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Marshall v. Hendricks

June 23, 2000

ROBERT O. MARSHALL,
PETITIONER, V.
ROY HENDRICKS, SUPERINTENDENT, NEW JERSEY STATE PRISON, AND JOHN J. FARMER, ATTORNEY GENERAL OF NEW JERSEY,
RESPONDENTS.



The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J.

HONORABLE JOSEPH E. IRENAS

OPINION

IRENAS, District Judge

Robert O. Marshall ("petitioner"), a New Jersey prisoner currently under a sentence of death, brings a twenty-two count petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also moves for discovery under Rule 6 of the Federal Rules Governing Section 2254 Cases and for an evidentiary hearing. For the reasons set forth below, petitioner's motion for discovery is denied, his motion for an evidentiary hearing is denied, and all counts of his petition are denied.

I. Procedural Background

On March 5, 1986, in the Superior Court of New Jersey, Law Division, Atlantic County, following a jury trial, petitioner was convicted of murder and conspiring to murder his wife Maria Marshall and was sentenced to death by lethal injection. The New Jersey Supreme Court upheld petitioner's conviction and death sentence on January 24, 1991, 123 N.J. 1, 586 A.2d 85 (1991) and on July 28, 1992, concluded that his death sentence was not disproportionate to other sentences imposed in similar cases. 130 N.J. 109, 613 A.2d 1059 (1992). Petitioner was denied reconsideration of his proportionality review on September 11, 1992, and was denied certiorari by the United States Supreme Court on February 22, 1993. 507 U.S. 929 (1993).

While the proportionality phase was pending, on October 22, 1993, petitioner obtained a stay of execution from the Law Division and filed an amended application for post-conviction relief ("PCR") and requested an evidentiary hearing. In his application, relying on the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, petitioner claimed, among other things, that he was a victim of: discovery and Brady violations; instances of ineffective assistance of counsel; prosecutorial misconduct; a warrantless seizure of evidence; and the absence of an impartial jury. Petitioner did not receive an evidentiary hearing on the majority of his claims and PCR was denied on procedural grounds. On appeal, the New Jersey Supreme Court reversed the dismissal of petitioner's claims on procedural grounds, and after reaching the merits of his claims, affirmed the denial of PCR. 148 N.J. 89, 690 A.2d 1 (1997). Petitioner was denied reconsideration on his PCR issues on March 24, 1997, and was denied certiorari by the United States Supreme Court on October 6, 1997. 522 U.S. 850 (1997).

On October 30, 1997, Marshall filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction and sentence on twenty-two grounds, which are divided into four types of claims. Petitioner contends that: (1) the State deprived him of his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by withholding exculpatory evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) the State engaged in a willful and persistent course of misconduct which violated petitioner's due process rights; (3) the State improperly seized and admitted into evidence a tape recording made by petitioner which violated the attorney-client privilege, federal mail statutes, and his Fourth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; and (4) the State deprived him of various other constitutional rights including (a) effective assistance of counsel; (b) a fair and impartial jury and a reliable determination of guilt and sentencing; (c) confrontation; (d) correct jury instructions; (e) a fair and reliable penalty trial; and (f) a fair trial and post-conviction review. In this last group of claims, Marshall also asserts that (i) the New Jersey rule prohibiting post-trial contact with jurors is unconstitutional and (ii) the New Jersey Capital Punishment Statute and its procedure for reviewing capital convictions and death sentences is unconstitutional.

II. Facts

The facts in this case are extensively set forth in the New Jersey Supreme Court's findings in petitioner's direct appeal, State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991) ("Marshall I") and its opinion affirming the denial of post conviction relief, State v. Marshall, 148 N.J. 89, 690 A.2d 1 (1997) ("Marshall III"). The Court has also independently reviewed the record of the state court proceedings.

On September 6, 1984, petitioner, an insurance agent from Toms River, New Jersey took his wife of 20 years, Maria Marshall, to Harrah's Casino in Atlantic City. At approximately 12:30 a.m. the following morning, on their way home, petitioner, alleging a problem with the tire, pulled into the Oyster Creek picnic area off the Garden State Parkway. While his wife lay sleeping on the car's front seat, petitioner claims he got out of the car, was hit over the head, and lost consciousness. His wife was shot twice in the back and died immediately. When the police arrived at the scene, petitioner suggested that a thief murdered his wife. Following brief questioning by the police, petitioner was sent to the hospital where he received stitches for his head wound.

Following Mrs. Marshall's murder, petitioner admitted that he was involved in an extramarital affair with Sarann Kraushaar, a married woman, since June, 1983. The police learned that in May, 1984, petitioner met Robert Cumber of Louisiana at a party and discussed hiring an out of town "investigator" to investigate his wife. Mr. Cumber referred petitioner to Billy Wayne McKinnon, a former sheriff's officer also from Louisiana.

