The Third Circuit has explained that the defendant bears the initial
burden of establishing his financial eligibility for the appointment of
counsel. See United States v. Gravatt, 868 F.2d 585 (3d Cir. 1989)
(citing United States v. Anderson, 567 F.2d 839, 840 (8th Cir. 1977);
United States v. Ellsworth, 547 F.2d 1096, 1098 (9th Cir. 1976), cert
denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977)). Once a
defendant puts the court on notice of his inability to retain private
counsel, the district court must, "`make further inquiry into the
defendant's financial condition to ascertain whether he is entitled to
have counsel appointed to represent him.'" Id. (quoting United States v.
Martin-Trigona, 684 F.2d 485, 490 (7th Cir. 1982)).
Here Defendant was not unconstitutionally deprived counsel for nine
months after his indictment because the OPD made a reasonable
investigation into his financial condition before withdrawing
representation. The OPD based its determination of Defendant's financial
status on the fact that Defendant owned a home which, according to their
investigation with local brokers, had a market value of between $70,000
and $110,000, depending on its condition. See State v. Douglas,
322 N.J. Super. 156, 730 A.2d 451 (N.J. Super.Ct. App. Div. 1999), cert.
denied 162 N.J. 197, 743 A.2d 849 (N.J. 1999). Further, the OPD
discovered that Defendant was expecting a recovery in a then pending
civil litigation. See id. At the time of the OPD's determination, on
January 21, 1988, Defendant had not informed the OPD that his home was
worthless and he would only receive $3,500 from the insurance proceeds.
The OPD did not discover this information until August 26, 1988 when a
criminal case manager questioned Defendant as to his financial status.
Defendant's financial status was ultimately considered by the court and
Defendant was appointed counsel on October 12, 1988.
This Court recognizes that Petitioner had difficulty appealing the
OPD's decision because he was misdirected by the OPD and the trial
court. Further, in April, 1988 N.J.S.A. 2A:158S-15.1 became effective
and authorized courts to make indigence determinations, rather than the
OPD. Despite this legislative change, the trial court did not determine
Petitioner's indigence and eligibility for representation until October
The PCR court held that the Public Defender's withdrawal did not
constitute a sufficient basis for reversal. (PCR Tr. 58). This Court
finds that the PCR court's determination did not involve an unreasonable
application of clearly established federal law nor an unreasonable
application of the facts.
B. Petitioner Was Not Constructively Denied Counsel
Petitioner asserts that he was constructively denied counsel throughout
preliminary investigation, trial and appellate stages of this case due to
a conflict of interest present when different public defenders were
appointed to represent him in November 1988 after the initial Public
Defenders had withdrawn from his representation in January 1988. (Ground
Standard for Public Defenders' Conflict of Interest
In State v. Bell, the New Jersey Supreme Court held that, in claims
involving public defenders, courts must review the record to determine
whether there is an actual conflict of interest and whether actual
prejudice will arise from the representation. 90 N.J. 163, 168-9,
447 A.2d 525 (N.J. 1982). Claims involving successive representation from
OPD must be reviewed on a case-by-case basis to determine
whether there are sufficient facts to make a determination as to whether
or not there was an actual conflict of interest. See People v. Banks,
121 Ill.2d 36, 520 N.E.2d 617 (Ill. 1987).
The Supreme Court of New Jersey explained that there is less potential
for a conflict of interest between associates at the OPD than between
associates in a private practice because the OPD does not possess the
same financial incentive as private firms. See State v. Land, 73 N.J. 24,
372 A.2d 297 (N.J. 1977) (holding that in private practice "in the
absence of a waiver, if a potential conflict of interest exists,
prejudice will be presumed resulting in a violation of the New Jersey
constitutional provisions guaranteeing the assistance of counsel.")
The PCR court found that "the testimony at the proceedings by Mr.
Kapin, the only one of the two public defenders assigned to represent him
in October or November 1988, was that he found no problem in representing
defendant merely because his office had previously represented him and
then terminated his representation." (PCR Tr. at 51). The PCR court "did
not find that either of the public defenders assigned to represent the
defendant held back in vigorously defending the defendant. There's been
no evidence presented to this Court from which [this court] could make a
determination that there was a conflict of interest which resulted in
prejudice to the defendant." (PCR Tr. at 53).
