FREDA L. WOLFSON, District Judge.
Before the Court is the Petition for a writ of habeas corpus by Petitioner Eric Potter, ("Petitioner" or "Potter") brought pursuant to 28 U.S.C. § 2254. (ECF No.1.) For the reasons set forth below, Petitioner's habeas petition is DENIED, and Petitioner is DENIED a certificate of appealability.
The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division, on Petitioner's direct appeal:
State v. Potter, Indictment No. A-1175-12T3, 2015 WL 3843309, at *1-2 (N.J. Super. Ct. App. Div. June 23, 2015) (footnotes omitted).
Following a jury trial, Petitioner was convicted of:
Id. at *1-4.
Prior to trial, Petitioner filed several motions:
Id. at *2-3.
Petitioner appealed his conviction and sentence. The Appellate Division affirmed on June 23, 2015. Id. The New Jersey Supreme Court denied certification on November 6, 2015.
(ECF No. 1.)
Respondents submitted an Answer in which they argue that Petitioner's claims are meritless. (ECF No. 7.) Petitioner submitted a reply, relying on his briefs submitted to the state courts. (ECF No. 9.)
Under 28 U.S.C. § 2254(a), the district court "shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, 567 U.S. 37, 40-41 (2012). District courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly expressed in "only the holdings, as opposed to the dicta" of the opinions of the United States Supreme Court. See Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). "When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Id. Where a petitioner challenges an allegedly erroneous factual determination of the state courts, "a determination of a factual issue made by a State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Under these standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Additionally, these standards apply "even where there has been a summary denial" by the state court. Cullen v. Pinholster, 563 U.S. 170, 187 (2011). "In these circumstances, [petitioner] can satisfy the `unreasonable application' prong of § 2254(d)(1) only by showing that `there was no reasonable basis' for the [state court's] decision." Id. at 187-88 (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). Furthermore, "when the relevant state-court decision on the merits . . . does not come accompanied with . . . reasons . . . [w]e hold that the federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
In Ground One, Petitioner contends that he was unlawfully searched and that the search incident to his arrest was unlawful. (ECF No. 1 at 5.)
The Fourth Amendment bars "unreasonable searches and seizures." U.S. Const. amend. IV. Generally, evidence gained through a Fourth Amendment violation may not be used against a defendant at trial. See Mapp v. Ohio, 367 U.S. 643, 654-55 (1961); Weeks v. United States, 232 U.S. 383, 391-93 (1914). This "exclusionary rule" is a judicially-created remedy to safeguard Fourth Amendment rights by deterring police conduct that violates those rights. Stone v. Powell, 428 U.S. 465, 486 (1976). With respect to collateral review, however, the Supreme Court has found that the costs of the exclusionary rule outweigh its benefits. Therefore,
Marshall v. Hendricks, 307 F.3d 36, 81 (3d Cir. 2002), cert. denied, 538 U.S. 911 (2003).
Here, Petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim in the form of a motion to suppress the evidence seized by the arresting officers (ECF No. 7-13), as well as raising it on direct appeal. Accordingly, this Court will not grant federal habeas relief on this claim.
In Ground Two, Petitioner argues that the state court erred in denying his motion to dismiss the indictment. (ECF No. 1 at 8.) In support of his argument, Petitioner alleges that the grand jury testimony consisted of hearsay evidence and that the indictment number was incorrect. (Id.)
The Appellate Division rejected this claim as follows:
Potter, 2015 WL 3843309, at *15.
