JOEL A. PISANO, District Judge.
Petitioner Jayson Vreeland ("Petitioner"), a prisoner currently confined at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Greg Bartkowski, the Attorney General of New Jersey and the Sussex County Prosecutor's Office. For the reasons stated below, the Petition will be denied.
This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
After a jury trial, Petitioner was found guilty of purposeful or knowing murder of Gallara, felony murder of Gallara, aggravated manslaughter of Giordano, first degree robbery, second degree burglary, conspiracy, possession of a firearm for an unlawful purpose, and possession of the firearm without a permit. State v. Vreeland, 2010 WL 2990937, at *1 (N.J. Super. Ct. App. Div. July 26, 2010). Petitioner was acquitted of the purposeful or knowing murder of Giordano and of hindering apprehension. Id. Petitioner was sentenced to life imprisonment with thirty years to be served before parole eligibility for the purposeful or knowing murder of Gallara, a consecutive sentence of twenty years, with ten years to be served before eligibility, for the aggravated manslaughter, and consecutive sentences for the armed robbery, burglary and permit convictions aggregating life imprisonment plus forty-six years with fifty-one years to be served before parole eligibility. Id. Petitioner appealed and the Appellate Division affirmed the convictions, and the consecutive sentences for the two homicides and armed robbery, but ordered the remaining terms to be served concurrently. State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005). On May 3, 2005, the New Jersey Supreme Court denied certification. State v. Vreeland, 874 A.2d 1104 (N.J. 2005).
Petitioner filed a petition for post-conviction relief ("PCR"), which was denied by the trial court and then by the Appellate Division. State v. Vreeland, 2010 WL 2990937, at *1 (N.J. Super. Ct. App. Div. July 26, 2010). The New Jersey Supreme Court denied certification. State v. Vreeland, 12 A.3d 209 (N.J. 2011). On May 27, 2011, Petitioner filed the instant petition. (ECF No. 1.) He alleges a claim of ineffective assistance of counsel, based on the following grounds: (1) trial counsel failed to protect Petitioner's right to testify at the jurisdictional waiver hearing; (2) trial counsel failed to protect Petitioner's right to be present in court during the jury charge conference; (3) trial counsel failed to call witnesses to impeach Charles Varella's credibility; (4) trial counsel failed to object to the trial court's instructions on motive; and (5) appellate counsel failed to raise the issue of the trial court's improper denial of Petitioner's change of venue motion. Petitioner also alleges that his due process rights were violated by the following: (1) his co-conspirator's statements were improperly admitted in violation of the Sixth Amendment confrontation clause; (2) Petitioner was improperly absent from the charge conference in violation of his Sixth Amendment rights; (3) the trial court failed to properly charge the jury regarding Petitioner's out-of-court statements and the testimony of Varella and Conklin; (4) Petitioner's cross-examination of the medical examiner was improperly limited; (5) the trial court improperly allowed the jury to have a tape player to listen to Petitioner's taped statement; (6) the prosecutor made improper comments during the summation; and (7) the conviction for burglary should have merged into the robbery conviction and the sentences imposed were excessive.
Respondents filed an answer, arguing that Petitioner is not entitled to habeas relief. (ECF Nos. 15-18.) Petitioner did not file a reply.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 provides, in pertinent part:
28 U.S.C. § 2254.
"As amended by AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Section 2254(a) permits a court to entertain only claims alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." Id. A federal court's authority to grant habeas relief is further limited when a state court has adjudicated petitioner's federal claim on the merits.
A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "[C]ircuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court,' [and] therefore cannot form the basis for habeas relief under AEDPA." Parker, 132 S.Ct. at 2155 (quoting 28 U.S.C. § 2254(d)(1)).
A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different result.]" Williams, 529 U.S. at 405-06. Under the "`unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. However, under § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 131 S.Ct. at 785 (quoting Williams at 410). As the Supreme Court explained,
Harrington, 131 S.Ct. at 786 (citations and internal quotation marks omitted).
"This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen, 131 S.Ct. at 1398 (citations and internal quotation marks omitted). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Id.
Petitioner argues that his due process rights and Sixth Amendment right to confrontation were violated when the trial court improperly permitted the admission of Conklin's testimony regarding Koskovich's statements to him that Petitioner would participate in a plan to rob and shoot pizza delivery men. In his direct appeal, Petitioner argued that the admission of that testimony under the co-conspirator hearsay exception was improper since the court failed to determine whether a conspiracy actually existed before permitting the testimony.
