MADELINE COX ARLEO, District Judge.
This matter has been opened to the Court by petitioner Lucretia Stone's ("Petitioner") filing of a pro se Petition (ECF No. 3) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking an evidentiary hearing and a writ of habeas corpus. For the reasons explained in this Opinion, the Court will deny the Petition and will also deny a certificate of appealability.
Petitioner was indicted on charges growing out of a fire at a Jersey City multi-family dwelling in the early morning hours of May 30, 1997. She lived in the building's illegal basement apartment and had a contentious relationship with the resident landlords, Krishna and Arawattie Ramnanana. Although most apartment residents escaped the May 30 apartment blaze, three children who also lived in the building died in the fire. Investigators determined that the fire was set with the use of the accelerant gasoline, and there was testimony at trial that Petitioner purchased a small amount of gasoline in the early morning hours of May 30, 1997.
Following a jury trial, Petitioner was found guilty of three counts of second-degree reckless manslaughter, three counts of first-degree felony murder, and one count of arson and was acquitted on the charge of aggravated arson. The sentencing judge merged the reckless-manslaughter and arson convictions into the felony-murder convictions. After finding aggravating factors one and nine and mitigating factor seven, the judge sentenced her to three consecutive life terms in prison with a ninety-year period of parole ineligibility. (See ECF No. 18-45 at 1-2.)
Petitioner appealed her conviction and sentence. The Appellate Division affirmed the conviction, but modified the sentence to three concurrent terms of life imprisonment with a thirty-year parole disqualifier. See State v. Lucretia Stone, No. A-3307-99 (App. Div. Aug. 4, 2003). (ECF No. 18-20.) The Supreme Court denied Stone's petition for certification. State v. Stone, 178 N.J. 36 (2003). (ECF No. 18-21.)
In 2004, Stone filed a petition for post-conviction relief ("PCR"). (ECF No. 18-22.) The trial court denied the petition in April 2006. (ECF Nos. 18-30, 18-31.) The Appellate Division affirmed the trial court on February 29, 2008. State v. Lucretia Stone, No. A-5317-05 (App. Div. Feb. 29, 2008). (ECF No. 18-39.) The Supreme Court denied Stone's petition for certification. State v. Stone, 195 N.J. 524 (2008). (ECF No. 18-41.)
On or about November 10, 2007, while her PCR appeal was still pending, Stone filed a pro se motion for a new trial based on newly discovered evidence ("New Trial Motion").
Petitioner, currently incarcerated at Edna Mahan Correctional Facility, submitted her habeas petition to prison officials for filing on June 3, 2014. (ECF No. 1, Pet. at 16.) The matter was assigned to the Honorable Faith S. Hochberg. The Court administratively terminated the proceeding on July 14, 2014 for Petitioner's failure to comply with L. Civ. R. 81.2(a). (ECF No. 2.) Petitioner thereafter submitted an amended habeas petition to prison officials on August 5, 2014 on the correct form ("Amended Petition"). (ECF No. 3, Pet. at 22.) The Amended Petition with 44 pages and 2 addenda sets forth nine separate grounds for habeas relief. (ECF No. 3.)
The Court screened the Amended Petition and issued an Order to Show Cause on September 18, 2014, requiring Petitioner to explain why her Amended Petition should not be dismissed as time-barred under the one-year statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"). (ECF No. 4.) On October 23, 2014, Petitioner filed a Response to the Order to Show Cause, addressing the issue of the Amended Petition's timeliness. (ECF No. 5.)
On December 5, 3014, the matter was transferred to the undersigned. (ECF No. 6.) This Court reviewed Petitioner's October 23 submission and, on May 4, 2016, ordered the State to provide a full answer; the Court reserved decision on the issue of the Amended Petition's timeliness. (ECF No. 9.) On June 7, 2016, Respondents filed a motion to dismiss the Amended Petition on timeliness grounds, arguing that the Petition was untimely because Petitioner was not entitled to statutory tolling for her New Trial Motion. (ECF No. 11.) On September 12, 2016, Petitioner filed a Reply Memorandum in Support of Petition for Writ of Habeas Corpus. (ECF No. 13.) On January 27, 2017 the Court denied Respondents' June 8, 2016 motion to dismiss finding that Respondents had not met their burden to show that the Petition is untimely, and ordered Respondent to provide a full and complete answer to the Petition. (ECF Nos. 14 and 15.) Respondents filed their full Answer on March 24, 2017.
As noted above, on January 27, 2017, the Court denied Respondents' motion to dismiss, finding that Respondents had not met their burden to show that the Petition is untimely, and ordered Respondent to provide a full and complete answer to the Amended Petition. The Court's Memorandum Opinion set forth the Court's reasons for denying the motion to dismiss, which need not be recounted here. The Memorandum Opinion permitted Respondents to renew their timeliness arguments with proper supporting authority in their full Answer. In their full Answer, Respondents have not provided any additional analysis of the relevant issues. For that reason, the Court declines to find the Amended Petition untimely, and will proceed to the merits.
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." 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 AEDPA (28 U.S.C. § 2244), federal courts in habeas corpus cases must give considerable deference to determinations of 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:
28 U.S.C. § 2254(d).
Where a state court adjudicated a petitioner's federal claim on the merits,
"[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of t[he Supreme Court's] decisions," as of the time of the relevant state-court decision. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d) (1) if the state court "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 th[e 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 th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an erroneous factual determination of the state court, two provisions of the AEDPA necessarily apply. First, the AEDPA provides that "a determination of a factual issue made by a State court shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
In addition to the above requirements, a federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must "`fairly present' all federal claims to the highest state court before bringing them in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This requirement ensures that state courts "have `an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'" Id. (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
Even when a petitioner properly exhausts a claim, a federal court may not grant habeas relief if the state court's decision rests on a violation of a state procedural rule. Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is "independent of the federal question [presented] and adequate to support the judgment." Leyva, 504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). If a federal court determines that a claim has been defaulted, it may excuse the default only upon a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Leyva, 504 F.3d at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that a petitioner's constitutional claims are unexhausted and/or procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) ("Here, because we will deny all of [petitioner's] claims on the merits, we need not address exhaustion"); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (considering procedurally defaulted claim, and stating that "[u]nder 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and we take that approach here").
The Amended Petition raises nine separate grounds for relief, which the Court addresses in order. For the reasons explained in this section, the Court finds that Petitioner's claims do not warrant federal habeas relief.