According to testimony given by Mr. McKinnon, in a meeting on June 18, 1984, in Atlantic City, petitioner offered to pay him $65,000 to kill Maria Marshall, which included $50,000 from her expected life insurance proceeds. McKinnon testified that petitioner wanted the job done on the date of that first meeting; he discussed various ways to kill his wife and gave McKinnon $7,000 and a picture of his wife. McKinnon did not commit the murder on that night but, instead, traveled back to Louisiana. McKinnon testified that petitioner was persistent in his efforts, and continued to pay him and encouraged him to return to New Jersey to complete the job. McKinnon returned on July 19, 1984 and met with petitioner to discuss plans to kill Mrs. Marshall on that night in the parking lot of a restaurant. However, for the second time, McKinnon did not go through with the murder.

Although McKinnon testified that he did not murder Mrs. Marshall on either of the scheduled dates, he said petitioner still offered him an additional $15,000 if he would return to New Jersey to commit the murder before Labor Day. McKinnon agreed and arrived back in New Jersey on September 6, 1984. He and petitioner met for the third time that day and together selected a place off the Garden State Parkway to carry out the murder. According to McKinnon, their plan was to make the murder look like a robbery.

At 9:30 p.m. on the same night, petitioner met with McKinnon for the last time at Harrah's Casino, where he took his wife for a night of dinner and gambling. According to McKinnon, petitioner told him that he and his wife would be leaving the Casino at midnight. Later that night Maria Marshall was murdered.

Shortly after Maria Marshall's murder, telephone records connected petitioner to McKinnon. In exchange for a plea to conspiracy to commit murder, McKinnon implicated petitioner and named Larry Thompson, also from Louisiana, as the shooter. The police's investigation revealed that during the time petitioner was planning his wife's murder, he increased the amount of coverage of her life-insurance policies. At the time of her murder, Maria Marshall was insured for approximately $1.4 million. The police also discovered that petitioner had rising debts including a $128,000 home-equity loan and a bank debt exceeding $40,000. Additionally, at the time of his wife's murder, petitioner continued to carry-on an extramarital relationship with Mrs. Kraushaar, with whom he planned to live with after the murder.

Larry Thompson, petitioner's co-defendant at trial, was acquitted by the jury. *fn1 However, the jury found petitioner guilty of murder and conspiracy to commit murder. Pursuant to New Jersey law, N.J.S.A. 2C:11-3C, in the penalty phase of petitioner's trial, the same jury found one aggravating factor: that petitioner hired another to commit murder. It also found two mitigating factors: that defendant had no history of criminal activity and the catch-all mitigating factor, that petitioner was involved in charitable and community activities. The jury found that the aggravating factor outweighed the mitigating factors and sentenced petitioner to death.

III. Motion for Discovery

Petitioner seeks discovery of certain materials he claims are necessary to this Court's decision on his habeas corpus petition. A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Federal Courts may, however, "fashion appropriate modes of procedure," including discovery, to dispose of habeas petitions "as law and justice require." Harris v. Nelson, 394 U.S. 286, 299 (1969).

Rule 6(a) of the Rules Governing § 2254 Cases provides that a party is entitled to discovery in a habeas petition if the petitioner has shown "good cause": "[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise."

The Bracy Court suggested that good cause would be found: "`[w]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief. . . .'" Id. at 1799 (quoting Harris, 394 U.S. at 299).

If a petitioner can point to specific evidence that might be discovered that would support a constitutional claim, he has established good cause for further discovery. Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994). On the other hand, habeas petitioners "are not entitled to go on a fishing expedition through the government's files in hopes of finding some damaging evidence." Id.

Before addressing whether petitioner is entitled to discovery under Rule 6(a), the Court must first identify the "essential elements" of petitioner's claims. *fn2 See Bracy, 520 U.S. at 904 (citing United States v. Armstrong, 517 U.S. 456 (1996)). Second, the Court must determine whether petitioner's allegations establish "good cause" to necessitate discovery to prove his claims, see id., or whether he has failed to produce specific evidence supporting his claims and his requests constitute a "fishing expedition". See Deputy, 19 F.3d at 1493 (finding that petitioner failed to explain what kind of evidence he sought to discover to support his Batson claim); Munoz v. Keane, 777 F. Supp. 282, 287 (S.D.N.Y. 1991) (holding that no discovery will be permitted "[b]ecause petitioners have not produced any specific evidence that supports their claim that Brady materials or evidence of discrimination exist[ed]").

However, a court's blanket denial of discovery is an abuse of discretion if discovery is indispensable to a fair development of the material facts. See East v. Scott, 55 F.3d 996, 1001 (5th Cir. 1995) (quotations and citations omitted); see also Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997) (finding discovery "essential" for petitioner to develop his ineffective assistance of counsel claim); Toney v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996)(reversing the district court's denial of discovery where discovery was necessary for petitioner to fully develop the facts of his ineffective assistance of counsel claim).