After carefully reviewing the record, this Court agrees that Petitioner
has not provided sufficient evidence of an actual conflict of interest.
As such, this Court does not find that the PCR court's determination
involved an unreasonable application of clearly established federal law
or an unreasonable determination of the facts and denies relief on this
C. Petitioner Was Not Denied Effective Assistance of Counsel
Petitioner contends that his trial counsel was ineffective because he
did not sufficiently investigate, prepare, or present a meaningful
defense. (Ground Four). Furthermore, Petitioner asserts that he was
denied effective assistance of counsel on direct appeal because despite
his request, counsel did not file interlocutory appeals for ineffective
assistance of counsel, identification, or speedy trial claims. (Ground
Standard For Ineffective Assistance of Counsel
Under the test set out in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) in order to prove 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.
Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; see also
Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996). "Only after both
prongs of the analysis have been met will the petitioner have asserted a
successful ineffective assistance of counsel claim. Moreover, `judicial
scrutiny of an attorney's competence is highly deferential.'" United
States v. Hart, Civ. A. No. 00-5204, 2002 WL 318337, *4 (E.D.Pa.
Feb. 25, 2002) (quoting Diggs v. Owens, 833 F.2d 439,
444-45 (3d. Cir. 1987)).
A deficient performance is one that falls "outside the wide range of
professionally competent assistance." Strickland, 466 U.S. at 690, 104
S.Ct. at 2066. To establish deficient performance, petitioner must
demonstrate that "counsel's representation fell below an objective
standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. In making an
objective evaluation as to counsel's performance, "a court must indulge a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065;
Hart, 2002 WL at *4 ("An attorney is presumed to possess skill and
knowledge in sufficient degree to preserve the reliability of the
adversarial process and afford his client the benefit of a fair
To prove prejudice, petitioner must show "that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would be different." Strickland, 466 U.S. at 694, 104
S.Ct. at 2056. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. Under Strickland, petitioner is
required to demonstrate how specific errors undermined the reliability of
the guilt-determination process. See United States v. Cronic, 466 U.S. 648,
659 n. 26, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984). Absent some
effect of defense counsel's conduct on the trial process' reliability,
the Sixth Amendment guarantee is generally not implicated. Lockhart v.
Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d (1993).
The PCR court held a full evidentiary hearing on the issue of
ineffective assistance of counsel, and found Petitioner's claim without
merit. First, the PCR court determined that the public defenders who
tried this case "vigorously pursued the examination and cross-examination
of witnesses produced by the State. They made or attempted to make a
strong showing that the testimony of the police was unreliable and
unbelievable and that the testimony of [Broadway] was based on her
mistaken beliefs." (PCR Tr. at 57). After closely examining the record,
this Court agrees that the Public Defender's trial performance was not
deficient. Because Petitioner has not demonstrated that his counsel's
trial representation was deficient, he does not meet the first prong of
the Strickland test and it is unnecessary to consider the prejudice
Further, Petitioner contends that there was ineffective assistance of
counsel because defense counsel failed to file interlocutory appeals for
issues raised by the Petitioner, such as his right to a speedy trial. The
PCR court found this claim to be without merit. After considering
counsel's testimony on this issue, the court concluded that the decision
of whether to file interlocutory appeals requires a judgement call on the
part of the counsel and the court should not substitute its judgement for
that of defense counsel. Further, the court explained that even if
defense counsel had filed an interlocutory appeal, the Appellate Division
may not have granted the motion. The Appellate Division rarely grants
motions for leave to appeal before the jury renders its verdict. As such
the PCR Court found, and this Court agrees that counsel's representation
was not deficient in this respect.
Petitioner also contends that he was denied effective assistance of
counsel because of the public defender's failure to conduct an extensive
investigation. The PCR court recognized that the public defender's
representation may have been deficient because a thorough investigation
was not immediately conducted despite the gravity of the charges against
the defendant. (PCR Tr. at 59). The PCR court found, however, that even
if the representation was deficient, the ineffective assistance claim
would still fail because Petitioner has not demonstrated that any
deficiency resulted in prejudice to the Defendant's case. (PCR Tr. at
59). This Court agrees with the PCR court's determination. This case was
not complicated and was largely based on circumstantial evidence (i.e.