Ground One of the Amended Petition alleges that Petitioner was deprived of her Due Process rights to a fair trial when the state court denied her motion for a new trial based on newly discovered evidence of a computer printout ("Printout") detailing the purchases of gasoline. (ECF No. 3 at 35) ("Newly Discovered Evidence Claim"). Petitioner also states in connection with this claim that she is asserting an "actual innocence" claim. (Id. at 37.)
During pendency of Petitioner's appeal from the March 30, 2006 PCR court decision (ECF Nos. 18-30 and 18-31) denying her PCR petition, Petitioner filed a November 2007 Motion for a New Trial Based on Newly Discovered Evidence.
Although the Printout had been produced by the State prior to trial, it was not used at trial. According to Stone, it had been "misplaced." (ECF No. 18-45 at 3.) The motion judge heard oral argument on April 29, 2011, and then placed an oral decision on the record. The trial court denied the motion, finding that the Printout was not "newly discovered," that Stone's motion for a new trial was time barred, and that, even if the court put the procedural bars aside, the evidence, had it been used at trial, would not have changed the result.
ECF No. 18-97 at 9-11.)
The Appellate Division affirmed the denial of the new trial motion. Although the Appellate Court was silent on the issue of timeliness, it agreed that the evidence was not newly discovered, and that the use of the printout at trial would not have changed the result. See State v. Stone, No. A-4837-10T2, 2013 WL 2217493, at *3 (N.J. Super. Ct. App. Div. May 22, 2013). As the Appellate Division observed:
(ECF No. 18-45 at 6.)
In her Amended Petition, Petitioner appears to assert a claim of actual innocence based on newly discovered evidence.
In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court explained that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id. at 400. The petitioner in Herrera was not entitled to habeas relief because he did not seek excusal of his procedural default; rather, he argued that newly discovered evidence showed that his conviction was factually incorrect. Id. at 404-05. However, the Herrera Court left open the possibility of a freestanding claim of actual innocence — at least in the capital context. See id. at 417 (O'Connor, J., concurring) (assuming "that in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim" and finding that the threshold for such a claim would "be extraordinarily high). Subsequently, in House v. Bell, 547 U.S. 518, 555 (2006) the Supreme Court held that the Petitioner, who presented newly discovered forensic evidence, narrowly satisfied the gateway standard set forth in Schlup and could therefore proceed on remand with procedurally defaulted constitutional claims but did not satisfy the extremely high threshold for freestanding actual innocence claim. See also Han Tak Lee v. Glunt, 667 F.3d 397 (3d Cir. 2012) and Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007) (addressing actual innocence claims in context of expert testimony).
Here, even assuming a freestanding claim of actual innocence is cognizable under § 2254, the evidence provided by Petitioner does not meet the "extraordinarily high" standard of proof required for such a claim. Indeed, Petitioner does not even meet the standard for a gateway claim under Schlup, 513 U.S. at 327-29, which requires a showing "that it is more likely than not that no reasonable juror would have convicted [the petitioner] in the light of the new evidence[.]" Having reviewed the relevant record, the Court finds that the Appellate Division did not err in determining that (1) the printouts were
Ground Two claims that Petitioner's Sixth Amendment rights were violated "by counsel's failure to investigate, obtain and analyze the [P]rintout of sales at the gas station which was evidence of Petitioner's innocence." (ECF No. 3 at 43.) Such claims are governed by the two-prong test set forth in the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668 (1984). To make out such a claim under Strickland, a petitioner must first show that "counsel's performance was deficient. This requires [the petitioner to show] that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective assistance claim, a petitioner must also show that counsel's allegedly deficient performance prejudiced his defense such that the petitioner was "deprive[d] of a fair trial . . . whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299. In evaluating whether counsel was deficient, the "proper standard for attorney performance is that of `reasonably effective assistance.'" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting ineffective assistance must therefore show that counsel's representation "fell below an objective standard of reasonableness" under the circumstances. Id. The reasonableness of counsel's representation must be determined based on the particular facts of a petitioner's case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing counsel's performance, courts "must be highly deferential . . . a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Even where a petitioner is able to show that counsel's representation was deficient, the petitioner must still affirmatively demonstrate that counsel's deficient performance prejudiced the petitioner's defense. Id. at 692-93. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The petitioner must demonstrate that "there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Shedrick, 493 F.3d at 299. "Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98]," courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002); Judge v. United States, 119 F.Supp.3d 270, 280-81 (D.N.J. 2015).
Finally, when a federal habeas petition under § 2254 is based upon an ineffective assistance of counsel claim, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable," which "is different from asking whether defense counsel's performance fell below Strickland's standard." Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Id. (internal quotation marks omitted) (emphases in original). "A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself." Id. Federal habeas review of ineffective assistance of counsel claims is thus "doubly deferential." Id. (quoting Cullen v. Pinholster, 131 S.Ct. at 1403). Federal habeas courts must "take a highly deferential look at counsel's performance" under Strickland, "through the deferential lens of § 2254(d)." Id. (internal quotation marks and citations omitted).
Here, Petitioner asserts ineffective assistance of counsel in connection with the failure to use the Printout to dismiss the indictment and/or at trial. By way of background, Petitioner asserts that her original public defender ("Walsh") planned to use the Printout to support a motion to dismiss the indictment (ECF No. 3 at 35); after his removal as Petitioner's counsel, Mr. Walsh gave a copy of the Printout to Petitioner's subsequent counsel, as part of a complete copy of her original discovery in this case. (ECF No. 11-10 at 11; ECF No. 3 at 36.) Petitioner, not realizing that the Printout was crucial to her case, mailed the Printout to her mother for unspecified reasons sometime between the removal of Mr. Walsh as her first attorney and the appointment of her second counsel ("Desmond" and "DeJulio"). (ECF No. 11-10 at 10-13.) When Petitioner told her new counsel that the Printout was essential to her case, they told her that the Printout did not exist and that they would not investigate the issue further. (ECF No. 3 at 35-37; ECF No. 11-10 at 11.) Thereafter, Petitioner's counsel on direct appeal ("Smith") advised Petitioner via letter in August 2003 that his search in the file for the Printout had been unsuccessful. (ECF No. 3 at 36.) During preparation for her PCR petition, Petitioner requested that her mother check her correspondence records, and the Printout was located among her mother's files. (ECF No. 3 at 37.) Petitioner's PCR counsel declined to use the Printout in PCR briefings and urged Petitioner to request that her trial counsel file a motion for new trial. (ECF No. 3 at 37; ECF No. 11-10 at 12.)
