GREEN v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
23
OPINION filed. Signed by Judge Peter G. Sheridan on 09/10/2019. (jmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TYRIUS GREEN,
Civil Action No. 15-1886 (PGS)
Petitioner,
OPINION
V.
STEVEN M. D’ILIO, et al,
Respondents.
PETER G. SHERIDAN, U.S.D.J.
I.
INTRODUCTION
Petitioner Tyrius Green (“Petitioner”), a convicted criminal in the State of New Jersey, has
filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, challenging
a conviction and sentence imposed by the State for murder, possession of a firearm for an unlawful
purpose, and unlawful possession of a weapon. (ECF No. 3.) Respondents have filed a Response.
(ECF No. 10.) Petitioner filed a Traverse. (ECF No. 14.) For the reasons set forth below, the
Court will deny the Amended Petition on the merits.
II.
BACKGROUND
The charges against Petitioner arose from an incident that occurred on August 14, 2003 in
Trenton, New Jersey. The New Jersey Superior Court, Appellate Division set forth the facts, as
adduced at a jury trial, as follows:
At trial, Kenute Brown testified that at about 10:00 p.m. that night,
while Brown was purchasing crack-cocaine, he heard defendant
shout out, “Dred, Dred,” one of Brown’s nicknames. However,
when Brown started to approach defendant, defendant made it clear
that he was referring to another person, Edgerton Munroe, who also
went by the nickname, “Dred.” Brown told Munroe that defendant
wanted to speak to Munroe, and Munroe made his way over to
defendant. Brown could not recall what defendant was wearing that
night, but he “could see his face.” Defendant and Munroe walked
into an area known as “The Hole”, a dark, wooded area where
people “stopped to go get high, and [be] away from police.” A few
minutes later, Brown heard three to four gunshots coming from the
area where defendant and Munroe had just entered. About ninety
seconds from the time of the gunshots, Brown saw Munroe run from
“The Hole” and fall to the ground.
Patrolman Brian Kowalczyk of the Trenton Police Department
responded to the scene of the shooting. He observed Munroe, near
a curb, lying on the ground with a gunshot wound to his chest area.
Attempts to revive Munroe were unsuccessful; he was transported
to a local hospital, but Munroe died as a result of excessive bleeding
from a bullet wound.
(ECF No. 10-3, at 2—3 (alteration in original).)
During its investigation, the Trenton Police Department interviewed and obtained
statements from a number of individuals that had been near “The Hole” on the night of the incident,
including Kenute Brown, Carol Guerra, Aviva Fowler, Linda Brown, and Willie Peters. (Id. at 3—
4.) Guerra told police she had been at The Hole on the night of the incident getting high. (Id. at
4.) According to her statement,
two males came into the area and chased another man who was
wearing a light-colored shirt. She described one of the pursuers as
between five-eight and five-nine; the other was shorter. Both men
were dressed in black. The taller man had a black fedora type hat;
the shorter one wore a black ski mask. The taller man held a “Dirty
Harry [type of] gun.” Guerra heard gunshots and saw the taller man
following the male in the light-colored shirt, shooting at him.
Although she did not see their faces, when the two men in black
entered “The Hole”, Guerra had thought the taller man was
defendant, Tyrius Green, because of “his build and the way he
walked. Tyrius has a very distinctive walk, especially when he
thinks he is being macho.” Guerra had known defendant for between
ten and fourteen years.
(Id. (alterations in original).) At trial, however, Guerra testified that she did not pay a lot of
attention to what the men in black were doing and was focused at the time on getting high. (Id. at
2
4—5.) She also testified that she was high both times she spoke to police. (Id.)
Fowler was also present at The Hole on the night of the shooting “smoking ‘coke.” (Id.)
Fowler knew the defendant and recognized his walk. (Id. at 4-5.) She gave the following account:
Tyrius told him [Dred Brown] to tell Dred [Munroej that there was
a hundred dollar sell. [Munroej came back a few minutes later, and
when he came back, as soon as he came through the walkway,
Tyrius reached out and tried to grab him from the back, but Dred
dodged him and started to run
That is when Tyrius pulled the
gun out, aimed it at Dred and said Freeze. He said it again and then
fired. That is when I heard Dred say ouch but he kept running. The
second time that Tyrius fired the gun I saw Dred hop up off the
ground a little bit. I don’t think he was hit I think he was just saying
ouch because somebody was firing at him. Tyrius shot three times
back to back. Every time he shot the gun I saw sparks come out of
it. Then Tyrius and the short guy chased after “Dred”. Then I left
to go find my boyfriend everyone else that was back there ran out in
different directions.
.
.
.
.
(Id. (alterations in original).) At trial, Fowler indicated that she did not recall being in The Hole
at the time of the shooting but remembered being brought to the police station to sign papers and
testified that while she spoke with the detective she was “cracked out.” (Id. at 6.)
Two other witnesses testified at trial. Linda Brown was also in The Hole at the time of the
shooting and testified that she saw two men, one of whom was noticeably taller, enter the area.
(Id.) Both were dressed in black with scarves around their faces. (Id.) She testified that “[t]he
taller man shouted ‘Don’t move’ to a person who entered. He then proceeded to fire four shots.”
(Id. at 6—7.) Brown also testified that she knew Petitioner “her entire life” and at first believed
him to be the shooter. (Id. at 7.) “However, she could not positively identify him.” (Id.) Willie
Peters also testified that he was in The Hole that evening, but he did not see the shooting and only
heard three gunshots. (Id.) Peters also knew Petitioner since he was a child and “thought that he
saw [Petitioner] running from The Hole.” (Id.)
Petitioner was charged via indictment on May 26, 2004 with first-degree murder, N.J. Stat.
3
Ann.
§ 2C:l1-3(a)(1); first-degree felony murder, N.J. Stat. Ann. § 2C:11-3(a)(3); first-degree
robbery, N.J. Stat. Ann.
N.J. Stat. Ann.
§ 2C: 15-1; second-degree possession of a weapon for an unlawful purpose,
§ 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J. Stat. An.. §
2C:39-5(b). (Id. at 8.) The case proceeded to jury trial in May 2005. (Id.) At the close of evidence,
defense counsel moved for judgment of acquittal on all counts. (Id.) The trial court granted the
motion in part and dismissed the felony murder and robbery counts. (Id.) The jury found Petitioner
guilty of the remaining charges. (Id.) Petitioner was sentenced to a life term of imprisonment with
a 30-year period of parole ineligibility on the murder charge. (ECF No. 10-2.) The weapons
offenses were merged and Petitioner was sentenced to a ten-year prison term to run consecutive to
the life sentence on the murder charge. (Id.; see also ECF No. 10-3, at 2 & n.1.)
Petitioner appealed his conviction and sentence, and the Appellate Division affirmed his
conviction, but remanded for resentencing on June 17, 2008 due to a discrepancy between the
Court’s oral pronouncement of Petitioner’s sentence and the judgment of conviction. (ECF No.
10-3.) The New Jersey Supreme Court denied certification on October 6, 2008. (ECF No. 10-6.)
Petitioner then filed a petition for post-conviction relief (the “PCR Petition”) in the
Superior Court of New Jersey, Law Division on January 20, 2011. (ECF Nos. 10-7, 10-8.) The
PCR Petition was denied by the Superior Court of New Jersey, Law Division in a written opinion
issued on April 26, 2012. (ECF No. 17-4, at 218—48.) The PCR Court determined that Petitioner’s
claims were procedurally barred by New Jersey Court Rule 3:22-4 because the substantive issues
underlying his ineffective assistance of counsel claims had been previously adjudicated on appeal.
