BRIAN R. MARTINOTTI, District Judge.
Before this Court is the petition for a Writ of Habeas Corpus of Petitioner Francis Mitchell ("Petitioner") brought pursuant to 28 U.S.C. § 2254, (ECF No. 1) and an application to proceed in forma pauperis. (ECF Nos. 5, 14.) Following an order to answer, Respondents filed a response to the petition (ECF No. 9-1.) For the reasons set forth below, T Petitioner's application to proceed in forma pauperis is
In its opinion affirming the convictions and sentences of Petitioner, the Superior Court of New Jersey, Appellate Division, provided the following summary of the factual background of Petitioner's trial:
State v. Mitchell, Docket No. A-4151-08T2, 2010 WL 5376365, at *1-3 (N.J. Super. Ct. App. Div. Nov. 9, 2010).
Petitioner appealed his conviction and sentence. The Appellate Division affirmed his conviction on November 9, 2010, correcting a clerical error in Petitioner's period of parole ineligibility.
The petition raises four claims:
(ECF No. 1.)
Respondent was ordered to file an answer to the habeas petition. (ECF No. 2.) Respondent argues the claims have not been exhausted, they are procedurally defaulted, do not raise federal constitutional issues and lack merit. (ECF No. 9-1.)
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 based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, 567 U.S. 37, 40-41 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), 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, 772-73 (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, ___ U.S. ___, ____, 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)).
Even when a petitioner properly exhausts a claim, a federal court may not grant habeas relief if the state court's decision rests on a violation of a state procedural rule. See 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." Leyva, 504 F.3d 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)). 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." Leyva, 504 F.3d at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
Petitioner claims it was an abuse of discretion by the trial judge not to sever his two robbery counts into separate trials. (ECF No. 1 at 5.) Respondent counters that "[s]uch discretionary determinations are not of the subject matter traditionally appropriate for habeas relief." (ECF No. 9-1 at 16.)
Petitioner presented this claim to the Appellate Division on direct appeal, which represents the last reasoned decision on this claim. It rejected this claim finding joinder was proper because the two crimes were substantially similar:
(ECF No. 9-4 at 11.)
The Supreme Court has explained that "[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." United States v. Lane, 474 U.S. 438, 446 n. 8 (1986).
Here, the state court's decision not to sever the two robbery charges did not result in prejudice so great as to violate Petitioner's right to a fair trial, nor was it an unreasonable application of clearly established Supreme Court precedent. The decision not to sever was based on the two crimes being uniquely similar and carried out in a nearly identical manner. The crimes involved the same bank, being robbed twice, within a short period of time, both took place during the day, with a note submitted to the teller demanding the money. Further, having reviewed the trial transcript, the trial judge instructed the jury, in precise terms, to consider each count of robbery separately. (ECF No. 9-17 at 85.) See Zafiro, 506 U.S. at 539 (explaining that while sometimes separate trials are necessary "less drastic measures, such as limiting instructions, often will suffice"). The judge then proceeded to discuss the elements of each crime separately, while noting that first-degree robbery and second-degree robbery are different crimes. Id. at 85-89. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (noting that "[w]e generally presume that jurors follow their instructions"); see also United States v. Torres, 251 F. App'x 763, 764 (3d Cir. 2007) (wherein the "District Court gave the jury explicit instructions that it was to consider separately the evidence for each count. The jury is presumed to have followed its instructions").
Further, joining the trials avoided the need to repeat similar evidence at separate trials, and did not preclude the jury from fairly judging Petitioner's guilt or innocence. See Spencer v. State of Tex., 385 U.S. 554, 562 (1967) (internal citations omitted) ("all joint trials . . . furnish inherent opportunities for unfairness . . . [t]his type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person . . . in the same trial is a valid governmental interest"). In light of the judge's clear instruction to the jury, and the similarity of the crimes committed, Petitioner has not shown that he was subject to prejudice as a result of the denial to sever the trials. In the absence of an unreasonable application of Supreme Court law, Petitioner fails on this claim to show he is entitled to habeas relief. Accordingly, Ground One is
In Ground Two, Petitioner claims the trial judge erred because he did "not make further inquiry of a juror who exited the jury room in a highly emotional state," and that the outcome of the case would have been different had the judge done so. (ECF. No. 1 at 7.) Petitioner's brief on direct appeal, which elaborates on his claims, states:
(ECF No. 11-2 at 16.)Following the incident, the "judge then brought the entire jury back into the courtroom and instructed them to return to their deliberations at the point where the juror had left." (ECF No. 9-4, at 14.)