Broadway's voice identification and the police testimony that the
Defendant was in possession of the murder weapon when he was arrested the
next morning.). The jury had the opportunity to consider the testimony
and arguments and make a determination on the defendant's guilt. Under
these circumstances, it does not appear that an earlier investigation
would have changed the outcome of the case. As such, this Court finds
that Petitioner fails to meet the Strickland test in this respect and
finds that the PCR court's application of federal law and interpretation
of the facts was reasonable
Finally, Petitioner contends that he was denied effective assistance of
counsel on direct appeal due to the failure of counsel to fulfill
constitutional standards of advocacy in the appellate brief. Petitioner
submits that counsel did not raise the speedy trial claim and did not
adequately address the denial of counsel and ineffective assistance of
counsel claims to the Appellate Division. The OPD's alleged failure to
advocate on behalf of the Petitioner may be sufficient to prove that
counsel was deficient. However, even if this Court finds that Counsel's
representation was deficient, it would nonetheless deny Petitioner's
ineffective assistance claim because he has not demonstrated prejudice.
The Appellate Division considered each of the claims speedy trial, denial
of counsel and ineffective assistance of counsel and determined that the
"contentions can not be heard on direct appeal because the appellate
record lacks the transcript and other information for us to decide the
issues . . ." (N.J. Super. Ct. App. Div. Op. 1995 at 26). As such,
Petitioner has not met the Strickland test because any alleged deficiency
on appeal did not effect the outcome of the case the Appellate Division
would have nonetheless required the record to be developed.
This Court finds that the PCR court's decision did not involve an
unreasonable application of clearly established federal precedent or an
unreasonable application of the facts in light of the evidence and
therefore denies relief on this ground.
VI. Petitioner Was Not Denied A Fair Trial
A. There Has Not Been Any Prosecutorial Misconduct
Petitioner alleges that the Prosecutor engaged in acts of misconduct
during the grand jury proceedings and at trial that deprived him of a
fair trial and an impartial verdict. (Ground Six). Essentially,
Petitioner asserts that the prosecutor allowed Broadway to testify
falsely during the suppression hearing and at trial, and that the
Prosecutor deceived the jury during voir dire and summation.
Standard For Prosecutorial Misconduct
Under Chapman v. California, the standard used for determining whether
the prosecutorial misconduct violated a constitutional right is whether,
beyond a reasonable doubt, the prosecutor's comments contributed to
petitioners' convictions. 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967). Furthermore, a habeas corpus challenge to alleged prosecutorial
excess in summation is not cognizable unless the remarks so infected the
trial that the Petitioner was deprived of due process. See Romano v.
Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 2012, 129 L.Ed.2d 1 (1994); see
also Todaro v. Fulcomer, 944 F.2d 1079, 1082 (3d Cir. 1991).
The Appellate Division summarily found that this claim was without
merit as permitted by R.2:11-3(e)(2). (N.J. Super. Ct. App. Div. Op. 1995
at 24-25). At the hearing for post-conviction relief, the court
refrained from considering this ground because it was available for
presentation to the Appellate Division on direct appeal and not
appropriate for post-conviction relief. (PCR Tr. at 49). The PCR Court
noted however that it "has reviewed the materials submitted by the
Petitioner in connection with those two grounds and does not find that
there was any prosecutorial misconduct." (PCR Tr. at 49). After carefully
reviewing the record, this Court finds that the Appellate Division's
decision did not involve an unreasonable application of federal law or an
unreasonable interpretation of the facts.
B. Trial Judge Did Not Abuse His Discretion In Admitting
Petitioner contends that the trial judge abused his discretion in
allowing an in-court identification by Broadway, identification testimony
of Broadway, and the admission of hearsay. (Ground Eight). The only
supporting fact he alleges in this claim is that "[t]here never was any
identification, voice or otherwise, at any time of the alleged
perpetrator or perpetrators who entered the bedroom and professedly
committed the crime." (Ground Eight).
The habeas corpus statute and rules require the petitioner to plead
specific facts supporting each claim for relief. See James D. Liebman and
Randy Hertz, Federal Habeas Corpus Practice and Procedure, at 509-12. The
petitioner must include in the statement of each claim enough supporting
facts to justify relief if the alleged facts are proven. See Hill v.