(Id. at 228—30.) Despite finding Petitioner’s claims to be procedurally barred, the PCR Court
additionally denied each claim on the merits. (Id. at 230—48)
Petitioner appealed that decision, and on April 30, 2014, the Appellate Division affirmed
4
the denial of his PCR petition. (ECF No. 10-14.) The Appellate Division agreed with the PCR
Court’s determination that Petitioner’s claims were not only procedurally barred, but also that his
claims lacked substantial merit. (Id.) Petitioner filed a petition for certification to the New Jersey
Supreme Court, which was denied on October 24, 2014. State v. Green, 220 N.J. 42 (2014).
Petitioner filed the instant habeas petition with this Court on March 6, 2015. (ECF No. 1.)
On March 27, 2015, this Court administratively terminated his petition for failure to use a proper
habeas form. (ECF No. 2.) Petitioner executed an amended petition on April 22, 2015 (the
“Amended Petition”). (ECF No. 3.) Respondents filed a timely answer to the Amended Petition.
(ECFNo. 10.)
On January 23, 2019, this Court entered an Order and Opinion finding that the Amended
Petition constituted a “mixed petition” as it contained a mix of exhausted and unexhausted claims.
(ECF Nos. 19, 20.) Accordingly, the Court declined to rule on the merits of the Amended Petition
and provided Petitioner with the opportunity to either (1) move for a stay and abeyance so he may
return to state court to exhaust his unexhausted claim or (2) request that this Court delete the
unexhausted claim and proceed only on his exhausted claim.1 (ECF No. 19, at 9.) This Court
advised that if Petitioner did not file any response, it would take his inaction as his assent to
proceed on his only exhausted claim—that the trial court’s erroneous jury instruction on
identification violated his due process rights under the Fifth and Fourteenth Amendments. (See
id. at 7, 9.) Petitioner did not file a timely response.
III.
LEGAL STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
In its prior Opinion, the Court additionally found that certain of Petitioner’s claims were not
cognizable under § 2254 as they pertained only to state law considerations. (See ECF No. 19, at 5
n.1.)
5
§ 2254, “a district court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a).
“[Section] 2254 sets several limits on the power of a federal court to grant an application
for a writ of habeas corpus on behalf of a state prisoner.” Cullen v. Pinhoister, 563 U.S. 170, 181
(2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). Section 2254(a) permits a court to
entertain only claims alleging that a person is in state custody “in violation of the Constitution or
laws or treaties of the United States.” Cullen, 563 U.S. at 181 (quoting
§ 2254(a)).
A federal court’s authority to grant habeas relief is further limited when a state court has
adjudicated petitioner’s federal claim on the merits. See 28 U.S.C.
§ 2254(d). If a claim has been
adjudicated on the merits in state court proceedings, this Court has ‘no authority to issue the writ
of habeas corpus unless [the state court’s] decision ‘was contrary to, or involved an unreasonable
application of, clearly established Federal Law, as determined by the Supreme Court of the United
States,’ or ‘was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Parker v. Matthews, 567 U.S. 37,40—41(2012) (quoting
§ 2254(d)). However, when “the state court has not reached the merits of a claim thereafter
presented to a federal habeas court, the deferential standards provided by the AEDPA
.
.
.
do not
apply.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting Appel v. Horn, 250 F.3d 203,
210 (3d Cir. 2001)).
When a claim has been adjudicated on the merits in state court proceedings, the writ shall
not issue unless the adjudication of the claim (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable
6
determination of the facts in light of the evidence presented in the state court proceeding. 28
U.S.C.
§ 2254(d); see also Parker, 567 U.S. at 40—41. A state-court decision involves an
“unreasonable application” of clearly established federal law if the state court (1) identifies the
correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts
of the particular case; or (2) unreasonably extends a legal principle from Supreme Court precedent
to a new context where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply. Williams
‘.
Tailor, 529 U.S. 362, 407 (2000). Federal courts
must follow a highly deferential standard when evaluating, and thus give the benefit of the doubt
to state court decisions. See Feikner v. Jackson, 562 U.S. 594, 598 (2011); Eley v. Erickson, 712
F.3d 837, 845 (3d Cir. 2013). A state court decision is based on an unreasonable determination of
the facts only if the state court’s factual findings are objectively unreasonable in light of the
evidence presented in the state-court proceeding. Miller—El
‘.
Cockrell, 537 U.S. 322, 340 (2003).
Moreover, a federal court must accord a presumption of correctness to a state court’s factual
findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C.
§ 2254(e);
see Rice v. Collins, 546 U.S. 333, 339 (2006) (petitioner bears the burden of rebutting presumption
by clear and convincing evidence); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) (factual
determinations of state trial and appellate courts are presumed to be correct).
IV.
DISCUSSION
Since the Court issued its Opinion finding that the Amended Petition constituted a mixed
petition, it requested from Respondents additional filings from the New Jersey Supreme Court out
of an abundance of caution and to confirm that Petitioner’s ineffective assistance of counsel claims
were, in fact, unexhausted. (See ECF No. 21.) Respondents filed copies of Petitioner’s petitions
for certification to the New Jersey Supreme Court on direct and post-conviction review, which
7
revealed that certain other of Petitioner’s claims were, in fact, exhausted. (See ECF Nos. 22, 221.) Accordingly, for the sake of completeness, the Court will now deny the Amended Petition in
its entirety on the merits pursuant to
§ 2254(b)(2). See § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”); see also Mahoney v. Bostel, 366 F. App’x 368,
371 (3d Cir. 2010).
A. Substantive Claims
1. Trial Court Erred in Denying Motion for Judgment of Acquittal
(Ground Eleven)
Petitioner contends that the trial court’s partial denial of his motion for judgment of
acquittal violated his federal due process right because the witness testimony elicited at trial did
not prove, beyond a reasonable doubt, that Petitioner was the shooter. Petitioner raised this issue
to the Appellate Division on direct appeal, which was “satisfied that sufficient evidence was
developed by the State to justify submitting to the jury the issue of defendant’s guilt on the charges
of murder, possession of a firearm for an unlawful purpose and unlawful possession of a firearm.”
(ECF No. 10-3, at 10.) The Appellate Division further explained that:
The State presented several witnesses who knew defendant and who
indicated defendant was present at the time of the shooting. At least
two of the witnesses gave statements that were admitted into
evidence in which they identified defendant as the shooter. Another,
who said that defendant was not wearing a mask at all, placed
defendant in the company of the victim immediately before the
shooting began. Accepting this evidence as true and drawing
reasonable inferences therefrom, a reasonable jury could and did
find him guilty of the crimes charged.
(Id. at 11.)
A motion for judgment of acquittal is a motion to challenge the sufficiency of the evidence
presented at trial. See Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979). In Jackson, the Supreme
8
Court instructed that where a petitioner claims that his conviction was against the weight of
evidence, “the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 319. “Stated differently, a court reviewing the sufficiency of
the evidence may overturn a conviction only ‘if it is found that upon the record evidence adduced
at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Eley
v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013) (quoting Jackson, 443 U.S. at 324). This inquiry
requires “federal courts to look to state law for ‘the substantive elements of the criminal offense,’
but the minimum amount of evidence that the Due Process Clause requires to prove the offense is
purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (citation omitted).
