ROBERT B. KUGLER, District Judge.
Before this Court is the Petition for a writ of habeas corpus of Petitioner Byron K. Jones, Jr. ("Petitioner"), brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the following reasons, the Court denies the Petition, and declines to issue a certificate of appealability.
The Superior Court of New Jersey, Appellate Division, provided the following summary of the factual background of Petitioner's case:
State v. Jones, Indictment No. A-4600-10T1, 2012 WL 2505714, at *1-2 (N.J. Super. Ct. App. Div. July 2, 2012).
Petitioner appealed his conviction and sentence. The Appellate Division affirmed the conviction on July 2, 2012. Id. The Supreme Court of New Jersey denied certification on September 25, 2012.
(ECF No. 1.)
Respondents filed an initial answer in which they argued that the petition was untimely. (ECF No. 10.) Per the Court's Order of March 26, 2018 (ECF No. 11), Respondents filed a Supplemental Answer in which they argue that Petitioner's claims are meritless, and Ground Five is unexhausted. (ECF No. 12.)
Under 28 U.S.C. § 2254(a), the district court "shall entertain an application for a writ of habeas corpus [o]n 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." A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition. See Price v. Vincent, 538 U.S. 634, 641 (2003); Harrington v. Richter, 562 U.S. 86, 98 (2011). District courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly expressed in "only the holdings, as opposed to the dicta" of the opinions of the United States Supreme Court. See Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). "When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Id. Where a petitioner challenges an allegedly erroneous factual determination of the state courts, "a determination of a factual issue made by a State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In addition to the above requirements, 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)). Nevertheless, to the extent that a petitioner's constitutional claims are unexhausted, 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); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).
In Ground One, Petitioner argues that the trial court erred in granting his pro se motion to waive his right to a jury trial. (ECF No. 1 at 2.) The Superior Court of New Jersey, Appellate Division, rejected the claim as follows:
Jones, 2012 WL 2505714, at *2-4.
The right of a criminal defendant to be tried by a jury of his peers is a fundamental constitutional guarantee. Duncan v. Louisiana, 391 U.S. 145 (1968). This right can be waived, however, by a defendant's "express and intelligent consent", and the agreement of both the government and the court. Adams v. United States ex rel. McCann, 317 U.S. 269, 277-78 (1949). "[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." Id. at 278.
The state court decision was neither contrary to, nor an unreasonable application of Supreme Court precedent. Petitioner has failed to establish any facts that would indicate he did not know or understand the right he was giving up. The trial transcript establishes that the judge conducted a colloquy and Petitioner indicated in no uncertain terms that he did not want to be tried by a jury. (ECF No. 12-1 at 83-86.) The judge then asked various follow-up questions to ascertain if Petitioner understood the constitutional right he was giving up. (Id.) Petitioner affirmatively indicated that he understood the consequences of his decision. (Id.) Petitioner's attorney also stated that he cautioned Petitioner at length about his decision, but that Petitioner was adamant about being tried before a judge. (Id.) Because the record reveals that Petitioner expressly and intelligently consented to the waiver, the state court decision on this matter was not unreasonable. As such, this claim for habeas relief is denied.
In Ground Two, Petitioner claims that his constitutional rights were violated by the admission of unduly suggestive identification evidence. (ECF No. 1 at 2.) While Petitioner provides no facts to support his claim here, in his brief on direct appeal below, he explained that the undercover detective, Detective Ingram, failed to follow the Attorney General's guidelines on proper photograph identification procedures. (ECF No. 10-1 at 20.) Petitioner explained that Detective "Ingram was handed one photograph depicting the defendant. Ingram could select the defendant or he could identify nobody." (Id.)
The Superior Court of New Jersey, Appellate Division, denied this claim as follows:
Jones, 2012 WL 2505714, at *4-5.
