FREDA L. WOLFSON, District Judge.
This matter has been opened to the Court by Petitioner Duquie Simmon's filing of a pro se petition for a writ of habeas corpus challenging his state court conviction pursuant to 28 U.S.C. § 2254. For the reasons explained in this Opinion, the Court will deny the petition and will also deny a certificate of appealability.
Petitioner was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c); and second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) in connection with the shooting death of Harvey Garvin in Newark, New Jersey. At sentencing, the court merged the conviction for possession of a shotgun for an unlawful purpose into the aggravated manslaughter conviction. Petitioner was sentenced to twenty-two years on the aggravated manslaughter conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of four years for unlawful possession of the shotgun.
Petitioner filed a notice of appeal and argued that his convictions were against the weight of the credible evidence and that his sentence was excessive. The Appellate Division affirmed his convictions and sentence in an unpublished opinion. The Supreme Court denied Petitioner's petition for certification, 200 N.J. 371 (2009).
Petitioner filed a PCR petition on February 17, 2010, in which he argued that (1) he was denied the effective assistance of trial counsel because his attorney: failed to object to the prosecutor's reference in summation to a "Stop Snitching" campaign; (2) failed to file a notice of alibi and investigate his alibi defense; and (3) failed to obtain records relating to the release of a witness for the prosecution. He also argued that he was denied the effective assistance of appellate counsel because these issues were not raised in the direct appeal. (See ECF No. 7-15, Petitioner's Pro Se Supplemental Letter Brief on PCR.) A brief and amended petition were submitted on behalf of Petitioner by designated counsel who argued that Petitioner had presented prima facie evidence of ineffective assistance of counsel, warranting an evidentiary hearing. (See ECF No. 7-15, Letter Brief in Support of PCR at 99-112; see also State v. Simmons, No. A-4423-10T2, 2013 WL 949526, at *1 (N.J. Super. Ct. App. Div. Mar. 13, 2013.) The facts related to his grounds for relief on PCR are recounted below.
On the afternoon of January 17, 2006, Eddie Chavis and Harvey Garvin were selling marijuana on 13th Street in Newark. While there, Chavis witnessed Petitioner shoot Garvin in the leg with a shotgun at close range. At the time of the shooting Chavis had known Petitioner for approximately seven or eight years. Upon being shot, Garvin said to Chavis: "Shit I don't believe he just-I don't believe this mother fucker just shot me." As Garvin limped away, he said additionally: "I don't believe Duquee just shot me." Shahada Smith, a resident of a nearby apartment who knew Petitioner, Garvin, and Chavis, heard the shot but did not witness the shooting. She testified at trial that she heard Garvin say "call the ambulance, Duquee just shot me." Smith called 911 and was instructed by the operator to attempt to staunch the flow of blood, which she sought to do by applying pressure with the use of towels. However, Garvin soon lapsed into unconsciousness and later died of blood loss from a severed femoral artery.
In their initial statements to the police, Chavis and Smith failed to implicate Petitioner as Garvin's shooter, and Smith failed to mention that Chavis was present. The discrepancies in their respective statements are succinctly summarized by the New Jersey Appellate Division in its opinion denying Petitioner's direct appeal:
Simmons, 2009 WL 1586509, at *2. Petitioner also claimed that there was a contradiction between Chavis' testimony that he did not discuss the incident with Smith and Smith's testimony that she had spoken to Chavis in the days following the shooting; Smith, however, did not specify the nature of their conversation.
At trial, both Smith and Chavis offered explanations for why they failed to implicate Petitioner in their initial statements to police. Smith testified that she did not implicate Petitioner, stating that "at that time I was afraid." (ECF No. 7-3, Exhibit 3, Trial Tr. dated Jun. 25, 2007 at 55:13.) She further stated: "I just afraid of anything. Like, just knowing what happened, what Harvey told me and being as though I know Duquee, or whatever, I really didn't want to believe that he did that to Harvey." (Id. at 55:23-56:1.) Chavis testified that when the police arrived on the scene, they told him to remain there to provide details of the shooting (ECF No 7-4, Exhibit, 4, Trial Tr. dated Jun. 26, 2007 at 35:12-19). Instead, Chavis got into his car and left because he was "scared" (Id. at 35:21-25). When the police later came to him on February 1, 2006, he still failed to acknowledge that he saw the shooting. He told the police that the victim said that Duquee shot him, but did not admit actually seeing the shooting. He said, "(c)ause I ain't want to get involved" (Id. at 38:3.) Chavis also testified that on the day of the shooting, January 17, 2006, he had been out on the street selling drugs with Garvin. (Id. at 10:4-8, 11:6-25.)
