MCCLENDON v. DAVIS et al

Filing 16

OPINION filed. Signed by Judge Michael A. Shipp on 10/13/2020. (jem)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

QUMERE MCCLENDON,
Petitioner,
v.
BRUCE DAVIS, et al.,
Respondents.

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Civil Action No. 19-18811 (MAS)

OPINION

SHIPP, District Judge
Qumere McClendon (“Petitioner”), a prisoner currently confined at New Jersey State
Prison in Trenton, New Jersey, brought a Petition for a Writ of Habeas Corpus pur
pursuant to 28
u
U.S.C. § 2254 (the “Petition”) challenging his conviction for felony murder and related offenses.
elate
la
la
(Pet., ECF No. 1.) Presently before this Court is Petitioner’s Motion for a Stay (the “Motion”).
(the
t
(Mot., ECF No. 12.) Respondents oppose the Motion. (Resp’t’s Opp’n, ECF No. 13.) For the
reasons set forth below, the Motion for a Stay is denied without prejudice.
I.

BACKGROUND
The Court recites only the facts necessary to decide the instant motion. Petitioner was

convicted by a jury in 2011 of second-degree conspiracy to commit burglary and robbery,
possession of a firearm for an unlawful purpose, second degree burglary, first degree robbery, first
degree felony murder, first degree aggravated manslaughter, third degree endangering the welfare
of a child, second degree witness tampering, and second degree certain persons not to possess a
weapon. See State v. McClendon, No. A-0589-11T4, 2014 WL 886776, at *1 (N.J. Super. Ct.
App. Div. Mar. 7, 2014). He was sentenced to an aggregate term of 55 years in prison with a 40-

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year period of parole ineligibility. (Sentencing Tr. 28 1, ECF No. 7-24.) Petitioner filed an appeal
before the New Jersey Superior Court, Appellate Division, and raised the following three claims:
POINT I: THE DEFENDANT’S VIDEOTAPED STATEMENT
WAS THE PRODUCT OF COERCIVE INTERROGATION. U.S.
Const. Amends. V, XV; N.J.R.E. 503.
POINT II: THE TRIAL JUDGE ERRED IN NOT SUPPRESSING
THE DEFENDANT’S SECOND STATEMENT AS IT WAS
OBTAINED AFTER HE INVOKED HIS RIGHT TO COUNSEL.
U.S. Const. Amends. V, XIV; N.J.R.E. 503.
POINT III: THE DEFENDANT’S SENTENCE IS EXCESSIVE.
McClendon, 2014 WL 886776, at *1.
The Appellate Division affirmed both Petitioner’s conviction and sentence. Id. at *8. The
New Jersey Supreme Court denied Petitioner’s subsequent request for certification. See State v.
McClendon, 99 A.3d 832 (N.J. 2014).
On January 22, 2015, Petitioner filed a Petition for Post-Conviction Relief (“PCR”). (PCR
Court Op., Jan. 30, 2017, ECF No. 7-35 at 3 2.) He presented the following grounds for relief in
his counseled brief:
POINT I: BUT FOR TRIAL COUNSEL’S INEFFECTIVE
REPRESENTATION THE DEFENDANT’S STATEMENTS
WOULD HAVE BEEN SUPPRESSED IN THEIR ENTIRETY
POINT II: THE DEFENDANT WAS DEPRIVED HIS
CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN
BEHALF
POINT III: THE DEFENDANT WAS DEPRIVED
CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE

HIS

POINT IV: BY VIRTUE OF TRIAL COUNSEL’S INEFFECTIVE
REPRESENTATION, THE DEFENDANT WAS DENIED HIS
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RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AND
EQUAL PROTECTION
POINT V: THE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS
UNITED STATES AND NEW JERSEY CONSTITUTIONS
POINT VI: THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL UNFAIR
POINT VII: DEFENDANT WAS DENIED
ASSISTANCE OF APPELLATE COUNSEL

EFFECTIVE

POINT VIII: AN EVIDENTIARY HEARING IS REQUIRED
WITH REGARD TO THE ALLEGATIONS OF DEFENDANT’S
PETITON FOR POST CONVICTION RELIEF
POINT IX: THE DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD NOT BE BARRED BY
PROCEDURAL CONSIDERATIONS
(Pet., ECF No. 1 at 19–20 3.)
Petitioner also raised the following pro se claims:
POINT ONE: TRIAL COUNSEL PROVED TO BE
PREJUDICIALLY INEFFECTIVE BY FAILING TO OBJECT TO
THE TESTIMONY OF MEDICAL EXAMINER DR. DICARLO
REGARDING THE AUTOPSY PERFORMED BY ANOTHER
MEDICAL EXAMINER RATHER THAN TESTIFYING BASED
ON HIS OWN OBSERVATIONS, VIOLATED PETITIONER’S
SIXTH AMENDMENT RIGHT TO CONFRONTATION, A FAIR
TRIAL AND DUE PROCESS
POINT TWO: TRIAL COUNSEL PROVED TO BE
PREJUDICIALLY
INEFFECTIVE
BY
FAILING
TO
CHALLENGE THE LEGALITY OF PETITIONER’S ARREST,
WHERE PETITIONER WAS ILLEGALLY ARREST[ED] AND
PLACE[D] INTO CUSTODY UNDER FALSE PRETENSES, FOR
THE SOLE PURPOSE OF QUESTIONING AND OBTAINING A
CONFESSION, AND CHALLENGING THE VALIDITY OF THE
ARREST WARRANT, THE PETITIONER’S SIXTH, FOURTH
AND FOURTEETH AMENDMENT RIGHTS, THUS, ALL
EVIDENCE OBTAINED AS A DIRECT RESULT OF THE
EXPLOITATION OF THE ILLEGAL ARREST, AND
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DEFECTIVE ARREST
INADMISSIBLE.

