geetha Ann Natarajan, the Middlesex County Medical
Examiner, testified at trial that she performed the autopsy of
Mendez on October 13, 2001. Her examination revealed that
Mendez’ hands and left arm had been sliced with a knife and that
she had been stabbed in the neck. Such wounds could have been
caused by the knife found in defendant’s possession. Dr. Natarajan
was of the opinion the stab wound to Mendez’ neck would have
caused her to aspirate blood into her windpipe and lungs with each
breath, resulting in her death.
On October 16, 2001, defendant was taken from the jail to the
emergency room of the mental health center at Robert Wood
Johnson Hospital because a medical technician at the jail felt
defendant needed to be hospitalized for his own protection. Based
on her observations, the technician noted that defendant had
impaired insight, his judgment was grossly impaired, and he
claimed he was hearing and seeing God in the room. Following an
examination at the hospital by Dr. Waldburg Zomorodi, defendant
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was involuntarily committed for psychiatric care. Dr. Zomorodi
testified at trial that his diagnosis was that defendant was suffering
from depression with psychotic features. Dr. Zomorodi opined
that, within a reasonable degree of psychiatric certainty, defendant
was suffering from a severe mental illness on October 11, 2001,
and was probably psychotic that day.
Following his involuntary commitment to the Ann Klein Forensic
Center, defendant was prescribed numerous medications. He
remained there, under supervision, until October 10, 2002, when
was discharged to the county jail. Upon his discharge, one of his
treating physicians diagnosed defendant as suffering from a major
depressive disorder and noted that he should continue to receive
his antipsychotic medications, antidepressants and mood
stabilizers.
Several of defendant’s treating physicians testified about their
treatment of him while he was at Ann Klein. Also testifying on
behalf of defendant was Dr. Robert Latimer, who was qualified as
an expert in the area of forensic psychiatry. According to Dr.
Latimer, defendant was delusional and hallucinating and he
thought that someone on television was discussing him and that
God was addressing him. Based no this, Dr. Latimer opined that
defendant was depressed with psychotic features and that he was
paranoid and heard command hallucinations.
Defendant did not testify in his own behalf at trial, but Dr. Latimer
testified about what defendant told him of his relationship with
Mendez. As related by defendant, they dated, were sexually
intimate, and he wanted to marry her but family pressure would not
allow him to divorce his current wife. On the night of the murder,
defendant said he heard voices “with compelling force telling him
‘kill, kill and you die, die.’” Defendant indicated he had heard such
command hallucinations before, but these particular hallucinations
were “extremely urgent, extremely compelling.” He could not
control himself and he began to cut Mendez with the utility knife.
Dr. Latimer posited that, as a result of mental disease, defendant
could not form the purpose to kill, but rather, he was simply
obeying the voices, and that defendant’s illness caused “a sudden
impulsive homicidal act.”
In spite of the defenses relating to defendant’s mental condition,
the jury returned a verdict finding him guilty of all three counts
charged in the indictment.
(ECF 20 at 31-37).
4
The New Jersey Superior Court, Appellate Division, affirmed Petitioner’s judgment and
conviction on July 5, 2007. (See id. at 31-56). On September 20, 2007, the New Jersey Supreme
Court granted Petitioner’s petition for certification “limited solely to the issue of the trial court’s
refusal to consider the record before it in respect of defendant’s mental illness as a mitigating
factor under N.J.S.A. 2C:44-1b(4) in arriving at its sentence[.]” (ECF 20 at 57). Accordingly, the
case was summarily remanded to the trial court for resentencing. (See id.)
On November 2, 2007, the New Jersey Superior Court sentenced Petitioner to the same
fifty-year sentence. (See ECF 26-5 at 6). The Appellate Division affirmed this decision on
October 21, 2009. (See ECF 20 at 59). The New Jersey Supreme Court denied certification on
January 28, 2010. (See id. at 60).
As Petitioner was proceeding with his remanded criminal proceedings, he also attempted
to bring a post-conviction relief (“PCR”) petition. On July 1, 2008, Petitioner filed a PCR
petition with the New Jersey Superior Court. (See ECF 26-10). However, on March 9, 2009, the
New Jersey Superior Court denied the PCR petition without prejudice because Petitioner’s direct
appeal was still pending. (See ECF 26-11).
In December, 2009, Petitioner filed a pro se motion to reconsider PCR relief and
requested to hold his PCR petition in abeyance with the New Jersey Superior Court. (See ECF
26-12; 26-13). Respondents state this motion was never addressed nor ruled upon by the
Superior Court. (See ECF 25 at 36). However, as the Appellate Division later noted, this
December, 2009 filing was determined to be a second PCR petition, which was held without
action while Petitioner’s petition for certification on his direct appeal was pending before the
New Jersey Supreme Court. (See ECF 26-20 at 5 n.2). On August 11, 2011, Petitioner, now
acting through counsel, filed an amended PCR petition with the New Jersey Superior Court. A
5
PCR hearing was held on January 19, 2012. (See ECF 26-16). The Superior Court issued an oral
decision denying PCR on that date. (See id. at 28-39). It then issued a written order on January
23, 2012. (See ECF 26-17). The Appellate Division affirmed the PCR denial on May 28, 2014.
(See ECF 26-20). The New Jersey Supreme Court denied certification on December 5, 2014.
(See ECF 27-1).
Pursuant to the prisoner mailbox rule, Petitioner filed his initial federal habeas petition in
in this Court on February 13, 2015. See Houston v. Lack, 487 U.S. 266, 270–71 (1988).
Petitioner also filed a motion to stay. (See ECF 3). On September 9, 2015, this Court granted the
stay so Petitioner could pursue further PCR proceedings in state court. (See ECF 10).
On August 27, 2015, the PCR Court denied Petitioner’s newly filed PCR petition. It
noted Petitioner’s claim that the trial judge erred in conducting an ex parte interview with a juror
was procedurally barred. (See ECF 27-11 at 3-4). Furthermore, it noted Petitioner’s claim that
trial and appellate counsel were ineffective in failing to raise this issue was previously
adjudicated in Petitioner’s prior PCR proceeding. (See id.). On April 4, 2017, the Appellate
Division affirmed. (See ECF 27-14). On October 16, 2017, the New Jersey Supreme Court
denied certification. (See ECF 27-17).
On November 17, 2017, this federal habeas matter was reopened. (See ECF 14).
Thereafter filed an amended habeas petition on May 15, 2018. (See ECF 20). This Court received
Respondents’ response in opposition to the amended habeas petition in January, 2019. (See ECF
25-27). Respondents assert this amended habeas action is untimely. Additionally, Respondents
claim that Petitioner’s amended habeas petition lacks merit. Petitioner filed a reply brief in
support of his amended habeas petition in August, 2019. (See ECF 40). The matter is now ripe
for adjudication.
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III.
LEGAL STANDARD
An application for writ of habeas corpus by a person in custody under judgment of a state
court can only be granted for violations of the Constitution or laws or treaties of the United
States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d 414,
415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas
corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521
U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim
decided on the merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,
538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’
under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the
state court renders its decision.” Id. (citations omitted). A federal habeas court making an
unreasonable application inquiry should ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
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The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner
carries the burden of proof and with respect to review under § 2254(d)(1), that review “is limited
to the record that was before the state court that adjudicated the claim on the merits.” Id.
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see
also Dennis Sec’y Dep’t of Corr., 834 F.3d 263, 353 n.10 (3d Cir. 2016) (Jordan, J., concurring
in part and concurring in the judgment) (noting that while Ylst predates the passage of AEDPA,
the Ylst presumption that any subsequent unexplained orders upholding the judgment will be
presumed to rest upon the same ground is still valid). Additionally, AEDPA deference is not
excused when state courts issue summary rulings on claims as “[w]hen a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed,
489 U.S. 255, 265 (1989)).
IV.
DISCUSSION
Petitioner raises the following claims in his amended habeas petition:
1. Denial of due process and ineffective assistance of counsel when Petitioner appeared
before the jury in prison garb (“Claim I”).
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2. Trial court’s failure to apply mitigating factors to the sentence (“Claim II”).
3. Trial court error in failing to instruct the jury on the lesser included offense of
manslaughter (“Claim III”).
4. Ineffective assistance of trial and appellate counsel regarding failure to investigate
whether other jurors had overheard one juror’s (E.R.) phone call (“Claim IV”).
5. Improper admission of hearsay statement concerning the victim’s state of mind about her
fear of Petitioner (“Claim V”).
6. Ineffective assistance of counsel by failing to advise petitioner of the full consequences
of declining a plea offer (“Claim VI”).
7. Trial court error in rejecting Petitioner’s request to charge jury that they were not to
concern themselves about any danger to the community that Petitioner might pose if they
were to find that he was not guilty because of diminished capacity (“Claim VII”).
8. Petitioner deprived right to counsel when trial judge conducted ex parte interview of juror
E.R. in her chambers without Petitioner’s trial counsel being present (“Claim VIII”).
9. Trial, appellate and PCR ineffective assistance of counsel by failing to notice and object
to trial judge’s ex parte interview of juror E.R. (“Claim IX”).
A. Timeliness
As noted supra, Respondents assert this habeas action is untimely. “A 1–year period of
limitation shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). That limitations period
begins to run when the criminal judgment becomes “final.”1 A state-court criminal judgment
1
The statute states in full that the limitation period shall run from the latest of 9
becomes “final” within the meaning of § 2244(d)(1) at the conclusion of direct review or at the
expiration of time for seeking such review. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); see also 28 U.S.C. § 2244(d)(1)(A)
(the 1–year period begins on ‘the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review’). When a defendant does not
file a petition for certiorari with the United States Supreme Court, the one-year limitations period
starts to run when the ninety-day period for seeking certiorari expires. See Gonzalez v. Thaler,
132 S. Ct. 641, 653 (2012); Clay v. U.S., 537 U.S. 522, 532 (2003); Morris, 187 F.3d at 337 n.1
(holding that the period of direct review “include[s] the 90–day period for filing a petition for
writ of certiorari in the United States Supreme Court”); U.S. Sup. Ct. R. 13 (90–day deadline to
petition for certiorari).
Petitioner’s direct appeal became final on April 28, 2010. The New Jersey Supreme
Court denied certification on January 28, 2010. Petitioner did not seek a writ of certiorari from
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence ....
28 U.S.C. § 2244(d)(1). There is no indication that any subsection other than (A) is applicable in
this case.
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the United States Supreme Court on his direct appeal. Thus, unless statutory and/or equitable
tolling apply, Petitioner needed to file his federal habeas petition on or before April 28, 2011.
The filing of a PCR petition may statutorily toll (i.e., suspend) the running of the oneyear habeas limitations period. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this
subsection.”). A prisoner's application for state collateral review is “‘properly filed’ when its
delivery and acceptance are in compliance with the applicable laws and rules governing
filings[.]” Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 (3d Cir. 2013)
(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).
As previously stated, on March 9, 2009, the New Jersey Superior Court denied
Petitioner’s initial PCR petition without prejudice because his direct appeal was still pending.
Petitioner was then instructed specifically by the Office of Public Defender that he needed to
refile his PCR petition after his direct appeal concluded. (See ECF 40-2 at 19 (emphasis added)).
