FOX v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 18

MEMORANDUM AND ORDER denying Petitioner's petition for writ of habeas corpus. It is further Ordered a certificate of appealabilty shall not issue and the Clerk is directed to mark this case as closed. Signed by Judge Peter G. Sheridan on 9/16/2020. (jmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MIASHARI FOX,
:
:
Petitioner,
:
Civ. No. 18-5860 (PGS)
:
v.
:
:
ATTORNEY GENERAL STATE OF NEW
:
MEMORANDUM AND ORDER
JERSEY, et al.,
:
:
Respondent.
:
_________________________________________ :
Petitioner Miashari Fox (“Petitioner” or “Fox”) is a state prisoner proceeding pro se with
a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons,
Petitioner’s habeas petition will be denied and a certificate of appealability shall not issue.
BACKGROUND
The background is taken from the New Jersey Superior Court, Appellate Division’s
opinion in Petitioner’s post-conviction relief (“PCR”) proceedings:
Defendant was in her apartment on March 27, 2008 with at least
two other people when her aunt, K.F., and defendant's stepfather,
A.W., came over. Defendant was upset with them because she
suspected they were involved in some manner when the Division
of Child Protection and Permanency previously removed
defendant's three children from her custody.
Defendant and K.F. began to argue. A fight broke out after K.F.
punched defendant. Defendant then “picked up something,” which
was a knife, and “started swinging.” Defendant stabbed K.F. in her
chest under her arm, an injury that was life threatening and
required emergency medical treatment. Defendant stabbed A.W. in
the chest, killing him.
In April 2011, defendant pled guilty to an accusation that charged
first-degree aggravated manslaughter, N.J.S.A. 2C:11–4(a)(1), and
second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1). When
the plea was taken, defendant acknowledged being reckless when
she stabbed A.W. She admitted stabbing K.F., but denied having

an intent to cause serious bodily injury to K.F. She asserted she
“wasn't trying to stab nobody. I just picked up something and just
started swinging.” She admitted swinging the knife at people. She
asserted she was trying to defend herself.
The court took a break in the proceedings so defendant could speak
with her attorney to see if she wanted to proceed with the plea.
When the proceedings resumed, defendant admitted she stabbed
K.F. and A.W.
DEFENSE COUNSEL: And do you also recognize
that as a result of that stabbing that you did so not
appreciating what the stabbing could do, because as
you also provided the Court with information, you
had been drinking and possibly smoking some weed
during the course earlier in the day; correct?
THE DEFENDANT: (indicating.)
DEFENSE COUNSEL: You do recognize that that
is not a defense to any of the actions that you're
charged with, but given what mental state you were
in, you basically started acting in a reckless fashion
when you were throwing the knife around; do you
understand that?
THE DEFENDANT: Yes.
DEFENSE COUNSEL: Judge, I think under those
circumstances, I believe there is a factual basis for
the two charges.
THE COURT: [Counsel]
PROSECUTOR: In light of her explanation about
what she believed earlier in self defense, the state is
satisfied.
The trial court accepted the guilty plea.
Defendant was sentenced in conformity with the plea agreement to
concurrent terms of twenty-five years in prison on the aggravated
manslaughter charge and ten years on the aggravated assault
charge. Both sentences were subject to an eighty-five percent
period of parole ineligibility under the No Early Release Act
(NERA), N.J.S.A. 2C:43–7.2. In sentencing defendant, the judge
took into consideration the presentence report, a sentencing
memorandum prepared by defense counsel, three psychological
reports, and a competency report. He found the aggravating factors
outweighed the mitigating factors.

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State v. Fox, No. A-3802-14T3, 2017 WL 1365400, at *1 (N.J. Super. Ct. App. Div. Apr. 13,
2017).
Petitioner appealed her judgment and sentence. (See ECF 11-1 at 43). On June 12, 2012,
the Appellate Division affirmed the judgment and sentence stating that it was satisfied that the
sentence was not manifestly excessive or unduly punitive. (See id. at 165). On January 29, 2013,
the New Jersey Supreme Court denied certification. (See id. at 167).
Thereafter, petitioner filed a PCR petition. Petitioner argued that her attorney was
ineffective because he failed to object to the factual basis during the plea as it did not support the
defense pled to. (See id. 181-82). Petitioner also argued that counsel was ineffective during the
sentencing proceedings because certain mitigating factors should have been applied. (See id. at
192-97). On February 25, 2015, the New Jersey Superior Court denied Petitioner’s PCR petition.
(See id. at 265-85).
Petitioner appealed this denial to the Appellate Division. (See id. at 286). On April 13,
2017, the Appellate Division affirmed the denial of Petitioner’s PCR petition. See Fox, 2017 WL
1365400. Thereafter, the New Jersey Supreme Court denied certification. on January 26, 2018.
(See 11-1 at 548).
This Court received Petitioner’s federal habeas petition in April, 2018. (See ECF 1). The
habeas petition raises two issues:
1. Petitioner’s guilty plea to aggravated manslaughter must be vacated because of an
insufficient factual basis to support the conviction at the plea hearing.
2. Ineffective assistance of counsel by permitting the guilty plea to be accepted when it had
a deficient factual basis because there was no factual basis to conclude that she had
manifested extreme indifference to human life.