As expected, defense counsel thoroughly cross examined both witnesses on their inconsistent statements. In summation, defense counsel focused almost exclusively on the credibility of Chavis and Smith, arguing that they were not credible witnesses and should not be believed by the jury:
In his summation, the prosecutor emphasized that both witnesses were afraid to come forward, as they stated in their respective testimony, and also stated the following regarding the "stigma . . . in the community" associated with being a witness in a homicide case:
(Id. at 89:12-23.) Petitioner's counsel did not object to the prosecutor's comments regarding the "Stop Snitching" campaign.
Petitioner sought relief on PCR, alleging that his defense counsel was ineffective for failing to object to the prosecutor's comments regarding the "Stop Snitching" campaign and that his appellate counsel was deficient for failing to raise the issue on direct appeal. The PCR court rejected Petitioner's claim as follows:
(See ECF No. 7-9, Exhibit 9, PCR Transcript dated November 9, 2010, at 24:2-25:1.)
The Appellate Division applied a procedural bar to this claim pursuant to N.J. Ct. R. 3:22-4: "Defendant's allegation that his trial counsel was ineffective in failing to object to the prosecutor's summation is thus procedurally barred by Rule 3:22-4(a) unless: this argument could not reasonably have been raised in the direct appeal; enforcement of the procedural bar would result in a fundamental injustice; or denial of relief would be contrary to a new rule of constitutional law. We are satisfied that none of these exceptions to the procedural bar apply." Simmons, 2013 WL 949526, at *2.
On PCR, Petitioner alleged that on the day of the homicide, he was with his then girlfriend, Veronica Johnson, who would have testified that he was with her for the entire day and was not responsible for the shooting. (See ECF No. 7-15, Petitioner's Brief on Appeal of Denial of PCR at 20-21; Petitioner's Pro Se Supplemental Brief on PCR at 8-9.) On PCR, Petitioner contended that his trial counsel was ineffective for failing to file a notice of alibi and investigate his alibi defense. (See id.)
Because Petitioner lacked evidentiary support for his alibi claim, the PCR court adjourned the case for approximately two months to allow Petitioner extra time in which to secure some competent evidence in support of that claim. (See ECF No. 7-9, Exhibit 9 to Respondent's Answer, PCR Transcript dated November 9, 2010, at 4:24-5:6). At the hearing on November 9, 2010, after the two month period had lapsed, Petitioner's counsel and the PCR judge had the following exchange:
(Id. at 5:19-6:8.)
The PCR court then noted that in a pretrial hearing, the court had inquired on the record, with both defense counsel and the Petitioner present, if there were any alibi witnesses and if a notice of alibi had been served (See id. at 7:3-17). Defense counsel stated in open court in front of Petitioner that he discussed this with his client, and there was no notice of alibi and that Petitioner never protested this statement. (Id.)
The transcript of that hearing reflects the following colloquy:
(Exhibit 7-1, Exhibit 1, Trial Tr. dated June 19, 2007, at 15:23-16:17.) At the time of the trial, the court specifically inquired of the Petitioner if he had sufficient opportunity to speak with his attorney and whether he had answered all of the Petitioner's questions specifically related to his own decision not to testify, and Petitioner indicated that he had sufficient discussion with his attorney (ECF No. 7-5, Exhibit 5, Trial Tr. dated June 27, 2007, at 45:7-18.)
With respect to the claim that trial counsel inadequately investigated the alibi claim, the PCR court found at the hearing that the first prong of the Strickland test was not met:
(ECF No. 7-9, Exhibit 9 at 23:10-24:1.)
The New Jersey Appellate Division likewise found that Petitioner's claim failed because he had not supported his assertion that he had a viable alibi defense:
Simmons, 2013 WL 949526, at *2-3.
On PCR, Petitioner argued that his counsel was ineffective for failing to pursue release records of Chavis and to expose a cooperation agreement between Chavis and the prosecution. (See ECF No. 7-15, Petitioner's Pro-Se Supplemental Brief on PCR at 11-15.)