IV. Application to Marshall's Petition

A. Brady Claims

In his discovery motion, petitioner argues that discovery of specific Brady material previously requested is necessary for him to fully develop the facts to demonstrate in his habeas corpus petition that he is entitled to relief. Specifically, he seeks: (1) information concerning the existence, at any time prior to McKinnon's sentencing, of any pending or potential state or federal charges against McKinnon, of complaints against or investigations of McKinnon, any information about McKinnon's status as a state or federal informant, and all promises and arrangements made and expenses incurred on behalf of McKinnon and his family by the Ocean County Prosecutor's Office; (2) to depose persons with information necessary to establish his claims for relief, including law enforcement personnel, trial counsel, jurors and the trial judge; and (3) access to the State's entire file pertaining to the investigation and prosecution of Robert O. Marshall, Larry Thompson, Billy Wayne McKinnon and Robert Cumber.

1. Brady Material Pertaining to Billy Wayne McKinnon

Petitioner requests all information about promises and arrangements made and expenses incurred on behalf of McKinnon and his family. In both Marshall I, 123 N.J. 1, 586 A.2d 85, petitioner's direct appeal, and Marshall III, 148 N.J. 89, 690 A.2d 1, his PCR appeal, the Supreme Court of New Jersey considered the issue of whether the State's failure to disclose documents concerning the expenses the State incurred on behalf of McKinnon and his family affected the jury's verdict against petitioner. Both times the Court found that if the State had disclosed the documents and petitioner had them at trial to impeach McKinnon's credibility, there would have been no difference in the outcome of the trial.

The Court reasoned that "`McKinnon's fundamental interest in testifying was to obtain a reduction of charges against him from capital murder to conspiracy, thereby reducing his maximum possible punishment from a death sentence to a five year prison term with no parole disqualifier.'" Marshall III, 148 N.J. at 161-62, 690 A.2d at 37 (quoting Marshall I, 123 N.J. at 206-07, 586 A.2d at 195-96). Therefore, in both appeals, the Court concluded that "[a]ny possible incremental effect on McKinnon's credibility from the additional revelation that financial accommodations were made to support his family would have been merely cumulative." Id.

Petitioner also requests, with regard to McKinnon, information concerning any pending or potential state or federal charges against him, complaints or investigations against him, and his status as a state or federal informant. The New Jersey Supreme Court also addressed many of these discovery requests in petitioner's PCR appeal. It held that information about whether McKinnon was in cooperation with federal authorities "would have been immaterial to the outcome of the trial." Marshall III, 148 N.J. at 164, 690 A.2d at 38. In reaching this decision, the Court relied on an affidavit prepared for the PCR court by Lieutenant James Churchill who supervised the murder investigation. He stated that he had no knowledge "`that there were any charges or criminal investigations pending against McKinnon at the time of his cooperation with the FBI, or at the time of his entry into the federal witness program.'" *fn3 Id. (quoting affidavit). Based on this, the New Jersey Supreme Court found that the State did not suppress information about other crimes that could have been used to impeach McKinnon. Id.

Presently, petitioner argues, as he did in state court, that the State withheld information that would have impeached McKinnon. He maintains that he is now entitled to all of the above-described information about McKinnon, and that he should be allowed to depose "all past and present personnel of the state police, Ocean County Prosecutor's Office, and any other state or federal agency with knowledge of this information." (Pet'r Brief, Motion for Discovery at 9-10.) Petitioner believes that only after he receives this information and deposes all those "with knowledge of this information" will he be able to fully develop the facts that prove these alleged Brady violations. (Id. at 21.)

As explained above, before addressing whether petitioner is entitled to discovery, the Court must first identify the "essential elements" of each of his claims. Bracy, 520 U.S. at 904. Second, it must analyze, whether petitioner has shown "good cause" pursuant to Habeas Corpus Rule 6(a). Id. at 908-909; Deputy, 19 F.3d at 1493.

Under the doctrine of Brady v. Maryland, the Government must turn over favorable material evidence to the defense, including exculpatory evidence. 373 U.S. at 86. Furthermore, in Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court held that the Brady rule includes evidence that might be used to impeach the credibility of an important witness. The "essential elements" of a Brady claim require a petitioner to prove that: (1) the prosecution failed to disclose evidence; (2) the evidence was of favorable character for the defense; and (3) the evidence was material. United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993) (citing Brady, 373 U.S. at 87). Evidence is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 681 (1984). At this stage, petitioner is not required to prove these elements, but, he must demonstrate that if the facts are fully developed through discovery of the requested information, he would be able to prove a Brady/Giglio violation and would be entitled to relief. See Habeas Rule 6(a); Harris, 394 U.S. at 299. Here, petitioner has made no such showing with regard to the alleged Brady/Giglio violations by the State.

