FREDA WOLFSON, District Judge.
Petitioner, Michael Parlin ("Parlin" or "Petitioner"), filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, in which he claims, inter alia, (1) that the eleven-month delay between the filing of charges and bringing of an indictment violated his Sixth Amendment right to a speedy trial; (2) that this delay effectively denied him assistance of counsel for that time; and (3) that the trial court erred by admitting both his and his victim's videotaped statements into evidence. For the reasons set forth below, the Petition is denied.
The facts underlying Petitioner's convictions are not in dispute. Petitioner was a lifelong friend of DK, mother of LK, age ten. State v. Parlin, A-2576-08T3 at 2 (App. Div. 2011), ECF No. 9, Ex. 5
Later that same morning, DK awoke and saw that LK's bedroom light was on. LK then "described in detail" what Petitioner had done in the basement. Id. DK subsequently ordered Petitioner to leave the house, which he did. The following day, LK complained of pain during urination and DK brought her to the police. During a videotaped conversation with a detective, LK "explained and demonstrated on a doll that [Petitioner] had touched her breast and vaginal area." Id. at 3. On December 30, 2005, a detective from the State Police interviewed Petitioner after Petitioner signed a written waiver of his Miranda rights. Id.
After the December 30, 2005 interview, Petitioner was given the option of taking a polygraph test "at a later date." Ex. 10 at 5. Petitioner agreed to take a polygraph test, which was administered on January 2, 2006. Id. The polygraph "detected deception about sexual conduct." Id.; see also Ex. 5 at 4. Petitioner was advised of his Miranda rights before the polygraph was administered. As explained by the Appellate Division on direct appeal,
Defendant then made the following admission:
State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at p. 4. On that same date, January 2, 2006, Petitioner was charged with two counts of sexual assault and one count of endangering the welfare of a child. See ECF No. 9 at 10.
At the time charges were filed, Petitioner was being held in the Ocean County Correctional Facility on charges unrelated to the instant crime. Id. Eleven months later, on November 28, 2006, Petitioner was indicted on first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second-degree sexual assault of a child under the age of thirteen, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Through counsel, Petitioner filed a number of pre-trial motions, including a motion to suppress his statements to police, a motion to suppress LK's videotaped statements, and a motion to dismiss based on a violation of Petitioner's speedy trial rights. Ex. 5 at 4-5. After testimony was taken on both motions, and oral argument held, the motions were denied by the trial court. See generally Ex. 10.
A jury trial was conducted over six days in April, 2008, and both videotaped statements (Petitioner's and LK's) were admitted into evidence. See Exs. 12, 13. The jury found Petitioner not guilty of first-degree aggravated sexual assault, which required a finding of penetration, but guilty of both second-degree sexual assault and third-degree endangering the welfare of a child. At the sentencing hearing on September 4, 2008, the court merged Petitioner's two convictions and sentenced Petitioner to ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Section 2254 of Title 28, United States Code, provides that the district court "shall entertain an application for a writ of habeas corpus on 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." 28 U.S.C. § 2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), federal courts in habeas corpus cases must give considerable deference to determinations of the state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus. The statute reads as follows:
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court explained the application of § 2254(d)(1). The Court analyzed subsection 1 as two clauses: the "contrary to" clause and the "unreasonable application" clause. The Court held that under the "contrary to" clause, "a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. A federal court may grant the writ under the "unreasonable application" clause, 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." Id. at 413. Section 2254(d)(1) therefore applies to questions of mixed law and fact.
With regard to 28 U.S.C. § 2254(d)(2), a federal court must confine its examination to evidence in the record. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). In addition, the state court record should be reviewed to assess the reasonableness of the state court's factual determinations. See id. Finally, federal courts are required to apply a "presumption of correctness to factual determinations made by the state court." Fahy v. Horn, 516 F.3d 169, 181 (3d Cir. 2008); see also 28 U.S.C. § 2254(e)(1). The Third Circuit has ruled that this presumption of correctness based upon state court factual findings can only be overcome by clear and convincing evidence. See Lewis v. Horn, 581 F.3d 92, 109 (3d Cir. 2009). A state court decision is based on an unreasonable determination of the facts only if the state court's factual findings are objectively unreasonable in light of the evidence presented in the state-court proceeding. See Eley, supra, at 846 (internal quotations omitted).