Deficiencies in state grand jury proceedings are generally not grounds for relief in § 2254 habeas proceedings. See, e.g., Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (relying on United States v. Mechanik, 475 U.S. 66 (1986)). To determine whether "an otherwise fair trial remedies errors not occurring at the trial itself. . . . [courts must inquire] whether the trial cured the particular error at issue." See Lafler v. Cooper, 566 U.S. 156, 165 (2012). Here, the Court finds that the trial testimony cured any alleged hearsay testimony at the grand jury proceeding. The record establishes that Officer Raisin testified during the grand jury proceeding about matters he observed and matters Officer Warraich and Detective Snowden described to him. (ECF No. 7-11). At trial, Raisin, Warraich and Snowden had the opportunity to testify and were cross-examined. (ECF Nos. 7-20, 7-21.) Thus, any potential errors related to hearsay testimony during the grand jury proceeding were cured at the subsequent trial, which resulted in a guilty verdict. See United States v. Console, 13 F.3d 641, 672 (3d Cir. 1993) (with the exception of a claim of racial discrimination in the selection of grand jurors, a "petit jury's guilty verdict render[s] any prosecutorial misconduct before the indicting grand jury harmless.") (citing Vasquez v. Hillery, 474 U.S. 254 (1986)); see also Brewer v. D'Ilio, 14-6886, 2018 WL 878529, at *5 (D.N.J. Feb. 14, 2018) (finding that "indictments may be returned on hearsay") (citing Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)).
Petitioner also argues that the indictment number was improperly transcribed. With respect to the indictment itself, the document contains no indictment number, but only a case number. (ECF No. 7-3 at 77.) It does, however, contain Petitioner's full name, the date of the charges against him, and the elements of each offense. (Id.) Thus, Petitioner was, or should have been, aware of the specific charges pending against him based on that document. "In determining whether the notice in an indictment is sufficient to afford a defendant due process, the question is whether under the circumstances there was reasonable notice and information of the specific charge against him and a fair hearing in open court." Bibby v. Tard, 741 F.2d 26, 29 (1984) (citing Paterno v. Lyons, 334 U.S. 314, 320 (1948)). The indictment certainly put Petitioner on notice of the specific charges against him.
During the hearing on Petitioner's motion to dismiss the indictment, he also explained that various items provided to him in discovery contained the wrong indictment number and the plea offer contained a different defendant's name. (ECF No. 7-17 at 2-3.) To the extent that is true, Petitioner points to no Supreme Court case law, nor is this Court aware of any, that typographical errors in the discovery provided to a defendant could support a constitutional violation sufficient for habeas purposes. Because Petitioner has not shown that the Appellate Division decision on this matter was an unreasonable application of Supreme Court precedent, this claim is denied.
In Ground Three, Petitioner contends that the trial judge improperly instructed the jury that a judicial determination had previously been made as to the legality of the stop of Petitioner. (ECF No. 1 at 9.) The Appellate Division summarily rejected this claim. See Potter, 2015 WL 3843309, at *12.
The record establishes that after Petitioner's cross-examination of Officer Warraich— which included questions related to the legality of the search and seizure of evidence—the judge explained at sidebar that the issue of search and seizure had already been decided upon at the suppression hearing. The judge stated:
(ECF No. 7-20 at 42.)
At the end of the day's proceedings, the judge instructed the jury as follows:
(Id. at 64.)
At the conclusion of trial, the judge instructed the jury similarly:
(ECF No. 7-23 at 26.)
"It is well-settled that `the question of the competency of the evidence . . . by reason of the legality or otherwise of its seizure [is] a question of fact and law for the court and not for the jury.'" United States v. Reed, 575 F.3d 900, 919 (9th Cir. 2009) (citing Steele v. United States, 267 U.S. 505, 511 (1925)); see also United States v. Gaudin, 515 U.S. 506, 525-26 (1995) ("Preliminary questions in a trial regarding the admissibility of evidence . . . the legality of searches and seizures. . . may be decided by the trial court.")
Here, the legality of the search and seizure was not a question for the jury to consider. Rather, it was a question for the trial court to rule on in the context of the pretrial motion to suppress. Because the judge appropriately instructed the jury as such, the Appellate Division decision denying this claim was not an unreasonable application of Supreme Court precedent. Accordingly, the Court denies relief on this claim.
In Ground Four, Petitioner alleges that the trial court improperly instructed the jury on the "quantity requirement for a second degree intent to distribute CDS crime." (ECF No. 1 at 11.) Petitioner provides no support for this argument. In his brief in state court, Petitioner stated that the difference between second-degree and third-degree intent to distribute depends upon the amount intended to be distributed. (ECF No. 7-3 at 21.) He argued that the jury instructions were deficient because they did not require the jury to consider how much of the heroin in Petitioner's possession he intended to keep for himself. (Id. at 21-21.)
The Appellate Division denied this claim as follows:
Potter, 2015 WL 3843309, at *13.