WARRANT

MUST

BE

HELD

POINT THREE: IN THE ALTERNATIVE, PETITIONER HAS
ESTABLISHED A PRIMA FACIE CASE SUFFICIENT TO
WARRANT THE ORDERING OF AN EVIDENTIARY
HEARING
(Id. at 20–21.)
The PCR court denied Petitioner’s application for post-conviction relief. (PCR Court Op.,
Jan. 30, 2017 19.) On January 29, 2019, the Appellate Division affirmed the PCR court’s denial.
See State v. McClendon, No. A-4731-16T3, 2019 WL 347172, at *4 (N.J. Super. Ct. App. Div.
Jan. 29, 2019). The New Jersey Supreme Court denied Petitioner’s request for certification. See
State v. McClendon, 213 A.3d 186 (N.J. 2019).
On October 4, 2019, Petitioner filed a Petition for a Writ of Habeas Corpus before this
Court. (Pet. 17.) 4 He raised the following four claims:
GROUND ONE: BUT FOR TRIAL COUNSEL’S INEFFECTIVE
REPRESENTATION, THE DEFENDANT’S STATEMENTS
WOULD HAVE BEEN SUPPRESSED IN THEIR ENTIRETY
GROUND TWO: THE DEFENDANT WAS DEPRIVED HIS
CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN
BEHALF
GROUND THREE: BY VIRTUE OF TRIAL COUNSEL’S
INEFFECTIVE REPRESENTATION, THE DEFENDANT WAS
DENIED HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL
JURY AND EQUAL PROTECTION
GROUND FOUR: TRIAL COUNSEL PROVED TO BE
PREJUDICIALLY INEFFECTIVE BY FAILING TO OBJECT TO
THE TESTIMONY OF MEDICAL EXAMINER DR. DICARLO
REGARDING THE AUTOPSY PERFORMED BY ANOTHER
MEDICAL EXAMINER RATHER THAN TESTIFYING BASED
4

Petitioner certified that he placed his petition in the prison mailing system on October 4, 2019.
(Pet. 17.) “Pursuant to the federal prisoner mailbox rule, ‘a document is deemed filed on the date
it is given to prison officials for mailing.’” Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 84 (3d Cir. 2013) (quoting Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011)).
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ON HIS OWN OBSERVATIONS, VIOLATED PETITIONER’S
SIXTH AMENDMENT RIGHT TO CONFRONTATION, A FAIR
TRIAL AND DUE PROCESS
(Id. at 22–40.)
Respondents filed an answer to the Petition on December 2, 2019. (Answer, ECF No. 7.)
Over three months later, on March 23, 2020, Petitioner filed the instant Motion for a Stay. (See
generally Mot. to Stay, ECF, No. 12.) In his Motion, he presented five new claims that he
requested to include in his habeas petition but indicated that they had not yet been exhausted in
state court. (Id. at 5 5.) Petitioner stated that he filed a second PCR petition in state court, which
remains pending, and requested a stay to exhaust his new claims. (Id. at 5–6.) The claims
Petitioner seeks leave to exhaust are:
Point One: Appellate Counsel proved to be ineffective by failing to
raise that the PCR court failed to address and make specific and
adequate findings of fact on Petitioner’s claim that the police
advising Petitioner that he arrested for the murder of the victim
when, he was not and never advised what he was in fact arrested for,
constitutes psychological coercion, used to overbear Petitioner’s
will not to incriminate himself, constitutes as police misconduct,
thus this issue must be remanded to the lower PCR court for
adjudication to establish a sufficient developed record.
Point Two: Petitioner moves for motion for a new trial based on
newly discovered evidence, where the State committed
prosecutorial misconduct by failing to turn over evidence that
attacked the credibility of State witness Dr. Frederick DiCarlo’s
ability to qualify as an expert witness.
Point Three: Appellate counsel proved to be ineffective by failing to
raise that PCR counsel failed to raise that trial counsel failed to
conduct an adequate independent investigation of the State’s witness
and discover that medical examiner Dr. DiCarlo was unqualified to
testify as an expert witness for the State due to federal and State
criminal investigations into his practice.
Point Four: Appellate counsel proved to be ineffective by failing to
raise that PCR counsel failed to raise that direct appeal counsel
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failed to raise that the trial court abused its discretion when
sentencing Petitioner to an illegal consecutive sentence on the
witness tampering conviction as defined under ex post facto
standard.
Point Five: Appellate counsel proved to be ineffective by failing to
raise that PCR counsel failed to raise that direct appeal counsel
failed that [sic] trial court abused it’s discretion by failing to award
Petitioner additional jail time credits served in custody in jail
between arrest and the imposition of sentencing on each case
pursuant to Rule 3:21-8 and N.J.S.A. 2C:44-5(B)(2).
(Id. at 7.)
Respondents filed opposition to the Motion, and Petitioner filed a brief in reply. (Resp’t’s
Opp’n, ECF No. 13; Pet’r’s Reply, ECF No. 15.) The matter is now fully briefed and ripe for
disposition.
II.