Petitioner cannot show that the information he requests concerning McKinnon would prove the elements of a Brady violation. This Court agrees with the reasoning of the New Jersey Supreme Court with regard to petitioner's requested Brady/Giglio material. McKinnon's primary reason for testifying for the State was to avoid being charged with murder, and the terms of his immunity agreement were disclosed and known to the jury. Thus, the information about the charges against him, his informant status or the finances incurred on behalf of him and his family, would not have changed the outcome of the trial. Bagley, 473 U.S. at 683-84. Because petitioner has failed to make out the essential elements of his Brady/Giglio claim, he cannot show good cause to support his request for documentary information about McKinnon.

2. Depositions of Persons with Information

Not only does petitioner fail to show good cause in his request for documentary information about McKinnon, he has not produced any specific evidence as to why he needs to depose "all past and present personnel of the state police, Ocean County Prosecutor's Office, and any other state or federal agency." Petitioner does not explain who in this group may have information or what specific evidence he hopes to discover. This type of request does not constitute good cause but is more properly characterized as a "fishing expedition." See Deputy, 19 F.3d at 1493; Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997), cert. denied, 522 U.S. 1120 (1998) ("Rule 6 does not . . . sanction fishing expeditions based on a petitioner's conclusory allegations."). Accordingly, his motions for discovery of information concerning Billy Wayne McKinnon's pre-sentencing, informant status, charges against him, investigations about him, and the State's expenses with regard to him, are denied.

3. Access to the State's Entire File

Apart from requesting Brady material pertaining to McKinnon, petitioner also maintains that in order to establish the full extent of the State's Brady violations, he should be given access to the State's entire file. The Court does not agree. A Court cannot "sanction fishing expeditions based on a petitioner's conclusory allegations." Rector, 120 F.3d at 562; see also Deputy, 19 F.3d at 1493. In Deputy, 19 F.3d at 1492-93, a habeas petitioner appealed the denial of both his Batson v. Kentucky, 476 U.S. 79 (1986), claim and his request for further discovery on the issue. The Third Circuit, affirming the denials of his claims, found that petitioner failed to explain with specificity what kind of evidence he sought to discover to support his claim. Thus, petitioner was not entitled to go on a fishing expedition through the government's files to find damaging evidence. Id. (citations omitted).

In the instant case, petitioner compiled a long list of the State's alleged discovery violations and contends that based on them, this Court should exercise its discretion and require the State to make its entire file available for his inspection. Petitioner's allegations that the State has committed numerous Brady violations throughout the proceedings are not enough to warrant this Court to order discovery of the State's entire file. Of all of the alleged Brady/Giglio violations, the most troublesome was the State's failure to disclose letters promising Sarann Kraushaar immunity from prosecution in exchange for her cooperation. The non-disclosure of the Kraushaar immunity letters was the subject of a limited hearing ordered by the New Jersey Supreme Court in June 1989. At that hearing and in petitioner's direct appeal, the trial court and the New Jersey Supreme Court concluded that non-disclosure of the documents was not material evidence pursuant to Brady because it would not have "affected the outcome of the trial." Marshall I, 123 N.J. at 213, 586 A.2d at 199-200 ("[i]n essence, . . . [this] test requires the application of a harmless error analysis," applying the standard from State v. Carter, 449 A.2d 1280 (1982) and United States v. Agurs, 427 U.S. 97, 104 (1976)).

In petitioner's direct appeal to the New Jersey Supreme Court, the Court examined whether the non-disclosure of the Kraushaar immunity documents violated Brady. The issue for the court was the materiality of the documents to petitioner's guilt or punishment. Marshall I, 123 N.J. at 200, 586 A.2d at 192. The Court held under a harmless error analysis that the non-disclosure of the documents did not affect the outcome of petitioner's trial.

Petitioner now argues that rather than the harmless error analysis, the New Jersey Supreme Court should have applied the more stringent test set forth in Bagley, 473 U.S. at 682, that evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Petitioner has not established that, even under the Bagley test of materiality, he could have made out a Brady violation. Thus, petitioner has not explained how, under either test, the State committed a Brady violation. Allegations of Brady violations alone do not establish "good cause" to necessitate discovery. Rector, 120 F.3d at 563. Without a showing of good cause and without petitioner citing to specific information of what he hopes to learn through additional discovery, this Court will not exercise its discretion and require the State to hand over its entire file.

In addition, petitioner asks permission to depose "all past and present personnel of the state police, the Ocean County Prosecutor's Office, and any other state or federal agency with knowledge of this information." (Pet'r Brief, Motion for Discovery at 21.) As discussed previously in section III of this Opinion, petitioner is required to make specific allegations that explain what kind of evidence he seeks to discover from each deponent to support his Brady claim. He has failed to do that here.