Petitioner's claim in this context appears to rest on matters of state law. The Supreme Court has explained that "[i]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Id. at 71-72.
Nevertheless, to the extent the claim could be construed as resting on federal law as well, 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) (internal citations and quotations omitted). A habeas petitioner must establish that the instructional error "had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Further, it is "well established" that instructions "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).
The state court determination on this matter was not objectively unreasonable. The judge instructed the jury on the quantity requirement of possession with intent to distribute, as follows:
(ECF No. 7-23 at 29-30.)
The judge also instructed the jury on the offense of possession of heroin with intent to distribute by reciting the New Jersey statute and reiterating and defining the elements involved. (ECF No. 7-23 at 27-29.) Specifically, the judge defined the term distribute: "distribute means to transfer, actual, constructive, or attempted from one person to another . . ." (Id. at 28.) The jury was therefore aware that it was the State's burden to prove that the quantity of heroin involved— more or less than one half ounce—was physically transferred to the person of another. Thus, there is no ambiguity in the instruction in the manner described by Petitioner.
Furthermore, as indicated by the Appellate Division and established by the record, there was no evidence to suggest that Petitioner intended to keep any of the heroin for himself. In his redacted statement to the police, which was played for the jury, Petitioner explained that he was told to pick up the seventeen bricks of heroin and deliver it to two individuals. (ECF No. 7-5 at 102.) Petitioner explained that he was paid for his delivery and he used the money for food and to earn extra cash. (Id. at 103.) Because Petitioner fails to argue that the jury verdict was based on an erroneous jury instruction or an erroneous factual determination, the Court denies relief on this claim.
Petitioner argues that his constitutional rights were violated when the State presented evidence that he was under surveillance. (ECF No. 1 at 13.) He explains that this violated his rights under the Confrontation Clause, and improperly highlighted prior crimes he allegedly committed. (Id.)
The Appellate Division rejected this claim as follows:
Potter, 2015 WL 3843309, at *13.
In their Answer, Respondents argue that Petitioner invited the error upon himself. (ECF No. 7 at 29.) The Court agrees.
The record establishes that throughout the trial Petitioner questioned various officers about the confidential informant ("CI") who provided them with information on Petitioner's sale of drugs. Petitioner's standby counsel objected, stating that this information was hearsay. (ECF No. 7-20 at 30.) The trial judge responded that he would not protect Petitioner from himself, because it was Petitioner who raised the subject of the CI. (Id.) Petitioner then continued to question the officers about the information they received from the CI. For example, on cross-examination of Officer Warraich, Petitioner questioned:
(ECF No. 7-20 at 31.)
Similarly, on cross-examination of Detective Samis, Petitioner questioned:
(ECF No. 7-20 at 56.)
When the State later questioned Detective Samis about events prior to Petitioner's arrest, Detective Samis testified that the officers "set up surveillance on Mr. Potter . . ." (ECF No. 7-21 at 10.) In his brief before the Appellate Division, Petitioner took issue with Detective Samis' statement, arguing that his rights under the Confrontation Clause were violated because he could not question the confidential informant. (ECF No. 7-3 at 32-36.) He also argued that the statement indicated to the jury that he had committed prior bad acts, which was the reason he was under surveillance. (Id.)
The doctrine of invited error prevents a habeas petitioner from raising a claim challenging an action of the trial court which was invited or induced by that petitioner. See, e.g., United States v. Maury, 695 F.3d 227, 256 (3d Cir. 2012). This doctrine provides an independent basis for this Court to reject claims raised in § 2254 habeas matters. See, e.g., York v. O'Llio, No. 13-7609, 2016 WL 5938700, at *10-11 (D.N.J. Oct. 11, 2016).
Here, the exchanges that occurred in the trial court proceedings cited above unquestionably demonstrate that it was Petitioner who invited the error upon himself. He repeatedly questioned the officers about the confidential informant; when Petitioner's standby counsel raised concerns, Petitioner continued his line of questioning. "Indeed, because Petitioner . . . consented to and approved of the course of action taken . . . he cannot [now] cry foul as to the action in question." Saunders v. D'Illio, No. 15-2683, 2018 WL 1251629, at *9 (D.N.J. Mar. 12, 2018) (internal quotation marks and citation omitted). Therefore, this claim must be denied.