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Respondents filed their response in opposition on February 22, 2019. (See ECF 11). Petitioner
filed her reply in March, 2019. (See ECF 14). The matter is now ripe for adjudication.
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

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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.
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)).
Even where a claim is determined to be unexhausted, “a federal court [may] deny an
unexhausted claim on the merits ‘if it is perfectly clear that the applicant does not raise even a

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colorable federal claim.’” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting
Lambert v. Blackwell, 134 F.3d 506, 515–15 (3d Cir. 1997) (construing 28 U.S.C. §
2254(b)(2))); see also 28 U.S.C. § 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.”).
DISCUSSION
A. Claim II
This Court will begin its discussion with analyzing Claim II of Petitioner’s habeas
petition. Petitioner asserts that counsel was ineffective when he permitted Petitioner to plead
guilty to aggravated manslaughter. Petitioner claims the plea lacked a factual basis to conclude
that she had manifested extreme indifference to human life. Counsel purportedly should have
advised Petitioner to plead guilty to reckless manslaughter instead of aggravated manslaughter.
(See ECF 1 at 7).
The last reasoned decision on this claim was from the Appellate Division during
Petitioner’s PCR proceedings which stated as follows:
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, l05 N.J. 42 (l987). In order to prevail on an ineffective
assistance of counsel claim, defendant must meet a two-prong test
by establishing that: (l) counsel's performance was deficient and he
or she made errors that were so egregious that counsel was not
functioning effectively as guaranteed by the Sixth Amendment to
the United States Constitution; and (2) the defect in performance
prejudiced defendant's rights to a fair trial such that there exists a
“reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.”
Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,
80 L. Ed. 2d at 693, 698.

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In the plea bargain context, “a defendant must prove that there is a
reasonable probability that, but for counsel's errors, [he or she]
would not have pled guilty and would have insisted on going to
trial.” State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in
original) (internal quotation marks and citations omitted), cert.
denied, ––– U.S. ––––, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Defendant contends her trial counsel was ineffective for failing to
object to the factual basis for her guilty plea to first-degree
aggravated manslaughter, arguing that “the facts in the case only
support a plea to second-degree manslaughter.” Aggravated
manslaughter is a criminal homicide in which “[t]he actor
recklessly causes death under circumstances manifesting extreme
indifference to human life[.]” N.J.S.A. 2C:11–4(a)(1). “In terms of
distinguishing between reckless manslaughter and aggravated
manslaughter, ... the relevant ‘circumstances’ are objective and do
not depend on defendant's state of mind.” State v. Pindale, 249
N.J. Super. 266, 282 (App. Div. 1991). “The ultimate question for
the factfinder is whether the homicide was committed under
circumstances involving a mere possibility of death or did the
circumstances involve a probability of death. If the former, the
verdict must be reckless manslaughter, but if the latter the verdict
must be aggravated manslaughter.” State v. Curtis, 195 N.J. Super.
354, 365 (App. Div.), certif. denied, 99 N.J. 212 (1984). See State
v. Campfield, 213 N.J. 218, 233 (2013).
Measured against this standard, we agree with the PCR court that
trial counsel was not ineffective. Defendant admitted to picking up
a knife and swinging it in a room where K.F., A.W. and others
were present. We agree with the PCR judge's conclusion that “the
act of stabbing and swinging a knife in a room full of people
cannot be described as anything other than extreme indifference to
human life.” Defendant's conduct made “death highly probable,”
given that her actions led to the death of one victim and caused
“life threatening injuries” to the other. Furthermore, we agree
defendant cannot show prejudice in the context of her plea because
she was not offered a plea to a charge of reckless manslaughter.
Her only option was to go to trial on the four-count indictment
where she faced the potential for a much longer sentence.
Fox, 2017 WL 1365400, at *3–4 (footnotes omitted).
The Appellate Division noted the applicable relevant Strickland standard for analyzing
this claim. Additionally, because the Appellate Division’s decision denying this claim was not

