JOSE L. LINARES, District Judge.
Presently before the Court is the petition for a writ of habeas corpus of Marvin Mathis ("Petitioner") brought pursuant to 28 U.S.C. § 2254 challenging Petitioner's state court conviction (ECF No. 1). Following an extension granted by this Court, Respondents filed a response to the petition (ECF No. 10), to which Petitioner has replied (ECF No. 12). Also before this Court is Petitioner's motion for an evidentiary hearing (ECF No. 13), to which Respondents have filed a response (ECF No. 15). For the following reasons, this Court will deny both the motion for an evidentiary hearing and the petition for a writ of habeas corpus, and no certificate of appealability shall issue.
In the opinion affirming Petitioner's conviction on direct appeal, the Superior Court of New Jersey — Appellate Division provided the following summary of the facts underlying Petitioner's conviction:
(Document 4 attached to ECF No. 10 at 4-12).
On January 25, 1996, Petitioner was charged by way of a Juvenile Delinquency complaint with crimes that, if committed by an adult, would constitute armed robbery and felony murder. (Id. at 2). On October 10 and November 11, 1996, the family court held a hearing and ultimately determined that Petitioner's case should be waived to the Law Division and Petitioner should be tried as an adult because it was not likely that Petitioner could be rehabilitated by the time he reached nineteen years of age and there was probable cause that Petitioner had committed the charged crimes. (Id. at 2-3). As part of those waiver hearings, three experts prepared reports designed to aid the Court in determining whether Petitioner could be rehabilitated by the time he reached nineteen.
Cheryl L. Thompson, a psychologist hired by Petitioner's counsel, provided one such report. (Document 2 attached to ECF No. 12 at 9-13). In support of her assertion that Petitioner could be rehabilitated through juvenile proceedings, Dr. Thompson made the following comments on Petitioner's mental functioning and educational difficulties:
(Id. at 10-11).
Martha H. Page, a Doctor of Education, also evaluated Petitioner following a referral by defense counsel. In her report, Dr. Page concluded that Petitioner
(Document 2 attached to ECF No. 12 at 22). In addition to the results of various tests conducted on Petitioner, Dr. Page made the following statements regarding Petitioner's mental faculties:
(Id. at 19).
The final expert report provided during the waiver proceedings was the report of Dr. Louis B. Schlesinger, a psychologist hired by the State to evaluate Petitioner. (See Document 2 attached to ECF No. 12 at 24-39). In that report, Dr. Schlesinger provided the following evaluation of Petitioner's mental functioning:
(Id. at 31-33). Dr. Schlesinger thus concluded that Petitioner's "level of intelligence falls within the high end of borderline to dull-normal range." (Id. at 37).
Following the Family Court's decision to waive Petitioner to the Law Division, Petitioner was indicted on February 4, 1997 with the following charges: first degree murder in violation of N.J. Stat. Ann. § 2C:11-3a(1) or § 2C:11-3a(2), first degree armed robbery in violation of N.J. Stat. Ann. § 2C:15-1, first degree felony murder in violation of N.J. Stat. Ann. § 2C:11-3a(3), second degree possession of a firearm for an unlawful purpose in violation of N.J. Stat. Ann. § 2C:39-4a, and third degree possession of a weapon for an unlawful purpose in violation of N.J. Stat. Ann. § 2C:39-5(b). (Document 4 attached to ECF No. 10 at 3). Petitioner's charges thereafter proceeded to trial in June of 1998. (Id.).
Prior to the onset of trial, the trial court held a hearing on Petitioner's motion to suppress his statements to the police on the ground that he did not knowingly and intelligently waive his Miranda rights on June 9 and 10, 1998. (Documents 28 and 29 attached to ECF No. 10). At that hearing, Detective Brown testified that he and Detective Garcia asked Petitioner to come from his school with them to the station, which Petitioner willingly agreed to do. (Document 28 attached to ECF No. 10 at 7). The detective testified that no force or coercion was used to get Petitioner to go to the station, that he was not handcuffed or arrested at that time, and that Petitioner chose to go with them to the station. (Id.).
Following Detective Garcia's testimony, Detective Koczur testified regarding the statements Petitioner made to police. He testified that, after speaking with Sharlama Brooks, he asked that Petitioner be brought to the station from his school as Brooks had told Koczur that Petitioner had shot someone. (Id. at 14-15). The detective then stated that, once Petitioner was brought to the station, he informed Petitioner that he was a strong suspect in the shooting of Saraiva, but the police would not question Petitioner without his mother being present, and that Petitioner should wait until his mother arrived to speak with the police. (Id. at 17-18). Petitioner's mother was then brought to the station, where she, too, was informed that Petitioner was a suspect in a murder. (Id. at 19). The detective further testified that once Petitioner and his mother were placed in an interrogation room, both were advised orally and in writing of Petitioner's Miranda rights and asked whether they understood each right individually. (Id. at 20-21). After being informed of Petitioner's rights and stating that they understood, both Petitioner and his mother chose to waive those rights and both signed a waiver form after it was read to them by Koczur. (Id. at 21-23).