With respect to the prior bad acts, this Court is not aware of any Supreme Court case clearly establishing that bad acts evidence constitutes a violation of federal constitutional rights. See, e.g., Minett v. Hendricks, 135 F. App'x 547, 553 (3d Cir. 2005) (rejecting claim that admission of "other crimes" evidence is contrary to or an unreasonable application of clearly established Supreme Court precedent); see also Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir. 2007) (state court's admission of evidence of petitioner's prior bad acts did not render trial fundamentally unfair or warrant habeas relief). Moreover, no bad acts were ever referenced by Detective Samis. Instead, Detective Samis only stated that Petitioner was under surveillance and the Court does not find convincing Petitioner's suggestion that surveillance of a suspect equates to that suspect having committed bad acts. Because Petitioner fails to demonstrate he is entitled to relief, this claim is denied.
Petitioner next argues that prosecutorial misconduct occurred when the prosecutor stated that Petitioner was engaged in a continuing criminal enterprise. (ECF No. 1 at 13.) In state court, Petitioner pointed to the State's summation to support this claim, wherein the prosecutor stated, "you can basically see a business model for this defendant." (ECF No. 7-23 at 12.)
The Appellate Division rejected this claim as follows:
Potter, 2015 WL 3843309, at *14.
The Supreme Court has explained that a prosecutor's arguments on summation will only result in a constitutional violation if "the argument rendered the trial unfair." Darden v. Wainwright, 477 U.S. 168, 179 (1986). "[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned . . . [t]he relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 181 (internal citations and quotation omitted).
The Appellate Division decision on this matter was neither contrary to nor an unreasonable application of Supreme Court law. Given Petitioner's recorded statement to the police—in which he stated that he sold the drugs for a profit and used the money to buy food and earn extra cash— Petitioner's argument that the prosecutor's statement rendered the trial unfair has no merit. Instead, by his own admission, Petitioner did appear to be engaged in a criminal enterprise. Furthermore, even had Petitioner objected to the statement and the judge deemed the statement improper, there was still ample evidence of Petitioner's guilt. Petitioner gave a detailed confession to the police and various officers observed Petitioner with the heroin in his pockets. More importantly, the jury instructions at the conclusion of trial instructed the jury not to consider the State and defense counsel's summation as evidence. (ECF No. 7-23 at 21.) The jury is presumed to have followed this instruction. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Accordingly, Petitioner fails to show he is entitled to relief on this claim.
Petitioner next argues that an expert witness, Detective Snowden, improperly rendered a conclusion that usurped the jurors' responsibility to determine the facts. (ECF No. 1 at 14); (ECF No. 3 at 45).
The Appellate Division denied this claim, explaining:
Potter, 2015 WL 3843309, at *14.
To the extent Petitioner is arguing that the state court erred as a matter of state law in permitting Detective Snowden to provide this testimony, this argument is not proper for federal habeas review. See Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) ("the Due Process Clause does not permit the federal courts to engage in a finely-tuned review of the wisdom of state evidentiary rules"); Wilson v. Vaughn, 533 F.3d 208, 213 (3d Cir. 2008) ("[a]dmissibility of evidence is a state law issue") (citing Estelle, 502 U.S. at 72).
Nevertheless, to the extent this can be raised as a due process violation, a state court's evidentiary decision must have been so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994); see also Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (evidentiary error rises to the level of a Due Process violation only when "it was of such magnitude as to undermine the fundamental fairness of the entire trial"). Courts have held that the appropriateness of expert witness testimony is analyzed under this same standard. See Beltran v. Hastings, No. 12-2042, 2014 WL 1665727, at *12-17 (D.N.J. Apr. 24, 2014) (analyzing the appropriateness of expert testimony on habeas review under the standard for evidentiary error); see also Dandor v. Ricci, No. 09-1565, 2011 WL 735065, at *16 (D.N.J. Feb. 22, 2011) (finding on habeas review that expert testimony was not improper because the testimony did not violate fundamental fairness). The United States Supreme Court has "defined the category of infractions that violate fundamental fairness very narrowly." Dowling v. United States, 493 U.S. 342, 352 (1990) (internal quotations omitted).