Thereafter, Petitioner filed what he titled a motion for reconsideration in December, 2009
to hold his PCR petition in abeyance. (See ECF 26-12). The motion’s brief though was
essentially another PCR petition. (See ECF 26-13). However, this motion for reconsideration was
untimely because it was not filed within twenty days of the March 9, 2009 order which had
dismissed Petitioner’s PCR petition as prematurely filed due to his pending direct appeal. See
N.J. Ct. R. 1:7-4; 4:49-2. Construed as a motion for reconsideration, this motion does not act to
statutorily toll the AEDPA one-year statute of limitations. See Clement v. Hauck, No. 12-5234,
2015 WL 4171839, at *5 (D.N.J. July 10, 2015). Nevertheless, it appears as if the state courts
also interpreted Petitioner’s December, 2009 filing as another PCR petition. Indeed, the
11
Appellate Division’s statement in footnote 2 of its 2014 opinion appears to make this clear. (See
ECF 26-20 at 5 n.2 (“Defendant filed a second petition in December, 2009, which was held
without action while the petition for certification was pending in Nayee.II.”) (emphasis added)).
Furthermore, Petitioner’s PCR counsel filed an amended PCR petition in August, 2011. If there
was no pending PCR petition, then it would not have been necessary for counsel to file an
amended PCR petition in August, 2011.
Accordingly, it appears Petitioner had a “properly filed” PCR petition pending from April
28, 2010 (when his judgment became final), until he filed his counseled amended PCR petition
more than fifteen months later on August 11, 2011. That petition was then pending until the New
Jersey Supreme Court denied certification on December 5, 2014. Thereafter, Petitioner filed his
federal habeas petition in this Court in February, 2015, well within AEDPA’s one-year statute of
limitation. Accordingly, statutory tolling saves Petitioner’s federal habeas petition.
Even if statutory tolling did not save Petitioner’s federal habeas petition as described
above, this would not end this Court’s inquiry into timeliness. Indeed, Petitioner’s federal habeas
petition can still be considered timely if he is entitled to equitable tolling. “Generally, a litigant
seeking equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuiglielmo, 544 U.S. 408, 418 (2005); see also Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 89 (3d Cir. 2013). “There are no bright lines in determining whether
equitable tolling is warranted in a given case.” See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d
Cir. 2011). The Third Circuit has explained that “equitable tolling is appropriate when principles
of equity would make rigid application of a limitation period unfair, but that a court should be
12
sparing in its use of the doctrine.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citing
Pabon, 654 F.3d at 399; Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).
For equitable tolling to apply, the Third Circuit has required a showing of reasonable
diligence:
[t]he diligence required for equitable tolling purposes is reasonable
diligence, not maximum, extreme, or exceptional diligence, [citing
Holland v. Florida, 130 S. Ct. 2549, 2565 (2010)]. “This
obligation does not pertain solely to the filing of the federal habeas
petition, rather it is an obligation that exists during the period
appellant is exhausting state court remedies as well.” LaCava v.
Kyler, 398 F.3d 271, 277 (3d Cir. 2005).... The fact that a
petitioner is proceeding pro se does not insulate him from the
‘reasonable diligence inquiry and his lack of legal knowledge or
legal training does not alone justify equitable tolling. See Brown v.
Shannon, 322 F.3d 768, 774 (3d Cir. 2003).
Ross, 712 F.3d at 799. Extraordinary circumstances may be found where: (1) the petitioner has
been actively misled; (2) the petitioner has in some extraordinary way been prevented from
asserting his rights; or (3) where the petitioner has timely asserted his rights in the wrong forum.
See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001).
This Court is incredibly mindful that equitable tolling should be used sparingly.
However, in this case, and based on this record, if statutory tolling does not save Petitioner’s
federal habeas petition, equitable tolling does. First, Petitioner made the requisite showing that
he pursued his rights diligently. Almost immediately after the New Jersey Supreme Court denied
certification on January 28, 2010, Petitioner attempted to get his PCR petition reinstated with the
New Jersey Superior Court. Indeed, in early March, 2010, only one month after the New Jersey
Supreme Court denied certification, Petitioner had an inmate paralegal contact the criminal
division manager at the Middlesex County Courthouse to get his PCR petition reinstated. (See
ECF 40-2 at 20-21). First, this inmate paralegal contacted the criminal division manager by
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telephone. (See ECF 40 at 20; ECF 40-2 at 20). Next, Petitioner and the inmate paralegal wrote
to the criminal division manager on March 3, 2010. (See id. at 21). That letter stated as follows:
[a]s per our conversation on the telephone, Mr. Nayee wish to
proceed with his Post Conviction Relief petition and once your
office has stamped his copy as “FILED” would you kindly return a
copy of the petition to him for his receipt.
(See id. (emphasis added)). It also appears Petitioner wrote a letter to the judge who conduced his
trial and sentenced him at this time, the Honorable Deborah J. Venezia. While Petitioner did not
include a copy of his correspondence to Judge Venezia, Judge Venezia obviously received some
type of correspondence from Petitioner. Indeed, on March 4, 2010, Judge Venezia wrote to
Petitioner and stated the following, “[a]s I am no longer assigned to the Criminal Division I have
forwarded the letter received on March 2, 2010 to the Honorable Frederick P. DeVesa, Presiding
Judge Criminal Division.” (See id. at 22).
At this time, Petitioner also became represented by the New Jersey Office of the Public
Defender in his PCR proceedings. Indeed, Petitioner includes a copy of an April 6, 2010 letter
from the Office of the Public Defender to the same criminal division manager at the Middlesex
County Courthouse Petitioner and the inmate paralegal had previously corresponded with in
March, 2010. (See id. at 24). In that letter, the Assistant Public Defender (“AFD”) stated it
acknowledged receipt of Petitioner’s PCR petition, that the matter should proceed as a PCR and
that the Office of the Public Defender was in the process of preparing the case for attorney
assignment. (See id.). Thus, it appears as if even the assistant federal defender was under the
impression that Petitioner had a pending PCR petition; otherwise, he would not have stated to the
criminal division manager that the matter should “proceed.”
As the record makes clear, Petitioner was exercising reasonable diligence during the
period in question. Furthermore, based on the correspondence Petitioner includes in the record,
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and one that Respondents do not dispute, he has made an adequate showing he was misled not
only by the state court’s criminal case manager, who, by virtue of the inmate paralegal’s
contemporaneous correspondence dated March 3, 2010, indicates she would be filing Petitioner’s
PCR petition, but also potentially by the Office of the Public Defender’s April 6, 2010 letter.
Therefore, this Court finds even if statutory tolling did not save Petitioner’s habeas petition, then
equitable tolling does. Accordingly, this Court will analyze Petitioner’s federal habeas petition
on the merits.
B. Merits
i.
Claim I
In Claim I, Petitioner asserts he was denied due process and counsel was ineffective
when Petitioner was permitted to appear before the jury in prison garb. With respect to due
process, the last reasoned decision on this claim was from the Appellate Division’s July 5, 2007
opinion during Petitioner’s direct appeal. That court analyzed this claim as follows:
Defendant also contends on appeal that he was denied a fair trial
because he appeared in prison garb throughout the trial. Before
voir dire, the State informed the judge that defendant did not have
any civilian clothing. Upon inquiry, defense counsel stated that he
had no objection to defendant appearing in prison garb because the
jury would, in any event, learn from the medical records that
defendant was incarcerated. Consequently, counsel was not
concerned about prejudice as a result of the jury’s awareness of
defendant’s incarceration.
We have previously declared that it is the responsibility of the
judge to question criminal defendants on the record “concerning
their desire to relinquish the right to appear in civilian clothing,”
and to accept this waiver only through “a knowing, intelligent and
voluntary waiver on the record. . . .” State v. Carrion-Collazo, 221
N.J. Super. 103, 112 (App. Div.), certif. denied, 110 N.J. 171
(1988). The presumption against a defendant appearing in prison
garb exists because it ‘“may affect a juror’s judgment,’ [it]
‘furthers no essential state policy’ and [it] ‘operates usually against
only those who cannot post bail prior to trial.’” Id. at 109 (quoting
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Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1619, 1693, 48 L.
Ed. 2d 126, 131 (1976)).
The case law has further evolved to the extent the Supreme Court
has directed that even defense witnesses should not testify in
prison garb and that corrections authorities must supply
incarcerated defense witnesses with civilian clothing. State v.
Artwell, 177 N.J. 526, 534-35 (2003). Furthermore, such clothing
must be of reasonable size, cleanliness and quality “as to not have
the potential to diminish [defendant’s] credibility before the jury.”
State v. Herrera, 385 N.J. Super. 486, 499 (App. Div. 2006). These
requirements were established because “the trial court is
responsible for assuring that the presumption of innocence is not
lost at any stage in the proceedings because of extraneous,
impermissible factors such as defendant’s physical appearance.”
State v. Maisonet, 166 N.J. 9, 22 (2001).
Defendant now contends that he was denied a fair trial because his
counsel allowed him to appear in prison garb and he now
speculates that could have led the jury to believe that he was
incarcerated because he was still dangerous. While we are
concerned that the judge did not address defendant personally, did
not address defendant’s prison garb during voir dire, and did not
provide cautionary instructions to the jury, we are convinced that
defendant acquiesced in his attorney’s representations to the court.
More fundamentally, we do not perceive, under the facts of this
case, that these actions deprived defendant of a fair trial.
First, defendant did not deny that he killed Mendez, and thus
defendant’s culpability was not at issue, except to the extent it
might have been “excused” or negated by reason of his mental
state. Second, as noted, the safeguards regarding a defendant’s
dress and appearance are implemented to ensure that the
presumption of innocence is not lost. Since defendant conceded
that he committed the homicidal act charged, the presumption of
his innocence was not tainted or lost by his wardrobe. The critical
issue in contention related to his state of mind, and that turned
primarily on the testimony of the expert and treating mental health
specialists.
The requirement that the court personally address a defendant on
the record regarding the decision to wear prison garb and give a
cautionary instruction to the jury serves an important function in
safeguarding a defendant’s presumption of innocence, especially
where the defendant chooses to testify, and we agree it was error
for the judge not to insist upon adherence in this instance.
16
Nevertheless, because defendant did not testify and because his
conduct was not at issue, the error, allowing defendant to appear in
prison garb, did not, in our opinion, have the capacity to bring
about a result that was unjust.
(ECF 20 at 51-54).
In Estelle v. Williams, 425 U.S. 501, 505 (1976), the United States Supreme Court stated
a defendant could not be compelled to stand trial before a jury in prison garb, reasoning that to
do so would impair the presumption of innocence while serving no state interest. Nevertheless,
the Supreme Court continued, “the failure to make an objection to the court as to being tried in
such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to
establish a constitutional violation.” See id. at 512-13.
As explained infra, counsel did not object to Petitioner appearing in prison garb at his
trial. Accordingly, pursuant to Estelle, Petitioner is not entitled to habeas relief on this claim
because the failure to object necessarily negates any possible compulsion to establish the
constitutional violation. See United States v. Laprade, 511 F. App’x 181, 185 (3d Cir. 2013)
(finding no due process violation where no indication defendant was compelled to wear orange
jumpsuit during trial and no record of defendant objecting to wearing the jumpsuit during trial);
United States v. Glenn, Crim. No. 15-99-1, 2018 WL 4091788 (E.D. Pa. Aug. 24, 2018) (where
neither government nor the court forced defendant to wear prison garb at trial and no objection
by defendant was made, defendant’s claim that due process violation occurred because he
appeared in prison garb before the jury lacks merit).