"An identification procedure that is both (1) unnecessarily suggestive and (2) creates a substantial risk of misidentification violates due process." United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006) (citing Manson v. Brathwaite, 432 U.S. 98, 107 (1977)). "Unnecessary suggestiveness contains two component parts: that concerning the suggestiveness of the identification and that concerning whether there was some good reason for the failure to resort to less suggestive procedures." Brownlee, 454 F.3d at 137 (citation and internal quotation marks omitted). "[A] suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." Manson v. Brathwaite, 432 U.S. 98, 106 (1977). Factors to be considered in that analysis include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
While not citing directly to Supreme Court case law, the Appellate Division decision rejecting this claim was not unreasonable. Here, the photograph identification procedure possessed sufficient aspects of "reliability." Manson, supra, 432 U.S. at 106. The record demonstrates that Detective Ingram observed Petitioner throughout the drug transaction on November 3, and very shortly after gave a description of Petitioner and identified him in a photograph. (ECF Nos. 12-2 at 24; 12-3 at 47.) Further, Detective Ingram testified that he was certain after looking at the photograph that it depicted the individual who had just sold him cocaine. (ECF No. 12-2 at 24-32.) During the November 9 transaction, Detective Ingram had a second opportunity to view Petitioner. He was again certain that it was the same individual depicted in the photograph. In addition, a second detective, Detective Ferris, testified that Detective Ingram identified Petitioner in the photograph within minutes of the drug transaction, and Detective Ferris corroborated much of Detective Ingram's testimony. (ECF No. 12-3 at 47.) Based on these facts, as well as the factors laid out in Biggers, 409 U.S. at 199, the state court's rejection of this claim was neither contrary to, nor an unreasonable application of Supreme Court precedent. As such, this claim for habeas relief is denied.
In Ground Three, Petitioner argues that his constitutional rights were violated under Brady v. Maryland, 373 U.S. 83 (1963). Petitioner raised this claim in his appeal before the state court, explaining that the State's failure to produce a tape recording of the November 3 transaction violated his rights under Brady. (ECF No. 10-1 at 25-28.)
The Appellate Division rejected this claim as follows:
Jones, 2012 WL 2505714, at *5.
Under Brady, the State bears an "affirmative duty to disclose [material] evidence favorable to a defendant." Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady, 373 U.S. at 87.) "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). In Strickler v. Greene, the Supreme Court clarified that "[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." 527 U.S. 263, 281-82 (1999).
Here, the record establishes that after it became known that Detective Ingram had in his file a DVD of the November 3 transaction, with the words "not for discovery" on it, defense counsel was granted permission to listen to the DVD. In that recording, it became clear that aspects of Detective Ingram's testimony related to the November 3 transaction were inaccurate. The recording revealed that two confidential informants were present during the drug transaction, not one, and that the cocaine was first handed to a confidential informant, and was only then given to Detective Ingram. (See ECF No. 12-3 at 4.) The defense then moved for dismissal of the entire indictment, related to both the November 3 and November 9 transactions. (Id. at 5.) The trial judge ultimately dismissed counts one through three of the indictment, related to the November 3 transaction, finding the State had violated the Petitioner's due process rights by failing to disclose the evidence. (ECF No. 12-4 at 32). However, with respect to the November 9 transaction, the judge concluded that the State's due process violation did not carry over to that transaction. (Id. at 34.)
The state court's decision rejecting this claim was neither contrary to, nor an unreasonable application of Supreme Court precedent. The record makes clear that the judge did in fact find that the State had violated Petitioner's due process rights and dismissed counts one through three of the indictment. The record also reflects that the audio recording only pertained to the November 3 transaction and that the discrepancies in Detective Ingram's testimony played no role in his testimony covering the November 9 transaction. Even if the recording would have been helpful to discredit Detective Ingram's testimony overall, there was additional testimony from Detective Ferris corroborating much of Detective Ingram's testimony. Thus, Petitioner has failed to demonstrate that he was prejudiced within the meaning of Brady. See Bagley, 527 U.S. at 281-82. Furthermore, because the audio recording was only of the November 3 transaction, and the state court dismissed those counts of the indictment, the Court is satisfied that any Brady violation was appropriately dealt with by the state court. Because the rejection of this claim by the Appellate Division was not unreasonable, the Court denies relief on this claim.
Petitioner next argues that his sentence is excessive. (ECF No. 1 at 2.) The Appellate Division rejected this claim, stating:
Jones, 2012 WL 2505714, at *5-6.
The Court first notes that State sentences are generally matters of state law. See Chapman v. United States, 500 U.S. 453, 465 (1991) ("a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual . . . and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment") (citations omitted); see also Reid v. Ricci, No. 07-3815, 2008 WL 2984207, at *12 (D.N.J. July 31, 2008) ("absent a claim that the sentence constitutes cruel and unusual punishment prohibited by the Eighth Amendment, or that it is arbitrary or otherwise in violation of due process . . . the legality of [a petitioner's] state court sentence is a question of state law") (citations omitted).
Here, the facts do not indicate that the sentence imposed was cruel and unusual, or arbitrary in a manner that would violate the United States Constitution. The record reveals that Petitioner was sentenced to seven years imprisonment on count six, for the knowing or purposeful distribution of cocaine, a third degree offense. See N.J. Stat. Ann. § 2C:35-5b(3); see also (Judgment of Conviction, ECF No. 12-1 at 9.) Counts four and five were merged with count six. The State moved for an extended-term sentence, based upon Petitioner's adult criminal record of various drug related offenses. (ECF No. 12-4 at 41-43.) During the sentencing hearing, the judge found that Petitioner was eligible for an extended-term sentence of five to ten years under N.J. Stat. Ann. § 2C:43-7(a)(4) as a persistent offender and repeat drug offender. See N.J. Stat. Ann. § 2C:44-3; see also N.J. Stat. Ann. § 2C:43-6f.