In addition to rejecting the new trial motion, the motion judge determined that the claim also failed as a second PCR under Strickland, explaining:
(ECF No. 18-97, Tr. Motion Hearing at 11.)
On appeal, Petitioner argued that "prior counsel were ineffective in failing to obtain and analyze the Printout which was evidence of Defendant's innocence." (ECF No. 18-45 at 5.) The Appellate Division found that it "would reach the same result on the merits even if [the court] were to treat the motion as a second PCR petition based upon ineffective assistance of counsel in failing to use the documents at trial . . . Even assuming that trial counsel should have used the printouts during cross-examination, [the court is] convinced that the result would not have changed for the reasons already stated. Consequently, Stone cannot satisfy the second prong of the Strickland test. The trial judge correctly denied her petition for PCR." (Id. at 6-7.)
Here, the Court agrees that even assuming that one or more of her attorneys were ineffective for failing to investigate or use the printouts, Petitioner cannot show that she was prejudiced in light of the marginal value of the printouts. As such, Petitioner cannot meet Strickland's prejudice prong. The Court will therefore deny habeas relief on Ground Two.
In Ground Three, Petitioner alleges deprivation of her "Due Process right to a fair trial by the trial court permitting the prosecutor to present evidence that after being placed in custody, [she] failed to ask the police about conditions at the fire scene and [permitting the prosecutor] to argue in summations that this silence was the evidence that convicts her." (ECF No. 3 at 39.)
On direct appeal, Petitioner argued that her right to remain silent was violated when the trial judge permitted the prosecution to ask Officer Fortunato, who encountered Petitioner shortly after the fire, whether she inquired about the conditions of her apartment after the fire and comment on it in summation.
The assistant prosecutor concluded his direct examination of Officer Fortunato at trial by asking if petitioner had inquired about the condition of the apartment or the fire scene when speaking with the officer. (20T:55-16 to 22; 20T:57-15 to 20.) The questions elicited an objection from defense counsel, who asserted that the inquiry was intended to improperly elicit an adverse inference from petitioner's silence. (20T:56-3 to 11.) The assistant prosecutor countered that because petitioner was not in custody for Miranda purposes during her discussion with the officer, he was therefore entitled to ask the questions. (20T:56-12 to 57-5.) In response, Judge O'Halloran initially stated that petitioner was in custody at the time, but overruled the objection after the assistant prosecutor argued that the officers were "treating [petitioner] as a victim." (20T:57-6 to 9.) During the brief questioning that followed, Officer Fortunato testified that petitioner did not ask about her apartment or the condition of the premises. (20T:57-15 to 20.) Fortunato's testimony was the subject of the following comment by the prosecutor in summation:
(ECF No. 18-17 at 2, 50-58; ECF No. 18-90 at 8-10.) The State argued that the evidence did not violate Petitioner's right to remain silent because she was not under arrest at the time in question. (ECF No. 18-17 at 52.)
The Appellate Division found no error in permitting the evidence or the comment on it:
(ECF No. 18-20 at 19-20.)
Here, the Appellate Division did not unreasonably apply Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny in ruling that prosecutorial comments were not about Petitioner's silence. (ECF No. 18-20 at 20.) "Miranda warnings carry the Government's `implicit assurance' that an arrestee's invocation of the Fifth Amendment right to remain silent will not later be used against him." Gov't of the V.I. v. Martinez, 620 F.3d 321, 335 (3d Cir. 2010) (quoting Gov't of the V.I. v. Davis, 561 F.3d 159, 163-64 (3d Cir. 2009)). It is a violation of the Fifth Amendment and the Due Process Clause "for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant's post-arrest silence" after a defendant is Mirandized. Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998)). In Doyle v. Ohio, 426 U.S. 610, 617-18, (1976), the United States Supreme Court held that "every post-arrest silence is insolubly ambiguous" because it "may be nothing more than the arrestee's exercise of [her] Miranda right." Doyle errors of prosecutorial comment on a defendant's post-arrest silence can be harmless if the Government "prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Davis, 561 F.3d at 165 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). This analysis requires an examination of "the totality of the circumstances." Martinez, 620 F.3d at 337-38. The question becomes whether the "constitutional trial error was harmless beyond a reasonable doubt." Davis, 61 F.3d at 165.
Furthermore, not every reference to a defendant's silence results in a Doyle violation. There is no due process violation when a prosecutor comments on a defendant's pre-arrest silence or failure to come forward because there has been no "implicit promise that his choice of the option of silence would not be used against him." Portuondo v. Agard, 529 U.S. 61, 75 (2000) (emphasis in original). In Fletcher v. Weir, 455 U.S. 603, 606 (1982), the United States Supreme Court held where there has been no governmental action to induce the defendant to remain silent, the Miranda-based rationale does not apply. A prosecutor may impeach a defendant's testimony using pre-arrest silence, Jenkins v. Anderson, 447 U.S. 231, 240 (1908), post-arrest, pre-Miranda warning silence, Fletcher, 455 U.S. at 605-606, and any voluntary post-Miranda warning statements. See Anderson v. Charles, 447 U.S. 404, 408-409 (1980).
The Court has reviewed the relevant record, including Officer Fortunato's trial testimony and the Prosecutor's summation, and agrees with the Appellate Division reasoning that "[t]he prosecutor's comment was not about defendant's silence. In fact, the witness was talking about events. There was no post-arrest `silence' under circumstances where an innocent person would be expected to speak. A prosecutorial comment on silence under those circumstances would have been improper. Here, the comment was not on silence, but on defendant's choice of topics." (ECF No. 18-20 at 20) (emphasis added). As the Panel noted, consistent with clearly established Supreme Court precedent: "[Petitioner] has a right to remain silent . . . She, however, does not enjoy a right to have her remarks exempt from scrutiny." Id. In short, Petitioner's claim fails because she has not, and cannot, point to any federal precedent giving her a constitutionally protected Due Process right that prohibited evidentiary use of her comments on voluntarily-offered comments. Furthermore, the prosecutor's comments as to Petitioner's lack of inquiry about fire victims or damage occurred after she had disappeared from the fire scene and then intentionally returned to voluntarily report disappearance of her pocketbook and hubcaps to Officer Fortunato. (ECF No. 18-90 at 9.) No Miranda post-arrest right to silence had yet arisen at this point because no custodial situation existed.