Petitioner though also alleges counsel was ineffective in permitting him to appear in
prison garb at trial. Petitioner raised this claim on direct appeal. However, the Appellate Division
determined that it could not be resolved on direct appeal as it was more appropriately addressed
in a PCR petition. (See ECF 20 at 54). It does not appear though that Petitioner subsequently
17
raised this claim in his PCR proceedings. Accordingly, this ineffective assistance of counsel
claim is unexhausted. Nevertheless, this Court can still deny an unexhausted claim on the merits
if the claim is not “colorable.” See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002)
(citations omitted).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the now
well-known two-prong test for demonstrating when a petitioner is entitled to federal habeas relief
on an ineffective assistance of counsel claim. First, a petitioner must show that considering all
the circumstances, counsel’s performance fell below an objective standard of reasonableness. See
id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary
to analyze an ineffectiveness claim considering all of the circumstances) (citation omitted). A
petitioner must identify the acts or omissions that are alleged not to have been the result of
reasonable professional judgment. See Strickland, 466 U.S. at 690. Under the first prong of
Strickland, scrutiny of counsel’s conduct must be “highly deferential.” See id. at 689. Indeed,
“[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690. The reviewing court
must 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.” Id. at 689. If counsel makes “a thorough investigation of law and facts”
about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)
(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
18
reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,
445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).
The second prong of Strickland requires a petitioner to affirmatively prove prejudice. See
466 U.S at 693. Prejudice is found where “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.;
see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012).
“This does not require that counsel’s actions more likely than not altered the outcome, but the
difference between Strickland’s prejudice standard and a more-probable-than-not standard is
slight and matters only in the rarest case. The likelihood of a different result must be substantial,
not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal quotation
marks and citations omitted).
“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be
followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697).
Even if this Court were to assume arguendo that counsel’s failure to object to Petitioner
appearing in prison garb at trial fell below an objective standard of reasonableness, for the
following reasons, Petitioner fails to show prejudice. Indeed, this Court is not persuaded that had
such an objection been made, the outcome of the proceeding would have been different to a
reasonable probability. The case against Petitioner was strong. There was no doubt that
19
Petitioner killed the victim. The only major issue at trial was whether Petitioner had the requisite
state of mind to be convicted. Where the evidence against a petitioner is strong and a judge
properly instructs the jury on the presumption of innoncence, courts have noted a petitioner has
failed to show prejudice due to counsel’s failure to object. See Carter v. United States, 288 F.
App’x 648, 650 (11th Cir. 2008). In this case, the evidence against Petitioner was strong.
Whether he killed the victim was not up for debate. Furthermore, the trial judge properly
instructed the jury on the presumption of innocence. (See ECF 25-12 at 54-55). Given these
particular facts, Petitioner fails to show he was prejudiced by counsel’s failure to object to his
wearing prison garb at trial. Accordingly, the portion of Claim I which also raises an ineffective
assistance of counsel claim is denied.
ii.
Claim II
In Claim II, Petitioner asserts the trial court erred by not applying significant mitigating
factors which would have reduced his sentence to thirty years. Petitioner bases this argument on
his medical history, most notably his mental medical history. This claim does not raise a
constitutional claim. Indeed, courts have noted that a state court failing to consider mitigating
factors at sentencing is not cognizable in a federal habeas proceeding because it only alleges a
violation of state law. See Gonzalez v. Johnson, 15-7564, 2018 WL 6523441, at *7 (D.N.J. Dec.
12, 2018) (citing Gentile v. Warren, No. 11-6125, 2013 WL 85266, at *15 (D.N.J. Jan. 7, 2013)).
Petitioner also appears to raise an ineffective assistance of counsel claim within Claim II
related to resentencing counsel, who was different than Petitioner’s trial counsel. Sentencing
mitigation factor four provides that a sentencing court can consider that “[t]here were substantial
grounds tending to excuse or justify the defendant’s conduct, though failing to establish a
defense.” N.J. Stat. Ann. § 2C:44-1b(4). During original sentencing, Petitioner’s counsel went
20
through Petitioner’s mental health history and diagnosis at length. (See ECF 25-15 at 5-8). With
respect to mitigation factor four, the New Jersey Superior Court stated as follows at Petitioner’s
original sentencing:
The Court has had the opportunity to have sat through and presided
over the trial in this case as well as to have heard all of the
arguments with respect to this sentencing event and it appears from
all of the information presented that there would be no contest that
Mr. Nayee to some degree suffers from a level of depression.
However, I am unconvinced that the level of that condition is such
that it rises to the level of establishing substantial grounds tending
to excuse or justify the defendant’s conduct. The jury did not
accept the insanity nor diminished capacity defense and counsel is
correct for the defendant when he indicates that a Court can in an
appropriate situation consider that evidence as support for the
finding of mitigating circumstance four.
I have determined that it does not rise to the level of a mitigating
circumstance. I have found that because notwithstanding the
volume of experts who testified on the defendant’s behalf in large
part their reports were based upon a series or number of selfreported incidents which when considered together along with their
conclusions are inconsistent with what appeared to be other known
facts.
This was a man who, throughout and prior to the commission of
this crime, had an employment history, was employed at one point
as an accounting clerk, another time as an administrator, he
maintained his scholastic degree, an Associates degree, he had
fourteen years of schooling, and there was indications that he had
matriculated at Rutgers although that was not verified. It has been
indicated that he had studied there. There was also no indication of
any other bizarre or outlandish type of behavior.
Based upon the consideration of all these factors I am therefore
satisfied that he did not suffer from a mental condition that would
have risen to the level of establishing substantial grounds to excuse
or justify the conduct in this case and therefore I decline to find
mitigating factor four.
(ECF 25-15 at 17-18). Ultimately, on direct appeal, the New Jersey Supreme Court granted
Petitioner’s petition for certification, “limited solely to the issue of the trial court’s refusal to
21
consider the record before it in respect to defendant’s mental illness as a mitigating factor under
N.J.S.A. 2C:44-1b(4) in arriving at its sentence.” (ECF 26-4 at 1). Thus, the matter was remanded
back to the Superior Court to consider State v. Nataluk, 720 A.2d 401, 408 (N.J. Super. Ct. App.
Div. 1998) (finding that it does not follow from jury’s rejection of insanity defense that
defendant’s mental condition could not constitute a mitigating factor at sentencing).
The resentencing hearing was conducted by the same judge who presided over
Petitioner’s trial and originally sentenced Petitioner. At resentencing, Petitioner had new counsel
who argued as follows:
It is my understanding, there is a question concerning the mental
capacity of this defendant during the course of the trial. There were
experts produced on behalf of the defendant in that regard. And, I
believe, there were some indications during the course of the trial,
I believe the State produced, according to the decision and the
transcript, only one expert in that regard.
Where there was numerous produced by the defense, as to the
condition of Mr. Nayee, during the course of the subsequent
events, and even maybe possibly preceding the events . . . .
knowing your Honor recalls the trial, your Honor probably has trial
notes.
(ECF 26-5 at 2). Ultimately, at resentencing, the Superior Court again declined to find that the
proofs established mitigating factor four. (See id. at 5).
Petitioner claims in his petition that resentencing counsel did not review the full record
and simply re-read the original transcript from the sentencing hearing. (See ECF 20 at 10).
Petitioner rehashes his medical mental history that was elucidated at trial. Of course, this
information was already part of the record and brought forth during trial, original sentencing and
mentioned by resentencing counsel at the resentencing hearing. Petitioner does not come forward
with any additional evidence with respect to his medical mental history that counsel should have
22
added at resentencing. Accordingly, for these reasons, this Court fails to see how Petitioner is
entitled to federal habeas relief on this ineffective assistance of counsel claim at resentencing.
In addition to arguing resentencing counsel should have stressed more about his medical
mental history at resentencing, Petitioner goes further in his reply brief by arguing that his
assigned counsel “failed to investigate additional mitigating factors in support of the
resentencing hearing, such as, Petitioner had completed several mental group and other programs
to improve himself since his incarceration, and that he was free from any institutional
infractions.” (ECF 40 at 61-62).
At the outset, this Court notes that raising this issue and attempting to present additional
facts in a reply brief for the first time is improper. See McNeil v. Johnson, No. 18-10003, 2019
WL 1650283, at *12 (D.N.J. Apr. 17, 2019) (citing D’Allessandro v. Bugler Tobacco Co., No.
05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (quoting Int’l Raw Materials, Ltd. V.
Stauffer Chem. Co., 978 F.2d 1318, 1327 n. 11 (3d Cir. 1992)); see also Judge v. United States,
119 F. Supp. 3d 270, 284 (D.N.J. 2015)). “[T]his doctrine applies not only in standard civil suits,
but is also applicable to reply briefs in habeas proceedings as ‘[b]asic fairness requires that an
opposing party have a fair notice of his adversary’s claims, as well as an opportunity to address
those claims.’” McNeil, 2019 WL 1650283, at *12 (quoting Judge, 119 F. Supp. 3d at 284
(quoting Soto v. United States, No. 04-2108, 2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005));
see also Thompson v. United States, No. 12-1312, 2015 WL 1344793, at *6 n.9 (D.N.J. Mar. 23,
2015)). This is especially true in a habeas case like this where Petitioner certified that he knew he
needed to include in his habeas petition all grounds for relief and the facts that support each
ground. (See ECF 20 at 29 (emphasis added)). This reason alone is enough to deny analyzing this
claim. Nevertheless, in the interest of justice, this Court will also analyze the claim on the merits.
23
In claiming that counsel was ineffective for failing to investigate, a petitioner must make
a comprehensive showing as to what the investigation would have produced, that the evidence
would have been admissible, and how it would have changed the outcome of his proceeding to a
reasonable probability. See, e.g., Brown v. United States, No. 13-2552, 2016 WL 1732377, at *5
(D.N.J. May 2, 2016) (citing United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)) (other
citations omitted). Petitioner’s conclusory statement that he completed mental health programs
without any supporting documentation falls short of the comprehensive showing necessary to
show prejudice in a failure to investigate ineffective assistance of counsel claim.
Additionally, this Court notes that the New Jersey Supreme Court’s remand to the
Superior Court for resentencing appeared limited to the issue of whether Petitioner’s mental
illness could be considered under mitigation factor four to show that there was substantial
grounds to excuse or justify Petitioner’s conduct. (See ECF 26-4 at 1). Thus, it is certainly
questionable whether the resentencing court would have permitted evidence concerning
Petitioner’s positive experiences with mental health groups post-conviction would have fallen
into a category that the Superior Court was asked to reexamine on remand.
Finally, this Court notes even if Petitioner could overcome the hurdles outlined above, he
has failed to show to a reasonable probability that the outcome of his resentencing would have
been different due to the other mitigating and aggravating factors considered and decided by the
original and resentencing courts. Accordingly, Petitioner fails to show that he is entitled to
habeas relief on this ineffective assistance of counsel claim within Claim II on the merits as well.
iii.
Claim III
Petitioner asserts in Claim III that the trial court erred in failing to instruct the jury on the
lesser-included offense of manslaughter to the murder charge. He also asserts that trial counsel
24
was ineffective for arguing that there was no basis for the instruction. (See ECF 20 at 11-12).