On habeas review, the factual findings of the state court are presumed to be correct, absent
clear and convincing evidence to the contrary. See § 2254(e)(l).2 As the trial court and Appellate
Division determined, there was ample evidence presented at trial on which the jury could rely to
find that Petitioner was the shooter. Nevertheless, Petitioner argues that the trial court should not
have submitted these charges to the jury because the evidence did “sufficiently establish beyond a
reasonable doubt that [he] [w]as the masked man who shot Munroe.” (ECF No. 1-2, at 34.) In
2
Petitioner did not fully exhaust this claim and, thus, the Court’s review is de novo. Collins ij’.
Sec’y of Pa. Dept. of Corrs., 742 F.3d 528, 544 n.9 (3d Cir. 2014) (“If there has been no
adjudication on the merits of a claim, ‘the federal habeas court must conduct a de novo review
over pure legal questions and mixed questions of law and fact.”) Nevertheless, the presumption
of correctness applied to state court findings of fact still applies. Id.; see also Bilal i’. Walsh, No.
11-1973, 2015 WL 10372429, at *6 (E.D. Pa. May 20, 2015). With its Answer, the State provided
transcripts of only three days of trial. (See ECF Nos. 10-15, 10-16 (May 3, 2005, jury selection);
ECF Nos. 10-17, 10-18, 10-19, 10-20 (May 5, 2005, witness testimony); ECF Nos. 10-21, 10-22,
10-23, 10-24 (May 10, 2005, witness testimony).) It is apparent from the Appellate Division’s
review of the record that there were additional days of witness testimony, the transcripts of which
were not filed with this Court. Accordingly, in its adjudication of this claim, the Court relies on
the available transcripts and the Appellate Division’s summary of the testimony set forth at trial.
9
support of his argument, Petitioner identifies the inconsistencies between the witness testimony
and their alleged lack of credibility as indicative of the lack of evidence to support the charges.
However, such issues are clearly for the jury to resolve. Jackson, 443 U.s. at 319 (observing that
it is “the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts”). The role of the
court in determining whether there is sufficient evidence to support a charge is only to determine
whether “after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.
at 3 18—19. Based on the evidence in the record, it is apparent that the determination of whether
Petitioner was the shooter required weighing the credibility of witnesses who testified at trial and
resolving the many inconsistencies in their testimony. Viewing that testimony in the light most
favorable to the prosecution, this Court is not convinced that no trier of fact could have found
Petitioner guilty beyond a reasonable doubt. As such, relief on this claim is denied.
2.
Error in Jury Instruction on Identification (Ground Twelve)3
Petitioner next argues that the trial courts charge to the jury on identification was
“unacceptably vague and contained gross misstatements of fact,” making it “capable of leading
the jury to a verdict it otherwise would not have reached.” (ECF No. 3, at 31.) The alleged “gross
As found in the Court’s January 23, 2019 Opinion, this claim was fully exhausted in the state
courts. Accordingly, the Court applies the AEDPA deferential standard of review.
In the Amended Petition, Petitioner raises multiple claims related to the trial court’s allegedly
erroneous instruction on identification:
Ground Twelve: The trial judge’s erroneous identification charge,
which was unacceptably vague and contained gross misstatements
of fact, was clearly capable of leading the jury to a verdict it
otherwise would not have reached. The severe potential for
prejudice caused by this erroneous charge is even greater when the
10
misstatement of fact” referred to by Petitioner is the trial court’s statement that certain witnesses
charge is evaluated against the prosecutors insidious presentation
of Guerra’s and Brown’s identification testimony. This violated
Petitioner’s right to due process, and equal protection of the law as
guaranteed by the United States Constitution and the Fifth, Sixth and
Fourteenth, Amendments thereto.
Ground Seventeen: In light of the nature and magnitude of the
judge’s misstatements during the identification charge, the ensuing
prejudice was not adequately diminished by the judge’s earlier
instruction that the jury “should” rely on its own recollection of the
evidence. This violated Petitioner’s right to due process, and equal
protection of the law as guaranteed by the United States Constitution
and the Fifth, Sixth, and Fourteenth, Amendments thereto.
Ground Eighteen:
The “mistake” of fact contained in the
identification charge was not “fleeting.” This violated Petitioner’s
right to due process, and equal protection of the law as guaranteed
by the United States Constitution and the Fifth, Sixth, and
Fourteenth, Amendments thereto.
[Gjround Twenty: The judge’s instructions that the jury “should”
rely on its own recollection of the evidence did not diminish the
potential for prejudice cause[d] by the mistake in the identification
charge when the jury’s recollection of the identification evidence
was sure to have been tainted by the prosecutor’s misleading
examination of key eyewitnesses. This violated Petitioner’s right to
due process, and equal protection of the law as guaranteed by the
United States Constitution and the Fifth, Sixth and Fourteenth,
Amendments thereto.
Ground Twenty-One: Contrary to the well-settled principle that an
error in a jury charge must not be evaluated in a vacuum, the
Appellate Division failed to consider the prosecutor’s misleading
questioning of two eyewitnesses in measuring the potential for
prejudice created by the mistake in the identification charge. This
violated Petitioner’s right to due process, and equal protection of the
law as guaranteed by the United States Constitution and the Fifth,
Sixth and Fourteenth, Amendments thereto.
Because each of these claims, ultimately, rests on whether the trial court’s identification instruction
violated Petitioner’s right to due process, the Court will consider them together as one claim for
relief.
11
at trial “identified the defendant in court as the person who committed the offenses charged.” (Id.)
No in-court identification was made at trial. Petitioner contends that this error, when viewed in
light of the entire trial record, violated his right to due process under the Fifth and Fourteenth
Amendments. (Id.)
With respect to identification, the trial court gave the following detailed instruction to the
jury:
Now, the defendant as part of his general denial of guilt, contends
that the State has not presented sufficient reliable evidence to
establish beyond a reasonable doubt that he is the person who
committed the alleged offense. The burden of proving the identity
of a person who committed the crime is, of course, upon the State.
For you to find the defendant guilty, the State must prove beyond a
reasonable doubt that this defendant is the person who committed
the crime. And as I told you before, the defendant has no burden to
produce evidence or that he is not the person who committed the
crime. The defendant has neither the burden nor the duty to show
that the crime that was committed was committed by someone else,
or to prove the identity of that other person.
You must determine, therefore, not only whether the State has
proved each and every element of the offense charged beyond a
reasonable doubt, but also, whether the State has proved beyond a
reasonable doubt that this defendant is the person who committed it.
Now, the State, in trying to meet that burden, presented the
testimony of several witnesses who identified the defendant. You
will recall that these witnesses identified the defendant in court as
the person who committed the offenses charged. The State also
presented testimony that on a prior occasion before this trial
witnesses made such an identification-identified the defendant as the
person who was, you may conclude circumstantially or directly or
however you conclude, that the defendant was-the identification of
the defendant was based upon the observations and perceptions they
made of the perpetrator at the time the offense was being committed.
It is your function to determine whether the witness’s identification
of the defendant is reliable and believable, or whether it is based on
mistake, or for any reason is not worthy of belief. You must decide
whether it is sufficiently reliable evidence upon which to conclude
that this defendant is the person who committed the offenses
charged.
12
In evaluating these identifications, you should consider the
observations and perceptions on which the identifications were
based, and the witness’s ability to make those observations and
perceptions. If you determine that the out-of-court identification is
not reliable, you must still consider the witness’s in-court
identification of the defendant, if you find it to be reliable.
Unless the in-court identification resulted from the witness’s
observation or perceptions of the perpetrator during the commission
of the offense, rather than being the product of an impression gained
at the out-of-court identification procedure, it should be afforded no
weight. The ultimate issues of the trustworthiness of the in court and
out-of-court identifications are for you to decide.