The Appellate Division, on direct appeal, analyzed the claim and found it lacking merit:
(ECF No. 9-4 at 17-19.)
Petitioner's brief to the Appellate Division on direct appeal, cited only to state law in support of his claim. "To `fairly present' a claim, a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995). This can be done
Id. Petitioner has not done this.
Even if this Court construes this as a federal claim, Petitioner still fails to show he is entitled to habeas relief because he has not shown that the state court rendered a decision that involved an unreasonable application of clearly established federal law. The Sixth Amendment right to a jury trial, guarantees a criminal defendant the right to a "fair trial by a panel of impartial, indifferent jurors," Irvin v. Dowd, 366 U.S. 717, 722 (1961) (citations omitted), and that right is extended to state criminal trials through the Due Process Clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 148-149 (1968). "An impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts." Lockhart v. McCree, 476 U.S. 162, 163 (1986); see also United States v. Tindal, 357 F. App'x 436, 438 (3d Cir. 2009) (explaining that "[j]urors are presumed to be impartial").
Having carefully reviewed the record, there is nothing to indicate this juror was anything but impartial. After the incident, the officer who permitted the juror to leave the jury room was fully examined by the judge. (ECF No. 9-19 at 9-12.) Moreover, the judge states on the record that this particular juror had indicated she suffered from back and neck problems which was the presumed cause of her discomfort. (ECF No. 9-19 at 15, 18.) See Smith v. Phillips, 455 U.S. 209, 217 (1982) ("due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable").
Akin to this, the Supreme Court has explained that a judge's decision as to the impartiality of a prospective juror on voir dire, because it relates to "credibility" and "demeanor," "is entitled, even on direct appeal, to special deference." Patton v. Yount, 467 U.S. 1025, 1038 (1984) (internal citations omitted). "The respect paid such findings in a habeas proceeding certainly should be no less." Id. Here, the trial judge indicated on the record that he assessed the juror's demeanor after the episode and she returned to the jury room without hesitation or protest. (ECF No. 9-19 at 20.) Added to this, the judge instructed the jury to repeat any deliberations the juror had potentially missed. (ECF No. 9-19 at 19.) See Weeks v. Angelone, 528 U.S. 225, 234 (2000) ("[a] jury is presumed to follow its instructions.").
Accordingly, there is no showing that the state court unreasonably applied clearly established federal law. As such, Ground Two is
In Ground Three, Petitioner argues his conviction should be overturned because of prosecutorial misconduct during summation. Specifically, he states, "[t]he prosecutor[']s invitation extended to defendant during summation to stand next to the video tape picture of the robber was improper and denied defendant a fair trial." (ECF No. 1 at 8.)
Petitioner bases his allegations on the prosecutor's actions during trial, in which "during her summation, the prosecutor requested that defendant stand next to a video screen. The screen displayed an enlarged still image of the perpetrator of the . . . robbery taken from the bank's surveillance video." (ECF No. 9-4 at 20.)
The trial court, sustained defense counsel's objection at sidebar, and stated:
Id.
The last reasoned decision on this claim comes from the Appellate Division on Petitioner's direct appeal. The court found the prosecutor's actions did not deprive Defendant of a fair trial:
(ECF No. 9-4 at 21.)
In analyzing claims of prosecutorial misconduct, "[t]he relevant question is whether the prosecutor's 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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The appropriate standard is "the narrow one of due process and not the broad exercise of supervisory power." Id. (quoting Donnelly, 416 U.S. at 642). It is "not enough that the prosecutor's remarks were undesirable or even universally condemned." Id. (quoting Donnelly, 416 U.S. at 644). Remarks by the prosecutor must be placed in context, and evaluated in light of the defense arguments that preceded it. Id. at 179-81. The severity of the prosecutor's actions, the effect of any curative instructions and the evidence against the defendant should be considered. See Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001). "[T]he stronger the evidence against the defendant, the more likely that improper arguments or conduct have not rendered the trial unfair." Marshall v. Hendricks, 307 F.3d 36, 69 (3d Cir. 2002); see Greer v. Miller, 483 U.S. 756, 767 n. 8 (1987) (citations omitted) (explaining "[w]e normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an overwhelming probability that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant").