The Appellate Division rejected this claim on direct appeal, stating:
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
The admissibility of evidence is generally a question of state law which is not cognizable on habeas review. See Keller v. Larkins, 251 F.3d 408, 416 n. 2 (3d Cir. 2001); Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978). However, the Sixth Amendment's Confrontation Clause confers rights that cannot be satisfied merely by meeting the requirements of the rules of evidence. The Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him." This guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400 (1965).
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that the admission at a joint trial of a non-testifying co-defendant's confession which also names defendant as a participant in the crime violates the Confrontation Clause, even when the court gives a limiting instruction. But in Richardson v. Marsh, 481 U.S. 200, 208 (1987), the Supreme Court clarified that the co-defendant's confession or statement must incriminate the defendant on its face to give rise to a Bruton violation.
Even assuming that the admission of Koskovich's statement was erroneous, errors under the Confrontation Clause are subject to harmless error analysis. See Adamson v. Cathal, 633 F.3d 248, 259-61 (3d Cir. 2011); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); United States v. Hinton, 423 F.3d 355, 362-63 (3d Cir. 2005); Eley v. Erickson, ___ F.3d ___, 2013 WL 1405923, at *18 (3d Cir. April 9, 2013). Accordingly, this Court must consider whether the limited introduction of Koskovich's statement via Conklin's trial testimony was harmless or whether it resulted in actual prejudice to Petitioner. See Brecht v. Abrahamson, 507 U.S. 619 (1993). "[A]n error is harmless unless it had substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler, 551 U.S. 112, 116 (2007). "If, when all is said and done, the [court's] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand." O'Neal v. McAninch, 513 U.S. 432, 437-38 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)).
Here, this Court finds that the introduction of Koskovich's statement through Conklin's trial testimony was harmless and had no real influence or actual prejudice to Petitioner. As stated by the Appellate Division, Petitioner himself had admitted to the police in his statement and at trial that he was at the scene of the killings and fired a gun. Moreover, there was substantial corroborating evidence regarding his actions, including the observations of Ms. Prestidge; Koskovich's car being observed at the crime scene on Scott Road; and Petitioner and Koskovich being observed at the Dunkin' Donuts where they obtained a telephone book from the manager and took turns calling various pizzerias.
Therefore, based on the overwhelming evidence against Petitioner, this Court concludes that any error in admitting the statement was harmless, and had little to no injurious or harmful effect in determining the jury's verdict. The state courts' decision on this issue was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. Petitioner is not entitled to habeas relief on this ground.
On direct appeal, Petitioner argued that he was not present at the charge conference conducted by the trial court, in violation of his constitutional rights. The Appellate Division denied relief on this claim:
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
State v. Vreeland, 2010 WL 2990937, at *3 (N.J. Super. Ct. App. Div. July 26, 2010).
An accused's right to be confronted with the witnesses against him requires a "face-to-face" meeting; "[o]ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. 337, 338 (1970). Indeed, the right to be present at every critical stage of a trial is a "fundamental right of each criminal defendant," Rushen v. Spain, 464 U.S. 114, 117-118 (1983), which is rooted in both the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments. See United States v. Canady, 126 F.3d 352, 360 (2d Cir. 1997) (citations omitted). The right to be present at trial is "scarcely less important to the accused than the right of trial itself." Diaz v. United States, 223 U.S. 442, 455 (1912).
Notwithstanding the importance ascribed to this right, it plainly may be waived. Thus, the Supreme Court has held that a defendant who knowingly absents himself from the courtroom after trial has commenced "leaves the court free to proceed with trial in like manner and with like effect as if he were present." Diaz, 223 U .S. at 445. However, "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Whether the waiver of a known right has been intelligently made "depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
In this case, at the end of the presentation of evidence, trial counsel informed the court that he was in "the process . . . of discussing with [Petitioner] the charge conference and the fact that that is normally done outside of his presence." (Resp'ts' Br., Ex. 24T, Trial Tr. 186:11-17, Dec. 15, 1999, ECF No. 18-8.) The court then explained to Petitioner that a proposed jury charge had been prepared and it would be provided to counsel at that time so that they could review it overnight. (Id. at 18-25.) The court indicated that normally the charge discussions take place in chambers and the objections thereto and the final version of the charge is done on the record. (Id. at 187:12-13.). The court explained to Petitioner that he had the "option of saying you wish to be present for the entire charge conference . . . [i]f you wish to do so, we will have the entire conference hear [sic] in the courtroom . . . [w]e will not have the conversations in Chambers as I indicated which we ordinarily do in order to work out language . . . [i]f you want to have it in the courtroom it's perfectly fine with me . . . [t]hat's up to you and [defense counsel] to discuss and decide how you want to deal with that." (Id. at 188:1-10.)