The record establishes that Detective Snowden testified for the State as an expert in narcotics distribution. (ECF No. 7-21 at 45.) He described how heroin is generally packaged and the cost of purchasing various quantities. (Id. at 45-48.) He then testified that he reviewed the police reports and lab reports in Petitioner's case. (Id. at 48.) The State then asked, "[n]ow, in your opinion, the possession of 850 bags of heroin in conjunction with the possession of $1500 in cash, is that indicative of possession of heroin with the intent to use it yourself or with the intent to distribute the heroin?" (Id. at 48.) Detective Snowden responded, "[t]hat would be with the intent to distribute." (Id.) On cross-examination, Petitioner asked Detective Snowden: "And you can't say for sure whether or not the drugs was for distribution or use or not, or anything like that, that's just your opinion then?" (Id.) Snowden responded: "Well, it's my opinion. I have never seen an addict have 17 bricks of heroin on him." (Id.)
The Appellate Division decision rejecting this claim was not unreasonable. There is nothing to indicate that Detective Snowden's testimony rendered the trial fundamentally unfair. Snowden was accepted as an expert witness and he rendered an opinion based on the facts presented to him. He made clear that it was only his opinion; the jury was never instructed that they must accept his opinion as fact. Moreover, at the conclusion of trial, the judge instructed the jury that they were "not bound" by the expert's opinion but may "consider" it or "reject it." (ECF No. 7-23 at 23-24.) Because the alleged violation does not violate clearly established federal law, Petitioner is denied relief on this claim.
In his next ground for relief, Petitioner argues that the trial court allowed a witness to provide false testimony—that Petitioner was dealing drugs day and night. (ECF No. 1 at 14.) The Appellate Division rejected this claim as meritless without further discussion. Potter, 2015 WL 3843309, at *12.
The record reveals that portions of the taped statement made by Petitioner to Detective Samis were redacted, and only the redacted version was played for the jury. (See ECF No. 7-21 at 11.) At trial, Detective Samis testified for the State. On cross-examination, Petitioner questioned Detective Samis about a portion of the statement that had previously been redacted. (ECF No. 7-21 at 19.) Petitioner questioned Detective Samis as follows:
(ECF No. 7-21 at 19.)
At that point, the State objected, and argued at sidebar that this portion of the recorded statement had been stricken. (Id.) Petitioner's standby counsel responded that it had not been stricken at Petitioner's request. (Id.) The Court responded that he would permit Petitioner to question Detective Samis on the matter, stating: "[y]ou know what? I took things out at his request. If he puts them back in, then on rebuttal they got a right to rehabilitate that statement. He can do whatever he wants, but I'm not protecting him from himself." (Id.)
Petitioner then proceeded with his questioning of Detective Samis:
(Id. at 20.)
As noted previously by this Court, state court evidentiary rulings are generally not proper for federal habeas review. See Lonberger, 459 U.S. at 438 n.6. Instead, a state evidentiary decision will rise to the level of a due process violation only where it rendered the trial fundamentally unfair. See Romano, 512 U.S. at 12-13. Here, there is nothing to indicate that the judge's decision allowing Petitioner to proceed with his questioning of Detective Samis rendered the trial fundamentally unfair. The record makes clear that it was Petitioner himself who chose to put this information before the jury, not the judge or the State. This portion of the recorded statement had been redacted. There was a discussion at sidebar about that fact, but Petitioner still chose to continue questioning Detective Samis on the topic.
Furthermore, to the extent the testimony was improper, the excerpts above make clear that it was Petitioner who invited the error upon himself. Thus, he cannot challenge this testimony now on habeas review. See Maury, 695 F.3d at 256. Lastly, in his state court brief, Petitioner argued that he was prejudiced by "Samis' allegation that the defendant had been selling drugs day and night." (ECF No. 7-3 at 54.) This, however, is not accurate. Detective Samis specifically stated on the record that it was a ruse and was not true. For these reasons, this claim for relief is denied.
