YASUK v. MAIN et al
Filing
39
OPINION filed. Signed by Judge Peter G. Sheridan on 06/29/2021. (jdb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
MITCHELL D. YASUK,
:
:
Petitioner,
:
Civ. No. 18-10165 (PGS)
:
v.
:
:
MERRILL MAIN, PHD., et al.,
:
OPINION
:
Respondents.
:
____________________________________:
PETER G. SHERIDAN, U.S.D.J.
I.
INTRODUCTION
Petitioner Mitchell D. Yasuk (“Petitioner” or “Yasuk”) is proceeding with an amended
habeas petition filed pursuant to 28 U.S.C. § 2254. For the following reasons, the amended
habeas petition is denied and a certificate of appealability shall not issue.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of Petitioner’s underlying criminal proceedings
and conviction were set forth by the New Jersey Superior Court, Appellate Division in
Petitioner’s appeal of his post-conviction relief (“PCR”) petition. That court stated as follows:
In January 2009, defendant was indicted and charged with two
crimes: second-degree luring, N.J.S.A. 2C:13–6, and fourth-degree
lewdness, N.J.S.A. 2C:14–4(b)(1). The charges against defendant
arose out of reports by several witnesses that defendant had lured
and attempted to lure a child into his apartment and then exposed
his penis to the child. Defendant had previously been convicted of
two counts of fourth-degree endangering the welfare of a child,
N.J.S.A. 2C:24–4(a).
When arrested in 2008, he was living in an apartment that was part
of a three family home. Tenants in the other apartments reported
that on several occasions defendant attempted to lure their children
into his apartment when he was naked or when his penis was
exposed.
In July 2009, defendant pled guilty to second-degree luring,
N.J.S.A. 2C:13–6, and third-degree attempting to endanger the
welfare of a child, N.J.S.A. 2C:5–1 and 2C:24–4(a). In pleading
guilty, defendant testified that in July 2008, he brought a puppy
into his apartment to purposefully lure a child into his apartment so
that he could expose his private parts to the child to arouse his own
sexual desire. Defendant also admitted that the child had followed
him into the apartment, defendant was naked, and defendant's
purpose was to attempt to endanger the morals of the child.
At the time of his guilty plea, defendant signed two supplemental
plea forms concerning additional questions for certain sex
offenders. Those forms expressly informed defendant that, given
the crimes to which he was pleading guilty, he could be subject to
civil commitment following the completion of his sentence. Those
forms were then reviewed with defendant during his plea.
Consistent with the negotiated plea agreement, on the conviction
for luring defendant was sentenced to six years in prison with five
years of parole ineligibility. On the conviction for attempting to
endanger the welfare of a child, he was sentenced to a concurrent
term of five years in prison. In accordance with Megan's Law,
N.J.S.A. 2C:7–1 to –11, defendant was also sentenced to parole
supervision for life.
State v. Yasuk, No. A-3438-15T3, 2017 WL 4558262, at *1 (N.J. Super. Ct. App. Div. Oct. 13,
2017).
Petitioner did not file a direct appeal. However, he subsequently filed a PCR petition.
Among the claims Petitioner raised in his PCR petition are the two claims remaining in this
federal amended habeas petition 1; namely:
1. Ineffective assistance of counsel for failing to investigate two alibi witnesses
2. Failing to be fully informed of all the consequences of his guilty plea
The New Jersey Superior Court, Law Division conducted an evidentiary hearing on Petitioner’s
PCR petition. (See ECF 19-6). Both Petitioner and his former counsel during his criminal
1
This Court previously dismissed Ground Three of Petitioner’s amended habeas petition. (See
ECF 8).
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proceedings, Philip. P. Pagano, Esq., testified at that hearing. (See id.). Ultimately, the Superior
Court denied Petitioner’s PCR petition in a written opinion and order. (See ECF 19-13). The
Appellate Division affirmed that denial. (See ECF 19-14). The New Jersey Supreme Court then
denied Petitioner’s request for certification. (See ECF 19-15).
In June, 2018, Petitioner filed his original habeas petition in this Court. (See ECF 1). That
was followed by an amended habeas petition filed in September, 2018. (See ECF 4). As noted
supra, Petitioner has two claims remaining in his habeas petition outlined above.