Detective Koczur further testified that no force or threats were used against Petitioner, that Petitioner spoke freely with the detectives, and that Petitioner never requested an attorney. (Id. at 23-26). The detective stated that Petitioner initially denied his involvement as summarized above but ultimately asked that his mother briefly leave the room, at which point he first provided the information contained in his first statement discussed above. (Id. at 27). The detective stated that Petitioner was the one who asked her to leave, and Mrs. Mathis did not object, and that she was then brought back in and Petitioner immediately repeated his story. (Id. at 27-28). Petitioner thereafter gave his first written statement in the presence of his mother, reviewed it, and signed it. (Id. at 30-33). The detective then testified that, following the search of Petitioner's home by Petitioner and his mother's consent, Petitioner was brought back, re-mirandized, and once again waived his rights by agreeing to and signing a Miranda waiver form. (Id. at 36-37). Petitioner was told that the police did not believe his story, and Petitioner ultimately provided the second written statement discussed above. (Id. at 37-41). On cross examination, the detective admitted he knew Petitioner was fifteen at the time, but denied being told that Petitioner was a special education student or that Petitioner did not understand any of his rights, and that Petitioner ultimately appeared to understand his rights. (Id. at 43-53).
Petitioner's mother also testified at the Miranda hearing. Although Petitioner's mother initially stated that the police were questioning her son upon her arrival, when asked when police started questioning him, she stated that she didn't remember. (Id. at 65). She then testified that she remembered the police reading her and her son the Miranda waiver form, and that she and her son waived those rights the first time the police questioned Petitioner. (Id. at 66). Even when faced with her own signed statement, Mrs. Mathis claimed that her son never admitted any involvement in the crime, despite signing a statement to that effect. (Id. at 66-69). She also stated that it was the detective, and not her son, who asked her to leave the room during his interrogation. (Id. at 69).
Petitioner was the final witness to testify at the Miranda hearing. Petitioner asserted that he only went to the police station because the detectives told him that he had to go. (Id. at 73-74). Petitioner testified that upon arriving, he was placed in an interrogation room, told the police were investigating him in relation to a homicide, and that he should not respond to any questions until his mother arrived. (Id. at 75). Petitioner then testified that another officer entered and tried to interrogate him, but he insisted that he shouldn't talk until his mother arrived per the previous detective's statement as to Petitioner's rights, and that officer stopped asking questions and left. (Id. at 75-76). Petitioner then testified that he did answer questions once his mother arrived, but claimed that he was not read his Miranda rights until after he gave his first statement, at which point he was read his rights, read it himself, and signed the waiver. (Id. at 76). Petitioner asserted, however, that he didn't understand the rights that were read, although he did not tell officers that. (Id.). Petitioner further stated that although he signed and initialed his statement, he didn't read it in its entirety because the detectives "rush[ed]" him. (Id. at 78).
Petitioner also testified that he ultimately gave a second statement, but insisted that he was not read his Miranda rights a second time. (Id. at 80-81). Petitioner testified that he could not recall whether he read this second statement before signing it, and further testified that he only signed it because he was told to do so by the police. (Id.). Petitioner also stated that he never read the statement out loud despite having issues with reading. (Id. at 82).
On cross examination, Petitioner admitted that he was not handcuffed until after the second statement, that he was not mistreated by the police, and that he was not otherwise subject to force or coercion by police. (Id. at 85-88). Petitioner also reiterated on cross that, after being told he didn't have to speak with the police until his mother arrived, that he told a detective not to talk to him without his mother when he attempted to question Petitioner and thus stopped premature questioning. (Id. at 90). Petitioner further admitted that he lied in his first statement, and that it was he, and not the detectives, who asked his mother to leave before he first admitted involvement in the crime. (Id. at 92-94). Petitioner also stated that he repeated that statement once his mother returned to the room. (Id. at 94). Petitioner also admitted that he eventually gave a second statement in which he gave further details after the police told him they did not believe his first statement. (Id. at 99-100).
The final series of questions on cross examination dealt with Petitioner's ability to understand the Miranda rights he waived during questioning. Petitioner admitted that he understood his right to remain silent, and that anything he said could be used against him. (Id. at 112-13). Petitioner also stated that he understood that he had a right to an attorney, and that he could have one appointed for him, but claimed that he did not understand what it meant that he had a right to have a lawyer "present" during questioning. (Id. at 114-16). Petitioner also testified that he understood that he could decide to exercise his rights at any time and end the questioning. (Id.). Petitioner did assert that although he knew he could have a lawyer appointed for him, he didn't understand what the Miranda form meant by saying that he could have a lawyer appointed before questioning if he wished. (Id.). Ultimately, Petitioner testified that the only phrases in all of the Miranda warnings that he did not understand were the word "present" and the phrase "if you wish," and that he otherwise understood his rights at the time he was questioned. (Id.). Petitioner thus asserted that what he did not understand was that he could have a lawyer appointed prior to questioning, as opposed to at some later point. (Id.). Petitioner admitted, however, that his mother was present at the time of the Miranda waiver, and that she, too, agreed to waive his rights. (Id. at 115-16).