ANALYSIS
A petitioner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 must first

“exhaust[] the remedies available in the courts of the State” before applying for habeas relief. 28
U.S.C. § 2254(b)(1)(A). In “limited circumstances,” a court may grant a petitioner a protective
stay to allow him to return to state court and exhaust any unexhausted claims without running afoul
of the one-year statute of limitations to file a habeas petition. Rhines v. Weber, 544 U.S. 269, 277
(2005); see also Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). The United States Supreme
Court has held that a stay is “only appropriate” where the district court determines the petitioner
“had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines,
544 U.S. at 277–78. A petitioner bears the burden of showing that he is entitled to a stay. See
Urcinoli v. Cathel, 546 F.3d 269, 275 n.8 (3d Cir. 2008).

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Here, the four of Petitioner’s claims that allege his PCR counsel was ineffective are not
potentially meritorious because ineffective assistance of PCR counsel is not a cognizable habeas
claim. See 28 U.S.C. § 2254(i). Pursuant to 28 U.S.C. § 2245(i), “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section 2254.” The Supreme Court has
similarly stated that “a petitioner cannot claim constitutionally ineffective assistance of counsel in
[state post-conviction] proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991). The
limited exception to this rule is set forth in Martinez v. Ryan, 566 U.S. 1 (2012), which held that
“[i]nadequate assistance of counsel as initial-review collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. Here,
however, Petitioner’s claims do not fall within the limited exception outlined by Martinez as he is
not attempting to overcome a procedural default. Rather, he is attacking the effectiveness of his
PCR counsel; claims that are prohibited by 28 U.S.C § 2245(i). Accordingly, Petitioner’s claims
alleging ineffective assistance of PCR counsel do not warrant a stay.
As for Petitioner’s remaining claim, that he is entitled to a new trial based upon newly
discovered evidence, Petitioner does not provide sufficient information for the Court to determine
whether this claim is potentially meritorious. The only information Petitioner provides is that there
is newly discovered evidence the State committed a Brady violation 6 by failing to turn over
“evidence” that would attack the credibility of State witness, Dr. DiCarlo, to testify as an expert.

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A “Brady violation” refers to the United States Supreme Court case Brady v. Maryland, 373 U.S.
83 (1963), which held that “suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87; see also
Strickler v. Greene, 527 U.S. 263, 281 (1999) (recognizing a Brady violation as “any breach of the
broad obligation to disclose exculpatory evidence.”).
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(Mot. 7.) “A Brady violation occurs if: (1) the evidence at issue is favorable to the accused,
because either it is exculpatory or impeaching; (2) the prosecution withheld it; and (3) the
defendant was prejudiced because the evidence was ‘material.’” Breakiron v. Horn, 642 F.3d 126,
133 (3d Cir. 2011). Here, Petitioner does not indicate what evidence the State allegedly failed to
turn over, nor does he provide sufficient context for the Court to determine whether that evidence
would have been material. Although Respondents pointed out the “scant information” about
Petitioner’s claim in their opposition brief, Petitioner failed to elaborate further in his reply.
(Resp’t’s Opp’n 5–6.) Rather, he asked the Court to consider the fact that he is “indigent,” “not a
trained attorney,” and that his second PCR and the claims therein are still in a “nascent stage.”
(Pet’r’s Reply 2 7.) However, absent additional information about Petitioner’s newly discovered
evidence claim, the Court is unable to ascertain whether a stay is appropriate.
Accordingly, Petitioner has not met his burden of showing that he is entitled to a stay on
any of his five newly asserted claims.
III.

CONCLUSION
For the reasons set forth above, Petitioner’s Motion for a Stay (ECF No. 12) is denied

without prejudice. An appropriate Order follows.

___________________________
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MICHAEL A. SHIPP
HIPP
IPP
UNITED STATES DISTRICT JUDGE

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