In Ground Nine, Petitioner argues that he was prejudiced by Officer Warraich's testimony, when the Officer stated that he believed what was inside Petitioner's pocket was heroin. (ECF No. 1 at 14.) In his state court brief, Petitioner elaborated that Warraich "improperly provided substantive evidence that it was all heroin," when, in fact, only a portion of the evidence seized was tested by a chemist. (ECF No. 7-3 at 57.)
The Appellate Division rejected this claim, stating:
Potter, 2015 WL 3843309, at *14.
The transcripts of the trial proceeding revealed that Officer Warraich testified that when he approached Petitioner he "observed CDS, heroin" in Petitioner's front jacket pocket. (ECF No. 7-20 at 26.) He further explained that he observed "[a] clear plastic bag containing [what] I believed to be bricks of heroin." (Id. at 27.) On cross-examination the Officer testified that the heroin was "wrapped up in paper." (Id. at 32.) Petitioner then asked:
(Id.)
Once again, to the extent Petitioner is arguing that the trial court erred under state law in permitting Officer Warraich to provide this testimony, this claim is not proper for federal habeas review. See Lonberger, supra, 459 U.S. at 438 n.6. In fact, in his brief in state court, Petitioner cited only to New Jersey law to support his argument that this was beyond the realm of lay witness testimony. (ECF No. 7-3 at 56-60.) As such, this claim is not proper for federal habeas review.
Nevertheless, even if this claim can be construed as containing a federal element, Petitioner has not shown how this testimony rendered the trial fundamentally unfair. See Romano, 512 U.S. at 12-13. The State provided testimony from Lorraine Kazenmayer, an expert in the analysis of controlled and dangerous substances. She verified that she tested a sampling of the evidence which was found to be heroin. (ECF No. 7-21 at 34-35.) Kazenmayer testified that the heroin weighed more than one-half ounce in total. (Id. at 34-35.) Kazenmayer also stated that while she did not test all the powder in the 500 glassine envelopes, she used the lab's statistical method to determine how much to test to cover the full amount of evidence. (Id. at 33, 37.) Thus, the fact that the glassine envelopes contained heroin, was verified by an expert witness and was not solely based on the opinion testimony of Warraich. Because Petitioner has not shown that the Appellate Division's rejection of this claim was unreasonable, this claim is denied.
In Ground Ten, Petitioner contends that the State failed to prove beyond a reasonable doubt that he waived his Miranda rights. (ECF No. 1 at 15.) In support of his claim, he states that he was deprived of an opportunity to consult with an attorney or make a phone call during the interview. (Id.)
The Appellate Division denied this claim as follows:
Potter, 2015 WL 3843309, at *10-11.
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The Fourteenth Amendment incorporates the Fifth Amendment privilege against self-incrimination. See Malloy v. Hogan, 378 U.S. 1, 8 (1964). In Miranda v. Arizona, the United States Supreme Court held that "without proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. 436, 467 (1966). Pursuant to Miranda and its progeny, "suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation." See Thompson v. Keohane, 516 U.S. 99, 107 (1995) (citing Miranda, 384 U.S. at 444).
"When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief." Oregon v. Elstad, 470 U.S. 298, 317 (1985). Conversely, a waiver of the right to remain silent renders self-incriminating, inculpatory statements admissible, and such waiver may be made orally, in writing, or even implied by the interrogated person's conduct. See North Carolina v. Butler, 441 U.S. 369, 374-376 (1979). Correspondingly, a trial court can properly admit a defendant's inculpatory statements if the court finds that the government met its preponderance-of-the-evidence burden of showing that the statements were made with a valid waiver of Miranda rights. See Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).
The question of whether the waiver at issue was "valid" is resolved on a case-by-case basis. Under Miranda, a waiver is valid if it is made "voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 475. In determining whether there has been a valid waiver of Miranda rights, a court must conduct a two-part inquiry ensuing from the "totality of the circumstances" test. See Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the court looks to the voluntariness of the waiver statement in order to determine whether the waiver was made "freely," as opposed to being obtained by coercion. See id. Second, the court must consider whether the waiver statement was made "knowingly and intelligently," in the sense that the accused was fully aware "both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id.