This Court has carefully reviewed the trial transcript of the prosecutor's summation with respect to the alleged prosecutorial misconduct, and finds Petitioner's claims insubstantial. Immediately after the prosecutor's invitation to Petitioner to stand next to the video screen, his defense counsel requested to speak with the judge at sidebar and objected to the prosecutor's invitation. (ECF. No. 9-17, at 59-61.) The judge, wasting no time, sustained the objection and immediately after gave a curative instruction to the jury explaining to them in precise terms that it was not permissible for the defendant, Mr. Mitchell, to stand near the screen. (ECF. No. 9-17, at 61.) The trial judge stated:
(ECF. 9-17 at 61.) The judge's clear instructions left no room for doubt in the minds of the jurors, that the prosecutor's request was improper. Further, Petitioner was positively identified in a photo array and in court by one of the bank tellers, demonstrating, among other things, the strength of the case. Because the prosecutor's action was not severe, the curative instructions were immediate and precise, and the evidence against the defendant was substantial, the prosecutor's actions did not so infect the trial with unfairness. See Darden, 477 U.S. at 181; see also Gooding v. Wynder, 459 F. App'x 83, 85-86 (3d Cir. 2012) (concerning prosecutor's comments at various stages of trial). Therefore, habeas relief on Ground Three is
On Petitioner's final ground for habeas relief, he states the trial judge abused his discretion by implementing an excessive and consecutive sentence. (ECF No. 1 at 10.) Petitioner further explains he showed remorse throughout trial and no one was injured as a result of his crime. Id. Petitioner was sentenced "to a fifteen-year term on the count of first-degree robbery and a consecutive seven-year term on the second-degree robbery. Both sentences were made subject to the parole ineligibility periods prescribed by the No Early Release Act." (ECF. No. 9-4 at 6.)
Respondent argues this claim is a matter of state law and cannot be brought in a federal habeas petition. (ECF No. 9-1 at 27.) The Appellate Division, in reviewing the trial court's decision stated:
(ECF No. 9-4 at 22-23.)
In Petitioner's brief to the Appellate Division on direct appeal, he cited to State v. Natale, 184 N.J. 458 (2005), which he claims relies on Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000), for the proposition that presumptive term sentencing violates his constitutional rights. (ECF No. 11-2 at 24.) While Petitioner has never directly raised a Blakely claim, this Court will construe it as such. But see Reid v. Ricci, 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); see also Chapman v. United States, 500 U.S. 453, 465 (1991) (citations omitted) ("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").
A review of the record demonstrates that Blakely is not applicable. In Blakely, the trial court sentenced the defendant to more than three years beyond the 53-month statutory maximum, on the basis that he acted with "deliberate cruelty." Blakely, 542 U.S. at 303. The Supreme Court reversed explaining that a defendant's Sixth Amendment right to a jury trial is violated where the facts supporting such a finding are neither found by the jury, nor admitted to by the defendant. Id at 303-04. There, the sentence went well beyond the outer limit of the ordinary sentencing range.
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); 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 insomuch as Petitioner's claims are without merit, Petitioner's habeas petition is inadequate to proceed further and therefore, a certificate of appealability is
For the reasons stated above, Petitioner's in forma pauperis application (ECF Nos. 5, 14) is
In the instant petition, Petitioner states four grounds for which he is seeking habeas relief. (ECF No. 1 at 5-10.) For each ground, in response to the form question, "If you did not exhaust your state remedies [], explain why:" he writes, "Defendant claims ineffective assistance of counsel on (PCR) as well, because points were sent to lawyer, but not used or raised at hearing." Id. It is not clear what Petitioner means and if he intends to raise ineffective assistance of PCR counsel as a ground for habeas relief here. To the extent he is making this claim, that claim would fail, because, as a general rule, "there is no constitutional right to an attorney in state post-conviction proceedings . . . [c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991) (internal citations omitted). Furthermore, as detailed above, Petitioner exhausted the four claims he is bringing in this federal habeas petition by raising them in the direct appeal proceedings.