The Court will therefore deny habeas relief as to Ground Three.
Ground Four of the Amended Petition alleges prosecutorial misconduct and claims "violation of [Petitioner's] constitutional rights to due process and a fair trial by the prosecutor's (a) undermining the right to confront witnesses against [Petitioner] [by] . . . a demonstration for the jury during summation
Petitioner's Amended Petition bases her Demonstration Claim upon the prosecutor's demonstrative use of a 16-ounce bottle of Snapple to show jurors the quantity of gasoline (roughly nine to seventeen ounces) that Petitioner purchased and possessed just prior to the fire. The assistant prosecutor opened the Snapple bottle and poured its contents onto the courtroom floor and stated the following to the jury:
(ECF No. 18 at 77-78; ECF No. 18-89 at 19-21.)
The Appellate Division ruled that the State's summation demonstration was within the scope of evidence presented at trial and did not violate Petitioner's right to confrontation:
(ECF No. 18-20 at 12-15.)
The Oath Claim is based upon the following statement by the prosecutor in summation:
The trial court sustained defense counsel's objection. In response to the prosecutor's apology, the trial court stated "Improper. Improper." (Id. at 50.)
The Appellate Division found the prosecutor's comment harmless in light of: (1) the judge's prompt admonition to the prosecutor; (2) the prosecutor's apology; (3) the court's later instruction to the jury that comments by the attorneys are not evidence; and (4) the verdict itself, in which the jury found defendant not guilty of a majority of the counts submitted. (ECF No. 18-20 at 16.)
Petitioner's Amended Petition bases her Expert Fee Claim upon the prosecutor's cross-examination questions to the defense's expert regarding his professional fees.
(See ECF No. 81-85 at 40.)
Defense counsel did not object to this exchange at trial. When asked on redirect examination whether the fees he received or anticipated receiving would influence his opinion, Petitioner's expert unequivocally stated that there was "no amount of money" and "nothing on earth" that would affect his judgment or opinion. (ECF No. 18-85 at 49.) Upon instructing the jury on appropriate consideration of expert witness testimony in his general charge, the trial judge stated:
(ECF No. 18-90 at 39-40.)
The Appellate Division ruled that the prosecutor's comment regarding defense expert's professional fee did not warrant relief because the trial court gave "the standard instruction on fees paid to professionals" and there was "sufficient evidence offered to convict defendant even if no expert testimony had been offered." (ECF No. 18-20 at 16-17.)
In analyzing claims of prosecutorial misconduct, "[t]he relevant question is whether the prosecutor's comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The appropriate standard is "the narrow one of due process and not the broad exercise of supervisory power." Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). It is "not enough that the prosecutor's remarks were undesirable or even universally condemned." Remarks by the prosecutor must be placed in context, and evaluated in light of the defense arguments that preceded it. Id. at 179-181. The severity of the prosecutor's actions, the effect of any curative instructions and the evidence against the defendant should be considered. Moore v. Morton, 255 F.3d 95, 107 (3d Cir.2001). "[T]he stronger the evidence against the defendant, the more likely that improper arguments or conduct have not rendered the trial unfair." Marshall v. Hendricks, 307 F.3d 36, 69 (3d Cir. 2002).
This Court has carefully reviewed the state court transcripts of the prosecutor's summation and cross-examination. Having considered Petitioner's arguments on prosecutorial misconduct, this Court finds no basis to grant habeas relief. The prosecutor's comments during the cross-examination of Petitioner and in closing argument did not so infect the trial with unfairness so as to make the resulting conviction a denial of due process. See Gooding v. Wynder, 459 F. App'x. 83, 85-86 (3d Cir. 2012) (concerning prosecutor's comments at various stages of trial). The Court will deny habeas relief on Ground Four.
In Ground Five (ECF No. 3 at 41-42), Petitioner challenges (1) the State's presentation of trial testimony she had stolen $250 from her landlord Arawattie Ramnanana's purse and had cut the wires to the landlord's washing machine; (2) the State's presentation of two witnesses' testimony that, prior to the fire, Petitioner had threatened to burn down the apartment house; (3) the trial court's exclusion of defense witness testimony that she had not stolen the $250 and that the landlord had confrontations with many neighbors other than Petitioner; and (4) the trial judge's exclusion on hearsay grounds of testimony regarding the landlord's threats directed at Petitioner. (ECF No. 3 at 41-42.)
On direct appeal, Petitioner argued that the trial court had unconstitutionally precluded her from presenting evidence in her defense to rebut the State's evidence about the $250 theft, the removal of the oven from Petitioner's apartment, and the cut washing machine wires. (ECF No. 18-20 at 20-21; ECF No. 18-17 at 59-60; ECF No. 18-18 at 1-8.)
The Appellate Division "carefully considered" these contentions and
(ECF No. 18-20 at 21.)
To the extent it was raised as a federal claim, Ground Five fails to demonstrate a constitutional violation of fundamental unfairness at trial.
Furthermore, Ground Five fails under state law. Given that the proposed testimony of Petitioner's mother (Louvenia Stone) regarding an out-of-court statement she attributed to Krishna Ramnanana's brother-in-law (Arawattie Ramnanana) was offered at trial to show Petitioner's state of mind (and not to establish third-party guilt, as Petitioner subsequently suggested on direct appeal), New Jersey Rule of Evidence 404(b) allowed exclusion of the challenged evidence. Petitioner sought to introduce her mother's hearsay testimony to attack the character of Arawattie Ramnanana, and not for the truth of the matter asserted — i.e., Mr. Ramnanana's threat towards Petitioner. The Appellate Division's ruling determined that the trial court was correct to exclude such evidence under N.J.R.E. 404(b).
For the reasons explained above, the Court will deny habeas relief as to Ground Five.
In Ground Six, Petitioner alleges trial court errors in charging the jury. She alleges that the trial court erred in (1) refusing Petitioner's request to have the jury charged in criminal mischief as a lesser charge to arson (Petitioner's "Lesser Charge Claim"); (2) refusing to charge the jury on causation as it related to the manslaughter counts (Petitioner's "Manslaughter Charge Claim"); and (3) ruling that causation was not an issue in the case, and thereby precluding counsel from arguing causation in summations (Petitioner's "Causation Claim")." (ECF No. 3 at 43.) For the reasons explained in this section, the court will deny habeas relief as to Ground Six.