At trial Chavis testified that the prosecution was not involved in his release from county jail. He testified as follows on direct:
(ECF No. 7-4, Exhibit 4, Trial Tr. dated June 26, 2007, at 39:12-40:13.) According to Mr. Chavis, he finally told the whole story because, "Harv ain't deserve what happened to him" (Id. at 41:4-5.) According to his testimony, after Mr. Chavis satisfied his child support obligation, members of the Prosecutor's Office picked him up upon his release from jail and took his formal statement, at which time Mr. Chavis identified the Petitioner's photograph as the shooter and signed it as well. (Id. at 57:1-23.)
It also appears from the PCR hearing transcript that during the two-month adjournment, Petitioner and his PCR attorney sought to investigate the issue of whether there was an undisclosed cooperation agreement. PCR counsel stated that he actually spoke to Mr. Chavis, who was reluctant to make any statement on Petitioner's behalf. (Id. at 5:21-25.)
In reviewing the claim, the PCR court noted that defense counsel questioned Mr. Chavis about his release and addressed the issue of his being in jail when the police came to speak with him. (ECF No. 7-19:18-23.) In his summation, defense counsel argued at length about the coincidence of the witness being in the jail on June 6th, when the prosecutor came to speak with him on June 7th, and two prosecutor investigators waited for him on June 11th, the day of his release (ECF No. 7-5, Exhibit 5, 78:10-22.) Counsel argued that the witness would say anything he could to help himself (id. at 79:1-16), which affected his credibility (Id. at 79:23-80:10.) The PCR judge found that there was no evidence of any cooperation agreement between Mr. Chavis and the State, noting that the issue was still placed before the jury very clearly by defense counsel. (ECF No. 7-9, 25:23-26.) The PCR court further stated:
(Id. at 26:2-11).
The New Jersey Appellate Division noted that Petitioner raised this issue on PCR, but stated in a footnote that Petitioner did not raise the issue on appeal. See Simmons, 2013 WL 949526, at *1 (explaining that "[t]he State denied there was `any deal' between the State and the witness in question in opposing defendant's petition. Defendant has not raised this argument on appeal").
Petitioner's habeas Petition, which is dated March 25, 2014, was docketed on March 31, 2014. (ECF No. 1.) Respondent submitted its Answer to the Petition on July 7, 2014. Petitioner did not submit a traverse. The matter is fully briefed and ready for disposition.
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." 28 U.S.C. § 2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), federal courts in habeas corpus cases must give considerable deference to determinations of the state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus. The statute reads as follows:
28 U.S.C. § 2254(d).
Where a state court adjudicated petitioner's federal claim on the merits,
"[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of t[he Supreme Court's] decisions," as of the time of the relevant statecourt decision. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d) (1) if the state court "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result." Williams, 529 U.S. at 405-06. Under the "`unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413. With regard to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record. See Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an erroneous factual determination of the state court, two provisions of the AEDPA necessarily apply. First, the AEDPA provides that "a determination of a factual issue made by a State court shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
A federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must "`fairly present' all federal claims to the highest state court before bringing them in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This requirement ensures that state courts "have `an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'" Id. (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
Even when a petitioner properly exhausts a claim, however, a federal court may not grant habeas relief if the state court's decision rests on a violation of a state procedural rule. See id. (citing Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is "independent of the federal question [presented] and adequate to support the judgment." Id. at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). Finally, if a federal court determines that a claim has been defaulted, it may excuse the default only upon a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Id. at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that Petitioner's constitutional claims are unexhausted and/or procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) ("Here, because we will deny all of [petitioner's] claims on the merits, we need not address exhaustion"); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) ("Under 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and we take that approach here").
The instant Petition presents three grounds for relief:
(ECF No. 1, Pet. at 6-17.) Each of Plaintiff's grounds for relief allege ineffective assistance of trial and/or appellate counsel.
The standard which governs claims of ineffective assistance of counsel is well established; such claims are governed by the two-prong test set forth in the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668 (1984). To make out such a claim under Strickland, a petitioner must first show that "counsel's performance was deficient. This requires [the petitioner to show] that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective assistance claim, a petitioner must also show that counsel's allegedly deficient performance prejudiced his defense such that the petitioner was "deprive[d] of a fair trial . . . whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299. In evaluating whether counsel was deficient, the "proper standard for attorney performance is that of `reasonably effective assistance.'" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting ineffective assistance must therefore show that counsel's representation "fell below an objective standard of reasonableness" under the circumstances. Id. The reasonableness of counsel's representation must be determined based on the particular facts of a petitioner's case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing counsel's performance, courts "must be highly deferential. . . a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Even where a petitioner is able to show that counsel's representation was deficient, the petitioner must still affirmatively demonstrate that counsel's deficient performance prejudiced the petitioner's defense. Id. at 692-93. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The petitioner must demonstrate that "there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Shedrick, 493 F.3d at 299. "Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98]," courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002); Judge v. United States, 119 F.Supp.3d 270, 280-81 (D.N.J. 2015).