With respect to Petitioner’s claim that the trial court erred in failing to instruct the jury on the
lesser-included manslaughter charge, the Appellate Division decided this claim as follows on
direct appeal:
Regarding defendant's argument that the court erred in failing to
instruct the jury that it could convict defendant of manslaughter as
a lesser-included offense of murder, we recognize that “where the
facts on the record would justify a conviction of a certain charge,
the people of this State are entitled to have that charge rendered to
the jury, and no one's strategy, or assumed (even real) advantage
can take precedence over that public interest.” State v. Powell, 84
N.J. 305, 319 (1980), certif. denied, 87 N.J. 332 (1981). See also
State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif.
denied, 188 N.J. 489 (2006); State v. Messino, 378 N.J. Super. 559,
581 (App. Div.), certif. denied, 185 N.J. 297 (2005). “[E]ven in the
absence of a request, ... ‘a trial court has an independent obligation
to instruct on lesser-included charges when the facts adduced at
trial clearly indicate that a jury could convict on the lesser while
acquitting on the greater offense.’ “ State v. Thomas, 187 N.J. 119,
132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
See also N.J.S.A. 2C:1-8e. “Conversely, a trial ‘court ha[s] no duty
to instruct the jury sua sponte on [an included offense charge if]
the evidence [does] not clearly indicate or warrant such a charge.’
“ Thomas, supra, 187 N.J. at 132 (quoting State v. Savage, 172
N.J. 374, 401 (2002)) (bracketed material in original).
Prior to the presentation of closing arguments in this case, the court
inquired of the attorneys whether they wanted an instruction on
aggravated manslaughter submitted to the jury. The prosecutor
responded, “I am not specifically requesting but ... I think the
court's required to charge it.” Counsel for defendant took the
opposite position, suggesting there was no basis in the record for a
charge on lesser-included offenses. After the following exchange,
the court agreed with defense counsel:
DEFENSE COUNSEL: On manslaughter, Judge,
the first time the word reckless was ever mentioned
in this case was just now when [the prosecutor]
utilized that word. I submit it is not the State's
theory. It is not the defense's theory. There has been
no testimony about recklessness. There has been no
evidence from where anyone could reasonably infer
25
that this was anything other than murder, if they
find it is murder. The State did not open to the jury
in anything other than murder. Did not examine any
of its witnesses in such a way, nor any of its
experts. Actually there is no basis in light of the
mental health defense the jury was not given any
guidance. The prosecutor didn't ask whether
someone could act reckless to his expert nor that is
a theory that the prosecutor attempted to advance.
And I would submit that there is no basis in the
record to charge a lesser included offense.
THE COURT: Do you have anything further on
that, [Mr. Prosecutor]?
PROSECUTOR: No, Judge, I stand on my position
on that.
THE COURT: I concur with [defense counsel] in
that there is no rational basis in the evidence
presentation that was in court1 an aggravated
manslaughter charge as a lesser so I will not charge
that.
Pursuant to N.J.S.A. 2C:11-3a, “criminal homicide constitutes
murder when: (1)[t]he actor purposely causes death or serious
bodily injury resulting in death; or (2)[t]he actor knowingly causes
death or serious bodily injury resulting in death[.]” By comparison,
“[c]riminal homicide constitutes manslaughter when ... [i]t is
committed recklessly[.]” N.J.S.A. 2C:11-4b(1). Pursuant to
N.J.S.A. 2C:11-4a, “[c]riminal homicide constitutes aggravated
manslaughter when [ ] the actor recklessly causes death under
circumstances manifesting an extreme indifference to human
life[.]”
In its opinion in State v. Jenkins, the Supreme Court reiterated the
distinctions between murder and manslaughter as follows:
Thus, the following key distinctions emerge. To be
guilty of SBI [serious bodily injury] murder, the
defendant must have knowingly or purposely
inflicted serious bodily injury with actual
knowledge that the injury created a substantial risk
of death and that it was “highly probable” that death
would result. In aggravated manslaughter, by
contrast, the defendant must have caused death with
an “awareness and conscious disregard of the
probability of death.” If, instead, the defendant
26
disregarded only a “possibility” of death, the result
is reckless manslaughter.
[Jenkins, supra, 178 N.J. at 363 (emphasis in
original) (citations omitted).]
At trial, defendant did not deny the homicidal act, that is, that he
inflicted injuries that caused the death of Ann Mendez. Instead,
defendant advanced alternative defenses of insanity, N.J.S.A. 2C:41, and diminished capacity, N.J.S.A. 2C:4-2, stating that due to a
mental disease defect, his conduct should be excused or that it
negated the intent required for murder.
Respecting the insanity defense, N.J.S.A. 2C:4-1 provides:
A person is not criminally responsible for conduct if
at the time of such conduct he was laboring under
such a defect of reason, from disease of the mind as
not to know the nature and quality of the act he was
doing, or if he did know it, that he did not know
what he was doing was wrong. Insanity is an
affirmative defense which must be proved by a
preponderance of the evidence.
Diminished capacity, which is addressed in N.J.S.A. 2C:4-2,
provides:
Evidence that the defendant suffered from a mental
disease or defect is admissible whenever it is
relevant to prove that the defendant did not have a
state of mind which is an element of the offense. In
the absence of such evidence, it may be presumed
that the defendant had no mental disease or defect
which would negate a state of mind which is an
element of the offense.
The Supreme Court observed in State v. Delibero, 149 N.J. 90, 9293 (1997), “Diminished capacity describes a disease or defect of
mind that may negate the mental state that is an element of the
offense charged. The insanity defense exculpates an actor from
guilt for conduct that would otherwise be criminal.”
Thus, the proofs would have allowed the jury to find either that
defendant acted out of jealousy, as the State urged, or that he
obeyed the voices in his head, and as Dr. Latimer testified, his was
a “sudden impulsive homicidal act.” If the jurors rejected the
27
validity of the mental defense, they could find he acted purposely
or knowingly; it was murder. If, however, they found defendant
had a mental disease or defect that prevented him from acting
purposely or knowingly, they could conclude either that (a) the
State failed to prove that defendant could understand it was wrong
to kill Mendez-he was not guilty by reason of insanity-or (b) it
failed to prove defendant could form the requisite state of mind for
murder. There was, however, no evidence in the record that
defendant's act was committed recklessly or in the heat of
provocation or passion. N.J.S.A. 2C:11-4b(1) and (2).
Defendant, through counsel, specifically requested that the charge
on aggravated manslaughter not be given, and while “no defendant
should be convicted of a greater crime or acquitted merely because
the jury was precluded from considering a lesser offense,”
O'Carroll, supra, 385 N.J.Super. at 224, a charge on a lesserincluded offense must be given only if the evidence clearly
supports it. In other words, the facts must “clearly indicate a jury
could convict on the lesser while acquitting on the greater
offense.” Thomas, supra, 187 N.J. at 132 (citation and internal
quotation omitted). That was not shown in this instance.
State v. Jenkins is factually distinguishable. There, the defendant
“bashed” the victim in the head with a brick causing him to fall
down a flight of stairs headfirst to the pavement below. Jenkins,
supra, 178 N.J. at 355. According to autopsy evidence, the blow
from the brick likely caused the victim to lose consciousness, but
he ultimately died from the skull and brain injuries resulting from
his fall to the pavement. Id. at 354. At trial, “defendant argued
against instructing the jury on lesser-included offenses pertaining
to homicide, preferring to gamble with an all-or-nothing approach
on the murder charge.” Id . at 356. As here, the State argued the
lesser-included offenses should have been charged. Ibid. Following
his conviction for murder, defendant argued that, notwithstanding
his request at trial, the court erred in failing to instruct on the
lesser-included offenses of reckless manslaughter and aggravated
manslaughter. Id. at 357.
In its review, the Supreme Court first rejected the notion that
defendant's reversal of position was precluded by the doctrine of
invited error or judicial estoppel, reasoning instead that the trial
court had independently arrived at its decision not to instruct on
the lesser-included offenses. Jenkins, supra, 178 N.J. at 360-61. In
other words, the trial court had acceded to defendant's request,
without having been manipulated or misled into error. The trial
court had recognized defendant's tactical reasons for requesting an
28
all-or-nothing charge, but it had made its decision on the basis of
its belief that “there [was] no way that the jury could find
reasonably that the striking of this person was done in anything
other than purposeful, knowing, intentional manner.” Id . at 360.
The Court concluded, however, that the trial court's limited focus
on the purposeful, knowing and intentional nature of defendant's
striking of the victim was error:
Instead, the proper inquiry in distinguishing murder
from the two degrees of manslaughter relates to
defendant's state of mind as to the risk of death. A
jury could have concluded that defendant struck
Thomas in order to kill him or with knowledge that
death was certain or highly probable. However, the
facts indicate that the jurors also could have
rationally concluded that defendant struck the
victim not knowing that serious bodily injury would
result in the victim's death, or not knowing that the
injury created a substantial risk of death and that it
was highly probable that death would result. That is,
the jurors could have found that defendant
consciously disregarded a known risk that created
the possibility or probability that death would
follow from his conduct.
[Id. at 363-64.]
In this case, the trial court focused upon the effect of defendant's
ability to appreciate the nature of his conduct or to form the
necessary intent for the crime charges.
Also, in O'Carroll, we reversed defendant's conviction of first
degree murder, and remanded the matter for a new trial,
concluding that it was plain error for the court to omit instructions
that would have allowed the jury to consider the lesser-included
offenses of aggravated and reckless manslaughter, as well as the
justification of self-defense. O'Carroll, supra, 385 N.J.Super. at
217. In that case, defense counsel had requested that the court
instruct the jury only on murder and passion/provocation
manslaughter, but had acknowledged that “a jury could find that
the time period between [the victim's] loss of consciousness and
irreversible death involve[d] a conscious disregard of a substantial
and unjustified risk that death could have either possibly resulted
or probably resulted.” Id. at 225. There, a factual basis for the
charge of manslaughter was apparent, and defendant contended on
appeal that, in the statement he gave to the police, he had said he
29
and the victim had been involved in a violent struggle in which the
defendant thought the victim was about to stab him. Defendant
also contended on appeal that he accidentally wrapped a telephone
cord tight around the victim's neck as he attempted to make her
drop the knife. Id. at 229. Thus, a jury could have concluded the
defendant in Carroll began choking the victim only to prevent her
from stabbing him and without intending the pressure he applied to
her neck or the length of time he applied that pressure would result
in her death. Id. at 229-30.
By contrast, in the context of the defense strategy in this case,
defendant contends he killed Mendez out of obedience to the
commanding voices. He was not acting out of self-protection and
did not contend that her death was not the intended or expected
result of his act. He conceded he caused the death of Mendez, but
argued that he was not capable of murder because of his mental
disease or defect. Because the record is devoid of the details of the
killing, we cannot conceive that a jury could rationally acquit
defendant of the murder charge but find him guilty of aggravated
manslaughter. Reviewing the ruling under the plain error standard,
whereby it will not be overturned unless it is “clearly capable of
producing an unjust result,” R. 2:10-2, we find no basis to disturb
the trial court's decision not to include an aggravated manslaughter
charge.
State v. Nayee, No. A-5060-04T4, 2007 WL 1931336, at *4–7 (N.J. Super. Ct. App. Div. July 5,
2007), certif. granted, cause remanded on other grounds, 932 A.2d 27 (N.J. 2007).
Petitioner is not entitled to federal habeas relief on his claim. First, as noted by the
Appellate Division, Petitioner’s counsel expressly stated that he did not want the trial court to
charge the jury on manslaughter. Furthermore, the United States Supreme Court has never
recognized that an individual has a due process right to jury instructions on lesser-included
offenses in non-capital cases. See, e.g., Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“Outside of
the capital context, we have never said that the possibility of a jury misapplying state law gives
rise to federal constitutional error”); Geschwendt v. Ryan, 967 F.2d 877, 884 n.13 (3d Cir. 1992)
(observing that the Supreme Court, in Schad v. Arizona, 501 U.S. 624 (1991), cast doubt on the
theory that due process always requires the court to instruct on a lesser-included offense in non30
capital offenses by applying a harmless-error standard; conviction of an offense higher up on the
ladder, is a reliable indicator that a jury would not have convicted of the least included offense
that was not charged); cf. Beck v. Alabama, 447 U.S. 625, 627 (1980) (holding it unconstitutional
to impose a sentence of death “when the jury was not permitted to consider a verdict of guilt of a
lesser included non-capital offense”). Because this is a non-capital case, the denial of this claim
by the state court was not contrary to or an unreasonable application of clearly established
federal law.