The United States Supreme Court and Third Circuit have made clear that it is not the role of the federal courts to review state court jury instruction rulings that are based on state law. Rather, federal courts' "task is to determine whether [a petitioner] `is in custody in violation of the Constitution or laws or treaties of the United States.'" Barkley v. Ortiz, 209 F. App'x 120, 124 (3d Cir. 2006) (rejecting claim based on the failure to charge accomplice liability which was rooted in violations of state law) (quoting 28 U.S.C. § 2254); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to re-examine state court determinations on state-law questions."). Habeas petitions alleging specific errors in state law stemming from improprieties during the state trial fail, unless the error is of constitutional magnitude: i.e., the error resulted in a fundamentally unfair proceeding and thereby violated a petitioner's Due Process rights.
Consistent with this clearly established federal law, questions relating to jury charges are normally matters of state law and procedure, and they do not constitute claims for federal habeas review. It is well-established that "a state court's misapplication of its own law does not generally raise a constitutional claim. The federal courts have no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citations omitted), cert. denied, 522 U.S. 1109 (1998). See Engle v. Isaac, 456 U.S. 107 (1982); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3d Cir.), cert. denied, 502 U.S. 902 (1991); Grecco v. O'Lone, 661 F.Supp. 408, 412 (D.N.J. 1987). "[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72. Rather, the habeas court must consider "`whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process [under the Fourteenth Amendment],' . . . not merely whether `the instruction is undesirable, erroneous, or even universally condemned.'" Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)). A state trial court's refusal to give a requested jury instruction does not, by itself, create a federal habeas corpus claim. A habeas petitioner must establish that the instructional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The error must have resulted in "actual prejudice." Id. at 637.
It is "well established" that the instruction "may not be judged in artificial isolation," but must be viewed in the context of the overall charge and the trial record. Cupp v. Naughton, 414 U.S. 141, 146 (1973); Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004). Further, "in reviewing an ambiguous instruction . . ., [the court should] inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (citations omitted); see also Smith v. Spisak, 558 U.S. 139, 149 (2010) (overruling Court of Appeals determination that jury instruction was unconstitutional where such determination had not previously been made by the Supreme Court); Waddington v. Sarausad, 555 U.S. 179 (2009). The United States Court of Appeals for the Third Circuit has observed that a habeas petitioner who challenges state jury instructions must "point to a federal requirement that jury instructions . . . 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, 111 (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. at 110. See Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998) (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"); Herrill v. Ricci, No. CV 10-3575, 2016 WL 1183176, at *11-12 (D.N.J. Mar. 28, 2016), certificate of appealability denied (July 29, 2016).
At the charging conference, defense counsel requested a jury instruction on criminal mischief as a lesser included offense of third degree arson. (ECF No. 18-18 at 11.) The trial court declined to give the charge (ECF No. 18-88 at 3) and instead gave the following extensive jury instruction as to the elements of aggravated arson under N.J.S.A. 2C:17-1:
(ECF No. 18-90 at 54-56.)
Petitioner relies on her briefs submitted in support of her "direct appeal . . . [and] PCR" briefs (ECF No. 3 at 43), the former of which asserted the Lesser Charge contention as a state law claim.
In Beck v. Alabama, 447 U.S. at 627, the Supreme Court held that the death penalty may not be imposed "when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict." See also Hopper v. Evans, 456 U.S. 605, 611 (1982) (holding that Due Process does not require lesser included offense instruction in death penalty case where there is no lesser included offense under state law). The Court left open the question of whether instructions on lesser included offenses were required in non-capital cases. Id. The Third Circuit has held that trial courts must, when requested, charge a lesser included offense so that the jury does not convict a defendant of a crime more serious than the jury believes the defendant actually committed merely because the jury believes the defendant had some degree of involvement and does not want to set the defendant free. See Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir. 1988) (citing Keeble v. United States, 412 U.S. 205, 212-13 (1973)). But see Geschwendt v. Ryan, 967 F.2d 877, 884 n.13 (3d Cir.) (observing that the Supreme Court, in Schad v. Arizona, 501 U.S. 624 (1991), cast doubt on the theory that Due Process always requires the court to instruct on a lesser included offense in non-capital offenses by applying a harmless-error standard; conviction of an offense two rungs higher up the ladder is a reliable indicator that a jury would not have convicted of the least included offense that was not charged), cert. denied, 506 U.S. 977 (1992);
Accordingly, the Lesser Charge Claim fails because: (1) its contentions were raised as a state law (not federal law) claim. Even if Petitioner had raised the Claim under federal law, it still fails because the trial court's refusal to charge criminal mischief was not contrary to, or an unreasonable application of clearly established Supreme Court precedent.
At the charging conference (ECF No. 18-87 at 34-41), defense counsel requested that the reckless manslaughter jury instruction include remote causation language from New Jersey's Model Criminal Jury Charges (N.J.S.A. 2C:2-3), as derived from State v. Martin, 119 N.J. 2, 32 (1990).
Instead, the trial court gave the following reckless manslaughter jury instruction:
(ECF No. 18-90 at 53-54.)
The trial court did, however, give the full version of the Martin remote causation instruction in its felony murder jury charge:
(ECF No. 18-18 at 21-22; ECF No. 18-90 at 57-60; ECF No. 18-91 at 1-2) (emphasis added).
At the close of trial, the jury acquitted Petitioner of purposeful or knowing murder and the lesser-included offenses of aggravated manslaughter and passion-provocation manslaughter. The jury found her guilty of three counts of felony murder and three counts of reckless manslaughter. (ECF No. 18-94 at 5-16; ECF No. 18-95 at 57.)
On direct appeal, Petitioner argued (ECF No. 18-18 at 18-21) that the trial court erred by refusing to incorporate Martin's Model Jury Charge remote causation language into the reckless manslaughter instruction. Petitioner, while contending that "causation was very much at issue . . . in this case," did acknowledge that the trial court had given the full causation instruction in the felony murder charge. (ECF No. 18-18 at 21-22.) The Appellate Division found that the jury charge issues as a whole were "without merit and do not warrant discussion in a written opinion." (ECF No. 18-20 at 21.) On habeas, Petitioner's Manslaughter Charge Claim in Ground Six alleges deprivation of "due process rights to a fair trial by multiple erroneous jury instructions for . . . refusing to charge on causation as it related to the manslaughter counts." (ECF No. 3 at 43.)
