UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
July 29, 1999
RE: RONNIE L. BRYANT V. WILLIS E. MORTON, ETC., ET AL.
The opinion of the court was delivered by: Nicholas H. Politan U.S.D.J.
CHAMBERS NICHOLAS H. POLITAN DISTRICT JUDGE
MARTIN LUTHER KING JR. FEDERAL BUILDING & U.S. COURTHOUSE 50 WALNUT ST, ROOM 5076 P.O. BOX 999 NEWARK, N.J. 07101-0999
NOT FOR PUBLICATION
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
This matter comes before the Court on a petition from Ronald Bryant for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court has decided this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. After careful consideration of the papers submitted in support of and in opposition to the petition, the Court concludes that the petition for habeas corpus relief should be denied.
I. STATEMENT OF FACTS
On April 27, 1982 following a trial in the Superior Court of New Jersey, a jury found the petitioner guilty of murder (felony murder), first degree robbery, second degree possession of a handgun for unlawful purposes and third degree unlawful possession of a handgun. The Petitioner was sentenced to 30 years imprisonment with fifteen years of parole ineligibility for counts one and two, 10 years for count three and 5 years for count four, the sentences to be served concurrently.
On July 21, 1982, the petitioner filed a timely appeal of his conviction. The issues the petitioner raised were: (1) the court erred in not granting a mistrial when Detective Walker gratuitously indicated that the defendant was a suspect because he had a history of robberies in the area; (2) Victor Poole's testimony should not have been allowed in evidence; (3) the court erred in compelling petitioner to testify with regard to the Victor Poole incident; and (4) the defendant should have been sentenced as a youthful offender. The Appellate Division affirmed the trial court's decision on October 27, 1983. On December 7, 1983, the New Jersey Supreme Court denied certification.
On January 26, 1987 the petitioner filed a petition for post conviction relief with the Superior Court of New Jersey, Law Division, Essex County. The petitioner claimed: (1) he was deprived effective assistance of counsel at trial and on appeal, in violation of the Sixth Amendment to the United States Constitution; (2) the petitioner's confession should not have been admitted due to Miranda violations of the Sixth and Fourteenth Amendments to the Constitution; and (3) the prosecutor knowingly used false testimony that prejudiced the petitioner's Fifth Amendment right to a fair trial.
On April 28, 1987, the petition for post conviction relief was denied because the court found the contentions lacked merit and because several of the petitioner's claims had not been raised on direct appeal. This decision was affirmed by the Appellate Division on October 5, 1989. The Supreme Court of New Jersey denied certification on January 23, 1990.
The petitioner then petitioned the United States District Court for the District of New Jersey, alleging that: (1) he was denied effective assistance of trial counsel because his attorney failed to investigate adequately his case and effectively cross- examine the witness; and (2) his confession was a product of an illegal arrest and was taken involuntarily and without a waiver of his Fifth Amendment rights. Judge Ackerman denied the petition stating that the claims were unexhausted because the petitioner had not raised them on direct appeal. The Court refused to address the merits of the case because the state procedural default was independent of the federal question.
The petitioner filed another petition in this District, alleging: (1) the defendant received ineffective assistance of counsel; (2) the defendant's confession should have been excluded as the fruit of an unconstitutional arrest; (3) the defendant's confession should have been excluded as involuntary; and (4) the defendant's conviction for possession of a handgun for an unlawful purpose should have merged with his conviction for murder. Judge Sarokin dismissed the petition without prejudice on the grounds that the petitioner had not exhausted all state remedies.
The petitioner then filed two applications for post conviction relief in the Superior Court of New Jersey, contending that his Sixth Amendment rights were violated because counsel on appeal was ineffective. Both petitions were denied in orders dated June 30, 1994, and March 15, 1995. Both denials generated appeals before the Appellate Division. The Appellate Division affirmed both lower court decisions in a consolidated opinion dated March 4, 1997. Following the Appellate Division's decision the petitioner applied for certification with the Supreme Court of New Jersey. The petition for certification was denied on June 30, 1997.
In this case the petitioner contends that his trial and appellate counsel were ineffective. The petitioner bases this contention on his claim that his Fifth Amendment right to a fair trial was violated because he was indicted of first degree robbery but convicted of attempted robbery. The petitioner claims the failure of petitioner's counsel to object to his conviction on these grounds deprived him of effective assistance of counsel.
The Supreme Court of the United States set forth the requirements for ineffective assistance of counsel in Strickland v. Washington, 467 U.S. 668 (1984). The Court in Strickland held the defendant must first show that counsel's performance was objectively deficient. See id. at 697. "This requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Second the defendant must show that the deficient performance prejudiced the defendant. Id. To prove this the defendant must show that there is "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The decision by the petitioner's counsel not to object to the "attempted robbery" cannot be a basis for ineffective assistance of counsel as contended by petitioner because even if petitioner's counsel had objected to the conviction the result of the proceeding would not have been different. *fn1
N.J.S.A. 2C:1-8 states:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged or (2) It consists of an attempt or conspiracy to commit the offense otherwise included therein or (3) It differs from the offense charged only in respect that a less injury to the same person, property or public interest.
Under N.J.S.A. 2C1-8 (2), attempted robbery is a lesser-included offense for the robbery count actually charged. The petitioner did not suffer any prejudice as a result of his attorney's failure to object because any objection or appeal would have been futile.
A constitutional challenge to N.J.S.A. 2C1-8(d)(2) would also have failed.
The Supreme Court of New Jersey has already stated that N.J.S.A. 2C1-8 is constitutional.
"On its face N.J.S.A. 2C1-8(d)(2) constitutes express notice to defendant that he may be charged with conspiracy as an included offense. In this respect the statute serves the purpose as the indictment. Consistent with notions of due process and fairness, the statute provides adequate notice to all defendants that they may be required to defend against the charge of conspiracy to commit the substantive offenses for which the have been indicted. State v. Lefurge, 101 N.J. 404,415 (quoting State v. Talley, 94 N.J. 385,393)
The Supreme Court of the United States in Paterno v. Lyons, 334 U.S. 314 (1948), stated that due process is not denied when a defendant is convicted of a lesser-included offense not specifically described in the indictment so long as the defendant has been given sufficient notice to make intelligent decisions regarding his defense. N.J.S.A. 2C1-8(2) clearly states that attempted robbery is included within first degree robbery and therefore provided petitioner adequate notice.
This Court finds that any attempt by either trial or appellate counsel to object to the conviction of attempted robbery on the grounds that it was not specifically included in the petitioner's indictment would not have changed the outcome and, therefore the second element of the test in Strickland is not satisfied. This petition for habeas relief must therefore be denied.
This court finds that the habeas petition is without merit for the foregoing reasons and therefore should be DENIED.
There is no probable cause for appeal.
An appropriate order accompanies this opinion.