Petitioner is also not entitled to federal habeas relief on his claim that his trial counsel
was ineffective for failing to request the lesser-included manslaughter charge. Petitioner raised
this claim on direct appeal, but the Appellate Division determined that it was more appropriately
raised in PCR proceedings. (See ECF 20 at 49). It does not appear though that Petitioner
subsequently raised this claim during the PCR proceedings. Accordingly, this Court will consider
this claim on the merits to determine whether it is “colorable.”
To show prejudice, Petitioner would have to show that there is a reasonable probability
that the jury would have convicted him of manslaughter and not of murder had counsel made the
request. See Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011). Under New Jersey law:
Criminal homicide constitutes manslaughter when:
(1) It is committed recklessly; or
(2) A homicide which would otherwise be murder
under N.J.S. 2C11-3 in the heat of passion resulting
from a reasonable provocation.
N.J. Stat. Ann. § 2C:11-4b. Here, as noted by the Appellate Division, there was no reasonable
evidence produced at trial that Petitioner acted in a reckless manner. Accordingly, he fails to
show the requisite level of prejudice to be entitled to relief on this ineffective assistance of
counsel claim. See, e.g., Jackson v. Britton, No. 08-4203, 2010 WL 1337730, at *7 (E.D. Pa.
31
Apr. 6, 2010) (even if trial counsel had not requested involuntary manslaughter charge,
ineffective assistance of counsel claim would fail since trial evidence did not reasonably support
verdict for involuntary manslaughter). Thus, Claim III is denied.
iv.
Claim IV
In Claim IV, Petitioner raises an ineffective assistance of counsel claim against both trial
and appellate counsel. This claim relates to issues concerning juror #14, E.R. The Appellate
Division during Petitioner’s PCR proceedings outlined the underlying facts surrounding the
claims related to juror E.R. as follows:
Jury selection was conducted on Wednesday, September 15, 2004.
The court explained to prospective jurors that defendant was
charged with murder. The court questioned all prospective jurors
regarding their opinions about the insanity defense, mental health,
and psychiatry. Multiple times during jury selection, the judge
advised prospective jurors not to discuss the case among
themselves or with others.
Jury selection continued until the late afternoon. Defense counsel
had exercised twelve peremptory challenges. The last juror seated
was E.R. He provided brief biographical information, and stated he
had no positive answers to the multiple questions designed to
detect bias, an inability to be fair and impartial, or strong attitudes
about mental illness and the insanity defense. Both sides declared
the jury was satisfactory. Following a brief recess, the jury was
sworn and the judge delivered the standard instructions. The jury
was then released until the following Tuesday afternoon.
Sometime before the resumption of trial, the trial judge received a
telephone call from a member of the full array, Ms. G., who was
not selected as a juror. Ms. G. reportedly told the judge that she
overheard E.R. speaking on his cellphone on the previous
Wednesday. According to Ms. G., as the judge restated on the
record, E.R. said “to the effect of if the prosecution does what it's
supposed to do, then it's a slam-dunk case.” The court did not
speak to Ms. G. on the record or in the presence of counsel. So,
Ms. G.'s precise statement and when it was received was not
preserved. The judge apparently informed counsel of her
conversation with Ms. G., although she apparently did so off the
32
record as well. The judge then interviewed E.R., again without
counsel present, but on the record.
E.R. admitted that he discussed the case with another person on the
previous Wednesday, but denied he made the statement as Ms. G.
described. He claimed he said, “[I]f the prosecution proofs [sic] its
case then ... you know, he'll be found guilty. I said it's up to the
prosecution to prove it and the defense to disprove it. That's what a
jury trial is.” E.R. claimed he made the call outside the courthouse
during the middle part of the afternoon—which would have been
before the jury was sworn. E.R. insisted that he had not reached
any conclusions about the case. The judge did not ask E.R. if he
spoke to the other jurors about his views. Nor did the judge inquire
whether he observed other prospective jurors nearby when he had
the overheard conversation. The judge segregated him from the
other jurors and directed him not to speak to them in the future.
The judge then brought the attorneys into chambers. Defense
counsel requested that E.R. be excused (defense counsel apparently
was previously informed, off-the-record, of Ms. G.'s allegations).
The prosecutor asked for a summary of what E.R. said in his
interview with the judge. The court then asked the reporter to read
back E.R.'s statement. We quote the colloquy in full:
THE COURT: [E.R.], please have a seat.
I needed to bring you in here because I got a report
last week. We adjourned last Wednesday and
apparently an individual who is not on the panel
selected as the jury in this case but was in the
general audience had occasion to overhear a
conversation that you had on a cell phone
downstairs I guess before—either before you came
up and got sworn in or before you left for the day,
and I don't know if you recall the contents of that
phone call—
JUROR [E.R.]: No.
THE COURT:—or making a phone call, but I will
tell you that she claims she overheard you indicate
something to the effect of if the prosecution does
what it's supposed to do, then it's a slam-dunk case.
Is that possibly something that you could have said?
JUROR [E.R.]: No. What I would have said and
what I believe I said, if the prosecution proves its
case—
THE COURT: If the prosecution—
33
JUROR [E.R.]: Yeah. If the prosecution proofs [sic]
its case then—
THE COURT: Okay.
JUROR [E.R.]:—you know, he'll be found guilty. I
said it's up to the prosecution to prove it and the
defense to disprove it. That's what a jury trial is.
THE COURT: Do you recall where you were
specifically within the jury assembly area when you
made the phone call?
JUROR [E.R.]: I wasn't in the building. It was
outside of the building.
THE COURT: Okay. It was outside of the building?
JUROR [E.R.]: It was outside of the building.
THE COURT: And was it after we had recessed for
the day, you were on your way home, or was it
during the recess after you went downstairs?
JUROR [E.R.]: I do not remember. I don't believe it
was—if it was the end of the day. What time was
the recess? That will—
THE COURT: Late afternoon, but I don't recall.
JUROR [E.R.]: After three?
THE COURT: It was probably around three.
JUROR [E.R.]: No. Then it wasn't the latter part. It
was during the middle part.
THE COURT: Okay. Have you in your own mind
reached any conclusions, come to any judgments
with respect to this case whatsoever one way or the
other?
JUROR [E.R.]: No. It's strictly a matter—as a
matter of fact, I had a discussion about serving on
the jury with my family and I explained to them
inasmuch as I might have a personal reason where I
don't want to because of a job that's irrelevant.
There are people overseas who are being killed to
protect our way of life. The least I could do is do
this which is part of what I'm supposed to do as a
citizen.
Any comment that I made was either
misinterpreted, might have been. I understand your
feelings, you have to—the law is the law as you had
stated, but, as far as I'm concerned, I find the whole
process fascinating. It's something that I always
wanted to do, never quite had the ability in terms of
financial or any otherwise to be able to do this. It's
very simple.
34
THE COURT: All right. I'm going to ask you,
number one, not to speak about this in-chambers
conference with anyone at this point—
JUROR [E.R.]: Absolutely not.
THE COURT:—and I'm going to ask you—I'm
going to have you put in another room because I
have to discuss the matter with the attorneys, but
I'm going to ask you to just stay in that room and
we'll be back to you shortly.
Okay. Thank you.
JUROR [E.R.]: Which room?
THE COURT: The sheriff's officer will direct you.
Thanks [E.R.].
JUROR [E.R.]: You're very welcome.
The judge declined to find whether or not E.R.'s version of his
telephone conversation was credible. Over the State's objection,
the court decided to excuse E.R. “[I]n the interest of making sure
that we do have a panel that has not come to any conclusions,
drawn any inferences under the circumstances, I am going to
dismiss the juror for cause....” Defense counsel did not request a
voir dire of the remaining jurors.
The judge and counsel returned to the courtroom, and the judge
advised the panel that “[w]e will be proceeding with a jury panel of
13, ladies and gentlemen.” Counsel then gave opening statements,
and the trial proceeded.
State v. Nayee, No. A-4559-11T2, 2014 WL 2197863, at *2–4 (N.J. Super. Ct. App. Div. May
28, 2014).
In his habeas petition, and specifically within Claim IV, Petitioner claims that trial
counsel was ineffective by failing to further investigate or inquire whether any other jurors were
present when E.R.’s phone conversation took place. (See ECF 20 at 14). Trial counsel was
purportedly also ineffective by failing to voir dire each individual juror on the issue. (See id.)
The Appellate Division analyzed this claim during Petitioner’s PCR proceedings as follows:
We are guided by fundamental principles regarding juror
misconduct. “A defendant's right to be tried before an impartial
jury is one of the most basic guarantees of a fair trial.” Loftin,
supra, 191 N.J. at 187. “The Sixth Amendment of the United
35
States Constitution and Article I, paragraph 10 of the New Jersey
Constitution guarantee criminal defendants ‘the right to ... trial by
an impartial jury.’ “ R.D., supra, 169 N.J. at 557 (quoting U.S.
Const. amends VI, XIV; N.J. Const. art. I, ¶ 10). “That
constitutional privilege includes the right to have the jury decide
the case based solely on the evidence presented at trial, free from
the taint of outside influences and extraneous matters.” Ibid.
The court has an independent duty to determine whether a juror or
jurors have been tainted, to remove tainted jurors, and then
determine whether the trial may proceed with the remaining jurors,
or a mistrial is warranted. Id. at 558–61. R.D. addressed taint
resulting from extraneous information, calling into question a
defendant's right to be judged based on evidence received in open
court and not from outside sources. Id. at 557 (citing State v. Bey,
112 N.J. 45, 75 (1988)). The juror in that case was a nurse who had
treated the alleged victim's grandmother, had “overheard things,”
and formed an opinion about the case. Id. at 555–56. Bey, supra,
involved detailed and prejudicial newspaper articles about the
defendant, and his prior convictions. 112 N.J. at 56, 79–81.
In State v. Wormley, 305 N.J. Super. 57, 68 (App. Div.1997),
certif. denied, 154 N.J. 607 (1998), a juror disclosed in the middle
of the first day of trial that she was familiar with witnesses and had
gained knowledge of facts relevant to the trial. The juror denied
she shared her knowledge with others, and the court excused her.
Id. at 69. Nonetheless, we found plain error because the court did
not voir dire the remaining jurors. Ibid. Under those circumstances,
we concluded “there was a strong likelihood that, even indirectly
or unintentionally,” the juror may have conveyed her knowledge to
other jurors. Id. at 70.
However, taint may result, as alleged here, from a juror's biases or
preconceptions that deny a defendant his right to an impartial jury.
“So important is the quality of impartiality in the trial of criminal
prosecutions that jurors who have formed an opinion as to the guilt
or innocence of the defendant must be excused.” State v. Williams,
93 N.J. 39, 61 (1983). Racial prejudice is particularly troublesome.
“[A]n allegation that a juror is racially biased strikes at the very
heart of the defendant's right to a trial by an impartial jury.” State
v. Phillips, 322 N.J. Super. 429, 442 (App. Div.1999). If a biased
juror conveys his or her views to fellow jurors, that extraneous
information may undermine the other jurors' impartiality. See State
v. Tyler, 176 N.J. 171, 176–77, 183 (2003) (allowing juror who
expressed racial bias to remain on the jury for a day as a sanction
before being excused created a presumption of prejudice).