The case law makes clear that a district court should only exercise its discretionary power and invoke the discovery process in a habeas case when the petitioner makes a "prima facie showing of what specifically he intends to find and prove . . . ." Rector, 120 F.3d at 563 ("Nor have we found any authority for the proposition that the mere assertion of a Brady claim necessarily amounts to good cause."). Here again, petitioner has failed to explain precisely how the State's entire file or deposing a random list of its employees is necessary to resolve his claims. Hence, his motion for discovery of the State's entire file including deposing its employees, is denied.

B. Ineffective Assistance of Counsel

Petitioner contends that his counsel was ineffective at all stages of the trial proceedings, depriving him of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Specifically, petitioner claims that prior to his trial, his counsel provided him ineffective assistance of counsel by: failing to assure that petitioner was not deprived of his right to be tried by an impartial jury and by failing to conduct an adequate review of the evidence.

During the trial, petitioner argues that his trial counsel failed to interview, consult and present testimony about his finances, the validity of his capital needs with regard to purchasing insurance, his injuries following the murder, McKinnon's truthfulness, the authenticity of the "suicide tape," petitioner's post-murder conduct, and petitioner's character. Petitioner also asserts that during the trial his counsel failed to demand discovery, made an inappropriate commitment during his opening statement with regard to putting petitioner on the stand, allowed the prosecution to put irrelevant, prejudicial facts before the jury, failed to object to inadmissible testimony and prosecutorial misconduct, failed to elicit favorable testimony, incurred sanctions by failing to provide discovery, and failed to seek adjournment after petitioner lost consciousness between the guilt and penalty phases. During the penalty phase, petitioner maintains that his counsel failed to investigate, prepare and present a case for life, failed to request the appropriate penalty phase instructions, and never asked the jury to spare his life.

Petitioner now seeks to depose witnesses that he believes are necessary to make out his ineffective assistance of counsel claims. Petitioner seeks to depose: (1) Glenn Zeitz, his trial counsel and Russell Kolins, Zeitz's investigator; (2) James Churchill, Daniel Mahoney and Edward Murphy of the Ocean County Prosecutor's Office and Detective John Petracca of the New Jersey State Police; (3) Sarann Kraushaar, his ex-lover; (4) Dr. Sailendra Sinha, the medical examiner; (5) Charles Judick, Harrah's Casino's credit executive; (6) Janet Tekeria, Mary Pope and William Zobie, members of the First Aid Squad who treated petitioner and Dr. Anthony DiFlumeri and Dr. Walter Corrigan, his treating physicians; (7) Dorothy Mosenthine, a witness who observed petitioner on the roadway; (8) Sandra Loridans, McKinnon's sister; (9) Judith Ricci and Paul Basil, Harrah's Casino's Pit Bosses; (10) Kou-Fen Rivers and Joseph Brennan, Harrah's Casino's dealers; (11) Tony Messana, Patty Catona and Elizabeth McCloskey, Moonlight Motel employees; (12) Joseph Dougherty, petitioner's brother-in-law; (13) the twelve jurors; (14) Judge Manual H. Greenberg; (15) past and present personnel of the Ocean County Prosecutor's Office who participated in any aspect of the case; and (16) past and present personnel of the New Jersey State Police who were involved in investigating petitioner.

According to Bracy, for a court to grant a motion for discovery with regard to a petitioner's ineffective assistance of counsel claim, the Court must first identify the "essential elements" of his claim. 520 U.S. at 904. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court laid out the elements of a claim for ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. See also Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996).

With regard to the first prong, the Supreme Court explained that the defendant "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. As to the second prong, it held that "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Here, the New Jersey Supreme Court found that "few of [petitioner's] allegations of ineffective assistance at trial involved significant deficiencies in the quality of counsel's representation, and those that did were not material to the trial result." Marshall III, 148 N.J. at 267, 690 A.2d at 90.

Although, at this point, petitioner does not need to prove a Strickland violation, he does need to explain with specificity what information he will learn from these deponents that would allow him to prove he received ineffective assistance of counsel and that he is entitled to relief. Instead, petitioner alleges that deposing each person on his long list will provide relevant information for him to make out his claims.

Although petitioner attempts to explain why he needs to depose some of the people on his list, he does so with generalized statements about what they might say in a deposition. In some instances, where petitioner explains his allegations in a bit more detail, he still never articulates what specific evidence each person would have or what specifically he or she would say that would show misconduct by his trial counsel. (Pet'r Brief, Motion for Discovery at 22-23.) For example, petitioner seeks to depose the members of the First Aid Squad that treated him at the scene for the injuries he received on the night of Mrs. Marshall's murder. He also seeks to depose his treating physician and the medical examiner to establish the nature and extent of his injuries on the night of his wife's murder.

