UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
July 30, 1999
RE: THOMAS JOHN MUSTO V. STEVEN PINCHAK, ADMINISTRATOR, ETC., ET AL.
The opinion of the court was delivered by: Nicholas H. Politan U.S.D.J.
CHAMBERS OF MARTIN LUTHER KING JR. NICHOLAS H. POLITAN FEDERAL BUILDING & COURTHOUSE U.S. JUDGE 50 WALNUT ST., ROOM 5076 P.O. BOX 999 NEWARK, N.J. 07101-0999
NOT FOR PUBLICATION
This matter comes before the Court on the petition of Thomas J. Musto for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This 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.
STATEMENT OF FACTS & PROCEDURAL HISTORY
On or about April 10, 1984, petitioner was indicted by a grand jury in Hudson County, New Jersey for two counts of murder (Counts One and Two), and possession of a weapon without a permit (Count Three). See Hudson County Indictment, dated April 9-10, 1984 at pages 1-2. Thereafter, defendant's counsel filed a motion to sever Counts One and Two, which was denied on January 5, 1986, by the Honorable Robert F. Cavanaugh, J.S.C. On October 7, 1986, after a fifteen day trial before Judge Cavanaugh, the jury acquitted petitioner of Count One and found petitioner guilty of Counts Two and Three. See Judgment of Conviction, Dismissals and Order for Commitment, dated November 7, 1986. Accordingly, on November 7, 1986, the court sentenced petitioner on Count Two to life in prison with a thirty year period of parole ineligibility and a Violent Crimes Compensation Board penalty of $1,025.00. Id. Petitioner was credited with seventy-nine days spent in custody. Id.
On January 27, 1987, petitioner appealed his conviction directly to the New Jersey Superior Court, Appellate Division, contending that: (1) the motion to sever was erroneously denied and the defendant was highly prejudiced by trial of two unrelated homicides; (2) defense counsel exceeded the bounds of propriety in making derogatory comments to defendant during direct questioning and in summation; and (3) the defendant was denied the effective assistance of counsel. In a per curiam decision, dated November 29, 1988, the Appellate Division found the petitioner's arguments were clearly lacking in merit, and affirmed the convictions of the trial court. See Appellate Division Opinion, dated November 29, 1988. Petitioner then filed an application for certification in the New Jersey Supreme Court, which was denied on March 10, 1989.
Subsequently, petitioner filed a Petition for Post Conviction Relief. On February 18, 1992, the Honorable Kevin Callahan, J.S.C., denied the petition. See Transcript of Proceedings, 16T3-3 to 12-3 and 16T24-3 to 7. The Appellate Division affirmed on February 16, 1994. Thereafter, petitioner sought certification, and on May 12, 1994, the New Jersey Supreme Court denied certification in the matter. See Order Denying Certification, dated May 12, 1994.
On July 29, 1994, petitioner filed a second pro se Petition for Post Conviction Relief. See Petitioner's Brief, dated July 29, 1994. However, the petition was subsequently denied by Judge Cavanaugh. Thereafter, petitioner filed a third pro se Petition for Post Conviction Relief. See Petitioner's Brief, dated August 29, 1995. On October 24, 1995, the petition was denied by the Honorable Mark A. Baber, J.S.C.
Next, the Appellate Division affirmed the judgment of conviction and sentence. Thereafter, petitioner sought an extension of time to file a certification to the New Jersey Supreme Court, which was granted on January 31, 1997, and subsequently on May 21, 1997, the New Jersey Supreme Court denied certification in the matter. See Order Granting Extension of Time to file certification, dated January 31, 1997; see also Order Denying Certification, dated May 21, 1997.
Thereafter, on May 19, 1998, petitioner filed the present habeas corpus petition alleging:
(1) petitioner is entitled to a writ of habeas corpus because the motion to sever was erroneously denied and the petitioner was highly prejudiced by trial of two unrelated homicides;
(2) petitioner is entitled to a writ of habeas corpus because defense counsel exceeded the bounds of propriety in making derogatory comments to petitioner during direct questioning and summation;
(3) petitioner is entitled to a writ of habeas corpus because petitioner was denied the effective assistance of counsel;
(4) petitioner is entitled to a writ of habeas corpus because petitioner's counsel was ineffective during voir dire, and "proceeding guilt and sentencing phase" of his trial, violating petitioner's Sixth Amendment rights:
(a) petitioner was deprived the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
(5) petitioner is entitled to a writ of habeas corpus because the petitioner was denied his Sixth Amendment right to a fair and impartial trial by jury, and the court committed reversible error in denying the state's motion to excuse a juror:
(a) the resulting plain error requires that petitioner receive a new trial, and
(b) petitioner's motion for a new trial should be granted in all respects; and
(6) petitioner is entitled to a writ of habeas corpus because in view of petitioner's medical history and his mental condition being brought to the attention of the court, the trial court erred in not conducting a hearing on petitioner's mental competency, in violation of his due process rights.