The trial court ultimately denied Petitioner's Miranda motion, making the following findings:
(Document 29 attached to ECF No. 10 at 14-17).
Petitioner's case then proceeded to trial, where the various witnesses testified as recounted above. The defense, however, called several additional witnesses:
(Document 4 attached to ECF No. 10 at 12-15).
On June 18, 1998, the jury found Petitioner guilty of all charges. (Id. at 3). At sentencing, counsel for Petitioner noted that there was a mandatory sentencing scheme in place, but that the Court should sentence Petitioner to the low end of that scheme based on Petitioner's age at the time of the offense, his lack of a prior record, and Petitioner's status as a special education student who was subject to the influence of older young people. (Document 39 attached to ECF No. 10 at 2-4). Counsel also argued that although only two teachers testified to his good character at trial, there were dozens more willing to testify that he was a good student. (Id. at 4). Counsel also argued that Petitioner was subject to rehabilitation per a letter filed by Garcia, the social worker who testified at trial, and that Petitioner's apparent lack of remorse was simply a result of his continuing to assert his innocence. (Id.). Petitioner also spoke on his own behalf at sentencing, apologizing for what was happening and insisting that he tried to stop what happened, but "was too late." (Id. at 5-6).
The trial court, however, rejected that argument, finding that the heinous nature of the crime, which involved four young people stalking the streets with the purpose of robbing and potentially shooting someone, did not suggest the good character counsel and others ascribed to Petitioner, but rather indicated a criminal who "has complete disregard for the law, [and] complete disregard for other people." (Id. at 8-9). The Court likewise noted that there was a need for the Court to issue a sentence which would act as a strong deterrent — both to deter Petitioner specifically, and to deter others like him. (Id. at 9-10). The Court thus found that the only applicable mitigating factor was Petitioner's lack of a prior criminal record, but that mitigating factor was "so clearly and convincingly outweigh[ed]" by the aggravating factors including both the seriousness of the offense and the need to deter Petitioner and those like him that a sentence above the statutory minimum was required in Petitioner's case. (Id. at 10). The trial court therefore merged felony murder and second degree possession of a weapon for an unlawful purpose with the first degree murder charge, and sentenced Petitioner to a term of fifty years imprisonment with a thirty year parole disqualifier. (Id. at 10-11). The Court also sentenced Petitioner to sentences of eighteen years with six years parole ineligibility on the robbery charge, and a four year sentence with eighteen months parole ineligibility for the final unlawful possession of a weapon count, both of which appear to run concurrently with the murder sentence. (Id. at 11).
Petitioner appealed, raising several claims which he does not attempt to raise again in this habeas matter, and the Appellate Division affirmed his conviction and sentence in a lengthy opinion on June 2, 2000. (Document 4 attached to ECF No. 10). The New Jersey Supreme Court denied certification on June 13, 2000. (Document 5 attached to ECF No. 10). In April 2001, Petitioner filed with the New Jersey Courts a purported petition for post-conviction relief. (Document 8 attached to ECF No. 10). Petitioner thereafter filed a full PCR petition on or about September 17, 2003, in which he first raised the ineffective assistance of counsel claims he brings in his current habeas petition. (Document 9 attached to ECF No. 10). The trial court initially denied Petitioner's PCR petition, making the following findings:
(Document 25 attached to ECF No. 10 at 15-16).
Petitioner thereafter appealed, arguing inter alia that PCR counsel provided ineffective assistance in his failure to file a brief in support of the PCR petition. (Document 25 attached to ECF No. 10 at 3-4). The Appellate Division agreed that PCR counsel's failure to file a brief amounted to ineffective assistance of PCR counsel and remanded the matter for a new hearing on whether Petitioner had presented a prima facie case for PCR relief. (Id.). On remand, the PCR court denied Petitioner's PCR application on the record and by way of a separate order on January 27, 2012. (Id. at 4).
In that decision, the PCR court made the following additional findings:
(Document 41 attached to ECF No. 10 at 25-28).