Respondents then sought to dismiss the amended habeas petition as untimely. (See ECF
13). This Court denied that motion in August, 2019. (See ECF 16 & 17). Subsequently,
Respondents filed a response in opposition to the amended habeas petition. (See ECF 19).
Petitioner then filed a reply in support of his amended habeas petition. (See ECF 28).
Petitioner proceeded pro se during the briefing process in this case. However, after he
filed his pro se reply, counsel entered a notice of appearance on Petitioner’s behalf. (See ECF
29). The matter is now ripe for adjudication.
III.
LEGAL STANDARD
An application for writ of habeas corpus by a person in custody under judgment of a state
court can only be granted for violations of the Constitution or laws or treaties of the United
States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d 414,
415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas
corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521
U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim
decided on the merits in state court proceedings unless the state court’s adjudication of the claim:
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(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,
538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’
under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the
state court renders its decision.” Id. (citations omitted). A federal habeas court making an
unreasonable application inquiry should ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
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).
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IV.
DISCUSSION
A. Ground One
In Ground One, Petitioner asserts counsel was ineffective when he failed to investigate
two alibi witnesses crucial to his defense; namely: (1) Michelle Spenser; and (2) Esther Cash.
According to Petitioner, both witnesses would have testified that he was physically incapable of
committing the crimes he was charged with. The last reasoned decision on this claim was from
the New Jersey Superior Court, Appellate Division during Petitioner’s PCR proceedings. That
court analyzed this claim as follows:
To establish a claim of ineffective assistance of counsel, a
defendant must show that counsel rendered inadequate
representation and that the deficient performance caused defendant
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J.
42, 52 (1987). In that regard, a defendant seeking to set aside a
guilty plea must demonstrate that counsel's assistance was not
“within the range of competence demanded of attorneys in
criminal cases,” and “that there is a reasonable probability that, but
for counsel's errors, defendant would not have pled guilty and
would have insisted on going to trial.” See State v. DiFrisco, 137
N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258,
266, 93 S. Ct. 1602, 1608, 36 L.Ed. 2d 235, 243 (1973), and Hill v.
Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 370, 88 L.Ed. 2d 203,
210 (1985)).
....
In support of his claim that his trial counsel failed to investigate the
case, defendant submitted affidavits from two witnesses. As
already summarized, those witnesses claim that they had spoken to
defendant about a rental dispute with the parents of the child who
was the subject of the luring. The PCR court correctly found that
such testimony would have been inadmissible hearsay. N.J.R.E.
801(c). The witnesses also proposed to testify about defendant's
weak physical condition. The PCR judge found that trial counsel
was well aware of defendant's limited physical condition and
considered that fact in connection with discussing the guilty plea
with defendant. That finding is supported by substantial credible
evidence in the record and we find no basis to disagree with that
finding.
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State v. Yasuk, No. A-3438-15T3, 2017 WL 4558262, at *3 (N.J. Super. Ct. App. Div. Oct. 13,
2017).
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-prong test for
demonstrating when counsel is deemed ineffective. First, the petitioner must show that
considering all the circumstances, counsel’s performance fell below an objective standard of
reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013)
(noting that it is necessary to analyze an ineffectiveness claim considering all circumstances)
(citation omitted). A petitioner must identify the acts or omissions that are alleged not to have
been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this
first prong of the Strickland test, scrutiny of counsel’s conduct must be “highly deferential.” See
id. at 689. Indeed, “[c]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
The reviewing court must make every effort to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. If counsel makes “a thorough investigation of law
and facts” about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)
(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,
445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).
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The second prong of the Strickland test requires the petitioner to affirmatively prove
prejudice. See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d
Cir. 2012). “This does not require that counsel’s actions more likely than not altered the
outcome, but the difference between Strickland’s prejudice standard and a more-probable-thannot standard is slight and matters only in the rarest case. The likelihood of a different result must
be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal
quotation marks and citations omitted). “In the context of pleas a [petitioner] must show the
outcome of the plea process would have been different with competent advice.” Lafler v.
Cooper, 566 U.S. 156, 163 (2012) (citations omitted). “[W]hen evaluating the petitioner’s claim
that ineffective assistance led to the improvident acceptance of a guilty plea, [the petitioner is
required] to show that there is a reasonable probability that, but for counsel’s errors, [the
petitioner] would not have pleaded guilty and would have insisted on going to trial.” Id.