I. Erroneous Denial of Motion to Sever
Petitioner claims that he is entitled to a writ of habeas corpus because his motion to sever Counts Two and Three from the indictment was denied, and as such, he was highly prejudiced by trial of two unrelated homicides. In support of his claim, petitioner cites New Jersey state law concerning joinder of offenses.
Petitioner claims that joinder of offenses on a single indictment is authorized by New Jersey Court Rule 3:7-6, which states:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
Petitioner also cites New Jersey case law which provides that a motion to sever is discretionary with the trial court and denial of such motion will not result in reversal, absent an abuse of discretion. See State v. Cole, 154 N.J. Super. 138, 143 (App. Div. 1977), cert. denied, 78 N.J. 415 (1978)(upholding denial of a motion to sever counts of an indictment because said counts involved one incident).
Petitioner asserts that his state convictions were obtained in violation of constitutional principles, however he provides no federal law for this Court to review in support of his allegations. A federal court cannot rely solely on state law in order to conclude that misjoinder was evident or that the petitioner was prejudiced by any such misjoinder. Petitioner must show that the state courts' denial of his severance motion were "contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States . . ." 28 U.S.C. § 2254(d)(1). Petitioner fails to do so, and as such, he has not met his burden that he entitled to a writ of habeas corpus on this claim.
Assuming arguendo that there was in fact misjoinder of the two counts, petitioner still has not provided an evidentiary basis for his assertion that he was prejudiced. "The harmless error standard now governs review of misjoinder claims and requires a finding of actual prejudice before reversal is appropriate." United States v. Spriggs, 102 F.3d 1245, 1256 (D.C. Cir. 1997)(quoting United States v. Nicely, 922 F.2d 850, 855 (D.C. Cir. 1991)), cert. denied, ___ U.S. ___, 118 S.Ct. 97 (1998); see also Breeland v. Blackburn, 786 F.2d 1239, 1241 (5th Cir. 1986), cert. denied, 455 U.S. 948 (1982). Moreover, United States v. Abshire, 471 F.2d 116, 118 (5th Cir. 1972), stated that: "The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed by a reviewing court." See Fed.R.Crim.P. 14.
In the present matter, petitioner was acquitted of one of the two counts of murder tried jointly. The petitioner has made no evidentiary showing of prejudice stemming from the trial court's discretionary ruling to try the two murders together. See United States v. Spriggs, 102 F.3d 1245, 1256 (D.C. Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 97 (1998). This Court is also satisfied that the joint trial did not result in a fundamentally unfair trial. As such, petitioner is not entitled to a writ of habeas corpus based on this contention.
III. Ineffective Assistance of Counsel
Petitioner also claims allege that he was subjected to ineffective assistance of counsel based upon the following acts and omissions of defense counsel:
(1) Counsel failed to challenge the admissibility of petitioner's out-of-court statements on Miranda grounds;
(2) Counsel expressed doubts as to the petitioner's mental condition, but did not notify the trial court thereof, and nevertheless urged the petitioner to testify;
(3) Standard criminal trial motions such as a motion to acquit and motion for new trial were not made;
(4) Counsel prejudiced the petitioner through a series of derogatory comments and expressions of disbelief in the petitioner's innocence;
(5) Counsel did not adequately investigate petitioner's background and formulate an appropriate defense based upon petitioner's "mental incapacity;" *fn1 and,
(6) A "fee dispute" existed between counsel and petitioner.
In order to establish ineffective assistance of counsel, petitioner must establish that his counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, reh'g denied, 467 U.S. 1267 (1984).
Strickland provides a two-prong standard of review for evaluating claims of ineffective assistance of counsel. First, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness. See id. Second, the petitioner must show that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." See id. at 694.
In the present matter, petitioner has failed to make a sufficient showing for a finding that he did not receive effective assistance of counsel. There is a strong presumption that an attorney's conduct falls within the "wide range of reasonable professional assistance." Id. At 689-90. Petitioner has proffered no evidence to the contrary. Moreover, petitioner has not provided any factual basis that, but for his attorney's alleged deficiencies, the result of the proceedings would have been in his favor. Petitioner has not provided any evidence for this Court to believe that he was prejudiced in any way; he has only provided blanket allegations.