Petitioner raises five grounds for habeas relief in the instant Petition. The first three grounds are all speedy trial-related claims. In Ground One, Petitioner contends that the state "denied [him] reasonable notice of the charges against him," arguing that he was not "served notice" of the complaint filed against him until 316 days after the complaint had been filed. ECF No. 1 at 6. Petitioner contends, in Ground Two, that he was denied access to counsel during this 316-day period, and additional days, in violation of his right to counsel. ECF No. 1 at 7. And, in Ground Three, Petitioner raises contends that his trial did not take place until nearly a year after he was assigned counsel in violation of the Speedy Trial Act. ECF No. 1 at 9. The last two grounds raise evidentiary challenges. In Ground Four, Petitioner contends that the trial court erred in "allowing the jury unfettered access to view the video-taped testimony and access to the transcripts during deliberation placing prejudicial emphasis on that testimony." ECF No. 1 at 10. Lastly, in Ground Five, Petitioner contends that the trial court erred in "replaying the witness['s] direct testimony" without also replaying "cross testimony and other testrimony [sic] negating what the jury was seeking." ECF No. 1 at 12.
At the outset, the Court addresses the evidentiary claims because they clearly do not merit habeas relief. In Ground Four of the Petition, as noted, Petitioner contends that the trial judge erred in allowing the jury to have "unfettered access" to view video-taped witness testimony and transcripts during the jury's deliberations. ECF No. 1 at 10. More specifically, Petitioner avers that the trial court allowed the jury to view the videotapes over the objection of Petitioner's defense counsel because the court "was concerned with making it easier for the jury." Id. In Petitioner's view, this unfettered access, outside of the confines of the courtroom, prejudiced him in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 11. While he does not state so in his Petition, his brief accompanying the Petition suggests that he is challenging the use of the child witness's testimony in particular.
Petitioner argues, in his brief, that allowing the jury unfettered access violates New Jersey state law, including State v. Burr, 392 N.J.Super. 538 (App. Div. 2007), inter alia. ECF No. 1-1 at 28-31. He, further, cites case law outside of the Third Circuit in support of his argument, such as United States v. Binder, 769 F.2d 595 (9th Cir. 1985) overruled in part on other grounds by United States v. Morales, 108 F.3d 1031 (9th Cir. 1997). Id. He cites no Supreme Court law in support of his position, and neither is Barr nor Binder rooted in Supreme Court law. Rather, they are based on state law jurisprudence and circuit law, respectively—two types of law that may not form the basis for habeas relief. To secure habeas relief, a Petitioner must demonstrate that a state court ruling is contrary to or an unreasonable application of Supreme Court precedent. Bond v. Beard, 539 F.3d 256, 263 (3d Cir. 2008), as amended (Oct. 17, 2008) ("AEDPA bars habeas relief unless the state court decision is contrary to or an unreasonable application of clearly established Supreme Court law. . . .") (citations omitted). Because Petitioner has not made this threshold showing, Ground Four necessarily fails.
To be sure, in the last reasoned state court decision addressing this evidentiary challenge, the Appellate Division considered the matter only under state, and not federal, law. See State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at pp. 28-31 (discussing State v. Burr, 195 N.J. 119 (2008)). The appellate court held that the trial court's decision to allow the jury access to the videotaped testimony and transcripts during its deliberations was not an abuse of that court's discretion, and further concluded that, even if it was, Petitioner was not prejudiced. Id. at 29-30. When the jury actually requested to see the transcript of the child witness's testimony, the transcript was unavailable and the jury was required to come into the courtroom to view the videotaped version of the testimony instead. Id. at 30. Noticeably, Petitioner has not challenged the factual finding (that the jury was required to view the videotaped testimony in court) by pointing to clear and convincing evidence in the record, and "[a] state court's factual determinations [are] presumed to be correct, rebuttable [only] upon a showing of clear and convincing evidence." Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009), as corrected (July 15, 2009); see also Bond, 539 F.3d at 263 (petitioner bears the burden of rebutting presumption of correctness).
Ground Five fails for similar reasons. In Ground Five, Petitioner contends that the trial court erred in replaying the child witness's testimony in full when the jury may have been satisfied with only a partial replay of specific excerpts. See ECF No. 1-1 at 34. Again, Petitioner cites to Burr and other state court rulings in his papers, and does not point to any Supreme Court precedent in support of his position. The Appellate Division, in its analysis of this ground, discussed state law and, applying a plain error standard because the issue was not raised below before the trial court, held that Petitioner was not prejudiced by the trial court's ruling because the video was replayed in open court. State v. Parlin, supra, Slip Op. at p. 30, n.2. As with Ground Four, Petitioner has not challenged this factual finding, and it is entitled to deference. Accordingly, Ground Five does not warrant federal habeas relief.
Turning to the speedy-trial related claims, the Court first addresses Ground Three— Petitioner's core claim that he was denied the right to a speedy trial.
In his Petition, Petitioner contends that he was "powerless to assert his right" because he was imprisoned and was not assigned counsel until his first court appearance in November of 2006. ECF No. 1 at 9. He further contends that he properly asserted his right because, once he was assigned counsel, his counsel raised the speedy trial issue in an omnibus motion on May 7, 2007, and the trial did not take place until April 16, 2008, which was nearly a year following the motion. Id. In his brief accompanying the Petition and in his Traverse, Petitioner identifies the governing Supreme Court precedent for speedy trial claims: Barker v. Wingo, 407 U.S. 514 (1972).