Petitioner appealed, and the Appellate Division affirmed the denial of Petitioner's PCR petition on August 1, 2014, for substantially the same reasons expressed by the trial court in both of its decisions denying PCR relief. (Document 25 attached to ECF No. 10 at 15-18). As to the Miranda hearing claim, the Appellate Division added the following:
(Id. at 17-18). The New Jersey Supreme Court denied Petitioner's petition for certification on February 3, 2015. See State v. Mathis, 220 N.J. 572, 108 A.3d 632 (2015). Petitioner filed the instant habeas petition on or about March 23, 2015. (ECF No. 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, ___ U.S. ___, ___, 132 S.Ct. 2148, 2151 (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. White v. Woodall, ___ U.S. ___, ___, 124 S.Ct. 1697, 1702 (2014) (quotations omitted). "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." See Woods v. Donald, ___ U.S. ___, ___, 125 S.Ct. 1372, 1376 (2015). 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).
Petitioner argues that he should be granted an evidentiary hearing on his petition for a writ of habeas corpus. 28 U.S.C. § 2254(e)(2) generally bars habeas petitioners who are challenging their State court convictions from receiving evidentiary hearings where the petitioner failed to develop the factual record underlying his claims in the State courts. That rule, however, does not apply where the petitioner "unsuccessfully sought an evidentiary hearing in the PCR court and unsuccessfully appealed from the denial of his PCR petition" because such actions indicate that the petitioner did not fail to develop the record, but was denied the opportunity to do so. Branch v. Sweeney, 758 F.3d 226, 241 (3d Cir. 2014). "In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court." Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010) (quoting Schriro v. Landrigan, 550 U.S. 465, 468 (2007)). Although the decision to provide a hearing is within the discretion of the court in such cases, that decision is subject to two considerations which must guide the Court's exercise of that discretion:
Palmer, 592 F.3d at 393.
Even assuming that Petitioner did not fail to develop the factual record in the state courts in so much as he was denied a hearing by the PCR court, Petitioner is not entitled to an evidentiary hearing. Because Petitioner has failed to establish Strickland prejudice for the reasons set forth below, Petitioner has failed to establish a prima facie case of ineffective assistance, and as a result has not shown that he is entitled to federal habeas relief. As a result, no evidentiary hearing is necessary on Petitioner's ineffective assistance of counsel claims. Id. at 394. This Court will therefore deny Petitioner's motion for an evidentiary hearing.
Petitioner's asserts that he received ineffective assistance of counsel prior to and during his criminal trial. The standard which governs such claims is well established:
Judge v. United States, 119 F.Supp.3d 270, 280-281 (D.N.J. 2015).
Most of Petitioner's arguments as to counsel's ineffectiveness arise from Petitioner's assertion that counsel should have raised Petitioner's status as a special education student at various points of his criminal proceedings. Specifically, Petitioner asserts that counsel should have raised his special education status during the Miranda hearing, at trial, and at sentencing as a mitigating factor. Petitioner also asserts that counsel should have raised these same claims on direct appeal, and that appellate counsel failed to argue that the trial court did not consider the totality of the circumstances in denying his Miranda motion on direct appeal. This Court will turn to each of those arguments in turn.
Petitioner first argues that his trial counsel was constitutionally ineffective in failing to properly raise Petitioner's special education status during his Miranda hearing. Petitioner asserts that, had counsel provided proper expert testimony and other information regarding Petitioner's mental functioning, the trial court would have found that his waiver of his Miranda rights was not knowing, intelligent, and voluntary. The problem with this, and all of Petitioner's ineffectiveness claims, however, is that Petitioner has failed to provide any information as to exactly what information it is that counsel should have presented. The only documentary evidence Petitioner submits in support of his assertion that counsel should have provided more information to the trial court are the three expert reports provided to the juvenile court during the waiver proceedings. As this Court will discuss below, those reports are insufficient to establish that Petitioner was prejudiced by counsel's alleged failings.
Under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny, a statement taken during a custodial interrogation is only admissible at a criminal defendant's trial where that defendant has made a knowing, intelligent, and voluntary waiver of his rights. 384 U.S. at 444; see also Sweet v. Tennis, 386 F. App'x 342, 345 (3d Cir. 2010). A valid waiver has two dimensions:
Sweet, 386 F. App'x at 345 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986); see also Fare v. Michael C., 442 U.S. 707, 725 (1979). Factors to be considered when weighing the totality of the circumstances in cases involving a juvenile defendant include "the juvenile's age, experience, education, background, and intelligence and . . . whether he has the capacity to understand the warnings given to him, the nature of the Fifth Amendment rights [involved], and the consequences of waiving those rights." Fare, 442 U.S. at 725; see also Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The presence of a parent or adult relative can be considered as a factor which possesses the potential to mitigate a juvenile's age, immaturity, and inexperience and place him on "a less unequal footing with his interrogators." Gallegos v. Colorado, 370 U.S. 49, 54 (discussing the voluntariness of a confession in a pre-Miranda setting), reh'g denied, 370 U.S. 965 (1962); Fare, 442 U.S. at 725. Although both age and mental capacity are factors to be considered, neither, in and of itself, is sufficient to warrant suppression of a statement in all cases. See, e.g., Vance v. Bordenkircher, 692 F.2d 978, 980-81 (4th Cir. 1982).