Fundamentally, there are, as you see, three levels of identification:
Identification of the alleged perpetrator at the observation of the
witnesses; the subsequent prior identifications through looking
through the photo array or identifying photograph; and thirdly, the
in-court. So, you make the determinations as I’ve just instructed you.
If you have any questions, look at this. If you have any further
questions, you’ll let me know and I’ll try to explain it further.
To decide whether identification testimony is sufficiently reliable
upon which to conclude that this defendant is the person who
committed the offenses charged, you should evaluate the testimony
of the witness in light of the factors for considering credibility that
I’ve already explained to you. In addition, you may consider the
following factors: The witness’s opportunity to view the person who
committed the offense at the time of the offense; the witness’s degree
of attention on the perpetrator when he or she observed the crime
being committed; the accuracy of any description the witness gave
prior to the identification of the perpetrator; the degree of certainty
expressed by the witness in making the identification; the length of
time between the witness’s observation and the offense at the first
identification;
discrepancies
or
inconsistencies
between
identifications; the circumstances under which the out-of-court
identification was made; here, the single and multiple photograph
arrays presented to the witness by the police; or any other factor on
the evidence which-or lack of evidence in this case which you
consider relevant to your determination whether identifications were
reliable.
If, after all of the considerations of the evidence, you determine the
State has not proven beyond a reasonable doubt that the defendant
was the person who committed these crimes, then you must find the
13
defendant not guilty. On the other hand, after consideration of all the
evidence you are convinced beyond a reasonable doubt that the
defendant was correctly identified, then you will consider whether
the State has proven each and every element of the offenses charged
beyond a reasonable doubt.
(ECF No. 10-3, at 14—17 (emphasis in original to identify the allegedly objectionable portion)).
On direct appeal, the Appellate Division determined that “[wihen viewed as a whole, this
jury instruction was adequate.” (Id. at 17.) Although the Appellate Division acknowledged that
the trial court was mistaken in how it described the identifications, it held that the mistake did not
have “the capacity to prejudice defendant so much as to offend all notions ofjustice.” (Id.) In so
holding, the Appellate Division explained that “the misstatement was fleeting and it did not
concern an element of an offense or some other legal issues. Rather, it related to the judge’s
recollection or recounting of events that occurred in open court and in the presence of the jury.”
(Id. at 18—19.) Accordingly, the Appellate Division observed, the effect of the factual error was
limited by the trial court’s later instruction that “regardless of what I may have said in recalling
the evidence in this case, it is your recollection of the evidence that should guide you as sole judges
of the facts.” (Id. at 19.)
“[Hjabeas review of jury instructions is limited to those instances where the instructions
violated a defendant’s due process rights. Echols v. Ricci, 492 F. App’x 301, 312 (3d Cir. 2012)
(citing Estelle v. McGuire, 502 U.S. 62, 7 1—72 (1991) (holding that “[t]he only question for us is
whether the ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process”)); see also Middleton v. McNeil, 541 U.S. 433, 437 (2004). A petitioner’s
due process rights are violated where the instruction “operated to lift the burden of proof on an
essential element of an offense as defined by state law.” Echols, 492 F. App’x at 312 (quoting
Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997)).
14
An error in the jury instructions is not grounds for habeas relief if the error is harmless.
Pagliaccetti
12.
Kerestes, 581 F. App’x 134, 136 (3d Cir. 2014) (citing Yohn v. Love, 76 F.3d 508,
522 (3d Cir. 1996)). An error is harmless unless it “had substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Edwards v. New Jersey, No. 136523, 2015 WL 5007824, at *5 (D.N.J. Aug. 20, 2005) (“In determining whether there is harmless
error, the court examines the impact of the error on the trial as a whole.”). The effect of an
allegedly erroneous jury instruction “must be viewed in the context of the overall charge.” Cupp
v. Naughten, 414 U.S. 141, 147 (1973). Thus, the relevant question “is not whether the trial court
failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by
itself so infected the entire trial that the resulting conviction violates due process.” Id. at 148.
The Appellate Division’s determination that the trial court’s error in the jury instruction on
identification was harmless was not contrary to federal precedent nor was it an unreasonable
application of that law. Looking to the charge as a whole, and in consideration the fact that “a
judgment of conviction is commonly the culmination of a trial which includes testimony of
witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the
judge,” Cupp, 414 U.S. at 147, the trial court’s apparent error in the jury instructions was unlikely
to have an effect on the outcome of the trial. The trial court clearly instructed the jury that it was
to weigh the evidence presented by the State on identification to determine if Petitioner committed
the crimes at issue and further explained that it was the jury’s “recollection of the evidence that
should guide [itj as sole judges of the facts.” (See ECF No. 10-3, at 18.) Any error in those
Petitioner nevertheless argues that when paired with the “misleading” manner in which the
prosecutor questioned the identification witnesses, the trial court’s reference to in-court
identifications acted to deprive him of due process. The Appellate Division described the
15
instructions did not act to lift the State’s burden of establishing beyond a reasonable doubt that
Petitioner was the shooter. Relief on this claim is denied.
3. Trial Court Erred in Instructing Jury It Could Not Consider Evidence
of Premeditation (Ground Thirteen)
Petitioner next argues that the trial court erred in instructing the jury that it could not
consider evidence of premeditation (or the lack thereof) in response to a question from the jury
regarding its deliberation on the charge of knowing of purposeful murder and that the trial court’s
error violated his due process rights. It appears that during its deliberation, the jury submitted to
the trial court the following question: “Is premeditation a factor in considering question 1A.”
(ECF No. 1-2, at 31.) Question 1A referred to Petitioner’s charge for knowing and purposeful
murder. (See id.) The Court responded that “[t]he simple answer is no” and that premeditation is
“not a factor.” (Id.)
Petitioner raised this claim to the Appellate Division on his direct appeal. The Appellate
Division rejected his claim, holding that the trial court’s response was ‘essentially correct.” (ECF
misleading questioning to which Petitioner takes issue as follows:
The prosecutor inquired of both [Guerra and Linda Brown] how the
assailant was dressed. Immediately after he had elicited the
description of a man in black from the witnesses, the prosecutor
asked the witnesses if they knew Tyrius Green. Defendant contends
this creates an inference by proximity in questioning that the man in
black was in fact defendant, Tyrius Green.
(ECF No. 10-3, at 19.) Whether or not the prosecutor’s questioning of Guerra and Linda Brown
was in fact “misleading,” it did not appear to create some mistaken impression that Guerra and
Linda Brown identified Petitioner in court as the shooter. Guerra and Linda Brown were not the
only witnesses who testified that they believed Petitioner to have been the shooter nor were they
the only witnesses who identified him as such. Moreover, while Petitioner argues that the
Appellate Division inappropriately considered the charge in a vacuum, the Appellate Division
clearly considered the impact of the prosecutor’s questioning on the jury and found that it was not
misleading. (See id.) As such, the Court does not find that the prosecutor’s style of questioning
created some misunderstanding that witnesses identified Petitioner as the shooter in court.
16
No. 10-3, at 20—2 1.) The Appellate Division explained:
Premeditation was not a statutory element of murder under the
circumstances of this case. One may be convicted for first degree
murder without motive or malice aforethought. Indeed, N.J.S.A.
2C: 11-3 instructs that a defendant must have committed the offense
knowingly or purposefully. The trial court had carefully outlined
the applicable states of mind in its jury charge. Again, there was no
objection to [the] charge at trial, and we have no reason to speculate
that a more comprehensive discussion of premeditation would have
led to a different result.
(Id.)