In state court, petitioner argued that along with his murdered wife, he was the victim of a robbery. Therefore, he claimed that his counsel failed to elicit testimony about his injuries to show that he was a victim of a robbery. Marshall III, 148 N.J. at 212-13, 690 A.2d at 62-63. The New Jersey Supreme Court reviewed these allegations and dismissed them on the merits, holding that the "evidence at trial incontrovertibly established the extent of defendant's injuries at the crime scene. The critical issue was not how badly defendant was injured, but whether the assault on [him] was staged to avert suspicion of a motive for homicide." Id. at 213, 63.

Petitioner contends that the members of the First Aid Squad and the treating physicians he wishes to depose, would be able to discuss the "nature and extent" of his injuries. He believes this information would prove his counsel failed to use a victim defense, that he was only a target in a robbery. However, petitioner fails to point to specific information that these deponents could provide that the jury should have had when it made its decision. Even if he deposed the doctors, nurses and First Aid Squad members who assisted him on the night of Mrs. Marshall's murder about the "nature and extent" of his injuries, there is no indication that this information would prove his counsel was ineffective. This Court agrees with the New Jersey Supreme Court's conclusion that because the jury was sufficiently apprised of petitioner's injuries, the "nature and extent" of them was not the essential issue at trial. *fn4 Therefore, petitioner has not met his burden of showing good cause to depose the medical personnel.

Another example is petitioner's request to depose Dr. Sailendra Sinha "regarding location and entry and exit wounds to establish position of [Maria Marshall's] body when shot." (Pet'r Brief, Motion for Discovery at 23-24.) Petitioner requests this information to prove that his counsel was ineffective for not pursuing the theory that Mrs. Marshall was not asleep at the time she was shot. Petitioner alleges that Mrs. Marshall being awake at the scene of the crime supports his assertion that he was the victim of a robbery, rather than a participant in a staged murder.

The New Jersey Supreme Court found that defense counsel's failure to retain an independent expert or his alleged ineffectiveness in preparing for the cross-examination of Dr. Sinha, a board-certified pathologist and the medical examiner who conducted the autopsy, had no material effect on "the outcome of the trial." Marshall III, 148 N.J. at 210, 690 A.2d at 61. Nor did the Court find that the record showed support "for the theory that the homicide had been committed to prevent the victim from identifying the perpetrators of a robbery." Id.

Here, petitioner fails to demonstrate how deposing Dr. Sinha would produce any evidence that his counsel was ineffective by failing to retain an independent expert to demonstrate that Mrs. Marshall was awake immediately before being murdered. Hence, petitioner has not met his burden of showing good cause to depose Dr. Sinha.

One last example is petitioner's request to depose his own trial counsel, Mr. Glen Zeitz. Petitioner seeks to depose Mr. Zeitz about all of his allegations of ineffective assistance of counsel. Petitioner asserts that through this deposition he will learn that Zeitz made poor strategic decisions, that he failed to interview witnesses, conduct an investigation and present evidence to corroborate petitioner's version of the facts during both the guilt-innocence and penalty phases of his trial.

Not only did the New Jersey Supreme Court twice conclude that Mr. Zeitz provided petitioner with effective assistance of counsel throughout both the guilt-innocence and penalty phases of trial, but, petitioner's current counsel had the opportunity to question Zeitz under oath about some of the penalty phase issues at an evidentiary hearing during the PCR proceeding. See Marshall I, 123 N.J. at 164-65, 586 A.2d at 171-72 ("Counsel was obviously well-prepared, thoroughly familiar with the record, and persistently and forcefully advocated his client's interests. . . ."). Petitioner suggests that deposing Mr. Zeitz now, twelve years after the trial, would lead him to information that would show that throughout his representation of petitioner, counsel made inappropriate strategic decisions. But, petitioner fails to tell this Court what specific information Mr. Zeitz would reveal that would prove that he provided petitioner with ineffective assistance of counsel.

Even looking at petitioner's most disturbing suggestion, that Zeitz failed to sufficiently investigate and prepare for petitioner's penalty phase, petitioner has not pointed to specifics or explained precisely how deposing Mr. Zeitz would allow him to succeed in proving such a Strickland violation. As the New Jersey Supreme Court concluded in petitioner's PCR appeal, his request to depose Zeitz "does not allege the existence of facts, information, or specific evidence" that would allow him to prove a Strickland violation and entitle him to relief. Marshall III, 148 N.J. at 251, 690 A.2d at 82. This Court agrees with the New Jersey Supreme Court that because Mr. Zeitz consistently consulted with petitioner throughout the penalty phase and because his request does not specify what he hopes to find by deposing Mr. Zeitz, this Court is unwilling to second-guess Mr. Zeitz's strategic decisions.

In sum, petitioner never articulates with specificity what evidence each person he seeks to depose would be able to provide or what he or she would testify about that would show that his trial counsel was ineffective and that he is entitled to relief. Thus, he has not shown good cause to depose any of the requested deponents.