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contrary to or an unreasonable application of clearly established federal law, Petitioner is not
entitled to habeas relief on this claim for the reasons that follow.
The essential elements of aggravated manslaughter in New Jersey are that the actor acted
recklessly causing death under circumstances manifesting extreme indifference to human life.
See N.J. Stat. Ann. § 2C:11-4a(1). Petitioner challenges her counsel’s actions by arguing that
there was no factual basis to show that she acted with a manifest extreme indifference to human
life. “In terms of distinguishing between reckless manslaughter and aggravated manslaughter . . .
the relevant “circumstances” are objective and do not depend on defendant's state of mind. The
degree of recklessness must be determined from all the surrounding circumstances.” State v.
Pindale, 592 A.2d 300, 309 (N.J. Sup. Ct. App. Div. 1991) (citing State v. Curtis, 479 A.2d 425,
430 (N.J. Sup. Ct. App. Div. 1984)). “[T]he recklessness must involve a higher degree of
probability that death will result from the actor's conduct[.]” Curtis, 479 A.2d at 430.
During the plea colloquy, Petitioner admitted that she started stabbing and swinging the
knife and hit two people which ultimately cause one to die. (See ECF 11-1 at 69-70). This Court
finds that the Appellate Division’s denial of this claim was not contrary to or an unreasonable
application of the Strickland standard. Indeed, as noted by the Appellate Division, swinging and
stabbing a knife creates a probability of causing death such that counsel need not have objected
to the factual basis of the plea given Petitioner’s admissions during the colloquy. See, e.g. State
v. Gaines, 873 A.2d 688, 693 (N.J. Sup. Ct. App. Div. 2005) (“Based on that evidence, the jury
could find that defendant raised the gun, aimed at a branch, and fired above the crowd, not into
it. Given the size of the group, the jurors could have concluded that he fired under circumstances
manifesting extreme indifference to human life.”) Thus, the state court’s denial of this claim was
not an unreasonable application of Strickland as Petitioner’s counsel’s performance did not fall

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below an objective standard of reasonableness given what was already admitted by Petitioner
during the plea hearing.
With respect to Petitioner’s claim that counsel was also ineffective by advising her to
plead guilty to aggravated manslaughter rather than reckless manslaughter, the Appellate
Division decision denying this claim was also not contrary to or an unreasonable application of
Strickland.
A petitioner ... who seeks to establish a claim of ineffective
assistance of counsel in the context of plea bargaining,
consequently must make a double showing – (1) that the
prosecutor extended the plea offer and (2) that his or her attorney
either failed to communicate the offer to him or misadvised him
concerning the advantages and disadvantages of the offer so as to
cause the non-acceptance of an otherwise beneficial outcome by a
favorable guilty plea.
Compean v. United States, No. 12-0730, 2013 WL 6196517, at *7 (W.D. Ky. Oct. 18, 2013)
(citing Lint v. Prelesnik, No. 09-10044, 2011 WL 3241840, at *11 (E.D. Mich. July 29, 2011);
Robinson v. United States, 744 F. Supp. 2d 684, 696 (E.D. Mich. 2010)); report and
recommendation adopted by, 2013 WL 6196533 (W.D. Ky. Nov. 26, 2013).
It does not appear that Petitioner was ever given a plea offer to reckless manslaughter
instead of aggravated manslaughter. Thus, counsel could not be deemed ineffective for failing to
advise Petitioner to plead guilty to a charge that was never offered. Accordingly, Petitioner is not
entitled to federal habeas relief on Claim II.1

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Respondents states in their brief that Petitioner is also not entitled to federal habeas relief on
her claim that counsel was ineffective for failing to argue certain mitigating factors at sentencing.
(See ECF 11 at 35). However, while this argument may have been raised during the PCR
proceedings, Petitioner does not appear to raise that claim in these federal habeas proceedings.
(See ECF 1 at 7). Therefore, this Court need not analyze this argument since the underlying
claim for relief was not raised by Petitioner.
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B. Claim I
Petitioner argues in Claim I that her guilty plea to aggravated manslaughter must be
vacated because there was an insufficient factual basis given for the plea. Like Claim II,
Petitioner states that because she denied any intention to stab anyone, her conduct was reckless,
but did not satisfy a showing of extreme indifferent to human life.
The parties both assert that this claim is exhausted. This Court is not so sure. Indeed,
Petitioner appeared to raise this claim in the context of his counsel’s ineffectiveness for failing to
object to the lack of a factual basis for a plea, not that sua sponte, the state court should have
rejected the plea for lacking a factual basis. Nevertheless, this Court need not decide this
procedural issue. Applying even the lesser “colorable” standard if the claim is deemed
unexhausted rather than AEDPA deference, see Carpenter, 296 F.3d at 146, she still is not
entitled to federal habeas relief. That is, as outlined in the previous section supra, there were
sufficient facts given during the plea hearing to find Petitioner guilty of aggravated
manslaughter. Accordingly, Petitioner is not entitled to habeas relief on this claim as well.
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

10

(2003). For the reasons discussed above, Petitioner has not met this standard. This Court will not
issue a certificate of appealability.
CONCLUSION
For the foregoing reasons, Petitioner’s habeas petition shall be denied. A certificate of
appealability shall not issue.
ORDER
For the reasons discussed in the opinion filed herewith:
IT IS this 16TH day of September, 2020,
ORDERED that Petitioner’s petition for writ of habeas corpus is denied; and it is further;
ORDERED that at certificate of appealability shall not issue; and it is further
ORDERED that the Clerk shall serve this order and the accompanying opinion on
Petitioner by regular U.S. mail; and it is further
ORDERED that the Clerk shall mark this case as closed.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

DATED: April _____, 2020

______________________________
PETER G. SHERIDAN
United States District Judge

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