Petitioner relies on her briefs submitted in support of her direct appeal briefs (ECF No. 3 at 43), which raised the Manslaughter Charge contention as a state law claim. (ECF No. 18-18 at 18-21) (citing state law cases addressing causation instructions) (internal citations to New Jersey cases omitted).
With respect to erroneous jury instructions, 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 In re Winship, 397 U.S. 358, 364 (1970) (holding due process requires proof beyond reasonable doubt of each fact necessary to constitute crime with which defendant is charged); Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (finding jury instruction suggesting that jury may convict without proving each element of crime beyond reasonable doubt violates constitutional rights). Similarly, where a jury instruction operates to "remove from the jury's consideration a necessary element of the prosecutor's case", the Sixth Amendment right to trial by jury is implicated. See, e.g., Gonzalez v. Wolfe, 290 F. App'x 799, 811-12 (6th Cir. 2008).
Here, the reckless manslaughter instruction was not contrary to, or an unreasonable application of Supreme Court precedent because the Court has never held that the Due Process Clause guarantees the right of a defendant to have the jury instructed on remote causation. Petitioner has pointed to no "federal requirement that jury instructions on the elements of [the reckless manslaughter] offense . . . must include particular [remote causation] provisions." Johnson, 117 F.3d at 110.
Furthermore, the reckless manslaughter conviction was merged into the felony murder conviction, which included remote causation instructions. Any error with respect to Petitioner's Manslaughter Charge Claim appears harmless because the jury did, in fact, render a remote causation determination; it did so as to felony murder. Having been instructed by the trial judge on remote causation as to felony murder (ECF No. 18-99 at 60; ECF No. 18-91 at 1), the jury's conviction of Petitioner for that crime reflected its determination that "the death [was] not too remote or too accidental in its occurrence or too dependent on another's volitional acts." (ECF No. 18-91 at 1.) The three deaths at issue for the reckless manslaughter crime were the same three deaths for the felony murder crime. The jury's finding that those deaths were a probable consequence of the fire is not altered by the name of the crime; so the trial court's decision to give a remote causation provision in one charge and not another was inconsequential in these circumstances under these facts. See Middleton v. McNeil, 541 U.S. 433, 437 (2004) ("a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge") (internal quotations and citations omitted). Because Petitioner has not shown that the reckless manslaughter charge was fundamentally unfair or that the charge violated Due Process of the U.S. Constitution, the Court will deny habeas relief as to Petitioner's Remote Causation Claim.
At the charging conference, the trial court determined that causation was not an issue in the case: "[B]ased upon the testimony that I heard from the fire experts, I am satisfied that it [the matter of cause and result] is not an issue, the causal relationship between the conduct and the result. I don't know of an intervening cause. The testimony I think we all agree, all of the experts agree that the chimney effect would have certainly had an effect upon the fire, but that's not what the real cause was. The cause was the gasoline. I am finding there is not any issue about a causal relationship between the conduct and the result." (ECF No. 18-87 at 41-42) ("No-Causation Ruling").
On direct appeal, Petitioner argued that this ruling violated her "right to a fair trial" by "precluding defense counsel from arguing it [causation] in summation." (ECF No. 18-17 at 3.) Her direct appeal brief stated that her counsel's summation "did not mention their alternate defense — that even if she did start the fire, defendant intended only to cause a minor annoyance, not to destroy the building." (ECF No. 18-18 at 24.) The Appellate Division "carefully considered th[is] contention and conclude[d] [it was] without merit and d[id] not warrant discussion in a written opinion." (ECF No. 18-20 at 21.)
The Appellate Division's decision was not contrary to, or an unreasonable application of U.S. Supreme Court precedent. The Supreme Court has never held that the Due Process Clause guarantees the right of a criminal defendant to argue causation in summations. Thus, Petitioner's Causation Claim raises no federal law issue. Petitioner cites no federal requirement that constitutionally entitles her to present the particular summation topic of causation, and she points to no defense under federal law that she was deprived of by the No-Causation Ruling. Johnson, 117 F.3d at 110. The Appellate Division's rejection of Petitioner's claim was consistent with clearly established federal law, under which "[t]he conduct of the trial, including closing arguments, is regulated under the sound discretion of the trial judge." Moore v. Morton, 255 F.3d 95, 105 (3d Cir. 2001) (citing Herring v. New York, 422 U.S. 853, 861 (1975) ("[t]he presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations . . . [H]e must have broad discretion")).
This claim also fails because she has not demonstrated that exclusion of causation from summation resulted in a fundamentally unfair proceeding that violated her Due Process rights. Given Petitioner's defense at trial of complete denial of any guilt (ECF No. 18-18 at 9), exclusion of causation from summation cannot be said to have "offend[ed] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, or transgress[ed] any recognized principle of fundamental fairness in operation." Patterson v. New York, 432 U.S. 197, 201-02 (1977). Had her counsel argued causation in closing statements, Petitioner would have had to jettison her denial defense and concede that she set the fire. Her causation contention on habeas, then, is internally inconsistent with the record below. Moreover, the trial judge exercised his discretion to exclude causation issues in the context of evidence where both sides' expert witnesses concluded that the fire had been deliberately set and that gasoline was used by the perpetrator to cause the blaze.
Petitioner did not raise her Miranda (Ground Nine) or Identification (Grounds Seven & Eight) Claims on direct appeal. Instead, she raised them for the first time in her PCR and also alleged that her appellate attorney was ineffective for failing to raise these claims on direct appeal. (See ECF No. 18-23 at 39-49, 60-78, 120-123.) In the Opinion denying Petitioner's first PCR, the court found that (1) the direct Miranda and Identification Claims were procedurally barred under New Jersey Court Rule 3:22-4
On appeal of the denial of her PCR, the Appellate Division affirmed the PCR court's rejection of the Miranda and Identification Claims as follows:
Stone, 2008 WL 539254 at *3-4. Although the Appellate Division found that her direct Miranda and Identification Claims were barred on PCR, the Court went on to address whether Petitioner had alleged claims of ineffective assistance of appellate counsel based on these same claims:
Id. at *4. The Appellate Division then affirmed the denial of PCR for the reasons expressed by the PCR Court:
Id. at *6.