C. Other Grounds

Petitioner also seeks to depose various people including the judge and jurors from his trial, to prove that: (1) he has been denied due process; (2) he had a privileged attorney-client relationship with Joseph Dougherty; (3) a spectator outburst prejudiced the jury; and (4) the judge was biased against him. As with petitioner's previous requests, his request for these depositions fails to point to specific evidence that these deponents would provide to support his contention that his trial counsel was ineffective.

V. Motion for Evidentiary Hearing

Petitioner asserts that he is entitled to an evidentiary hearing as to his claims of Brady violations; the seizure, search and admission into evidence of the contents of the envelope addressed to Joseph Dougherty; ineffective assistance of counsel; a spectator outburst; and judicial bias. Petitioner alleges that "the merits of factual disputes were not resolved in the state courts because the state courts employed inadequate fact-finding procedures." (Pet'r Brief, Motion for an Evidentiary Hearing at 6.) The parties dispute whether petitioner received sufficient discovery and evidentiary hearings in his PCR proceedings.

A. Impact of AEDPA on Evidentiary Hearings

Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal habeas petitioner's request for an evidentiary hearing was governed by Rule 8(a) *fn5 of the Rules Governing § 2254 cases and by the Supreme Court's decision in Townsend v. Sain, 372 U.S. 293 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). But, because petitioner filed his habeas petition after Congress enacted the AEDPA, his request for an evidentiary hearing is controlled by a combination of the AEDPA, 28 U.S.C. § 2254(e)(2) and the Supreme Court's decision in Townsend v. Sain, 372 U.S. 293 (1963). Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.), cert. denied, 525 U.S. 1037 (1998).

Pursuant to the new standard of review, before petitioner may be granted an evidentiary hearing, he must satisfy the requirements of the AEDPA. Section 2254(e)(2) imposes an express limitation on the power of a federal court to grant an evidentiary hearing. See id. (citing McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998)). The AEDPA restricts a federal court from holding an evidentiary hearing if petitioner "has failed to develop the factual basis of a claim in State court proceedings" (emphasis added) unless:

(A) the claim relies on -

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). *fn6

Courts have interpreted "failed" to mean an omission by the habeas petitioner. See Cardwell, 152 F.3d at 337. Therefore, despite a petitioner's efforts, if the state court refuses to allow the factual development of his claim, he will not be automatically precluded from an evidentiary hearing under § 2254(e)(2). See Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997) (affirming the district court's decision to hold an evidentiary hearing because the state court judge made it impossible for petitioner to develop the factual record); see also Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998) (holding that restrictions on an evidentiary hearing do not apply when petitioner "diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so."); McDonald, 139 F.3d at 1059 (holding that "a petitioner cannot be said to have `failed to develop' a factual basis for his claim unless the undeveloped record is a result of his own decision or omission"); Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir. 1997) ("To be attributable to a `failure' under federal law the deficiency in the record must reflect something the petitioner did or omitted."); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) ("Where, as here, the state courts simply fail to conduct an evidentiary hearing, the AEDPA does not preclude a federal evidentiary hearing on otherwise exhausted habeas claims.").

Thus, as the Fourth Circuit explained in Cardwell, the AEDPA requires a two-step analysis:

The Petitioner who seeks an evidentiary hearing in federal court must now clear the `initial hurdle' of § 2254(e)(2), McDonald, 139 F.3d at 1060, before the court can proceed to determine whether an evidentiary hearing is otherwise proper or necessary. Thus, a federal court's first task in determining whether to grant an evidentiary hearing is to ascertain whether the petitioner has `failed to develop the factual basis of a claim in State Court.' If so, the court must deny a hearing unless the applicant establishes one of the two narrow exceptions set forth in § 2254(e)(2)(A) & (B). If, on the other hand, the applicant has not `failed to develop' the facts in state court, the district court may proceed to consider whether a hearing is appropriate or required under Townsend. 152 F.3d at 337.

Townsend defines the circumstances in which a federal evidentiary hearing is mandatory, while emphasizing that the federal courts retain discretion in many cases to grant or deny a hearing. 372 U.S. at 312-13. In Townsend, the Supreme Court held that a federal court must hold an evidentiary hearing if a petitioner "alleges facts which, if proved, would entitle him to relief," and "[w]here the facts are in dispute . . . if the habeas applicant did not receive a full and fair evidentiary hearing in a state court . . . ." Id. The Court held that a habeas petitioner is entitled to an evidentiary hearing under the following circumstances:

If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. *fn7 Id.

The relevant question before this Court is whether Marshall has failed to develop the facts supporting his claim within the meaning of § 2254(e)(2). If not, then this Court must determine whether a hearing is required under Townsend.