In considering a Miranda suppression decision during habeas review, "[f]ederal habeas courts have an `independent obligation' to determine whether a confession was voluntary." Sweet, 386 F.App'x at 345 (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)). In undertaking that independent obligation, the federal court is not bound by the state courts' ultimate decision as to the voluntariness of a waiver of the petitioner's rights, but must "defer[] to state court fact-finding as to `subsidiary factual questions'" including as to the credibility of the witnesses who testified at the suppression hearing. Id.; see also Miller, 474 U.S. at 110-12. Ultimately, if the court concludes that the state court was correct in determining that, "under the totality of the circumstances, the confession was obtained in a manner compatible with the requirements of the Constitution," no habeas relief is warranted. Sweet, 386 F. App'x at 345 (quoting Miller, 474 U.S. at 112).
Petitioner asserts that had his counsel raised his special education status directly through witness testimony, the outcome of his Miranda hearing would have been different. Briefly, this Court notes that although Petitioner asserts that the trial court was not aware of the expert reports submitted during waiver proceedings, it is not clear from the record that the motion judge was unaware of those reports. It is also worth noting that, on cross examination of one of the detectives who interrogated Petitioner, counsel did raise the special education status. Regardless of these facts, however, Petitioner has failed to show prejudice in this context because he has not provided any directly applicable evidence showing what, if anything, an expert witness may have said regarding Petitioner's ability to knowingly and intelligently waive his rights, as Petitioner instead relies solely on the expert reports from the waiver hearing.
In support of his assertion that an expert or Petitioner's school records would have shown that Petitioner had low intelligence and thus would have been unable to knowingly and intelligently waive his Miranda rights, Petitioner provides only the three expert reports submitted during his waiver proceedings. These reports, although they do comment on Petitioner's intelligence which they generally categorize as falling between low borderline to low average, are not directly on point and provide no solid information as to whether Petitioner was able to understand the Miranda warnings he was given, and make a knowing, intelligent, and voluntary waiver of those rights. As the PCR court noted, the reports certainly support the suggestion that Petitioner had a somewhat below average intelligence and had difficulty with reading. The reports, however, provide no real evidence that Petitioner could not understand the Miranda warnings which he was given orally by the detectives in this case. Even if this Court were to assume that Petitioner was unable to understand the warnings by reading them silently to himself, that the warnings were given orally not only to Petitioner but to Petitioner's mother who was present severely complicates Petitioner's arguments, and, to some extent, renders any question as to his reading abilities far less important.
By Petitioner's own admission on cross-examination, he understood all of the portions of the Miranda warnings except the word "present" and the phrase "if you wish." Indeed, based on Petitioner's admissions and Petitioner's clearly asserted ability to exercise at the very least his ability to refuse to talk to police until his mother arrived, the motion judge found Petitioner's claims that he lacked an understanding of his rights completely incredible. Providing that credibility determination with the deference it is due, and giving proper weight to the fact that Petitioner's mother was present and also agreed to the Miranda waiver, this Court cannot conclude that the facts presented, including the proffered reports, indicate that the motion judge would have reached a different conclusion had counsel more fully raised the special education issue.
The reports Petitioner presents do not provide a sufficient basis to question Petitioner's ability to understand the Miranda warnings he was given. Those reports do not evaluate Petitioner's ability to understand those Miranda warnings, but only give a very general overview of Petitioner's mental and intellectual functioning. This is not surprising, given the fact that those reports were authored solely for the purpose of determining whether Petitioner was capable of rehabilitation by the age of 19 — the standard applicable in New Jersey juvenile jurisdiction waiver proceedings at the time of Petitioner's arrest. Thus, those reports do not give this Court any sense of what even the three experts who authored those reports would have testified had they been asked to evaluate Petitioner's ability to understand his Miranda warnings. That Petitioner has failed to provide a certification or affidavit from any expert regarding what testimony they would have given, nor provides such an affidavit from any of his teachers or school officials about what testimony they could have provided as to Petitioner's mental functioning and ability to intelligently waive his Miranda rights further weakens Petitioner's claim. See, e.g., Tolentino v. United States, Civil Action No. 13-4168, 2014 WL 3844807, at *3 (D.N.J. July 31, 2014) (stating that the "[petitioner's] failure to include a sworn statement regarding the nature of [a witness's] proposed testimony is fatal to his making a prima facie showing of prejudice" based on counsel's failure to call such a witness); see also Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir.2001).