Finally, when a federal habeas petition under § 2254 is based upon an ineffective assistance of counsel claim, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable," which "is different from asking whether defense counsel's performance fell below Strickland's standard." Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Id. (internal quotation marks omitted) (emphases in original). "A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself." Id. Federal habeas review of ineffective assistance of counsel claims is thus "doubly deferential." Id. (quoting Pinholster, 131 S.Ct. at 1403). Federal habeas courts must "take a highly deferential look at counsel's performance" under Strickland, "through the deferential lens of § 2254(d)." Id. (internal quotation marks and citations omitted).
The Petitioner on his PCR, and in this Petition for habeas corpus, claims that his trial and appellate counsel were ineffective for failing to object to the prosecutor's summation and to raise the issue on appeal. In response to defense counsel's argument that the State's witnesses were liars because they failed to come forward and implicate the Petitioner earlier, the prosecutor referenced the fact that urban witnesses are reluctant to come forward because of a stigma in the community against assisting a prosecution. Petitioner claims that the issue went beyond proper comments in summation and was used to bolster the credibility of Smith and Chavez.
Because a prosecutor's duty is to see that justice is done rather than to secure convictions, prosecutors are bound to "refrain from [the use of] improper methods calculated to produce a wrongful conviction" and thus, while a prosecutor "may strike hard blows [during his summation], he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88 (1935); see also United States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016). A criminal conviction, however, "is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006) (quoting United States v. Young, 470 U.S. 1, 11 (1985). Thus, a prosecutor's improper comments during summation will only warrant relief where those comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also Copenhefer v. Horn, 696 F.3d 377, 392 n.5 (3d Cir. 2012).
Petitioner's claim that the prosecutor attempted to bolster the credibility of Smith and Chavis through the reference to the "Stop Snitching" campaign implicates a subspecies of prosecutorial misconduct known as improper vouching or bolstering. Under New Jersey law, a prosecutor may neither personally vouch for a witness nor refer to evidence beyond the record to support a witness's credibility. State v. Walden, 370 N.J.Super. 549 (App. Div.), certif. denied, 182 N.J. 148, 862 A.2d 56 (2004). Thus, a prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility. State v. Scherzer, 301 N.J.Super. 363, 445, 694 A.2d 196 (App. Div.), certif. denied, 151 N.J. 466 (1997). See also State v. Staples, 263 N.J.Super. 602, 605, 623 A.2d 791 (App. Div.1993) (prosecutor may not express a personal belief or opinion regarding the truthfulness of his or her witness's testimony); State v. Frost, 158 N.J. 76, 727 A.2d 1 (1999) (improper for prosecutor to imply that police had no motive to lie).
In summation, prosecutors are permitted to make a "vigorous and forceful presentation of the State's case [,]" but are nevertheless limited to "commenting on the evidence and to drawing any reasonable inferences supported by the proofs[.]" State v. Dixon, 125 N.J. 223, 259 (1991) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910 (1958)). Thus, as long as their comments are reasonably related to the scope of the admissible evidence presented during the trial, prosecuting attorneys are afforded considerable leeway in making their summations. State v. Harris, 141 N.J. 525, 559 (1995). Furthermore, prosecutors may respond when the credibility of their witnesses are attacked by the defense. State v. Hawk, 327 N.J.Super. 276, 284 (App. Div. 2000). Finally, alleged improper remarks made in summation must be judged in context. State v. Vasquez, 374 N.J.Super. 252, 262 (App. Div. 2005).
Allegations of prosecutorial misconduct require reversal only if the misconduct is "so egregious that it deprived the defendant of a fair trial." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). A reviewing court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made and also deprives the court of an opportunity to take curative action. State v. R.B., 183 N.J. 308, 332-33 (2005).