The next day, the court asked counsel where they wanted to have the charge conference (Resp'ts' Br., Ex. 25T, Trial Tr. 53:1-16, Dec. 16, 1999, ECF No. 18-9.) Trial counsel, in Petitioner's presence, responded: "Judge, I've discussed the matter with my client. In Chambers will be fine. I do not believe that my client wishes — well, I shouldn't phrase it that way. It's my understanding, Judge, my client does not wish to be present during the charge conference." (Id. at 53:21-54:1.) Petitioner did not object or otherwise indicate that counsel's representations were not correct. As such, the Court finds that the state courts' decision on this issue was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. Petitioner is not entitled to habeas relief on this ground.
Petitioner alleges that his constitutional rights were violated when the trial court failed to instruct the jury that it must disregard Petitioner's out-of court statements if they do not find corroboration. Petitioner argues that his rights were also violated when the trial court failed to give an instruction about Conklin and Varella's testimony regarding oral admissions.
The Appellate Division rejected this claim on direct appeal:
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
A habeas petitioner who challenges state jury instructions must "point to a federal requirement that jury instructions on the elements of an offense. . . must include particular provisions" or demonstrate that the jury "instructions deprived him of a defense which federal law provided to him." Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). This is because district courts do not "sit as super state supreme courts for the purpose of determining whether jury instructions were correct under state law with respect to the elements of an offense and defenses to it." Id. See also Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) ("[I]t must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some [constitutional right]") (citations and internal quotation marks omitted). As the Third Circuit explained,
Johnson, 117 F.3d at 110.
"[T]he fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72. "Insofar as respondents simply challenge the correctness of the self-defense instructions under Ohio law, they allege no deprivation of federal rights and may not obtain habeas relief". Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Petitioner has not alleged any violations which would properly form the basis for habeas relief. Moreover, the state court's decision upholding the instructions was not "contrary to, or. . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" and as such, Petitioner is not entitled to habeas relief on this ground. See Smith v. Spisak, 558 U.S. 139, 148-149, 130 S.Ct. 676, 684, 175 L.Ed.2d 595 (2010) (no right to habeas relief if Supreme Court has not previously held jury instruction unconstitutional for same reason); Dansby v. Trombley, 369 F.3d 657, 659 (6th Cir. 2010) ("Dansby's [§ 2254] claim fails because the Supreme Court has never held that due process requires the giving of jury instructions on lesser-included offenses in noncapital cases").
Petitioner alleges that his Sixth Amendment rights were violated when the trial court improperly limited counsel's ability to cross-examine the medical examiner. The Appellate Division denied this claim on direct appeal:
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
As previously stated, "[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him . . . ." U.S. Const. Amend. VI. The right is secured for defendants in state as well as federal criminal proceedings by the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. at 403. The protections of the Confrontation Clause necessarily include the right to cross-examination of a witness. See Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). The scope of such cross-examination is, generally, that broad and basic information cannot be excluded; for instance, where credibility is at issue, the trial court cannot ordinarily prohibit the defense from inquiring into a witness's identity and residence. See id. Such questions are "not only an appropriate preliminary to the cross-examination of the witness, but. . . [are] an essential step in identifying the witness with his environment, to which cross-examination may always be directed." Id. at 132 (quoting Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 (1931)). In other words, defense must be able "to make a record from which to argue [that the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." Id.
However, the right to cross-examination is not without limits, as "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). Thus, the scope of cross-examination regarding a particular line of inquiry falls necessarily "within the sound discretion of the trial court," and "it may exercise a reasonable judgment in determining when [a] subject is [inappropriate]." Alford, 282 U.S. at 694. "[T]rial judges retain wide latitude. . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679,106 S.Ct. 1431 (1986).