Petitioner has failed to provide sufficient evidence to make a prima facie showing that the outcome of Petitioner's Miranda hearing would have been different had counsel "properly" raised the issue of his special education status during that hearing through expert testimony or otherwise. There is insufficient evidence in the record, even considering the waiver reports, to indicate that Petitioner was unable to knowingly, intelligently, and voluntarily waive his Miranda rights given both the fact that Petitioner was read his rights orally by the detectives and Petitioner's mother was present and also freely chose to waive Petitioner's rights. Combining this lack of evidence with the motion judge's credibility determination that Petitioner was not credible when he claimed he did not understand the warnings, this Court cannot conclude that Petitioner was incapable of making a knowing, intelligent, and voluntary waiver of his Miranda rights. Given the facts before this Court including that credibility determination and the presence of Petitioner's mother during the waiver, and even given Petitioner's youth, inexperience, and intellectual difficulties, it fully appears that the motion judge was entirely correct in concluding that Petitioner knowingly, intelligently, and voluntarily waived his Miranda rights, and the waiver reports provide no information sufficient to alter that conclusion. As such, the PCR court neither unreasonably applied federal law, nor misapprehended the facts, and Petitioner is not entitled to habeas relief on this claim.
Petitioner further contends that his counsel was ineffective in so much as he failed to fully investigate Petitioner's special education status prior to the Miranda hearing and trial, and failed to secure and call witnesses regarding Petitioner's intellectual capacity during trial. In Strickland, the Court held that defense counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 691. "The failure to investigate a critical source of potentially exculpatory evidence may present a case of constitutionally defective representation," and "the failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness." United States v. Travillion, 759 F.3d 281, 293 n. 23 (3d Cir. 2014) (internal quotations omitted); see also United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that a complete absence of investigation usually amounts to ineffective assistance because a complete absence of investigation does not present a strategic choice made by counsel); United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980). To show prejudice in regards to a claim that counsel conducted an incomplete investigation,
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011) ("When a petitioner alleges that counsel's failure to investigate resulted in ineffective assistance, the petitioner has the burden of providing the court with specific information as to what the investigation would have produced."); United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989) ("A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome" of Petitioner's case); accord United States v. Garvin, 270 F. App'x 141, 144 (3d Cir. 2008).
The standard applicable to claims that counsel was ineffective in failing to call certain witnesses is similar. When presented with such a claim, courts "are `required not simply to give [the] attorney[] the benefit of the doubt, but to affirmatively entertain the range of possible reasons [petitioner's] counsel may have had for proceeding as he did.'" Branch v. Sweeney, 758 F.3d 226, 235 (3d Cir. 2014) (quotations omitted). Moreover,
United States v. Graves, 613 Fed. App'x 157, 159, 2015 WL 3406548, at *2 (3d Cir. May 28, 2015). As previously stated, however, where a petitioner fails to provide a sworn statement or affidavit regarding a purported witness's proposed testimony, that Petitioner cannot make a prima facie showing of Strickland prejudice, and that claim must fail. Tolentino, 2014 WL 3844807 at *3; see also Duncan, 256 F.3d at 201-02.
As in his Miranda claim discussed above, Petitioner fails to provide this Court with any evidence other than the reports prepared in advance of the waiver hearing to suggest that counsel failed to properly investigate his special education status and failed to call witnesses to testify to that status at trial. Indeed, that counsel did obtain the expert reports themselves clearly indicates that counsel conducted at least some investigation into Petitioner's intellectual abilities, and that this is not a case where no investigation was conducted. As such, the onus is upon Petitioner to make at least a prima facie showing of prejudice by indicating what information which was not produced at trial would have been discovered with adequate investigation, and what testimony, if any, a witness may have provided had he been called to testify. Petitioner, however, does neither. Petitioner's assertions that his school records establish his special education status suffers from the fact that Petitioner does not actually provide any context nor information as to what relevance Petitioner's special education status would have had if presented at trial. Petitioner asserts, without providing support for the assertion, that his special education status would have impacted his credibility, but without any clear indication of what his "special education" status actually meant or any information as to what information an expert or school official would have provided about how Petitioner's intellectual functioning affected his credibility or behavior, Petitioner has simply failed to show that the special education issue was of any significant importance to his trial, and has certainly failed to show that he was prejudiced in so much as he has failed to show that the provision of such information would have altered the outcome of his trial.
Considering the significant bordering on overwhelming evidence arrayed against Petitioner at trial, including the testimony of his girlfriend and the Diggs cousins who were present at the shooting, as well as Petitioner's own statement admitting to his presence at the scene of the shooting and at least partial participation in the robbery, it is difficult to imagine that Petitioner's special education status would have been sufficient to alter the outcome of his trial absent clear testimony about what that status entailed, how it impacted Petitioner's ability to act, and what affect it would have upon his credibility. Petitioner provides no evidence from which this Court can glean that information. As in the Miranda context, the waiver reports provide little to no information that is directly applicable to Petitioner's criminal trial. They do not establish that he was so intellectually deficient as to have a diminished capacity or an inability to understand the consequences of his actions, and they certainly don't have any direct bearing on his credibility as a witness. The reports provide little in the way of clear information about whether those experts were available to testify at trial, and what information they would have provided had they been called as witnesses. As Petitioner fails to provide a name, let alone an affidavit or statement of proposed testimony, as to any other witness counsel "failed" to call, Petitioner has failed to make a prima facie showing that he was prejudiced by counsel's failure to either investigate or call witnesses regarding Petitioner's special investigation status prior to or during trial. As Petitioner has failed to demonstrate prejudice, the decision of the PCR courts involved neither an unreasonable application of federal law, nor of the facts, and Petitioner's argument provides no basis for habeas relief as a result.