Petitioner alleges ineffective assistance of counsel because counsel failed to adequately investigate petitioner's background and make appropriate motions. However, petitioner proffers no evidence that, had this been done, the result of his trial would have been different. Further, petitioner also alleges that counsel prejudiced the petitioner through a series of derogatory comments. However, review of the record is not indicative of any misconduct. Any comments that were arguably derogatory were clearly tactical and part of his defense strategy. Finally, petitioner alleges that there was "a 'fee dispute' with counsel of record at the commencement of trial." See Petitioner's Brief at 31. Petitioner alleges that counsel demanded petitioner make a substantial payment for counsel's continued services and to proceed to trial. See id. at 31. However, petitioner proffers nothing other than this blanket allegation. He makes no substantial allegation; he proffers no evidence. As such, petitioner is not entitled to a writ of habeas corpus.
IV. Fair Trial
Petitioner alleges that he was denied his right to a fair and impartial trial by the presence of a juror who was facing a criminal charge.
In Lisenba v. People of the State of California, 314 U.S. 219, 236 (1941), reh'g denied, 315 U.S. 826 (1942), the United States Supreme Court stated in pertinent part:
As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.
Petitioner was not at all prejudiced by the inclusion the juror in question. Trial courts have "wide discretion" in conducting voir dire in areas of inquiry that might tend to show juror bias, Mu'min v. Virginia, 500 U.S. 415, 427 (1991), and the trial court's factual findings on this score are entitled to a presumption of correctness on habeas review. See Wainright v. Witt, 469 U.S. 412, 428 (1985).
In the present case, the judge asked the juror if his pending criminal charge had occurred to him when asked during voir dire if there was any reason that would affect the jurors' impartiality. The juror responded that it had not come to mind and that it would not affect his ability to be fair and impartial. There is no reason to believe that this juror was not truthful, nor is there any reason to overturn petitioner's conviction based on this point. The trial court acted within its discretion during voir dire in retaining this juror, and as such, there was no conduct on the part of the court that deprived petitioner of his right to a fair and impartial trial.
VI. Due Process
Petitioner's final contention is that he is entitled to a writ of habeas corpus because the trial court erred in not conducting a hearing on petitioner's mental competency. A trial court must conduct an inquiry into the petitioner's mental capacity sua sponte if the evidence raises a bona fide doubt as to competency. See Pate v. Robinson, 383 U.S. 375 (1966). "If the trial court receives evidence, viewed objectively, that should raise a reasonable doubt as to competency, yet fails to make further inquiry, this constitutes a denial of a fair trial." Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1836 (1998).
In the present matter, a hearing was in fact held just prior to petitioner's taking the stand at trial. At this time, the trial court concluded that there was no medical evidence to support petitioner's fear that, although he wanted to testify, his numbness and headaches would interfere with his concentration. Nor was there any evidence presented to support a claim of incompetency to stand trial. See Transcript of Proceedings, dated October 6, 1986, at pages 22-31.
Further, the Appellate Division similarly found petitioner's claim to be baseless:
The record simply does not demonstrate that defendant's mental condition at the time of trial was such as to require the court to order a competency examination sua sponte. Nor is there anything in the record to suggest that such an examination would have demonstrated incompetency. Defendant's only proffer was his self-diagnosed post-traumatic stress disorder. The foundation of his diagnosis is patently inadequate. Moreover, we could only speculate as to the relationship, in any, between post-traumatic stress disorder and competency to stand trial. See State v. Thomas John Musto, Docket No. A-5513-91T4 (decided February 16, 1994). Moreover, his petition for certification was summarily denied by order of the Supreme Court of New Jersey. See Order Denying Certification, dated May 12, 1994.
The state courts determined that there was no evidence that petitioner was incompetent to stand trial. This finding was neither "contrary to, [nor an] unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d)(2). Nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See id. Nor is there any new evidence of incompetency here. The petitioner's claim is completely lacking in merit, and as such, does not warrant a writ of habeas corpus.
For the aforementioned reasons, the petition to vacate, set aside, or correct the petitioner's sentence, pursuant to 28 U.S.C. § 2254 is DENIED.
A certificate of appealability shall not issue since the petitioner has not made a substantial showing of the denial of a constitutional right.
An appropriate Order accompanies this Letter Opinion.