The state courts' application of Miranda to the facts of this case was not unreasonable. Petitioner provides virtually no facts to support his contention that the waiver was involuntary. In his brief before the Appellate Division he stated, "[t]he police deprived the defendant of an opportunity to consult with counsel before giving an incriminating confession. Detective Samis conceded that the defendant had asked to make a phone call, but Samis told him that he could make his call after the end of the interview." (ECF No. 7-3 at 72.) These allegations, however, are not corroborated by the record.
The transcript of the recorded confession demonstrates that Detective Samis read Petitioner his Miranda rights and Petitioner affirmed that he understood his rights. (ECF No. 7-3 at 87-89.) The transcript also shows that Detective Samis asked Petitioner, more than once, if he understood his rights or needed further explanation. (Id.) With respect to Petitioner's third Miranda right related to legal representation, Detective Samis stated: "[n]umber three says you have the right to consult with an attorney, before speaking to the police, and you have, and have an attorney present before and during questioning, do you understand that?" (Id. at 88.) Petitioner responded, "[y]eah." (Id.) At the Miranda hearing Detective Samis testified that Petitioner initialed his name next to each Miranda right. (ECF No. 7-18 at 6.) At the conclusion of the interview, Detective Samis stated: ". . . we're just waiting, the judges are actually in a judge meeting right now, so we just don't know what it is and we'll let you make phone calls once we find out ok." (Id. at 95.) There is nothing in the transcript to indicate that Petitioner requested to speak with an attorney or requested to make a phone call.
On cross-examination, Petitioner questioned Detective Samis about a phone call, and the Detective stated that Petitioner never requested to make a phone call:
(ECF No. 7-18 at 7.)
The state appellate court explicitly rejected the argument that Petitioner was not given an opportunity to make a phone call or consult with an attorney. Having reviewed the record this Court finds that the state courts' factual findings are supported by the record. While Detective Samis could not conclusively recall that Petitioner did not request a phone call, he indicated that he believed Petitioner had not. Because a state court's factual basis for their conclusions are "presumed to be correct" and Petitioner has not shown "by clear and convincing evidence" that those factual conclusions were unreasonable, Petitioner has not met his burden to show he is entitled to relief on this claim. See 28 U.S.C. § 2254(e)(1).
In his final ground for habeas relief, Petitioner argues that his constitutional rights were violated when the trial court denied his motion to obtain police records. (ECF No. 1 at 15.)
The Appellate Division denied this claim, explaining:
Potter, 2015 WL 3843309, at *14.
Petitioner appears to argue here and in state court, that the trial court's denial of this motion violated his rights under the Confrontation Clause. He explains that the police records would have aided him on cross-examination, to impugn the credibility of various officers based on their prior bad acts. (ECF No. 7-4 at 18-26.)
The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. "The right of confrontation . . . means more than being allowed to confront the witness physically. Indeed, [t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (internal citations and quotations omitted) (emphasis in original). "[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Id. at 680 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).
Application of the above standards reveals that Petitioner was not denied his constitutional rights. The record indicates that the officers identified by Petitioner testified, and each officer was cross-examined. (See ECF Nos. 7-20 through 7-22.). Thus, the testimony of the officers did not implicate the Confrontation Clause. See California v. Green, 399 U.S. 149, 162 (1970) ("For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.").
To the extent Petitioner is arguing that he was unable to impeach the officers without the police records, this claim likewise has no merit. The trial judge denied Petitioner's motion to obtain the police records explaining that under New Jersey law it is the moving party's burden to advance a factual predicate for the discovery. (ECF No. 7-14 at 12.) The judge noted that Petitioner supplied no documents or information to support his allegations of bad acts by the officers. (Id. at 12.) That factual finding is entitled to deference. See 28 U.S.C. § 2254(e)(1). Thus, any argument that the police records would have revealed bad acts with which Petitioner could have impeached the officers, is purely speculative and insufficient to establish that Petitioner's rights under the Confrontation Clause have been violated. For these reasons, the Court denies relief on this claim.
Under 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas proceeding where that petitioner's detention arises out of his state court conviction unless he has "made a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not disagree with this Court's conclusion that Petitioner has failed to make a substantial showing of the denial of a constitutional right, Petitioner's habeas petition is inadequate to deserve encouragement to proceed further and a certificate of appealability is denied.
For the reasons stated above, the Petition for habeas relief is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