Petitioner next argues that counsel was ineffective in failing to present evidence or witnesses at sentencing regarding his special education status. In so doing, Petitioner notes that counsel mentioned Petitioner's special education classification to the Court, and mentioned the testimony at trial of Petitioner's teachers, but failed to provide expert testimony in support of Petitioner's mental status. Petitioner argues that, had counsel provided such testimony, the trial court may have found additional mitigating factors which could have impacted his sentence.
Petitioner points to two statutory mitigating factors in particular. First, Petitioner argues that his low intellectual functioning, combined with his youthful age, a point which counsel did argue, might amount to "substantial grounds tending to excuse or justify [his] conduct, though failing to establish a defense" under N.J. Stat. Ann. § 2C:44-1(b)(4). Petitioner asserts that, had counsel submitted unspecified evidence and called witnesses Petitioner has not named regarding his intellectual difficulties, the Court would have found that such difficulties would be sufficient to excuse his behavior. Petitioner's failure to provide sworn statements as to the testimony of any alleged witnesses again prevents this Court from being able to find that Petitioner was prejudiced by the failure to call those witnesses. See Tolentino, 2014 WL 3844807 at *3; see also Duncan, 256 F.3d at 201-02. To the extent that Petitioner argues that the expert reports from the waiver hearings would establish that his mental functioning would establish an excuse for his behavior, Petitioner is simply incorrect. Although those reports do provide that Petitioner had learning difficulties and was of a borderline to low average intelligence, they do not categorically show that Petitioner did not understand his actions or that they were wrong. Petitioner's actions after the shooting, including providing an admittedly false statement to the police and asking his girlfriend to do likewise if she were asked likewise clearly indicates that Petitioner understood the gravity of what he had done. Thus, even considering the waiver reports, Petitioner has failed to provide any evidence which would support a conclusion that his intellectual difficulties would have been sufficient to in any way excuse his conduct. Given the fact that the trial court did find that Petitioner's callous disrespect for the law, the need to deter him and others like him, and the heinous nature of Petitioner's actions severely outweighed any mitigatory value his youth or lack of a criminal history would have, it in no way appears that the trial court would have found that the information in the waiver reports would have been sufficient to excuse or justify Petitioner's conduct, and thus Petitioner has failed to show any prejudice as to this claim.
Although it suffers from the same weakness as his first sentencing claim in so much as Petitioner fails to provide a sworn affidavit from whatever expert could have testified at sentencing, Petitioner's second argument at first glance appears stronger. Petitioner's second sentencing argument is that counsel's failure to raise his special education statement also prevented the sentencing court from finding the mitigating factor provided in N.J. Stat. Ann. § 2C:44-1b(13). Pursuant to that section, a sentencing court in New Jersey may find that the "conduct of a youthful defendant was substantially influenced by another person more mature than the defendant" as a mitigating factor at sentencing. In support of this assertion, Petitioner points to the following statement in the report of Dr. Thompson presented during the waiver hearing: "[Petitioner] presents as a follower, someone who could be easily persuaded by more successful anti-social characters to become involved with them." (Document 2 attached to ECF No. 12 at 11). Petitioner also raises the following conclusion of Dr. Page in her report submitted in the waiver hearing: "[Petitioner] became involved with an older group of young people whom he, with his simplistic thinking saw as role models. He was influenced negatively by them." (Document 2 attached to ECF No. 12 at 23).
Even if this Court assumes that Dr. Page and Thompson were available to testify at sentencing, and that they would have testified at sentencing exactly as they wrote several years earlier during the waiver proceedings, facts which Petitioner has in no way established, it does not follow that the court would have found the mitigating factor at issue. As to Dr. Thompson's report, while the doctor opines that Petitioner could be subject to influence, Dr. Thompson in no way suggests that that is necessarily what happened in this case. Likewise, although Dr. Page concludes that Petitioner saw his co-defendants as role models and that they negatively influenced Petitioner, the doctor does not conclude nor suggest that this influence resulted in the criminal conduct at issue here, let alone that it substantially influenced Petitioner's decision to engage in the robbery which resulted in Petitioner's conviction. Neither doctor specifically contextualizes their findings on Petitioner's being subject to influence by asserting that it was Petitioner's co-defendants who caused him to act. Indeed, given Petitioner's assertion in his second statement and during trial, as well as the information he gave those experts, it is doubtful that they could claim that Petitioner's criminal conduct was substantially influenced by his co-defendants in so much as Petitioner continued to assert that he never intended to rob Saraiva, and that he attempted to stop his co-defendant from shooting Saraiva during the struggle that ensued. Petitioner's own testimony at trial certainly suggests that Petitioner was not overborn by the older young people with whom he spent the night of the shooting, and that he was capable of resisting them.