In Barker, the Supreme Court developed a balancing test comprised of four factors that courts are to consider in assessing speedy trial claims: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530. Regarding the first factor, the Supreme Court explained "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Id. at 530-31. The second factor—the reason for the delay—involves a determination as to which party bears responsibility for the delay. For example,
Id. at 531. For the third factor, the "defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right," and a defendant's failure to assert his right "makes it difficult" for him to prove that he was denied it. Id. at 531-32. Lastly, the fourth factor of prejudice is "assessed in the light of the interests of defendants which the speedy trial right was designed to protect." Id. at 532. More specifically, the three interests courts must consider when determining if the defendant was prejudiced are: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. To prevail on a speedy trial claim, all four factors need not be demonstrated; rather, these are guiding factors for courts to consider in a totality-of-the-circumstances fashion, along with other factors courts deem relevant. Id.
Here, the Appellate Division did not set forth any reasoning in denying Petitioner's speedy trial claim on the merits. It noted that the claim was without sufficient merit to warrant discussion. State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at pp. 8, 33. Therefore, the Court will look to the trial court's oral discussion of this issue, in connection with the omnibus motion, as the last reasoned state court decision on the merits.
To provide context for its ruling, the trial court first detailed the pertinent procedural history. The court explained that Petitioner was charged with the crimes that led to the instant conviction in January of 2006, a time at which he was already being held at Ocean County Correctional Facility on unrelated charges. Ex. 11 at 144. Then, the trial court noted, Petitioner remained at the Ocean County facility until November 2, 2006, when he was transported to Hunterdon County Jail. The court recited that Petitioner was indicted by the grand jury on November 28, 2006, and subsequently arraigned on February 15, 2007.
In rejecting Petitioner's speedy trial claim, the trial court properly recited the four factors set forth in Barker v. Wingo, along with state law cases interpreting Barker. See Ex. 11 at 153-54. The trial court then gave its reasons on the record for denying the claim:
Id. at 154-55.
On federal habeas review, this Court's role is to first assess whether the state court applied the proper Supreme Court precedent in a manner consistent with that precedent. See Fahy, 516 F.3d at 189 n.20 (quoting Shelton v. Carroll, 464 F.3d 423, 436-37 (2006)). Only when the state court's ruling is contrary to the Supreme Court precedent should the federal court proceed to the second question of whether the state court's ruling was an unreasonable application of Supreme Court law. Id. "A state court decision is contrary to Supreme Court precedent . . . if the state court reached a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id.
In this case, the trial court's decision is not contrary to Supreme Court law. The trial judge clearly identified the proper Supreme Court precedent, Barker v. Wingo, and applied the four factors set forth by that Supreme Court decision. With respect to the first factor, length of the delay, he noted that Petitioner experienced an 11 month delay. Moving to the second factor, the reason for the delay, the trial judge agreed with the State of New Jersey that the delay was due to "the complexity of the case, the involvement of numerous agencies, the time needed to describe the other three statements involved and then to prepare the case for presentation to a grand jury." Ex. 11 at 154. By "the three statements," it appears that the court was referring to Petitioner's initial unwillingness to provide truthful testimony about the incident and his subsequent inculpatory testimony. Addressing the third factor, the trial judge noted that Petitioner did not raise the speedy trial issue until he filed his omnibus motion. And, in considering the final factor of prejudice, the trial judge reasoned that an 11-month delay was reasonable, and noted that Petitioner was already being detained on existing charges. Id. at 154-55.
By considering each of the factors set forth in Barker v. Wingo, the trial court applied the proper legal standard. Moreover, the Supreme Court denied speedy trial habeas relief in Barker v. Wingo on much more compelling facts than those presented here. In Barker, the defendant had been delayed for five years and the bulk of that delay was directly attributable to the state. 407 U.S. at 534. Yet, the Supreme Court still found that no speedy trial violation had occurred. Because the trial court's ruling considered the relevant Barker factors, and did not decide Petitioner's case differently than the Supreme Court has on a set of materially indistinguishable facts, Petitioner has not shown that the state court's ruling is contrary to Supreme Court law.
Both Petitioner and Respondent spend considerable time in their papers arguing the substance of each Barker factor; however, as noted, this Court's inquiry is limited to whether the state court's ruling was contrary to existing Supreme Court precedent, or an unreasonable application of that precedent. Lockyer v. Andrade, 538 U.S. 63, 71 (2003) ("[T]he only question that matters under § 2254(d)(1) [is] whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law.") This Court is not at liberty to conduct its own de novo analysis of the factors. More to the point, it is not enough for this Court, or the parties for that matter, to simply disagree with the state court's ruling. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). Petitioner has not satisfied this rigorous standard here.