As this claim pertains to jury instructions, which are primarily a matter of state law,
Petitioner must show that the instruction violated his right to due process under the Fifth and
Fourteenth Amendments to be entitled to habeas relief. See Estelle, 502 U.S. at 71—72. An
erroneous jury instruction arises to such a violation where it “has substantial an injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. The Court discerns no reason
to disturb the decision of the Appellate Division on this claim. The Appellate Division determined
that the trial court’s answer to the jury’s question was correct under state law. Even under a de
novo standard of review, the Court sees no reason to disturb that finding. Relief on this claim is
therefore denied.
4. Trial Court Erred in Permitting Prosecutor’s Reference to Arrest
Warrant (Ground Fourteen)
Petitioner next argues that the prosecutor’s references to the warrant for his arrest during
trial were highly prejudicial and violated his due process rights under the Fifth and Fourteenth
Amendments. During the testimony of Detective McMillan, there were several references made
to the warrant for Petitioner’s arrest. First, Detective McMillan indicated that an arrest warrant
was issued “[b]ased on the information gathered from the statements and IDs made, we were able
to issue an arrest warrant for the arrest of Tyrius Green for his involvement in the death of Edgerton
17
Munroe.” (ECF No. 10-22, at 13.) The prosecutor thereafter clarified when the arrest warrant had
been issued and asked Detective McMillan to explain the efforts taken by law enforcement to
effectuate Petitioner’s arrest. (See id. at 15—16.)
Petitioner raised this claim to the Appellate Division on his direct appeal. The Appellate
Division determined that Det. McMillian’s testimony did not influence the jury as he “did not
directly testify or imply that a judge made any determination beyond the existence of probable
cause or that there had been reliance on evidence other than the investigatory material made known
to the jury.” (ECF No. 10-3, at 22.)
It is well-established that the violation of a right created by state law is not cognizable as a
basis for federal habeas relief. Estelle, 502 U.S. at 67—68 (“We have stated many times that
‘federal habeas corpus relief does not lie for errors of state law.” (quoting Lewis v. Jeffers, 497
U.S. 764, 780 (1990))). Accordingly, Petitioner cannot obtain relief for any errors in state law
evidentiary rulings, unless they rise to the level of a deprivation of due process. Spencer v. Texas,
385 U.S. 554, 563—64 (1967) (“{T]he Due Process Clause guarantees the fundamental elements of
fairness in a criminal trial”); accord Estelle, 502 U.S. at 70. For a habeas petitioner to prevail on
a claim that an evidentiary error amounted to a deprivation of due process, he must show that the
error was so pervasive as to have denied him a fundamentally fair trial. Keller v. Larkins, 251 F.3d
408, 413 (3d Cir. 2001).
Petitioner has not demonstrated that the references to his arrest warrant were in error, let
alone acted to deny him a fundamentally fair trial. The references to the arrest warrant were
general and acted only to explain law enforcement’s investigation and the eventual arrest of
Petitioner. Petitioner’s conclusory statement that these references were “highly prejudicial” fails
to demonstrate that he was deprived his right to due process under the federal constitution.
18
Accordingly, relief on this claim is denied.
5. Admission of Written Witness Statements (Ground Fifteen)
Petitioner next argues that the trial court’s admission of the written statements made to
police by Fowler and Guerra violated his due process rights under the Fifth and Fourteenth
Amendments. At trial, the prosecutor read into evidence relevant portions of the statements made
by Fowler and Guerra to impeach their trial testimony and refresh their recollections. Thereafter,
the prosecutor moved to have the written copies of the statements admitted as substantive evidence.
Over the objection of defense counsel, the trial court admitted the written copies of the statements.
On direct appeal, Petitioner raised this issue, arguing that the admission of the written statements
was cumulative and unduly prejudicial under New Jersey Rule of Evidence 403. (ECF No. 10-3,
at 23.) The Appellate Division held that the statements were properly admitted as substantive
evidence as they were prior inconsistent statements. The Appellate Division explained:
At least two of the witnesses, Carol Guerra and Aviva Fowler,
recanted or seriously retreated from their earlier identifications of
defendant while they were being cross-examined. Indeed, Fowler
claimed she signed blank sheets and implied she would have said
anything in order to receive money she needed to satisfy her
addiction. The admission of the prior statements was not, under
such circumstances, cumulative or unduly prejudicial to defendant.
For example, the trial court ruled the jury had a right to examine the
placement of Fowler’s signature in relation to the content of her
statement. They would then weigh the credibility of her claims that
her statements had been fabricated by the investigators. This was
an exercise of discretion by the trial court to which we must pay
deference.
(Id. at 24.)
A state law evidentiary ruling may only be the basis for federal habeas relief where the
admission of the evidence violated federal due process. Estelle, 502 U.s. at 7 1—72; Marshall v.
Lonberger, 459 U.5. 422, 438 n.6 (1983) (“[T]he Due Process Clause does not permit the federal
19
courts to engage in a finely-tuned review of the wisdom of state evidentiary rules.”). To prevail
on a due process claim, a petitioner “must prove that he was deprived of ‘fundamental elements of
fairness in [his] criminal trial.” Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014) (alteration in
original) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992)).
Petitioner has not demonstrated that the admission of these statements caused any
deprivation of the fundamental elements of fairness of his trial. As the Appellate Division found,
the statements were properly admitted under New Jersey evidence law.
Petitioner’s vague
assertions that that the admission of the written statements was “unnecessary” and “highly
prejudicial” are insufficient to demonstrate that his due process rights were violated.
See
Zettlernoyer v. Fulcorner, 923 F.2d 284, 301 (3d Cir. 1991) (“[B]ald assertions and conclusory
allegations do not provide sufficient ground.
.
.
to require an evidentiary hearing.”). According,
relief on this claim is denied.
6. Trial Court Erred in Giving Flight Charge (Ground Sixteen)
Petitioner next claims that his federal right to due process was violated by the trial court
providing the jury with a flight instruction. At the charge conference, the trial court agreed with
the State that a flight charge was appropriate, over the objection of defense counsel:
[THE PROSECUTOR]: Also the State would be asking for flight.
THE COURT: I’m going to give flight and I’m going to give the
jury the opportunity to determine whether the propitious appearance
of the defendant in the Bronx, two, three, four days after the event
can be considered if they so desire, and the flight charge is broad
enough to permit the jury to make that determination. I think the
cross-examination of Ms. Green invites the use of that charge, and
[the prosecutorl is commended for his adroitness, his occasional
adroitness.
[DEFENSE COUNSEL]: Your Honor, on that point, I don’t see that
20
any evidence at all was produced that he ran away from anything or
he was fleeing.
THE COURT: Well, you have a situation where the event took
place on the 14th into the morning of the l5”. The defendant is seen
on the streets, he is not seen on the streets thereafter. Detective
McMillan goes out to look for him, leaves, according to his
testimony, cards, knocks on the door, whatever he does three or four
times, and the defendant is arrested in the Bronx. So, from that, the
only person who truly knows why he was in the Bronx at that time
is the defendant. It might be extremely innocent to see his sister
because he goes up there a lot of times or he’s looking to get out of
the area because he knows people are talking that he shot somebody.
That is a jury call.
[DEFENSE COUNSEL]: But your honor, there’s no testimony that
he knew he was being pursued.
THE COURT: No, no, the idea of flight refers to the essence of a
feeling of good and/or apprehension, potential of apprehension.
Now, if he had nothing to do with it, is totally innocent, totally gone,
not part of the scene, that would be your innocent aspect. I mean,
have you looked at the charge?
[DEFENSE COUNSEL]: Yes, your Honor.
THE COURT: It simply says it gives the opportunity of the jury to
make a determination.