Lockhart, 474 U.S. 52, 61-62, 106 S.Ct. 366, 88 L.Ed.2d 203 (1986)
(finding facts insufficient to support a finding of prejudice). This
Court finds that Petitioner did not assert facts sufficient to support a
finding that the trial judge abused his discretion in admitting
Broadway's testimony. Petitioner did not even identify the statement that
he alleges is hearsay. Under such circumstances this Court finds that it
cannot grant Petitioner's request for habeas relief on this ground.
Furthermore, even if Petitioner plead additional facts, this claim
would probably be denied because it is without merit. Factual issues
determined by a state court are presumed to be correct, and the
Petitioner bears the burden of rebutting this presumption by clear and
convincing evidence. See Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.
2000) (citing 28 U.S.C. § 2254(e)(1)). As the Appellate Division
noted, "this court should defer to the trial judge's `feel of the case'
where such matters as witness credibility and demeanor are concerned."
(N.J. Super. Ct. App. Div. Op. 1995 at 24) (quoting Dolson v. Anastasia,
55 N.J. 2, 6-7, 258 A.2d 706 (N.J. 1969)). Similarly, reviewing courts
should defer to a trial court's evidentiary determinations except when an
evidentiary ruling is "so inflammatory as to prevent a fair trial."
Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 888, 130 L.Ed.2d 865
(1995). After reviewing the trial transcript, this Court finds that the
trial judge did not abuse his discretion in permitting the in-court
identification and did not violate the hearsay rule. (Trial Tr. Oct. 31,
C. The Jury Instructions Were Not Erroneous
Petitioner asserts that he was denied a constitutional verdict by an
unconstitutional jury charge that improperly bolstered the weight of
circumstantial evidence, contained an improper instruction on reasonable
doubt which lowered the threshold to return a conviction, and removed
from the State the burden of proving every element of the offense.
Standard for Improper Jury Instructions
The standard for reviewing jury instructions is "`whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of constitutionally
relevant evidence.'" Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct.
757, 761, 139 L.Ed.2d 702 (1998) (quoting Boyde v. California,
494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 319 (1990).
Claims of erroneous jury instructions do not generally form the basis for
habeas relief. See United States ex rel. Dorey v. New Jersey, 560 F.2d 584,
587 (3d Cir. 1977); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97
S.Ct. 1730, 52 L.Ed.2d 203 (1977). Challenges to instructions are not
cognizable on collateral review unless the disputed instruction "`so
infected the entire trial that the resulting conviction violates due
process.'" Polsky v. Patton, 890 F.2d 647, 650 (3d Cir. 1989) (quoting
Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368
(1973)). The burden of demonstrating that an erroneous instruction was so
prejudicial that it supports a collateral attack is weightier than that
necessary to establish plain error on direct appeal. See Henderson, 431
U.S. at 154-55, 97 S.Ct. at 173; Kontakis v. Beyer, 19 F.3d 110, 114 (3d
Cir. 1994) (stating that federal courts are limited to deciding if a
state conviction violates federal law).
The Appellate Division considered and summarily rejected Petitioner's
claim as permitted under R.2:11-3(e)(2) because the argument was "clearly
without merit." (N.J. Super. Ct. App. Div. Op. 1995 at 24-25). After
reviewing the record, this Court finds that the jury charge was not
erroneous. The judge properly outlined the elements of each offense and
instructed the jury in each count that the state must satisfy its "burden
of proof beyond a reasonable doubt." (Trial Tr. Nov. 7, 1990 at 133). The
judge then defined reasonable doubt:
A reasonable doubt is not a doubt based on a hunch or
guess work or speculation. A reasonable doubt is not a
mere possibility or imaginary doubt because everything
relating to what people say or do is open to some
possible or imaginary doubt. A reasonable doubt is an
honest and reasonable uncertainty as to the guilt of
Robert Douglas existing in your minds after, but only
after you have given full and impartial consideration
to all of the evidence. A reasonable doubt may arise
from the evidence itself or from a lack of evidence.
It's a doubt which a reasonable thinking person has
after carefully weighing all of the evidence and
(Trial Tr., Nov. 7, 1990 at 168). Further, the judge properly explained
to the jury the difference between direct and circumstantial evidence:
"Direct evidence means evidence that directly proves a fact without an
inference and which in itself if true conclusively establishes the fact.
On the other hand, circumstantial evidence means evidence that proves a
fact from which an inference of the existence of another fact may be
drawn." (Trial Tr., Nov. 7, 1990 at 164).