Here, the PCR court found that there was no misconduct or improper statement, as the prosecutor's comments were fleeting, and were made in the context of responding to defense counsel's summation. And, if, arguendo, there were error, the comments did not rise to level of plain error because they were not capable of producing an unjust result. (See ECF No. 7-9, Exhibit 9, PCR Transcript dated November 9, 2010, at 24:2-25:1.)
The Court agrees. The reference to the "Stop Snitching" campaign was a direct response to defense counsel's arguments, which attacked the credibility of Smith and Chavis based on their initial failures to mention Petitioner's involvement in the shooting. Given the wide latitude afforded to prosecutors in summation, the Court finds that this single reference did not amount to prosecutorial misconduct when viewed in context; in turn, defense counsel was not deficient for failing to object to the reference.
The Petitioner on his PCR, and on this petition for a writ of habeas corpus, claims that his trial attorney was ineffective for failing to file a notice of alibi and investigate his alibi defense. "It is a hallmark of Strickland that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Moore v. Sec'y Pennsylvania Dep't of Corr., 457 F. App'x 170, 182 (3d Cir. 2012) (citation omitted).
Under New Jersey law, however, "[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850 (1997). In order to be entitled to an evidentiary hearing, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Petrozelli, 351 N.J.Super. 14, 22-23 (App. Div. 2002) (citing State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199, 743 A.2d 852 (1999)); see also State v. Jones, 219 N.J. 298, 311-12 (2014) (explaining same). Instead, a petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance" and the probability that it affected the jury's verdict. Id. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 353 (2013) (citing Cummings, 321 N.J. Super. at 170 (citing R. 1:6-6)); see also Petrozelli, 351 N.J. Super. at 22-23 ("Where . . . the defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, `supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'"). "In that context, [an appellate court] consider[s] petitioner's contentions indulgently and view[s] the facts asserted by him in the light most favorable to him." Id.
Here, Petitioner contended on PCR that on the day of the homicide, he was with his then girlfriend, Veronica Johnson, who would have testified that he was with her for the entire day and not responsible for the shooting, but he failed to provide to the PCR court a certification or affidavit from Johnson or other competent evidence that explained her proposed testimony. Nor did Petitioner provide any evidence suggesting that defense counsel was aware of the potential alibi but declined to investigate, an allegation that is belied by the trial record. The New Jersey Appellate Division was unpersuaded by Petitioner's alibi claim and found that the failure of the Petitioner to provide any affidavit or certification in support of the claim, meant there was no prima facie claim presented, and no evidentiary hearing was required. See Simmons, 2013 WL 949526, at *2-3.
This Court has carefully reviewed the state court record, and finds that the New Jersey courts' rejection of Petitioner's alibi claim was not contrary to, or an unreasonable application of Strickland and its progeny. Although Petitioner was provided with a two month adjournment to investigate the alibi defense, he provided no evidence to show that a true alibi defense existed. In affirming the PCR court's rejection of Petitioner's alibi claim, the Appellate Division did not unreasonably apply Strickland, and the Court will therefore deny relief on Ground Two.
The Petitioner on PCR, and in this petition, claims that his trial attorney was ineffective for failing to pursue an alleged agreement for the release of the state witness, Tyrone Chavis, in exchange for his testimony. On PCR, the Petitioner hypothesized that because the prosecutor's staff escorted the Chavis from the jail, there must have been some participation by the prosecutor in effectuating the Chavis' release. By extension, this benefit of release must have precipitated Chavis' incriminating Petitioner. The Appellate Division determined that Petitioner did not raise this claim on appeal, and thus the claim appears to be unexhausted. See Simmons, 2013 WL 949526, at *1. Even if Petitioner had exhausted this claim, it would fail on the merits for the same reason his alibi claim fails. Although Petitioner was provided with a two-month adjournment of his PCR to investigate this claim, he did not provide an affidavit from Chavis or any other competent evidence of the alleged cooperation agreement between Chavis and the prosecution. Because his hypothesis is entirely speculative, he fails to raise a prima facie claim of ineffective assistance of counsel. As such, the Court will deny habeas relief on Ground Three.
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas proceeding where that petitioner's detention arises out of his state court conviction unless he has "made a substantial showing of the denial of a constitutional right." "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 that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For the reasons expressed above, jurists of reason could not disagree that Petitioner's claims are lacking in merit. Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
For the reasons expressed in this Opinion, the Court denies the Petition and denies a certificate of appealability. An appropriate Order follows.
Simmons, 2009 WL 1586509, at *1. Petitioner does not raise this argument in his habeas petition.