The trial court limited the questioning of Dr. Dunne with regard to why he changed his testimony in the Koskovich trial and what occurred during breaks in that trial, but trial counsel was permitted, and did so very thoroughly, to cross examine Dr. Dunne regarding the alleged inconsistencies in his testimony. As stated by the Appellate Division, there was no limitation imposed on the development of Dr. Dunne's prior testimony and claimed inconsistent statements. Petitioner's Sixth Amendment rights were not violated and the state court ruling was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. Accordingly, this ground for habeas relief is denied.
Petitioner argues that it was a denial of his "right to a fair public trial" when the trial court allowed the jury to have a tape player during deliberations so they could listen to Petitioner's recorded statement. This argument was also denied by the Appellate Division:
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
"Federal habeas corpus relief does not lie for errors of state law," Estelle, 502 U.S. at 67, such as evidentiary rulings, unless the rulings rendered the trial so fundamentally unfair that a denial of constitutional rights results. The admission of evidence violates due process only if an evidentiary ruling is so egregious that it results in a denial of fundamental fairness. However, courts "have defined the category of infractions that violate `fundamental fairness' very narrowly." Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they "offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). Thus, unless Petitioner can demonstrate that the introduction of this evidence denied him his right to a fair trial or due process, habeas relief is not warranted.
Here, Petitioner has failed to meet said burden. To allow the jury to have the tape, which had properly been admitted into evidence, without providing the tape player would have rendered the tape useless. Moreover, the jury had already heard the tape played in the courtroom. It is clear that Petitioner was not denied his right to a fair trial or due process. See Kunco v. Attorney Gen. of Commonwealth of Pa., 85 F. App'x 819, 820. As such, the Court finds that the state court ruling was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. This ground for habeas relief is denied.
On direct appeal, Petitioner argued that it was a violation of his rights when the prosecutor suggested that the jury view the evidence "through the terror stricken eyes of the two victims" in his closing argument. Petitioner also argues that the prosecutor indirectly commented on Petitioner's decision not to testify.
When reviewing a prosecutor's comments in an opening or closing statement, "[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 (1974)). In evaluating the likely effect of improper comments, a court may consider whether the improper comments were invited by or responsive to prior comments by opposing counsel. Darden, 477 U.S. at 181-82. Thus, "Supreme Court precedent counsels that the reviewing court must examine the prosecutor's offensive actions in context and in light of the entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant." Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
Based on a careful review of the entire trial record, this Court finds that the prosecutor's statements during closing arguments did not have the capacity to so infect the trial with unfairness as to make the resulting conviction a denial of due process. In his closing argument, the prosecutor stated the following:
(Resp'ts' Br., Ex. 26T, Trial Tr. 61:17-62:1, Dec. 20, 1999, ECF No. 18-10.) Trial counsel did not object to this statement.
Also in his closing argument, the prosecutor referenced Petitioner's statement to the police by stating that "defendant did testify through Lieutenant Rome of his purposeful involvement of this murder, robbing of two individuals, burglarizing their vehicle, and then trying to cover it up and escape detection." (Id. at 93:14-25.) After trial counsel voiced concern that the prosecutor had improperly referenced Petitioner's testimonial silence, the trial court determined that any possible prejudice would be alleviated by the court's instruction in the final charge that Petitioner had the right not to testify and that the jury should not draw any adverse inference from that. (Id. at 100:3; 18-20.) Trial counsel agreed that the instruction would suffice.
The trial court instructed the jury that Petitioner had a "constitutional right . . . to remain silent" and that they could not consider "for purposes or in any manner in arriving at your verdict the fact that the defendant did not testify, nor should the fact entered into your deliberations or discussions in any manner at any time." (Id. at 112:1-8.) The trial court further instructed the jury that arguments of counsel "are not evidence and must not be treated as evidence." (Id. at 10:10-18;107:12-25.)
Here, it is clear that the prosecutor's comments were not improper. Moreover, even if the comments were to be found improper, any impropriety was alleviated by the trial court's instructions to the jury. See Moore, 255 F.3d at 107. Petitioner has not shown that his rights were violated and the Court finds no error of constitutional dimension with respect to Petitioner's claim of prosecutorial misconduct. Accordingly, this ground for habeas relief is denied.
Petitioner raised several issues regarding his sentence and merger of convictions on direct appeal.