(ECF No. 10-24, at 16—17.) On direct appeal, the Appellate Division held that the charge was
appropriately given, noting that
While there was not a great deal of evidence that defendant was
aware he was being sought or that he specifically fled to avoid
capture, there was evidence that he was with Munroe immediately
before Munroe was shot and that he left the scene of a shooting after
the incident. He went to his sister’s residence in New York.
Whether his objective was to avoid the police, who attempted to
arrest him at his own home, or merely to visit his sister was a
legitimate issue for the jury to consider. The charge did not, in any
event, deprive defendant of a fair trial.
(ECF No. 10-3, at 25.)
As discussed above, a federal court’s review of jury instructions on a
21
§ 2254 petition is
limited to instances where the instructions violated the petitioner’s due process rights. Ricci, 492
F. App’x at 312. An error in the jury instructions can only be a basis for habeas relief where it had
a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.s.
at 637. The provision of the flight charge did not violate Petitioner’s due process rights. The
charge was appropriately given under New Jersey law, which permits the jury to determine
whether certain conduct of a defendant may be evidence of flight. See State v. Williams, 919 A.2d
90, 96—97 (N.J. 2007).
Petitioner has not demonstrated that the charge had a substantial or
injurious effect on the jury’s verdict. Accordingly, habeas relief is denied.
B. Ineffective Assistance of Counsel Claims6
The test announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984), governs claims that a Petitioner was denied a fair trial because his counsel provided
ineffective assistance. See Lafler v. Cooper, 566 U.S. 156, 162—63 (2012) (applying Strickland
test). The Strickland test has two prongs:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
6
Certain of Petitioner’s ineffective assistance of counsel claims were dismissed by the PCR Court
as procedurally barred, creating the possibility that Petitioner’s claims have been procedurally
defaulted for the purpose of federal habeas relief. See Trevino v. Thaler, 569 U.S. 413,421(2013).
Procedural default is an affirmative defense to be raised by respondents. Tucker v. Warren, No.
13-2908, 2016 WL 3010535, at *89 (D.N.J. May 25, 2016). Respondents did not raise this
argument in their briefing. While this Court has the discretion to raise this issue sua sponte, Evans
v. Secretary Pennsylvania Department of Corrections, 645 F.3d 650, 657 n. 12 (3d Cir. 2011), it
declines to do so here.
22
The first prong of the test “requires a defendant to show ‘that counsel’s representation fell
below an objective standard of reasonableness.” Lafler, 566 U.S. at 163 (quoting Hill v. Lockhart,
474 U.S. 52, 57 (1985)). There is “a strong presumption that counsels conduct falls within the
wide range of reasonable professional assistance: that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the
benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam).
“In cases in which the record does not explicitly disclose trial counsels actual strategy or
lack thereOf.
.
.
the presumption may only be rebutted through a showing that no sound strategy
posited [by the Respondent] could have supported the conduct.” Thomas v. Varner, 428 F.3d 491,
500 (3d Cir. 2005) (citing Yarborough, 540 U.S. at 8). “[The Antiterrorism and Effective Death
Penalty Act] requires that [habeas courts] ‘determine what arguments or theories supported
.
.
.
or
could have supported, the state court’s decision.” Collins, 742 F.3d at 548 (quoting Harrington
v. Richter, 562 U.S. 86, 102 (2011)).
The second prong of the Strickland test, prejudice, requires a defendant to show that “there
is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding
would have been different.” Id. at 546 (quoting Strickland, 466 U.S. at 694). The “ultimate focus”
of the prejudice inquiry is on the fundamental fairness of the proceeding. Lafler, 566 U.S. at 179
(quoting Strickland, 466 U.S. at 696). “A reasonable probability is one ‘sufficient to undermine
confidence in the outcome.” Collins, 742 F.3d at 547 (quoting Strickland, 466 U.S. at 694).
“Prejudice is viewed in light of the totality of the evidence at trial and the testimony at the collateral
review hearing.” Id. (citing Rolan
ij’.
Vaugh, 445 F.3d 671, 682 (3d. Cir. 2006)).
23
1. Failure to Move for a New Trial (Ground Two)
V
Petitioner asserts that his counsel was ineffective by not filing a motion for a new trial
based on the State’s alleged failure to “prove all the elements of either murder [or] the weapon
offenses” and because the verdict was against the weight of evidence. (ECF No. 1-2, at 17.) The
PCR Court denied this claim as Petitioner had failed to demonstrate either that his counsel was
deficient by not moving for a new trial or that he was prejudiced by that failure. (ECF No. 17-4,
at 239—40.) Moreover, the PCR Court highlighted that Petitioner had, on direct appeal, requested
the Appellate Division overturn his conviction as against the weight of evidence. (Id. at 240.)
Petitioner has not demonstrated that his counsel was ineffective for not moving for a new
trial. As this Court discussed above, see supra at 8—11, there was sufficient evidence presented at
trial on which to find Petitioner guilty beyond a reasonable doubt. Counsel cannot be deemed
ineffective for failure to bring a motion that would have been unsuccessful. See Werts v. Vaughn,
228 F.3d 178, 203 (3d Cir. 2000). This claim is denied.
2. Failure to Object to Trial Court’s Jury Charge on Identification (Ground
Three)7
Petitioner next contends that his counsel was constitutionally deficient by not objecting to
“
Petitioner also raises this claim in Ground Twenty-Four of the Petition, which states:
Trial counsel did not provide adequate legal representation to the
defendant as a result of his failure to object to the trial court’s charge
to the jury regarding identification when the court erroneously
indicated several witnesses had identified the defendant in court as
having been the perpetrator. This violated Petitioner’s right to due
process, and equal protection of the law as guaranteed by the united
states constitution and the Fifth, Sixth and Fourteenth Amendments
thereto.
(ECF No. 3, at 48.)
24
a misstatement of fact made by the trial court in instructing the jury on the issue of identification.8
Specifically, the trial court instructed the jury that “[y]ou will recall that these witnesses identified
the defendant in court as the person who committed the offenses charged.” However, none of the
witnesses made in-court identifications of the defendant as the shooter at trial.
On its merits, the PCR Court denied this claim as counsel’s failure to object did not fall
below the standard for competent representation. (ECF No. 17-4, at 241—43.) In so holding, the
PCR Court relied upon the Appellate Division’s determination on Petitioner’s direct appeal that
“as a whole the jury instruction was adequate
.
.
.
though the jury instruction was not perfect, we
do not conclude that the mistake had the capacity to prejudice the defendant so much as to offend
all notions of justice.” (Id. at 243.) The Appellate Division reiterated this finding in Petitioner’s
appeal of his PCR Petition, holding that even if counsel had been deficient by not objecting to the
instruction, the “fleeting misstatement in the identification instruction did not have the capacity to
undermine confidence in the outcome of defendant’s trial.” (ECF No. 10-14, at 9—10.)
The ruling of the Appellate Division on this claim was not unreasonable as Petitioner
cannot demonstrate any prejudice that resulted from his counsel’s failure to object to the trial
court’s misstatement in the jury instruction on identification. As discussed above, any error in the
jury instructions was harmless and did not have an injurious effect on the jury’s verdict. Petitioner
cannot demonstrate that had his counsel objected to the instruction, the outcome of trial reasonably
would have been different. Therefore, relief on this claim is denied.
3. Failure to Object at Trial (Ground Four)
Petitioner next asserts that his counsel was constitutionally deficiency because his “failure
8
The Court’s review of the additional documents submitted by the State demonstrates that this
claim was duly exhausted. (See ECF No. 22-1, at 6—10.) Accordingly, the Court will apply
AEDPA deference.