Given the trial court's findings as to the heinous and severe nature of Petitioner's conduct, as well as the fact that the "older" individuals present at the robbery were neither greatly older or in possession of an authority position over Petitioner, it is not clear that the trial judge would have found substantial influence in any event. See, e.g., State v. Bieniek, 200 N.J. 601, 610 n. 1, 985 A.2d 1251 (2010) (noting that New Jersey Courts have properly rejected this mitigating factor where a sixteen year old defendant engaged in criminal conduct that was clearly not childish in nature, and have properly found the mitigating factor where a thirteen year old was subject to a more mature and authoritative figure at the time of his criminal conduct, and asserting that finding this factor is only appropriate where the more mature individual directly contributed to the crime). Petitioner's assertion is likewise severely weakened by the trial court's finding that the nature of the crime, Petitioner's apparent lack of respect for the law, and the need for deterrence strongly outweighed the sole mitigating factor found by the court (Petitioner's lack of a criminal record). It is also highly unlikely that Petitioner's sentence would have been reduced on the basis of the influence of his co-defendants, which would arise from facts (the presence of older youths and Petitioner's agreeing to participate in a robbery with them) which were well known to the trial court at sentencing. As Petitioner has therefore failed to show that he was prejudiced by his counsel's alleged failings, his ineffective assistance claim is without merit, and the State courts neither unreasonably applied federal law nor the facts in rejecting his claims on post-conviction review.
In his final two grounds, Petitioner argues that appellate counsel proved constitutionally ineffective by failing to raise first the ineffective assistance of counsel arguments discussed above and second the argument that the trial court erred in weighing the totality of the circumstances in denying his Miranda suppression motion. The Strickland standard applies to claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). "[I]t is a well established principle[, however,] that counsel decides which issues to pursue on appeal," Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate counsel need not raise every nonfrivolous claim a defendant requests. See Jones v. Barnes, 463 U.S. 745, 751 (1983). As "[a] brief that raises every colorable issue runs the risk of burying good arguments" id. at 753, the heart of effective Appellate advocacy is "winnowing out weaker arguments . . . [in favor of] those more likely to prevail." Smith v. Murray, 477 U.S. 527, 536 (1986). Thus, the Supreme Court has held that "[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." See Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Petitioner's argument that appellate counsel was ineffective in failing to raise the ineffective assistance of counsel arguments discussed above is patently without merit. Even if those claims were meritorious, which they clearly are not, Petitioner's ineffective assistance of counsel claims rely on his claim that counsel failed to call witnesses and present evidence which is not in the trial record including witnesses who would have discussed Petitioner's special education status and documentary evidence in support of such testimony. Because those claims relied on information that was not in the trial record, such as the alleged witnesses that were not called, and alleged evidence which was not submitted to the trial court, such claims would not be cognizable on direct appeal in New Jersey and could only be brought on collateral review. See, e.g., State v. Johnson, 837 A.2d 1131, 1135 (N.J. App. Div. 2003) (holding that although ineffective assistance of counsel claims most often are only appropriate on collateral review because they require information outside of the record, those claims are only cognizable on direct review where the Appellate Division can fully evaluate and decide the claim solely on the basis of the trial court record); certification denied, 179 N.J. 372, 845 A.2d 1254 (2004). As it is clear that the New Jersey Courts could not, and would not, have provided Petitioner relief on his ineffective assistance claims on direct review, it is clear that Petitioner's assertion that counsel was ineffective for failing to raise those claims is without merit.
Petitioner's assertion that counsel failed to raise the totality of the circumstances on direct review fairs no better. As discussed above, the totality of the circumstances clearly shows that Petitioner made a knowing, intelligent, and voluntary waiver of his Miranda rights, even if one were to consider the expert reports submitted during the waiver process in weighing those circumstances. As such, any appeal on the basis of the trial court's Miranda decision would have been of little to no merit, and certainly would not have been more meritorious than the claims which counsel did raise on direct review which resulted in an extensive opinion by the Appellate Division. As Petitioner's Miranda claim would have been without merit on direct appeal, counsel was not ineffective in failing to raise that claim. Petitioner is therefore not entitled to habeas relief.
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, Petitioner has failed to make a substantial showing that he was denied a constitutional right as jurists of reason could not disagree that Petitioner has failed to establish Strickland prejudice and he has thus not shown that the issues presented deserve encouragement to proceed further. This Court shall therefore deny Petitioner a certificate of appealability.
For the reasons stated above, Petitioner's motion for an evidentiary hearing is DENIED, Petitioner's petition for a writ of habeas corpus is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
IT IS SO ORDERED.