(citations omitted).
In claiming that counsel was ineffective for failing to investigate, a petitioner must make
a comprehensive showing as to what the investigation would have produced, that the evidence
would have been admissible, and how it would have changed the outcome of his proceeding to a
reasonable probability. See, e.g., Brown v. United States, No. 13-2552, 2016 WL 1732377, at *5
(D.N.J. May 2, 2016) (citing United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)) (other
citations omitted).
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“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be
followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697).
The denial of this claim in state court was not contrary to or an unreasonable application
of clearly established federal law. Indeed, the Appellate Division aptly noted and applied the
proper Strickland test to this claim. For example, as indicated above, counsel is not deemed to be
ineffective if the evidence would be inadmissible. Here, witnesses’ statements regarding the
rental dispute would have been inadmissible hearsay. Petitioner fails to show how he was
prejudiced by this aspect of his failure to investigate claim.
Additionally, as also noted by the Appellate Division, Petitioner’s counsel was wellaware of Petitioner’s physical limitations. Indeed, at the PCR evidentiary hearing, counsel made
this point clear. (See ECF 19-6 at 4-5). Thus, Petitioner fails to show that the state court’s
decision with respect to counsel failing to investigate the witnesses about Petitioner’s physical
condition was either an unreasonable application of clearly established federal law and/or based
on an unreasonable determination of the facts as this information was already known to counsel
such that further investigation was unnecessary. Accordingly, Petitioner is not entitled to habeas
relief on Ground One.
B. Ground Two
In Ground Two, Petitioner claims his guilty plea was not knowing, voluntary and
informed because he was not given all the consequence of plea. More specifically, Petitioner
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claims he was never informed about the civil commitment aspect of his plea. The last reasoned
decision on this claim was also from the Appellate Division during Petitioner’s PCR proceedings
which analyzed this claim as follows:
When defendant pled guilty, he expressly affirmed that he
understood that he could be civilly committed for up to life if, after
a hearing, the court found that defendant was in need of
involuntary civil commitment. That risk was disclosed both in the
plea forms and in the colloquy with the plea judge. Moreover, at
the PCR hearing, defendant's trial counsel testified that he
discussed the possibility of civil commitment with defendant and
that defendant affirmed that he understood that possibility. The
PCR judge found that testimony to be credible. We discern no
basis to disturb the judge's credibility determination. See State v.
Nash, 212 N.J. 518, 540 (2013) (recognizing the deference due to a
credibility finding made by a PCR judge after a hearing).
....
he [also] claims that counsel failed to inform him of the possibility
of civil commitment. We have already upheld the PCR judge's
finding that defendant was informed of the possibility of civil
commitment and, thus, that claim fails.
Yasuk, 2017 WL 4558262, at *2, 3.
The denial of this claim in state court was neither contrary to nor an unreasonable
application of clearly established federal law nor was the decision based on an unreasonable
determination of the facts. As the Appellate Division noted, Petitioner was made aware of the
possibility of civil commitment prior to pleading guilty. First, counsel testified at the PCR
hearing that he made Petitioner aware of the possibility of civil commitment. (See ECF 19-6 at
17-18). The state courts found Petitioner’s former counsel credible. This Court finds no reason to
disturb that finding as Petitioner fails to do so by clear and convincing evidence. See 28 U.S.C. §
2254(e)(1). Furthermore, Petitioner’s signed supplemental plea form indicated that he understood
he could potentially face civil commitment for life. (See ECF 19-8 at 25). Finally, Petitioner’s
plea colloquy indicated his counsel told him he could serve additional time under civil
commitment and that Petitioner understood this aspect of his plea. (See ECF 19-3 at 8). It is not
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surprising that the state courts found Petitioner’s former counsel more credible regarding this
claim given Petitioner’s statements in open court that he understood the civil commitment aspect
of his plea. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (noting solemn declarations in
open court carry a strong presumption of verity). Accordingly, Petitioner is not entitled to habeas
relief on Ground Two.
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). This Court finds that a certificate of appealability shall not issue on Grounds One and
Two denied in this opinion as well as Ground Three which was previously denied by this Court
in a previous opinion and order.
VI.
CONCLUSION
For the foregoing reasons, Petitioner’s amended habeas petition is denied. A certificate of
appealability shall not issue. An appropriate order will be entered.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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