Sentencing is generally considered a matter of state criminal procedure, which does not fall within the purview of federal habeas review. See Grecco v. O'Lone, 661 F.Supp. 408, 415 (D.N.J. 1987). Absent some constitutional violation, federal courts cannot review a state's alleged failure to adhere to its own sentencing procedure. See Rorie v. Beard, 2005 U.S. Dist. LEXIS 23813 (E.D. Pa. April 7, 2005) (citing Branan v. Booth, 861 F.2d 1507 (11th Cir. 1988)). Thus, a federal court will not re-evaluate a sentence in a habeas proceeding unless it exceeds the relevant statutory limits. See Jones v. Superintendent of Rahway State Prison, 725 F.2d 40 (3d Cir. 1984); see also Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984) ("As a general rule, federal courts will not review state sentencing determinations that fall within statutory limits"). Moreover, federal courts will not interfere with a state's sentencing scheme unless the petitioner can show that no reasonable sentencing court would have invoked the same relevant considerations to justify imposition of such sentence. See Lewis v. Jeffers, 497 U.S. 764, 783, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). "While normal sentencing proceedings are not immune from all due process attacks, the Supreme Court has required only minimal due process protections in those proceedings." United States v. Davis, 710 F.2d 104, 106 (3d Cir.1983) (citations omitted).
Here, Petitioner failed to demonstrate that his sentence violates any federal constitutional rights. Moreover, his individual sentences or their aggregated total did not exceed the relevant statutory limits, nor could these sentences shock the judicial conscience. Accord Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983). The state courts' determinations were wholly reasonable and by no means arbitrary; and, if the Court were to presume that any state law errors took place, these state law aspects form no basis for habeas relief.
The Sixth Amendment, applicable to states through the Due Process Clause of the Fourteenth 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. See Strickland, 466 U.S. at 687. First, the defendant must "show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. "[C]ounsel should be `strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)(citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). "To overcome that presumption, a defendant must show that counsel failed to act `reasonabl[y] considering all the circumstances.'" Id. (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052).
Further, 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 were so serious that they were outside the wide range of professionally competent assistance. Id.
To satisfy the prejudice prong, the defendant must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "It is not enough `to show that the errors had some conceivable effect on the outcome of the proceeding' . . . Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, 131 S.Ct. 770, 788 (2011)(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). As the Supreme Court explained,
Strickland, 466 U.S. at 695-96.
The Supreme Court instructs that a court need not address both components of an ineffective assistance claim "if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.
Petitioner alleges that his trial counsel was ineffective for failing to protect Petitioner's right to testify at the juvenile waiver hearing that occurred in state court on June 2, 1997. When denying this issue on PCR appeal, the Appellate Division stated the following:
State v. Vreeland, 2010 WL 2990937, at *2 (N.J. Super. Ct. App. Div. July 26, 2010).
At the waiver hearing, the state court judge specifically reviewed Petitioner's rights with him, to ensure that Petitioner was fully aware of his right to testify. (Resp'ts' Br., Ex. 1T, Waiver Hr'g Tr.121:1-122:3, ECF No. 17-2.) The judge also asked Petitioner if his attorney had answered all of his questions and whether Petitioner was satisfied with the work of his attorney. (Id. at 123:12-17.) Trial counsel himself also questioned Petitioner about this issue on the record:
(Id. at 124:23-125:20.)
As stated by the Appellate Division, it is clear that both Petitioner and his mother were extensively questioned and advised by the state court regarding Petitioner's rights at the hearing. Petitioner was questioned on the record by counsel regarding his decision not to testify and it is clear that he understood his rights. Moreover, even if this Court were to assume that Petitioner had met the first Strickland prong, Petitioner has not established any prejudice that resulted from the alleged ineffective assistance.
The state courts' decision on this issue was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. Therefore, Petitioner is not entitled to relief on this claim.
Petitioner argues that his trial counsel was ineffective when he failed to protect Petitioner's right to be present during the charge conference. In rejecting this argument, the PCR court stated the following:
(Resp'ts' Br., Ex. 31T, PCR Hr'g Tr. 49:4-50:21, Aug. 7, 2007, ECF No. 18-15.)