25
to object was pervasive throughout the trial and highly prejudicial to the Defendant.” (ECF No.
1-2, at 19.)
Petitioner contends that “counsel’s consistent failure to object to extremely
suspect/prejudicial identification testimony deprived Defendant of his Sixth Amendment right to
effective assistance of counsel.” Nevertheless, Petitioner fails to identify for the Court the specific
testimony to which his counsel should have objected. Accord Zettlemoyer, 923 F.2d at 301
(requiring more than conclusory allegations to grant an evidentiary hearing on a petition for habeas
relief). Nor does Petitioner indicate that the outcome of trial would have been different had his
counsel objected to such testimony. See Collins, 742 F.3d at 546. For these reasons, relief on this
claim is denied.
4. Failure to Object to Trial Court’s Jury Instruction on Premeditation (Ground
Five)
Petitioner claims that his counsel was ineffective because he did not object to the trial
court’s instruction to the jury that it could not consider premeditation as a factor of knowing or
purposeful murder. (ECF No. 1-2, at 19—20.) The trial court issued this instruction following a
question from the jury during its deliberation.
The PCR Court rejected this claim because
“premeditation was not a statutory element of murder under the circumstances.” (ECF No. 17-4,
at 245—46.) The Appellate Division held the same in Petitioner’s direct appeal in which he argued
that the trial court’s response constituted reversible error.
Petitioner has not shown that his counsel was deficient for failing to object to the trial
court’s instruction on meditation.
At the time of trial, premeditation was not an element of
knowing or purposeful murder under New Jersey law, the charge which was pending against
Petitioner. See N.J.S.A. 2C: 1 1-3. Because premeditation was not a relevant factor, the trial court’s
instruction was not in error and there was no reason for counsel to object to it. Accordingly,
Petitioner is not entitled to relief on this claim.
26
5. Failure to Object to Prosecutor’s Reference to Arrest Warrant (Ground Six)
Petitioner next argues that his counsel was deficient for failing “to raise an objection to the
prosecutor’s repeated references to a warrant” for his arrest.
As discussed, supra, Detective
McMillan testimony at trial included references to the warrant for Petitioner’s arrest—specifically
when law enforcement obtained the warrant and how Petitioner’s arrest was effectuated. During
this testimony, Detective McMillan indicated that on the date of Petitioner’s arrest he had been
contacted by the New York Police Department that Petitioner was in custody and had been arrested
on the arrest warrant for the Munroe shooting. (See ECF No. 10-22, at 16—17.) Petitioner asserts
that his counsel should have objected to this testimony because it permitted the jury to infer that
he was in the custody of the NYPD for some other offense, as opposed to the Munroe shooting.
(ECF No. 1-2, at 22.)
While Petitioner argues that his counsel failed to object to this testimony, the record does
not lend him any support. During Detective McMillan’s testimony, his counsel made multiple
objections to questions related to Petitioner’s arrest warrant and his arrest:
[THE PROSECUTOR]: Now, an arrest warrant is issued, when was that
arrest warrant issued?
[DEFENSE COUNSEL:]: Your, honor, I’m going to object to this.
[THE PROSECUTOR]: Detective, did there come a time when you made
trip up to the Bronx?
[THE WITNESS]: Yes.
[THE PROSECUTOR]: And what happened when you made a trip up to
the Bronx?
[THE WITNESS]: We made a trip up to the Bronx because we had been
informed by law enforcement personnel
—
[DEFENSE COUNSEL]: Your Honor, I’m going to object.
27
(ECF No. 10-22, at 13—14, 16.) Defense counsel cannot be ineffective where he did, in fact, object
to the issues complained of by Petitioner. Moreover, although Petitioner argues that Detective
McMillan’s testimony permitted the jury to assume Petitioner was arrested for conduct other than
the Munroe shooting, it was clear from his testimony that Petitioner was arrested on the Trenton
warrant for the shooting. (See Id. at 17 (indicating that Petitioner was “arrested on the Trenton
warrant”). Petitioner’s claim therefore fails under both Strickland prongs and is denied.
6. Failure to Object to Admission of Character Evidence (Ground Seven)
Petitioner next asserts that his counsel was ineffective for failing to object to “various forms
of other-conduct evidence during trial.” (ECF No. 1-2, at 23.) Petitioner maintains that certain
evidence presented by the State was intended to portray Petitioner “as a person who acted Macho
and called people offensive names,” and further “as some[onej significantly involved in selling
drugs and otherwise using drugs as a means of paying for services rendered.” (Id.) In this respect,
Petitioner contends that his counsel should have objected to the following testimony: (1) testimony
from Guerra that “The Hole” was an area in which people used drugs and that Petitioner frequented
“The Hole” for that purpose; (2) testimony from Kenute Brown that Petitioner had called him a
“pussy”; and (3) testimony from multiple witnesses that the “The Hole” was a known area for
drug-use. (See id. at 23—26.) Petitioner alleges that had his counsel objected to this testimony,
“the trial court would have been required to preclude the evidence.” (Id. at 27.)
Petitioner’s claim fails as he has not demonstrated that he was prejudiced by his counsel’s
failure to raise these objections. First, testimony regarding “The Hole” and the type of activity
that was conducted there was not “other crimes” evidence as the testimony was not specific to
Petitioner’s behavior at “The Hole.” Rather, it pertained to “The Hole” itself. Thus, any objection
to this testimony as improper “other crimes” evidence would have been overruled. Counsel cannot
28
be deemed ineffective for not raising such meritless arguments. See I’Verts, 228 F.3d at 203.
Moreover, had the other testimony been excluded at trial, there is no indication that the
jury would have come to a different outcome. Petitioner cannot show that Mr. Brown’s testimony
that Petitioner called him a “pussy” somehow impacted the jury’s verdict where there was
significant other evidence presented as to Petitioner’s guilt. Thus, even if this Court were to find
that Petitioner’s counsel was deficient for not objecting to this testimony, his claim cannot succeed
on the prejudice prong of Strickland.
7. Failure to Raise Issue of Tainted Jury (Ground Eight)
Petitioner claims that as a result of his counsel’s alleged deficient performance, he was
denied his right to an impartial jury. Specifically, Petitioner takes issue with his counsel’s failure
to request that Juror No. 11 be excused after he disclosed previously had interacted with the state’s
medical expert. This disclosure came in the midst of trial proceedings. After the juror came
forward, the trial judge briefly questioned him on his interaction with the expert:
THE COURT: [I]f I can recount it myself, and you can correct me
if I’m wrong, the fact that you did not recall when we first asked
about the witnesses, whether you didn’t recall Dr. Ahmad having
somehow been involved with a death that befell your daughter, and
she of necessity is required under state law to do an autopsy. I
imagine an autopsy was done?
—
JUROR NO. 11: No, she didn’t. She reviewed all the medical work
and all the paperwork. She delayed the burial for a day or two.
THE COURT: Because of the necessity of that?
JUROR NO. 11: Yes.
THE COURT: Now, do you believe that would impact you in any
fashion?
JUROR NO. 11: No.
THE COURT: You were just being conscientious?
JUROR NO. 11: The only fact that she delated the burial clicked in
my mind.
29
THE COURT: And you think notwithstanding that, you can make
a fair decision?
JUROR NO. 11: Yes.