Petitioner's Ground One is also without merit. In Ground One, Petitioner contends that, although the initial complaint was filed against him in January of 2006, he was not served with notice of the complaint until over 300 days later in November of 2006. Petitioner states in the brief accompanying his Petition that the prosecutors claim that warrants were sent to Ocean County facility in January of 2006, and a detainer was lodged against him at that time. However, Petitioner further notes that the prosecutors blame the Ocean County facility for not making Plaintiff aware of the charges when the facility initially received notice. ECF No. 1-1 at 6. Just as with his core speedy trial claim, the Appellate Division noted that this claim was without sufficient merit to warrant discussion in a written opinion. State v. Parlin, No. A2576-08 (Jun. 3, 2011), Slip Op. at pp. 8, 33.
Petitioner cites to various state laws that he argues were violated by the state's failure to serve him sooner than in November of 2006, as well as the out-of-circuit decision of United States v. Osunde, 638 F.Supp. 171 (N.D.Cal. 1986). As noted above, this Court may grant habeas relief only for state court rulings that are contrary to or an unreasonable application of Supreme Court law. And, while Petitioner cites to several Supreme Court cases—Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957); Chambers v. Mississippi, 410 U.S. 284 (1973); Matthews v. Eldridge, 424 U.S. 319 (1976)—none of those cases address notice. See Brown, 297 U.S. at 279 (addressing admissibility of confessions procured by police brutality); Chambers v. Florida, 309 U.S. at 227 (same); McNabb, 318 U.S. at 613 (excluding confessions taken during delay in arraigning defendant, based on state law rule); Mallory, 345 U.S. at 455-56 (same, based on federal rule)
Finally, Petitioner contends in Ground Two that he was denied access to counsel during the 316-day period during which he was being held at the Ocean County Facility. ECF No. 1 at 7. While Petitioner presents this Ground as a denial of counsel claim, it is, in essence, a rehashing of the notice argument he makes in Ground One. Indeed, Petitioner acknowledges in his Traverse that he "is not claiming ineffective assistance of counsel in the normal sense." ECF No. 12 at 3. Rather, he argues that he was denied counsel at a critical stage in his criminal proceedings. He cites to Gideon v. Wainwright, 372 U.S. 335 (1963), and United States v. Cronic, 466 U.S. 648 (1984), in support of his position, but does not explain how the state court ruling contravened these cases. Petitioner's briefing on this ground does explain what information he believes his counsel could have gathered between January and November 2006, such as information as to why the child victim's mother did not have her undergo a medical examination and why no clothes were collected during the criminal investigation process. ECF No. 1-1 at 14.
As with Petitioner's other speedy-trial related claims, on Petitioner's direct appeal, the Appellate Division did not explicate its reasoning for denying this claim, instead noting that it did not warrant discussion. Neither did the trial court engage in a discussion of this issue during its oral ruling on the omnibus motion below. Therefore, this Court is charged with "determin[ing] what arguments or theories . . . could have supported [ ] the state court's decision; and . . . whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Harrington, 562 U.S. at 102.
The Supreme Court cases to which Petitioner cites do not support his contention and, more to the point, he has not demonstrated that the state court's ruling is contrary to these decisions. Gideon stands for the general proposition that indigent state defendants are entitled to the appointment of counsel. See 372 U.S. at 343-45. It does not address at which stage in the criminal prosecution process that counsel must be appointed. Cronic, which is a case about counsel competency, notes that a defendant is entitled to counsel during critical stages of his trial, but does not specifically speak to the provision of counsel prior to arraignment, which is the factual scenario present here. 466 U.S. at 658-62. To be sure, there is Supreme Court precedent requiring that counsel be provided at the time of arraignment, see Hamilton v. Alabama, 368 U.S. 52 (1961), and Petitioner was afforded counsel at that critical stage in his prosecution. Petitioner has not pointed to, nor has this Court's research revealed any Supreme Court precedent mirroring the factual scenario of this case (where a defendant did not immediately receive notice of a criminal detainer lodged against him and was not appointed counsel during the pre-arraignment phase), and concluding that a defendant was denied the right to counsel.
Accordingly, for the reasons set forth above, Petitioner is not entitled to relief on Grounds One through Three of the Petition.
Pursuant to AEDPA, an appeal may not be taken to the Court of Appeals from a district court's order entered in a § 2254 proceeding unless a judge issues a certificate of appealability. Such a certificate is issued where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also 28 U.S.C. § 2255(d); Gonzalez v. Thayer, ___ U.S. ___, 132 S.Ct. 641, 648 (2012). In this case, the Court denies a certificate of appealability because jurists of reason would not find it debatable that Petitioner has failed to make a substantial showing of the denial of a constitutional right.
For the foregoing reasons, Petitioner's habeas petition is DENIED. An appropriate Order accompanies this Opinion.