36
Upon receiving evidence that a juror may be tainted—by
extraneous information or intrinsic bias—the court is obliged to
inquire, initially of the allegedly tainted juror, to determine if that
juror or other jurors have been tainted. R.D., supra, 169 N.J. at
558. Whether the trial court's inquiry requires questioning of the
entire jury panel is left to the trial court's sound discretion. The
Court expressly rejected a per se rule that required inquiry of all
remaining jurors. Id. at 561. “Although the court should not simply
accept the juror's word that no extraneous information was
imparted to the others, the court's own thorough inquiry of the
juror should answer the question whether additional voir dire is
necessary to assure that impermissible tainting of the other jurors
did not occur.” Ibid.
A court may decide that inquiring of other jurors could cause harm,
by conveying inappropriate information. Ibid. The broader inquiry
also depends on a finding that “there is a realistic possibility that
information with the capacity to prejudice defendant's right to a
fair trial may have reached members of [the] jury.” Bey, supra, 112
N.J. at 86. Generally, any questioning of the jury panel should be
conducted individually, and in camera, to assure frank and
uninhibited responses, and to avoid spreading taint from one juror
to the others. Id. at 86–89.
Whether a new trial is compelled is also a discretionary decision.
A new trial, however, is not necessary in every
instance where it appears an individual juror has
been exposed to outside influence. See Smith v.
Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71
L. Ed. 2d 78, 86 (1982) (“[D]ue process does not
require a new trial every time a juror has been
placed in a potentially compromising situation....
[I]t is virtually impossible to shield jurors from
every contact or influence that might theoretically
affect their vote.”). Ultimately, the trial court is in
the best position to determine whether the jury has
been tainted. That determination requires the trial
court to consider the gravity of the extraneous
information in relation to the case, the demeanor
and credibility of the juror or jurors who were
exposed to the extraneous information, and the
overall impact of the matter on the fairness of the
proceedings.
37
[R.D., supra, 169 N.J. at 559.]
The new trial decision requires a showing not of actual prejudice,
but the capacity of the irregular matter to influence the result of the
trial. Id. at 558 (citing Panko v. Flintkote Co., 7 N.J. 55, 61
(1951)).
With these principles in mind, we turn to the PCR court's review of
the trial court's inquiry. We part company with the PCR court's
characterization of E.R.'s comments. Particularly given the
sparseness of the record (resulting from the trial judge's limited
questioning), and the trial judge's failure to make credibility
findings, the PCR court had no basis to credit E.R.'s version of
what he said, as opposed to what Ms. G. claimed. In our view,
E.R.'s reference, as reported by Ms. G., to what the prosecution “is
supposed to do,” displayed a potential bias in favor of the
prosecution. E.R.'s view that the case could be a “slam-dunk,”
reflected a pre-conception about the likely nature and complexity
of the case, if not about defendant's guilt.
Even if E.R.'s statement were as he claimed, he expressed a serious
misunderstanding of the law. Stating “it's up to the prosecution to
prove it and the defense to disprove it,” he erroneously attributed a
burden to defendant. Moreover, by discussing the case with
another person in the midst of jury selection, E.R. clearly violated
the trial judge's repeated admonition not to do so.
“[A]ll doubts about a juror's integrity or ability to be fair should be
resolved in favor of removing the juror from the panel.” See Loftin,
supra, 191 N.J. at 187. The trial court did not affirmatively find
that E.R. was telling the truth about what he said. The court also
did not correct the juror regarding the burden, and find that the
juror was capable of following the law on that point. Given the
state of the record, it was appropriate to excuse E.R.
The PCR court emphasized that there was no evidence that E.R.
shared his opinions with any of the sworn jurors. However, there
also was no evidence that E.R. did not. The record is unclear
because the trial judge did not ask E.R. whether he had done so.
There is no evidence the judge asked Ms. G. if other members of
the jury array were nearby; and the judge did not ask the
impanelled jurors themselves whether E.R. spoke to them, or if
they overheard him.
Although the trial judge's inquiry should have been more probing,
and a voir dire of the whole panel would have been preferred, we
38
are not satisfied that voir dire of the entire panel was required, nor
that a new trial would have been warranted in the absence of such
an inquiry. We reach that conclusion based on the nature of E.R.'s
remarks, and the court's swift action in removing E.R.
Even assuming E.R.'s remarks were as Ms. G. reported, they did
not have the toxicity of racially biased comments, as in Loftin,
Tyler, or Phillips. In Loftin, supra, a juror expressed bias against
African–Americans in a case involving an African–American
defendant, and expressed a premature conclusion, after four days
of trial, that defendant was guilty. 191 N.J. at 183–84. The juror
was quoted as saying he was going to buy a rope with which to
hang the defendant. Id. at 184. Nor did E.R .'s remarks reflect
knowledge of extraneous information or facts, such as those
imparted by newspaper reports or other outside sources, as in Bey,
or by the personal knowledge of a juror, as in R.D. We recognize
that it may be difficult for jurors to ignore such information, once
imparted.
The risks of taint were also reduced by the trial judge's swift
decision to remove E.R. and direct him to have no further contact
with other jurors. That fact also distinguishes this case from those
in which a biased juror remains on the panel, presenting a greater
risk of infecting the jury. Cf. Loftin, supra, 191 N.J. at 185 (juror
remained on the panel for duration of the trial before being
designated an alternate); Tyler, supra, 176 N.J. at 179 (juror made
to remain on the panel for a day as punishment); Wormley, supra,
305 N.J. Super. at 68 (juror remained on the panel through
openings and the testimony of the first witness).
We recognize that E.R. expressed a potential bias in favor of the
prosecution—referring to what the prosecutor was “supposed to
do”—and a premature assessment of how simple and easy the case
would be—a possible “slam-dunk.” However, even if overheard,
we do not view these remarks as bearing the potential to taint the
impanelled jurors. Those jurors had already been thoroughly
questioned. Counsel and the court were satisfied they were capable
of being fair and impartial.
In many respects, E.R.'s comments were not unlike those
expressed during voir dire by other jurors who were excused for
cause. Not every remark in open court, which may prompt an
individual juror to be excused, presumptively taints the remaining
jurors who overhear it, requiring questioning and other remedial
measures. R.D., supra, 169 N.J. at 559. A prospective juror may
say in open court that he is likely to believe police officers more
39
than others; or a juror may express the view that a defendant is
likely to have done something illegal because he was indicted.
Moreover, just because a judge may call a juror to sidebar to
continue a discussion of the juror's experiences or view, does not
preclude the possibility that the juror shared those views or
experiences with a fellow member of the array. Our case law does
not require immediate questioning to determine if the mere
mention of those views has tainted the others. We presume, based
upon the jurors' own responses to questioning, and the court's
general instructions, that the remaining jurors are unaffected.
In this case, the jury received the model instruction after the jury
was sworn, which occurred at the end of the day Wednesday, after
E.R.'s overheard remarks. The court repeatedly instructed the
jurors to make their determination of the facts “based solely upon
the evidence submitted during the course of the trial.” The judge
also admonished the jury not to discuss the case with others, and
instructed that it would be improper “for any outside influence to
intrude upon your thinking.” The court directed the jurors to keep
an open mind until the end of the trial, to refrain from deliberating
until then, and to exercise their duties “calmly and without bias,
passion, prejudice or sympathy.” These instructions were sufficient
to overcome any reasonable possibility of taint from E.R.'s
remarks, even if as Ms. G. described, and even if overheard by one
or more impanelled jurors. We presume the jury followed the trial
court's instructions. State v. Burris, 145 N.J. 509, 531 (1996).
As we conclude that the court was not obliged under the
circumstances to voir dire the jury, we reject defendant's argument
that defense counsel was ineffective in failing to request it. See
State v. O'Neal, 190 N.J. 601, 619 (2007) (stating that “[i]t is not
ineffective assistance of counsel ... not to file a meritless motion”);
State v. Chew, 179 N.J. 186, 215 (2004) (rejecting ineffective
assistance claim where evidence did not support unrequested jury
instruction).
Nayee, 2014 WL 2197863, at *5–9.
This Court construes Plaintiff’s claims within Claim IV as two-fold; namely, first, his
trial counsel should have investigated whether any other jurors overheard E.R’s phone
conversation; and, second, trial counsel should have requested the trial judge voir dire the jurors
selected if they had overheard E.R.’s phone conversation.
40
Where a Petitioner can show that counsel's failure to investigate amounts to deficient
performance, he must still show prejudice. In order to do so,
a defendant basing an inadequate assistance claim on his or her
counsel's failure to investigate must make “a comprehensive
showing as to what the investigation would have produced. The
focus of the inquiry must be on what information would have been
obtained from such an investigation and whether such information,
assuming admissibility in court, would have produce a different
result.”
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819
F.2d 1382, 1392 (7th Cir. 1987)); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir.
2011) (“[w]hen a petitioner alleges that counsel's failure to investigate resulted in ineffective
assistance, the petitioner has the burden of providing the court with specific information as to
what the investigation would have produced”); United States v. Green, 882 F.2d 999, 1002 (5th
Cir. 1989) (“A defendant who alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed and how it would have altered
the outcome” of Petitioner's case); accord United States v. Garvin, 270 F. App'x 141, 144 (3d
Cir. 2008).
In this case, as noted by the Appellate Division, there was nothing to indicate one way or
the other whether any other impaneled jurors overheard E.R.’s purported phone conversation.
Thus, Petitioner fails to show prejudice as to counsel’s purported failure to investigate because
he has come forward with nothing to indicate what further investigation by counsel into what
impaneled jurors would have heard to possible cause taint.
Petitioner’s argument that counsel should have asked the trial judge to voir dire the entire
jury regarding any possible taint due to possibly hearing E.R.’s phone call suffers a similar fate
as Petitioner’s failure to investigate. Indeed, Petitioner has not come forward with anything to
41
indicate what any potential voir dire of the impaneled jury would have discovered. Thus, he
cannot show that counsel’s purported ineffectiveness in failing to make such a request would
have changed the outcome of his proceedings to a reasonable probability because of the absence
of any record that any juror was purportedly tainted. Accordingly, Petitioner is not entitled to
habeas relief on Claim IV.
v.
Claim V
In Claim V, Petitioner asserts that the prosecution, over his objections, was permitted to
introduce inadmissible hearsay statements concerning the victim’s state of mind about her fear of
Petitioner. Petitioner raised this issue during his PCR proceedings. (See ECF 26-20 at 6 n.3) It
was denied without discussion as lacking merit. (See id. at 26). This summary denial is entitled
to AEDPA deference. See Harrington, 562 U.S. at 99. Within his federal habeas petition,
Petitioner further claims that appellate counsel was ineffective for failing to raise this issue on
direct appeal. It does not necessarily appear that Petitioner raised this issue of appellate counsel’s
ineffectiveness to raise this issue on direct appeal in his PCR proceedings. Nevertheless, this
Court can still deny this part of Claim V if it is determined to not be “colorable.”