Thus, the sentence did not go beyond the statutory maximum; Petitioner was eligible for an extended term of five to ten years, and only received a sentence of seven years. In fact, the judge articulated that Petitioner would not receive a maximum sentence, stating: "I don't find that anything near a maximum term is appropriate . . ." (ECF No. 12-4 at 44.) While the judge did also assess various aggravating factors, such as the risk Petitioner would commit another offense, the extent of his prior criminal record, and the need to deter him and others from violating the law, see N.J. Stat. Ann. § 2C:44-1, the sentence was still within the prescribed statutory maximum.
In Ground Five, Petitioner alleges that his attorney was ineffective in failing to properly argue that Detective Ingram's testimony was inconsistent with the audio recording. (ECF No. 1 at 8.) While this claim is unexhausted, the Court will nevertheless deny the claim on the merits. See Horn, 504 F.3d at 427 (permitting courts to deny unexhausted claims on the merits).
The Sixth Amendment guarantees the accused the "right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The right to counsel is the right to the effective assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel's assistance was so defective as to require reversal of a conviction has two components, both of which must be satisfied. Id. at 687. First, the defendant must "show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. To meet this prong, a "convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The court must then determine whether, in light of all the circumstances at the time, the identified errors fell "below an objective standard of reasonableness." Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014).
Second, a petitioner must establish that counsel's "deficient performance prejudiced the defense so as to deprive the defendant of a fair trial." Strickland, 466 U.S. at 669. To establish prejudice, the defendant must show that "there is a reasonable probability that the result of trial would have been different absent the deficient act or omission." Id. at 1083.
Here, Petitioner has failed to demonstrate that his counsel was deficient under Strickland. In fact, the trial transcript reveals that defense counsel argued, repeatedly, that the entire indictment should have been dismissed as a result of the State's Brady violation. Counsel further argued that the audio recording established that Detective Ingram's entire testimony was not credible. Defense counsel conducted extensive cross-examination of Detective Ingram eliciting many inconsistent statements. Counsel was so effective that the trail court dismissed three counts of the indictment. Because Petitioner fails to demonstrate that his counsel was deficient under Strickland, this claim for habeas relief is denied.
In his final claim for habeas relief, Petitioner argues that the State failed to produce "any supporting evidence . . . on this undercover officers' [Detective Ingram] investigation technique" and that the "technique [Detective Ingram] said he used wasn't consistent with the audio recording verbal conversations." (ECF No. 1 at 8.)
While Petitioner does not say so explicitly, he appears to raise a claim related to the sufficiency of the evidence against him. Once again, while this claim is unexhausted, the Court will deny it on the merits.
When a petitioner presents a claim challenging the sufficiency of the evidence against him, "a reviewing court must ask `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.'" Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A court sitting in habeas review may therefore overturn a conviction for insufficiency of the evidence 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." Id. (quoting Jackson, 443 U.S. at 324). "Under Jackson, federal courts must 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).
Here, given the testimony from Detective Ingram and Detective Ferris detailing the November 9 transaction, as well as the subsequent photograph identification of Petitioner, it is clear that a rational fact-finder could have found Petitioner guilty beyond a reasonable doubt. Thus, Petitioner's contention that there was insufficient evidence of his guilt is without merit. The testimony of Detective Ingram was extremely detailed: he described his phone conversation with Petitioner prior to the sale, he detailed the circumstances of the sale in the restaurant, he described how the drugs and money were exchanged, he gave a detailed description of the unique vehicle Petitioner arrived and departed in, and he described his identification of Petitioner in a photograph given to him by Detective Ferris. Detective Ferris, who was present outside the restaurant listening to a live audio recording, corroborated much of that testimony. Detective Ferris described Petitioner's unique vehicle, his observation of Petitioner entering and leaving the restaurant, and the discussion he heard between Detective Ingram and Petitioner related to the price of the transaction. Because the evidence in this matter was clearly sufficient, the Court denies relief on this claim.
Under 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); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not disagree with this Court's conclusion that Petitioner has failed to make a substantial showing of the denial of a constitutional right, Petitioner's habeas petition is inadequate to deserve encouragement to proceed further. Accordingly, a certificate of appealability is denied.
For the reasons stated above, the Petition for habeas relief is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