As stated by the PCR court, it is clear that the possibility that Petitioner be present at the charge conference was discussed on the record by the state court. The court and counsel discussed the planned course of action in the presence of Petitioner and Petitioner did not voice any objection to counsel's statement that he believed Petitioner did not wish to participate in the conference. Moreover, even if this Court were to assume that Petitioner had met the first Strickland prong, Petitioner has not established any prejudice that resulted from the alleged ineffective assistance.
The state courts' decision on this issue was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. Therefore, Petitioner is not entitled to relief on this claim.
Petitioner alleges that his trial counsel was ineffective for failing to call two witnesses who could have impeached the testimony of Charles Varella. The Appellate Division rejected this argument on PCR appeal, stating:
State v. Vreeland, 2010 WL 2990937, at * 2 (N.J. Super. Ct. App. Div. July 26, 2010).
The state courts' decision on this issue was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was it based on an unreasonable determination of the facts presented in the state court proceedings. Petitioner failed to establish what testimony the two witnesses would have supplied and that it would have helped his case in any way. Petitioner is not entitled to relief on this claim.
In his PCR appeal, Petitioner argued that it was ineffective assistance of counsel when trial counsel failed to object to the court's instruction on motive. Specifically, when the court instructed that "a homicide or killing with a deadly weapon, such as a handgun, in itself would permit you to draw an inference that the defendant's purpose was to take a life or cause serious bodily injury resulting in death." (Resp'ts' Br., Ex. 26T, Trial Tr. 120:2-6, Dec. 20, 1999, ECF No. 18-10.)
In denying this argument on PCR, the court stated the following:
(Resp'ts' Br., Ex. 31T, PCR H'rg Tr. 38:2-16, Aug. 7, 2007, ECF No. 18-15.)
Generally, a jury instruction that is inconsistent with state law does not merit federal habeas relief. Where a federal habeas petitioner challenges jury instructions given in a state criminal proceeding,
Estelle, 502 U.S. at 72-73 (citations omitted). Thus, the Due Process Clause is violated only where "the erroneous instructions have operated to lift the burden of proof on an essential element of an offense as defined by state law." Smith v. Horn, 120 F.3d 400, 416 (1997). See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"); Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (jury instructions that suggest a jury may convict without proving each element of a crime beyond a reasonable doubt violate the constitutional rights of the accused).
In Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009), the Supreme Court rejected a habeas petitioner's claim that an accomplice liability instruction violated due process. The Court summarized the law regarding the constitutionality of state court instructions:
Waddington, 129 S.Ct. at 831-832 (2009) (citations and internal quotation marks omitted).
Here, Petitioner does not show that there was a reasonable likelihood that the jury applied the instructions in a way that relieved the state of its burden of proving the elements of the charged crimes or required state of mind. Even if this Court were to assume that the instruction was deficient in some way, it certainly did not "so infect" the trial such that the resulting conviction violates due process. As such, it was not ineffective assistance when trial counsel failed to object to said instruction. Because Petitioner has not shown that the state courts' adjudication of his claim was contrary to, or an unreasonable application of Supreme Court precedent, he is not entitled to habeas relief on this ground.
Petitioner argues that appellate counsel rendered ineffective assistance when he failed to raise the change of venue issue on direct appeal.
In denying this ground for relief on PCR appeal, the Appellate Division stated the following:
State v. Vreeland, 2010 WL 2990937, at * 3 (N.J. Super. App. Div. July 26, 2010).
Here, the Appellate Division correctly determined the governing Supreme Court precedent. The decision of the Appellate Division was neither contrary to, nor an unreasonable application of, the Strickland standard. Nor was the decision of the Appellate Division based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Petitioner has failed to establish a reasonable probability that but for any alleged deficiencies in appellate counsel's performance, the outcome would have been different. The state courts specifically found that the trial court conducted an extensive voir dire and there is nothing in the record to suggest that a sitting juror should have been dismissed based on his or her inability to be fair or impartial. Petitioner presented no evidence to suggest that a change of venue was warranted. Moreover, even assuming Petitioner met the first prong of Strickland, the Appellate Division explicitly found that there was no prejudice as the change of venue issue would have been rejected as unmeritorious on direct appeal. As such, habeas relief on this ground is hereby denied.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2254. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "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 the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional right. No certificate of appealability shall issue.
For the above reasons, the § 2254 habeas petition is denied, and a certificate of appealability will not issue. An appropriate Order follows.