Prior to the victim’s mother testifying at trial, Petitioner’s counsel sought to have the trial
court preemptively instruct the jury. Most notably, counsel asserted concerns about possible
hearsay statements some witnesses would make. (See ECF 25-7 at 2-3). However, the trial court
permitted the government to call its witnesses without giving any preemptive instruction. (See
id.) Thereafter, the victim’s mother testified first that the victim was “scared” of Petitioner. (See
id. at 8). Later, the victim’s mother testified her daughter told her she was “worried about all of
this.” (See id.). After this second reference to the victim’s statements to her mother, Petitioner’s
counsel requested a side-bar conference which was granted. (See id.) At the side-bar conference,
42
the trial judge instructed the prosecutor to tell the witness to not tell the jury what the victim had
said. (See id. at 9). Thereafter, the sidebar concluded and the prosecutor told the victim’s mother
she could not testify as to things her daughter, the victim said to her. (See id.)
This claim is not cognizable on federal habeas review to the extent petitioner asserts that
the state court's evidentiary ruling violated state law. See Estelle, 502 U.S. at 67–68 (stating that
“it is not the province of a federal habeas court to reexamine state-court determinations of statelaw questions”). The due process inquiry that is applicable to this claim is whether the state
court's ruling was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See
Romano v. Oklahoma, 512 U.S. 1, 12–13 (1994); see also Keller v. Larkins, 251 F.3d 408, 413
(3d Cir. 2001) (noting that to show that an evidentiary error rises to the level of a due process
violation, a petitioner must show “that it was of such magnitude as to undermine the fundamental
fairness of the entire trial”). The United States Supreme Court has “defined the category of
infractions that violate ‘fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S.
342, 352 (1990).
Under the applicable harmless error test, a habeas petitioner must demonstrate
constitutional error that resulted in “actual prejudice” in order to obtain relief from a federal
court; which asks whether the error had a “substantial and injurious effect or influence in
determining the jury's verdict.” Eley v. Erickson, 712 F.3d 837 (3d Cir.2013) (citing Brecht v.
Abrahamson, 507 U.S. 619, 637–38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Indeed, the
Supreme Court has stated that “in § 2254 proceedings a court must assess the prejudicial impact
of constitutional error in a state court criminal trial under the ‘substantial and injurious effect’
standard set forth in Brecht, supra, whether or not the state appellate court recognized the error
and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set
43
forth in Chapman [v. California], 386 U.S. 18 [1967].” Fry v. Pliler, 551 U.S. 112, 121–22
(2007); see also Bond, 539 F.3d at 275–76 (“Fry instructs use to perform our own harmless error
analysis under Brecht ... rather than review the state court's harmless error analysis under the
AEDPA standard.”) In reviewing the record, if a federal habeas court is in “grave doubt” as to
whether the error had a substantial and injurious effect or influence in determining the jury's
verdict, then the error was not harmless. See Adamson v. Cathel, 633 F.3d 248, 260 (3d Cir.
2011) (citing O'Neal v. McAninch, 513 U.S. 432, 438, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).
The state court’s denial of this claim was not an unreasonable application of clearly
established federal law. This case did not involve whether Petitioner killed the victim. Instead, it
involved Petitioner’s state of mind at the time of the killing. Thus, whether the victim stated she
was “scared” or “worried” about Petitioner to her mother prior to being killed would have had
little to no impact to render the trial fundamentally unfair because the actual act of Petitioner
killing the victim was not at issue. Accordingly, these two statements by the victim being
introduced at trial through the victim’s mother’s testimony did not render the trial fundamental
unfair. Any purported error in permitting the mother to testify regarding two of her daughter’s
statements to her about what she thought of Petitioner was harmless as the statements did not
have a substantial or injurious effect in determining the jury’s verdict based on the issues
presented at trial.
Within Claim V, Petitioner also claims appellate counsel was ineffective in not raising
this hearsay issue on direct appeal. “claims of ineffective assistance of appellate counsel are also
governed by the Strickland standard.” Lusick v. Palakovich, 270 F. App’x 108, 110 (3d Cir.
2008) (citing United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)). In this case,
Petitioner fails to show to a reasonable probability the outcome of his appeal would have been
44
different had appellate counsel raised this issue. Indeed, while the mother’s two instances of
testifying regarding her daughter’s statements regarding Petitioner may have been hearsay, there
really no doubt Petitioner was the actual perpetrator of the killing. This Court fails to see how
raising this issue would have caused the Appellate Division to reverse Petitioner’s convictions to
a reasonable probability. Accordingly, for these reasons, Petitioner is not entitled to federal
habeas relief on Claim V.
vi.
Claim VI
In Claim VI, Petitioner alleges that trial counsel rendered ineffective assistance by failing
to advise him of the full consequences of declining a plea offer. (See ECF 20 at 17-18).
Petitioner states that prior to trial, counsel never mentioned any plea offers made by the state.
There was also no disclosure as to the maximum amount of sentence he would face if he was to
be found guilty according to Petitioner. (See id. at 17).
On appeal during his PCR proceedings, the Appellate Division noted PCR counsel
argued Petitioner’s trial counsel failed to advise him of the consequences of rejecting a plea
offer. See Nayee, 2014 WL 2197863, at *2 n.4. The Appellate Division further noted though
Petitioner was arguing that trial counsel failed to notify him of the plea offer altogether. See id.
The Appellate Division decided this claim as follows:
We turn briefly to address an argument presented in defendant's
pro se brief. Defendant apparently contends that his trial attorney
was ineffective because he did not inform him of a plea offer under
which, in return for a plea of guilty to murder, he would have
received a thirty-year sentence, with a thirty-year period of parole
ineligibility. We need not decide this claim as it was not raised in
defendant's petition before the trial court. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting generally that
appellate courts will decline to hear issues “not properly presented
to the trial court” unless the questions on appeal address the trial
court's jurisdiction, or concern matters of great public interest).
45
In any event, defendant does not clearly assert that he would have
accepted such a plea offer had he known about it before trial.
Therefore, we discern no showing of prejudice from any alleged
ineffectiveness in conveying the offer. Moreover, acceptance of a
plea offer would have required defendant to waive the insanity
defense, and acknowledge that he had the state of mind to commit
murder. However, in his sworn statements in support of PCR,
defendant asserted he did not “fully understand what happened on
the evening Ann Mendez died, although I did understand that I was
the person who killed her.” A defendant may not secure PCR based
on a claim he would have accepted a plea offer, where the
defendant's factual basis would entail perjury. State v. Taccetta,
200 N.J. 183, 194–96 (2009).
Nayee, 2014 WL 2197863, at *9.
Petitioner’s Sixth Amendment right to counsel extends to the plea-bargaining process.
See Lafler v. Cooper, 566 U.S. 156, 162 (2012). “When addressing a guilty plea, counsel is
required to give a defendant enough information “‘to make a reasonably informed decision
whether to accept a plea offer.’”” United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015) (quoting
Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39, 43
(3d Cir. 1992))). Potential sentencing exposure is an important factor in a defendant’s decisionmaking process. See id. Indeed, as noted by the Third Circuit, “[k]knowledge of the comparative
exposure between standing trial and accepting a plea offer will often be crucial to the decision
whether to plead guilty.” Day, 969 F.2d at 43. “A defendant who rejects a guilty plea and
receives a more severe sentence after trial makes a claim of ineffective assistance when ‘he
alleges that the advice he received was so incorrect and so insufficient that it undermined his
ability to make an intelligent decision about whether to accept the offer.’” Morris v. Adm’r New
Jersey State Prison, 770 F. App’x 601, 605 (3d Cir. 2019) (quoting Day, 969 F.2d at 43). In the
context of rejecting a plea, a petitioner must show that “‘but for counsel’s deficient performance
there is a reasonable probability he and the trial court would have accepted the guilty plea’ and
46
the resulting sentence would have been lower.” Shotts, 724 F.3d at 376 (citing Lafler, 132 S. Ct.
at 1391).
The Appellate Division’s denial of this claim was not an unreasonable application of
clearly established federal law. The Appellate Division noted Petitioner did not clearly assert he
would have accepted the plea offer had he been presented with it. This is in line with the relevant
law that a petitioner needs to show to a reasonable probability he would have accepted the plea.
Petitioner has come forward with nothing in the record before the state court to counter the state
court’s conclusion that he did not state with any clarity he would have accepted the thirty-year
murder plea offer. In analyzing whether the state court’s decision runs afoul of § 2254(d), this
Court is limited to the record that was before the state court. See Cullen, 563 U.S. at 81.
Accordingly, for this reason, the state court’s denial of this claim was not an unreasonable
application of clearly established federal law. Petitioner is not entitled to federal habeas relief on
Claim VI.
vii.
Claim VII
Petitioner argues in Claim VII he is entitled to federal habeas relief when the trial court
failed to instruct the jury as requested by his counsel that the jurors were not to concern
themselves about any possible danger Petitioner could pose to the community if they found him
not guilty by reason of diminished capacity. During the jury charge conference, Petitioner’s
counsel argued as follows:
Your Honor, on page 34 in terms of instructions to the jury to alay
their fears that if they find someone not guilty by reason of insanity
they’re instructed that that does not mean the person is going to be
released into the streets and that was added to give some comfort
and understanding to the jury because it is so intellectually and
emotionally a disconnect and to somehow give them assurance that
even though they are finding this person sick, that they’re not
going to go out and do harm to other people because of their
47
sickness. They say, well, there’s a check and the check is the
Court, the Court will make a decision when, if someone leaves
based on a not guilty by reason of insanity from an institution, I
would argue that the same concept should apply in this case for the
mental disease or defect since we are arguing and we have said all
along that he is antipsychotic. The State psychiatrist, even Doctor
Hume to the present time finds him psychotic and we do know if
the jury ever found him not guilty either by reason of insanity or
by reason of mental disease or defect he’s going nowhere. He is
absolutely going nowhere because of the treatment he is presently
receiving because of the diagnosis of the various doctors over the
past three years. And I would request that the same assurance
relating to insanity that the jury may have by these word [sic] also
be applied with diminished capacity because the concern, even
danger is equally present. The very reason we have this language
here for insanity is equally applicable to the defense of mental
disease or defect in this case because they’re identical. My position
is not divergent. I am not arguing a different medical position of
insanity as I am for mental disease or defect.
(ECF 24-12 at 7). The trial judge rejected this request by Petitioner’s counsel noting as follows:
[a]gain, the same basis for denying this request as the previous
request to intermingle the legal consequences. They are different
and distinct as set forth in the statute created by the Legislature and
an effort to explain them the same way by putting and interjecting
that language into the charge is not appropriate and I decline to do
so.
(Id. at 8).
Petitioner then raised this issue on direct appeal. The Appellate Division analyzed this
claim as follows:
Defendant also argues that the court erroneously declined to charge
the jurors that they were not to concern themselves with any
danger that defendant might pose to the community should they
find him not guilty due to diminished capacity. Included in the
charge was the following:
A verdict of not guilty by reason of insanity does
not necessarily mean that the defendant will be
freed or that the individual will be indefinitely
committed to a mental institution. Under our law if
you find the defendant not guilty by reason of
48
insanity, it will then be for the Court to conduct a
further hearing and among other matters, determine
whether or not the defendant's insanity continues to
the present and whether the defendant poses a
danger to the community or himself. The resolution
of those issues will ultimately determine what
appropriate restrictions need to be placed on the
defendant. Thus, procedures exist to adequately
provide for the defendant and to protect the public
in the event the defendant is found not guilty by
reason of insanity.
The court properly declined to give such a charge with regard to
diminished capacity. The insanity charge given by the court is
required under State v. Krol, 68 N.J. 236 (1975). A successful
insanity defense triggers direct consequences, which include courtordered evaluations and institutionalizations and reviews. These
consequences are a part of the criminal justice system, and the jury
should be made aware of them. As we have noted above, a
diminished capacity defense “may negate the mental state that is an
element of the offense charged.” Delibero, supra, 149 N.J. at 92.