In her Amended Petition, Petitioner asserts the Direct Miranda claim in Ground Nine and her Identification Claim in Ground Seven and Eight.
As the United States Court of Appeals for the Third Circuit explained in Rolan v. Coleman:
Rolan, 680 F.3d 311, 317 (3d Cir. 2012). With respect to the latter type of procedural default, federal courts are prohibited "from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment." Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017) (quoting Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008)). Procedural default occurs when "a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. (quoting Coleman v. Thompson, 501 U.S. 722, 730 (1991)). The doctrine applies whether the default occurred at trial, on appeal, or during collateral proceedings. Edward v. Carpenter, 529 U.S. 446, 451 (2000). "For a federal habeas claim to be barred by procedural default, however, the state rule must have been announced prior to its application in the petitioner's case and must have been `firmly established and regularly followed.'" Bey, 856 F.3d at 236 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Lee v. Kemna, 534 U.S. 362, 376 (2002) ("Ordinarily, violation of `firmly established and regularly followed' state rules . . . will be adequate to foreclose review of a federal claim."). Generally speaking, "[a] state court's refusal to address a prisoner's federal claims because he has not met a state procedural requirement is both independent and adequate." Cabrera v. Barbo, 175 F.3d 307, 312 (3d Cir. 1999) (citations omitted).
The state procedural rule at issue here is N.J. Ct. R. 3:22-4, which provides: "Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey."
Petitioner does not contend that Rule 3:22-4 is anything but "firmly established and regularly followed state practice," and case law suggests that the rule is firmly established and regularly followed, the notable exception involving claims of ineffective assistance of counsel. See Washington v. Ricci, No. CIV.A.07-1405(JAG), 2008 WL 2945963, at *8 (D.N.J. July 28, 2008) (explaining same) (citing Cabrero v. Barbo, 175 F.3d 307, 312-14 (3d Cir. 1999)). Thus, the Court finds that the state courts denied relief on Petitioner's direct Miranda and Identification claims based on an adequate and independent state law ground.
A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if she can demonstrate cause for the default and actual prejudice. See Coleman, 501 U.S. at 750; Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012). Alternatively, a petitioner may overcome procedural default by demonstrating that failing to allow her claims to proceed would result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320-22 (1995). Lastly, if a petitioner has committed a procedural default and has not shown either cause and prejudice or a miscarriage of justice, the proper disposition is to dismiss the procedurally defaulted claim with prejudice. See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977).
There is no question that this case is not the type of extraordinary case in which Petitioner can overcome the default of her claims by way of the miscarriage of justice exception. To show a fundamental miscarriage of justice, a petitioner must demonstrate that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup, 513 U.S. at 321 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Under this standard, a petitioner must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. Once such evidence is presented, a petitioner must then show that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327. As explained earlier in this Opinion, the Court has already determined that Petitioner's claim of newly discovered evidence in Ground One, i.e., the Printout, does not meet the standard for a gateway claim under Schlup, 513 U.S. at 327-29, which requires a showing "that it is more likely than not that no reasonable juror would have convicted [the petitioner] in the light of the new evidence[.]"
Nor has Petitioner provided in her Amended Petition any
In Grounds Seven and Eight, Petitioner alleges that she was denied her federal due process right to a fair trial when the trial court admitted testimony concerning the identification of her by Mohammed Zafar ("Zafar") and Gregorio Barra ("Barra") (collectively, "Witnesses"), who were employees at the Exxon station where she purchased gasoline prior to the fire at issue.
The trial court held a four-day Wade hearing to determine the admissibility of the identifications. (ECF No. 18-12 at 1.) In a thorough written opinion, the trial judge ruled, based on the Wade hearing testimony, that "the out-of-court, as well as the in-court identifications of Defendant made by Zafar and Barra are admissible. As such, the State may introduce evidence pertaining to said identifications at trial." (ECF No. 18-12 at 13-14.)
As explained below, the trial court did not violate federal law in admitting the challenged identifications. The Supreme Court has observed that improper pretrial identification procedures by police may cause witnesses to misidentify a criminal. See Simmons v. United States, 390 U.S. 377, 383 (1968). An identification procedure may be deemed unduly and unnecessarily suggestive if it is based on police procedures that create "a very substantial likelihood of irreparable misidentification." Id. at 384. In such situation, "the witness thereafter is apt to retain in his memory the image of the [misidentification] rather than that of the person actually seen, reducing the trustworthiness of subsequent line-up or courtroom identification." Id. at 383-84. "It is the likelihood of misidentification which violates a defendant's right to due process . . . Suggestive confrontations are disapproved because they increase the likelihood of misidentification." Neil v. Biggers, 409 U.S. 188, 198 (1972).
Nevertheless, even if an identification procedure is unnecessarily suggestive, the Supreme Court has held that admission of the suggestive identification does not violate Due Process so long as the identification possesses sufficient aspects of reliability. Manson v. Brathwaite, 432 U.S. 98, 106 (1977). Reliability, remarked the Court, is the "linchpin in determining the admissibility of identification testimony." Id. at 114; see also United States v. Wise, 515 F.3d 207, 215 (3d Cir. 2008). The central question is "whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive." Brathwaite, 432 U.S. at 106 (quoting Biggers, 409 U.S. at 199); see also United States v. Moloney, 513 F.3d 350, 355 (3d Cir. 2008). Courts look to the totality of the circumstances to determine whether the identification procedure was so suggestive as to give rise to any substantial likelihood of irreparable misidentification. Stovall v. Denno, 388 U.S. 293, 302 (1967). Factors to be considered include: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199. Significantly, the Supreme Court has ruled that, where "identifications were entirely based upon observations at the time of the [incident] and not at all induced by the conduct" of the pretrial identification procedures, the identification does not violate due process. See Coleman v. Alabama, 399 U.S. 1, 7 (1970).
Here, Petitioner had a full Wade hearing on the challenged identifications. Based on the testimony at the Wade Hearing, the trial court, in its written opinion, rejected each of Petitioner's challenges to the identifications. The court found that the police had interviewed Barra and Safar together for only a brief period at the gas station and were not interviewed together or shown the photo array together at the Homicide Headquarters. (ECF No. 18-12, at 8-9.) The court also rejected Petitioner's argument that the failure to preserve the photo array shown to Barra justified exclusion, finding that there was no bad faith on the part of the police or prejudice to Defendant. (Id. at 9.)