B. Application

Petitioner asserts that the lack of factual development in his state petition was due to his inability to persuade the state courts to conduct a full evidentiary hearing, rather than to his want of trying. (See Pet'r Reply Brief, Motion for an Evidentiary Hearing at 6.) Petitioner alleges the following:

1) his repeated attempts to obtain an evidentiary hearing; 2) his compliance with state post- conviction procedures that do not authorize or require submission of documentary evidence with the filing of a petition for post-conviction relief; 3) the state courts' wrongful refusal to order an evidentiary hearing; 4) the trial judge's wrongful dismissal of substantial claims on the basis of inapplicable procedural bars without permitting claims to be substantiated; 5) the inadequacy of the "paper hearing," caused in part by the refusal of witnesses to cooperate, which 6) produced no factual findings and virtually no application of law to the facts by the judge or the state supreme court on appeal; and 7) that the grant by a non-fact finding forum, the New Jersey Supreme Court, of Petitioner's limited application to supplement the record on the post-conviction appeal with several non-testimonial documents, did not constitute an opportunity to develop facts that Petitioner failed to take advantage of. (Pet'r Reply Brief, Motion for an Evidentiary Hearing at 6-7.)

The court agrees that petitioner did not "fail" to develop the evidence supporting his claims in state court. He did not "relinquish an opportunity to introduce evidence or neglect[] to seek such an opportunity." Cardwell, 152 F.3d at 337. Consequently, the Court concludes that § 2254(e)(2)'s limitations do not apply to any of petitioner's claims. Hence, the Court must determine whether, under the standard for evidentiary hearings articulated in Townsend, petitioner is entitled to an evidentiary hearing or alternatively, whether such a hearing should be granted pursuant to an exercise of discretion. See McDonald, 139 F.3d at 1060 (stating that the subsequent determination [once petitioner has cleared the initial hurdle and established that § 2254(e)(2) does not preclude his claim] is committed to the district court's discretion pursuant to Rule 8 of the Rules Governing § 2254 Cases); *fn8 Porter v. Gramley, 112 F.3d 1308, 1314 n.6 (7th Cir. 1997), cert. denied, 522 U.S. 1093 (1998)(stating that although § 2254(e) specifies circumstances under which federal courts may not grant evidentiary hearings, nothing in the statute suggests that Townsend's requirements are no longer in force as a separate limit on the granting of evidentiary hearings); Lawrie v. Snyder, 9 F. Supp.2d 428, 438 (D. Del. 1998), cert. denied, 119 S. Ct. 1493 (1999)(holding that, though the 1996 amendment supersedes Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), the remainder of Townsend appears to have been left intact, including the other five factors under which an evidentiary hearing is mandatory and the court's overriding ability to hold a hearing in its discretion).

C. State Post-Conviction Relief Proceedings *fn9

Although petitioner never explains which Townsend factor he believes applies to his ten claims for an evidentiary hearing, he alleges generally that he is entitled to a hearing under the first, second, third, fifth, and sixth factors. (See Pet'r Brief, Motion for an Evidentiary Hearing at 14.) Petitioner contends that an evidentiary hearing is required to address: Brady claims pertaining to Billy Wayne McKinnon; alleged Brady material never provided to him; alleged suppression of the Sarann Kraushaar immunity documents; alleged discovery rules violations by the State; alleged warrantless seizure and 5-day detention of envelope addressed to Joseph Dougherty; the search warrant to open envelope addressed to Joseph Dougherty; the admission of confidential communication to Joseph Dougherty; ineffective assistance of counsel; the spectator outburst; and the judge's bias against him.

In order to decide whether petitioner is entitled to an evidentiary hearing under the Townsend factors, this Court must examine what took place during the PCR stage of petitioner's state court proceedings. According to petitioner, the majority of the allegations in his application for PCR consisted of numerous allegations of ineffective assistance of trial counsel and discovery violations stemming from the State's failure to produce hundreds of documents that petitioner had been entitled to receive in pre-trial discovery. Petitioner claims he received these documents for the first time during PCR proceedings. Petitioner requested that the PCR court conduct a full evidentiary hearing to permit him to prove that the above-mentioned constitutional violations tainted his conviction and sentence. The State opposed petitioner's request for a full evidentiary hearing and moved to dismiss the petition on various grounds.

Judge Greenberg ruled that a non-testimonial ("paper") hearing would be conducted as to all alleged discovery violations, and 70 of the 267 ineffective assistance of trial counsel claims. Petitioner was able to submit a brief and any (non-live) evidence he chose. A testimonial hearing was held as to five claims, including petitioner's loss of consciousness after the guilty verdict and his counsel's comments committing petitioner to testify in his opening statement.

Petitioner sought reconsideration of the denial of a full evidentiary hearing by motions dated April 26, June 22, and November 15, 1994. Petitioner sought leave to appeal the denial of the evidentiary hearing in the New Jersey Supreme Court on June 17, 1994, which was denied. Petitioner alleges that Judge Greenberg's opinion denying PCR is "virtually devoid of fact-finding other than as to the several allegations on which he took testimony." (Pet'r Brief, Motion for an Evidentiary Hearing at 3.) On appeal, petitioner argued that ...


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