(ECF No. 10-24, at 14.) After the juror was dismissed, the following colloquy occurred between
the judge and counsel:
THE COURT: I preempted either one of [you from examining]. I
think it was fairly evident on its face that he clearly possessed a
capacity to continue, and didn’t question it long enough, and I didn’t
question[j the capacity to make a decision impartially and fairly
notwithstanding the circumstances surrounding his daughter. I
should have asked how long ago it was, but it was long enough that
he didn’t remember her. So if you have any problems with that.
[PROSECUTOR]: I agree, your Honor.
THE COURT: Any problem with that, Mr. Weissman?
[DEFENSE COUNSEL]: No, your Honor, there’s no problem at
this juncture. I’m just concerned a little with the fact that you know
he did emphasize the fact the only way it came to his attention is it
delayed the burial, and anybody losing anybody real close to them,
everybody looks for closure there, and he said it delayed a day or
two. I mean he had a smile on his face.
THE COURT: I think his demeanor was very genuine and
ingenuous, and I was comfortable with the fact that he did not have
a problem and he has so represented it, so we’ll deal with that as it
is.
(Id.)
Defendant asserts that he was prejudiced by his counsel’s failure to object to the trial
court’s decision to retain the juror because “the insufficient inquiry resulted in a possibility that
every single juror was exposed to extraneous information that the state’s expert was so thorough
in the medical profession that perfection was exalted above expected deadlines.” (ECF No. 1-2,
at 29.) Petitioner further takes issue with counsel’s failure to request the trial court provide the
jury with more stringent instructions on their duty not to discuss the case with each other or review
30
media regarding the proceeding. (id. at 30.)
Petitioner, however, cannot demonstrate he suffered any prejudice under Strickland as a
result of his counsel’s failure to object to the retention of Juror No. 11 and to the trial court’s
apparent deficient instruction of the jury. A defendant’s right to ajury trial guarantees “a fair trial
by a panel of impartial, ‘indifferent’ jurors.” Ir’in v. Dowd, 366 U.S. 717, 722 (1961). However,
“due process does not require a new trial every time a juror has been placed in a potentially
compromising situation.” Smith v. Phillips, 455 U.S. 209, 217 (1982). Indeed, “[t]he safeguards
of juror impartiality, such as voir dire and protective instructions from the trial judge, are not
infallible; it is virtually impossible to shield jurors from every contact or influence that might
theoretically affect their vote.” Id. “Due process means a jury capable and willing to decide the
case solely on the evidence before it.” Id.
The trial court’s colloquy to determine the impartiality of Juror No. 11 was sufficient to
preserve Petitioner’s right to a jury trial as the juror confirmed he would be able to act impartially
despite his previous interaction with the state’s medical expert. Petitioner’s claims of prejudice
are merely speculative and are insufficient to demonstrate prejudice under Strickland. Nor can
Petitioner demonstrate any prejudice that resulted from the trial court’s apparent lack of instruction
to the juror to not discuss or consume media regarding the criminal proceeding. He makes no
allegation that any juror violated this rule. Accordingly, he is not entitled to relief on this claim.
8. Failure to Clarify Identification Testimony on Cross-Examination (Ground
Twenty-Five)
Petitioner next claims that his counsel was constitutionally deficient as a result of his failure
to “clarify through cross examination of two state’s witnesses the misleading impression arising
out of the State’s questioning that the witnesses had identified defendant in court as the
perpetrator.” (ECF No. 3, at 37.) Petitioner raised a similar claim in his PCR, where he argued
31
that his counsel failed to properly cross-examine Guerra and Linda Brown. (See ECF No. 17-4, at
244.) On its review of the PCR Court’s decision, the Appellate Division stated:
Our review of the questioning of those witnesses does not reveal any
obvious deception that would have induced a reasonably competent
attorney to object. Nor would a reasonably competent attorney
necessarily revisit the issue on cross-examination, which might open
the door to further questioning by counsel and consideration by the
jury of the fact that these witnesses had in fact identified defendant
as the perpetrator when speaking to the police.
We also find the second prong lacking. While we are not persuaded
that ‘clarification’ was required to assure that the jury understood
that the in-court identifications of defendant were only identifying
who he was and not that he was the perpetrator, such clarification
would not have affected the outcome of the trial.
(ECF No. 10-14, at 10—11.)
This Court does not find that the Appellate Division’s decision on this claim was
unreasonable or contrary to federal law.9 It is evident from the records provided to this Court that
Fowler and Linda Brown did not identify Petitioner at trial as the shooter but, in fact, identified
him as Tyrius Green. The Court agrees with the Appellate Division’s conclusion that revisiting
this issue on cross-examination would have opened up further testimony regarding the witnesses’
long relationships with Petitioner. Moreover, Petitioner has not demonstrated that had his counsel
cross-examined these witnesses in a different manner, the outcome of trial would have been
different. Accordingly, relief on this claim is denied.
9. Ineffective Assistance of Appellate Counsel (Ground Nine)
Petitioner claims that he received ineffective assistance of appellate counsel because his
The Court’s review of the record demonstrates that this claim was exhausted in the state courts.
(See ECF No. 22-1, at 10—11.) Accordingly, the Court considers the claim under the AEDPA’s
deferential standard of review.
32
appellate counsel “fail{ed] to raise the claims asserted in the briefs that followed the direct appeal.”
(ECF No. 1-2, at 32.) The Court construes Petitioner’s claim as alleging his appellate counsel was
ineffective for not raising the arguments set forth in the PCR Petition and the Amended Petition.
While Strickland is applicable to appellate counsel, “it is a well established principle
that counsel decides which issues to pursue on appeal.” Sistrunk v.
Cir. 1996).
Vaughn,
96 F.3d 666, 670 (3d
Critically, appellate counsel is not required to raise every nonfrivolous claim a
defendant desires to pursue. Jones v. Barnes, 463 U.S. 745, 751 (1983). Nor is appellate counsel
required to raise meritless claims on appeal. See Evitts
‘.
Lucey, 469 U.S. 387, 394 (1985).
Petitioner is not entitled to relief on this claim. Not only does Petitioner fail to specify
which claims appellate counsel should have brought, as discussed at length in this opinion, the
claims raised in this Petition lack merit. Thus, appellate counsel cannot be ineffective for failing
to raise those claims on appeal.
10. Cumulative Ineffective Assistance of Counsel (Ground Ten)
Finally, Petitioner brings a claim of cumulative ineffective assistance of counsel. The Third
Circuit has recognized that “errors that individually do not warrant habeas relief may do so when
combined.” Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007); see also Fahy v. Horn, 516 F.3d
169, 205 (3d Cir. 2008). Cumulative errors of counsel may entitle a petitioner to habeas relief
where “they had a substantial and injurious effect or influence in determining the jury’s verdict,
which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he
can establish ‘actual prejudice.” Albrecht, 485 F.3d at 139. Petitioner is not entitled to relief on
this claim as he has not demonstrated that his counsel was deficient in any way, nor has he
demonstrated that the cumulative effect of any errors made by counsel resulted in “actual
prejudice.”
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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).
The Court will grant a certificate of appealability on Petitioner’s claim that the trial court’s
jury instruction on identification violated his right to due process under the Fifth and Fourteenth
Amendments because reasonable jurists could find the district court’s assessment of the
constitutional claim as debatable. The Court will additionally grant a certificate of appealability
on Petitioner’s related claim of whether his counsel was ineffective for failing to objective to the
trial court’s instruction on identification.
The Court will, however, deny a certificate of
appealability on the remaining claims as Petitioner has not made a substantial showing of the denial
of a constitutional right.
VI.
CONCLUSION
For the reasons set forth above, the Amended Petition is denied in its entirety. A limited
certificate of appealability shall issue. An appropriate order follows.
PETER G. SHERIDAN, U.S.D.J.
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