The Delibero Court explained:
The consequences of a verdict of insanity differ
from one of diminished capacity. A judgment of not
guilty by reason of insanity does not result in a
defendant being set free; rather, the defendant is
subject to further commitment proceedings. A
judgment of not guilty because of the defendant's
diminished capacity does result in a defendant being
set free.
[Id. at 104-05 (citations omitted).]
Consequently, there was no reason for the judge to comment on
any danger defendant might or might not pose to the community
by reason of any alleged diminished capacity and certainly no
reason to suggest that such a commitment proceeding would be
instituted against defendant. The judge correctly declined to charge
the jury on some future event that might never occur.
Nayee, 2007 WL 1931336, at *8–9.
“[A]n error in the instructions to the jury” may violate due process. Henderson v. Kibbe,
431 U.S. 145, 154 (1977). “The question [during habeas review] is whether the ailing instruction
49
by itself so infected the entire trial that the resulting conviction violate[d] due process.” Id.
(citation and internal quotation marks omitted); accord Waddington v. Sarausad, 555 U.S. 179,
191 (2009). In that regard, it is also “well established” that the challenged instruction “may not
be judged in artificial isolation,” but must be viewed in the context of the overall charge and the
trial record. Cupp v. Naughton, 414 U.S. 141, 146 (1973). Moreover, where the alleged error
consists of failure to give an instruction, the petitioner’s burden is “especially heavy,” because
“[a]n omission, or an incomplete instruction is less likely to be prejudicial than a misstatement of
the law.” Henderson, 431 U.S. at 155. In short, it is the rare case in which “an erroneous
instruction was so prejudicial that it will support a collateral attack on the constitutional validity
of a state court’s judgment.” Id. at 154; accord Middleton v. McNeil, 541 U.S. 433, 437 (2004)
(“not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due
process violation.”). Indeed, “the fact that [an] instruction was allegedly incorrect under state law
is not a basis for habeas relief.” Estelle, 502 U.S. at 71–72. Instead, a habeas petitioner must
establish that the instructional error “had [a] substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 637. For example, due process is violated
where “the erroneous instructions have operated to lift the burden of proof on an essential
element of an offense as defined by state law.” Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997);
see also Williams v. Beard, 637 F.3d 195, 223 (3d Cir. 2011) (noting that due process is violated
when “the instruction contained some ambiguity, inconsistency, or deficiency,” and “there was a
reasonable likelihood that the jury applied the instruction in a way that relieved the State of its
burden of proving every element of the crime beyond a reasonable doubt.”) (internal quotation
marks omitted).
50
The Appellate Division’s denial of this claim was not an unreasonable application of
clearly established federal law. The potential consequences for not guilty by reason of insanity
and not guilty by reason of diminished capacity are potentially different. Indeed, as noted by the
Appellate Division:
Diminished capacity “describes a disease or defect of mind that
may negate the mental state that is an element of the offense
charged. The insanity defense exculpates an actor from guilt for
conduct that would otherwise be criminal.” Id. at 92-93. In contrast
to insanity, which is an affirmative defense that a defendant must
prove by a preponderance of the evidence, “diminished capacity
refers to evidence that can negate the presence of an essential
mental element of the crime ... [a] jury considers evidence of
diminished capacity in relation to the State's burden to prove the
essential elements of the crime.” Id . at 98-99; see also State v.
Breakiron, 108 N.J. 591, 600-01 (1987); State v. Harris, 141 N.J.
525, 555 (1995). In addition, the consequences of a judgment by
reason of insanity differ from one of diminished capacity. “A
judgment of not guilty by reason of insanity does not result in a
defendant being set free; rather, the defendant is subject to further
commitment proceedings. A judgment of not guilty because of the
defendant's diminished capacity does result in a defendant being
set free.” Delibero, supra, 149 N.J. at 105; see also State v.
Humanik, 199 N .J.Super. 283, 299 (App.Div.), certif. denied, 101
N.J. 266 (1985). Thus, the two concepts are inherently different
both in their substance and in their consequences.
State v. Bachelder, No. A-2908-05T4, 2007 WL 1146722, at *7 (N.J. Super. Ct. App. Div. Apr.
19, 2007).
This Court sees no fault with the rejection of Petitioner’s requested instruction for the
reasons given by the state court. Certainly, omitting the requested instruction did not violate
Petitioner’s due process rights. Accordingly, Claim VII is denied.
viii.
Claim VIII
Claim VIII is somewhat related to Claim IV. In Claim VIII, Petitioner argues he was
denied his right to counsel when the trial judge conducted an ex parte interview of juror E.R..
While Petitioner raised issues concerning the circumstances surrounding E.R. in his PCR
51
proceedings, it does not appear that he raised the issue of the trial judge’s ex parte
communication with E.R. in the context of a right to counsel claim during his initial PCR
proceedings. Indeed, the Appellate Division noted that Petitioner did not raise this claim in its
2014 opinion noting that the judge erred in conducting this interview ex parte. See Nayee, 2014
WL 2197863, at *2 n.6. Petitioner though then raised this issue in another PCR petition. In
deciding this claim, the Appellate Division found this claim was procedurally barred and/or that
it was decided by the Appellate Division in its 2014 decision. (See ECF 27-14 at 3).
Neither party truly addresses whether this claim is procedurally defaulted. Furthermore,
this Court disagrees with the Appellate Division’s characterization of its 2014 opinion that this
claim was previously decided on the merits. Indeed, the Appellate Division’s footnote in its 2014
opinion did not address whether the error by the trial judge was harmless, only that the trial judge
committed error. Notwithstanding these potential procedural roadblocks, this Court will deny
this claim on the merits because it is not “colorable.”
In Rushen v. Spain, 464 U.S. 114, 117-19 (1983), the United States Supreme Court
“emphatically disagreed” with the Ninth Circuit’s conclusion that an unrecorded ex parte
communication between the trial judge and a juror can never be harmless error. More
specifically, the Supreme Court noted as follows:
Our cases recognize that the right to personal presence at all
critical stages of the trial and the right to counsel are fundamental
rights of each criminal defendant. “At the same time and without
detracting from the fundamental importance of [these rights], we
have implicitly recognized the necessity for preserving society's
interest in the administration of criminal justice. Cases involving
[such constitutional] deprivations are [therefore] subject to the
general rule that remedies should be tailored to the injury suffered
... and should not unnecessarily infringe on competing interests.”
United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667,
66 L. Ed. 2d 564 (1981); see also Rogers v. United States, 422
U.S. 35, 38–40, 95 S. Ct. 2091, 2094–2095, 45 L. Ed. 2d 1 (1975).
52
In this spirit, we have previously noted that the Constitution “does
not require a new trial every time a juror has been placed in a
potentially compromising situation ... [because] it is virtually
impossible to shield jurors from every contact or influence that
might theoretically affect their vote.” Smith v. Phillips, 455 U.S.
209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982). There is
scarcely a lengthy trial in which one or more jurors do not have
occasion to speak to the trial judge about something, whether it
relates to a matter of personal comfort or to some aspect of the
trial. The lower federal courts' conclusion that an unrecorded ex
parte communication between trial judge and juror can never be
harmless error ignores these day-to-day realities of courtroom life
and undermines society's interest in the administration of criminal
justice.
This is not to say that ex parte communications between judge and
juror are never of serious concern or that a federal court on habeas
may never overturn a conviction for prejudice resulting from such
communications. When an ex parte communication relates to some
aspect of the trial, the trial judge generally should disclose the
communication to counsel for all parties. The prejudicial effect of
a failure to do so, however, can normally be determined by a posttrial hearing. The adequacy of any remedy is determined solely by
its ability to mitigate constitutional error, if any, that has occurred.
See, e.g., United States v. Morrison, supra, 449 U.S., at 365, 101
S. Ct., at 668; Rogers v. United States, supra, 422 U.S., at 40, 95 S.
Ct., at 2095. Post-trial hearings are adequately tailored to this task.
See, e.g., Smith v. Phillips, supra, 455 U.S., at 218–219, and n. 8,
102 S.Ct., at 946–947 and n. 8; Remmer v. United States, 347 U.S.
227, 230, 74 S. Ct. 450, 451, 98 L. Ed. 2d 654 (1954).
The final decision whether the alleged constitutional error was
harmless is one of federal law. Chapman v. California, 386 U.S.
18, 20–21, 87 S. Ct. 824, 826, 17 L. Ed. 2d 705 (1967).
Nevertheless, the factual findings arising out of the state courts'
post-trial hearings are entitled to a presumption of correctness. See
28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S. Ct.
764, 66 L. Ed. 2d 722 (1981). The substance of the ex parte
communications and their effect on juror impartiality are questions
of historical fact entitled to this presumption. Thus, they must be
determined, in the first instance, by state courts and deferred to, in
the absence of “convincing evidence” to the contrary, by the
federal courts. See Marshall v. Lonberger, ––– U.S. ––––, ––––,
103 S. Ct. 843, 850, 74 L. Ed. 2d 646 (1983).
53
Rushen, 464 U.S. at 117–20; see also United States v. Riley, 336 F. App’x 269, 271-72 (3d Cir.
2009) (applying harmless error analysis to trial judge’s communication with jury).
This case is even one stepped removed from what was discussed in Rushen in that the
trial judge’s communication with E.R., while ex parte, was recorded. Counsel for both sides
were read back the trial judge’s discussion with the E.R. regarding E.R.’s phone conversation
with someone about the trial. Ultimately, the trial judge removed E.R. from the jury for cause.
Based on this record, any purported error by the trial judge in initially communicating with E.R.
ex parte was harmless error as it did not have a substantial or injurious effect on the outcome of
the case based on these circumstances. Accordingly, Claim VIII is denied.
ix.
Claim IX
In Claim IX, Petitioner argues PCR, trial and appellate counsel were ineffective in failing
to raise the arguments he makes in Claim VIII related to the error of the trial judge in conducting
an ex parte interview with E.R. Petitioner raised these claims in his second PCR petition. The
Appellate Division determined these claims were procedurally defaulted. Once again, the party’s
do not explicitly address the potential procedural default of this claim. However, this Court
denies this claim on the merits because it is not “colorable.”
First, Petitioner’s claim that PCR counsel was ineffective does not entitle him to federal
habeas relief. Indeed, 28 U.S.C. § 2254(i) precludes claims for ineffective assistance of PCR
counsel. See Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (while ineffective assistance on
initial collateral review proceedings may be grounds for excusing procedural default, it is not the
basis for an independent constitutional claim). Next, this Court finds Petitioner has failed to
show he was prejudiced by trial and appellate counsel’s failure to object to the trial court’s ex
parte interview of E.R. The interview was transcribed and read back to counsel. After
54
communicating with counsel, the trial judge immediately removed E.R. for cause. Given these
circumstances, this Court fails to see how raising an objection to the trial judge’s ex parte
interview would have changed the outcome of the proceedings to a reasonable probability,
particularly given the harmlessness of the trial judge’s error as previously described.
Accordingly, Claim IX is denied.
V.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Applying this standard, this Court finds that a certificate of appealability is only
appropriate on Claims I and III and shall not issue on the remaining claims.
VI.
CONCLUSION
For the foregoing reasons, Petitioner’s amended habeas petition is denied. An appropriate
order will be entered.
DATED: April 23, 2021
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
55
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