The court also found that the photo array was not impermissibly suggestive and was reliable:
The trial court also found that the show-up identification of Petitioner made by Barra was reliable under the totality of the circumstances approach:
Id. at 12-13. Finally, the court held that Safar's identification of Petitioner was both non-suggestive and reliable:
(ECF No. 18-12, at 13.)
This Court has reviewed the relevant record, including the testimony from the Wade Hearing, and agrees with the trial court that the challenged identifications by these two Witnesses were reliable and thus properly admitted at trial. Therefore, Petitioner cannot show actual prejudice for her procedural default with respect to the Identification Claim, see Murray, 477 U.S. at 494, and the Court will deny habeas relief on Ground Eight.
Nor can Petitioner show cause or actual prejudice with respect to her Miranda Claim. Prior to trial, Petitioner moved to suppress nine statements that she gave to Jersey City police detectives prior to being arrested and charged.
(ECF No. 18-4 at 20-21; ECF No. 18 at 124-125.)
In Ground Nine, Petitioner contends that these statements warrant suppression because "(a) they were made without giving Miranda warnings"; (b) because the police failed "to scrupulously honor Petitioner's invocation of her right to silence"; and (c) "because the statements were not voluntarily given." (Am. Pet., ECF No. 3 at 44.)
Consistent with the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment, the United States Supreme Court held in Miranda v. Arizona, 384 U.S. 436 (1966):
Miranda, 384 U.S. at 478-79 (emphasis added). Miranda warnings are required when an individual is subject to custodial interrogation. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444. In subsequent decisions, the Supreme Court specifically stressed that it was the custodial nature of the interrogation which triggered the necessity for adherence to the specific requirements of Miranda. See Stansbury v. California, 511 U.S. 318, 322 (1994) ("[The] obligation to administer Miranda warnings attaches, however, `only where there has been such a restriction on a person's freedom as to render him [or her] "in custody"'") (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)); Illinois v. Perkins, 496 U.S. 292, 296 (1990) ("Miranda was meant to preserve the privilege [against self-incrimination] during `incommunicado interrogation of individuals in a police-dominated atmosphere.' . . . `Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated'") (citations omitted)); Roberts v. United States, 445 U.S. 552, 560 (1980) ("Miranda's requirement of specific warnings . . . does not apply outside the context of the inherently coercive custodial interrogations for which it was designed"). See also, e.g., United States v. Walton, 10 F.3d 1024, 1028 (3d Cir. 1993) (explaining "[t]his is not a Miranda case" because the conversation the defendant had with Federal agents "occurred in a noncustodial setting"). In determining whether a custodial interrogation has occurred, a court must examine all of the circumstances surrounding the interrogation. Stansbury, 511 U.S. at 322.
To comport with constitutional guarantees, statements must also have been made voluntarily. Chavez v. Martinez, 538 U.S. 760, 769-70 (2003). The voluntariness of a statement must ultimately be assessed under the totality of the circumstances, considering such factors as the defendant's intelligence, the length of detention, the nature of the interrogation, and the use of any physical force against the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The inquiry focuses on whether the defendant's free will was overborne by any improper influence of law enforcement. Haynes v. Washington, 373 U.S. 503, 513 (1963) (where voluntariness is concerned, "the question in each case is whether the defendant's will was overborne at the time he [or she] confessed"); Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.), ("To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant."), cert. denied, 479 U.S. 989 (1986). The Supreme Court has made clear that a statement is involuntary when the suspect's "will was overborne in such a way as to render his confession the product of coercion." Arizona v. Fulminante, 499 U.S. 279, 288 (1991). In determining whether a statement is voluntary, Supreme Court precedent requires consideration of "the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth, 412 U.S. at 226). These surrounding circumstances include "not only the crucial element of police coercion, Colorado v. Connelly, 479 U.S. 157, 167 (1986)," but may also include "the length of the interrogation, its location, its continuity, the defendant's maturity, education, physical condition, and mental health." Withrow v. Williams, 507 U.S. 680, 693 (1993). "[S]ubsidiary questions, such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable." Dickerson, 474 U.S. at 117.
In deciding Petitioner's motion to suppress (ECF No. 18-3), the trial court analyzed the totality of the circumstances in which Petitioner made the Five Statements:
The trial court found that Statements #1 and #2 were admissible:
As the trial court observed, Petitioner's Fifth Amendment right against self-incrimination and the Due Process rights under the Fourteenth Amendment were not implicated in the non-custodial and voluntary scenarios in which Statements #1 and #2 were made. Petitioner was not yet a suspect. She was not in custody and she was not under arrest. She was not handcuffed as a suspect would have been. Thus, the circumstances did not indicate a custodial interrogation and that Miranda warnings were not required at that point. Those oral statements were voluntary under the totality of the circumstances, taking into account all of the circumstances. The Petitioner was not physically or psychologically pressured. Statements #1 and #2 were not the product of custodial interrogation and were voluntarily made.
The trial court found that Statement #3 was admissible because:
(ECF No. 18-4 at 6.) As further explained by the trial court:
(ECF No. 18-4 (04/06/99 Op.) at 12.)
Similarly, the trial court found that Statement #4 was also volunteered by Petitioner:
(ECF No. 18-4 at 13.)
Finally, the trial court determined that Statement #8 was an admissible statement because:
(ECF No. 18-4 at 19.)
Having reviewed the relevant record, including the Miranda hearing transcript (ECF Nos. 18-55, 18-56, 18-57 and 18-58) and the trial court's opinion, the Court agrees with the trial court's finding that: (a) Statements #1 and #2 were voluntary statements in a non-custodial situation and (b) Statements #3, #4 and #8 were non-coerced, voluntary statements. Because the statements were properly admitted and not subject to exclusion under Miranda, the Court finds that Petitioner cannot show actual prejudice sufficient to overcome procedural default with respect to the Miranda Claim and will deny habeas relief on Ground Nine.
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas proceeding 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, jurists of reason could not disagree that Petitioner's claims are lacking in merit. Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
For the reasons expressed in this Opinion, the Court denies the Amended Petition and denies a certificate of appealability. An appropriate Order follows.
Id. With leave of court, the State appealed the suppression of Statements #5 and #6. (ECF No. 18-7.) The Appellate Division affirmed the suppression. (ECF No. 18-9 at 5-6.)