This Court agrees with the Appellate Division's decision and therefore
does not find that its decision was an unreasonable application of
clearly established federal law or an unreasonable interpretation of the
D. Trial Court's Decision Not to Declare a Mistrial Was
Petitioner asserts that he was deprived of a fair, impartial and
uncoerced verdict due to the trial court's decision not to declare a
mistrial after the jury announced it could not reach an unanimous
verdict. (Ground Ten).
The decision of whether to send a jury back for further deliberations
is within the sound discretion of the trial court. See State v. Pontery,
19 N.J. 455, 457, 117 A.2d 473 (N.J. 1955). When a jury states that it
cannot come to a unanimous verdict, it is appropriate but not necessary,
for the judge to ask whether the jury desires more time to deliberate.
State v. Vergilio, 261 N.J. Super. 648, 655 (N.J. Super Ct. App. Div.),
cert. denied, 133 N.J. 443, 627 A.2d 1147 (N.J. 1993).
Here after slightly more than two and one half days of deliberations,
on November 14, 1990 at 2:10 p.m. the jurors sent a note to the judge
stating that they were not able to reach a unanimous verdict. Defense
counsel immediately moved for a mistrial on the grounds that eleven of
the twelve jurors had deliberated for more than twenty hours without
making a determination. The judge denied Defendant's motion for a
mistrial and instead instructed the jury, pursuant to the Allen charge,
to continue deliberations without asking if they needed more time. Allen
v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The
jury returned a verdict on November 16, 1990 and convicted the Defendant
on all counts.
The Appellate Division found that the judge's failure to inquire
whether the jurors needed more time was "not critical . . . in light of
the fact that the judge immediately issued a comprehensive modified Allen
charge that closely tracked the pertinent model jury instructions then in
effect." (N.J. Super. Ct. App. Div. Op. 1995 at 23). The judge
specifically advised the jury that he was not permitted, nor did he wish
to coerce a verdict from them. Rather, he instructed the jurors to decide
the case individually and not to surrender their individual beliefs
solely on the basis of the beliefs of other jurors. The judge further
instructed the jurors to inform him if they are still unable to come to a
The Appellate Division held that the trial judge did not err in
instructing the jurors to continue deliberations instead of declaring a
mistrial. This Court finds that the state court's determination was a
reasonable interpretation of the facts and a reasonable application of
clearly established federal law.
E. Verdict Was Supported By Adequate Evidence
Petitioner alleges that he was convicted in a trial where the verdict
was against the weight of the evidence in violation of the Fifth and
Fourteenth Amendments. (Ground Eleven). Petitioner bases his argument on
the problems with the testimony of the Medical Examiner, Broadway, and
the police officers, as well as the lack of forensic evidence.
Standard for Verdict Supported By Weight of Evidence
A claim that the verdict is against the weight of the evidence is
essentially a matter of state law, and does not raise a federal
constitutional question unless the record is completely devoid of
evidentiary support in violation of Petitioner's due process. See United
States ex. rel. Cunningham v. Maroney, 397 F.2d 724, 725 (3d Cir. 1968),
cert denied, 393 U.S. 1045 (1969). Only where no rational trier of fact
could have found proof of guilt beyond a reasonable doubt should a writ
issue. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 611
L.Ed.2d 560 (1979); Singer v. Court of Common Pleas, Bucks County,
879 F.2d 1203, 1206 (3d Cir. 1989). Factual issues determined by a state
court are presumed to be correct, and the Petitioner bears the burden of
rebutting this presumption by clear and convincing evidence. Werts v.
Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing U.S.C. §
Here the trial court denied Defendant's motion for a new trial because
the jury verdict was supported by credible evidence. This decision was
upheld by the Appellate Division which found that "[p]lainly, the evidence
— if accepted as true by the jury — would support the guilty
verdict against defendant." (N.J. Super. Ct. App. Div. Op. 1995 at 24).
This court finds that the Appellate Division's decision was a reasonable
application of clearly established federal law and a reasonable
application of the facts.
F. Trial Was Fundamentally Fair
Petitioner asserts that his constitutional rights were violated because
he was convicted by a trial that was fundamentally unfair. (Ground
Twelve). In support of this argument, Petitioner relies on the facts he
asserts in grounds One through Eleven.
The United States Supreme has not directly dealt with the issue of the
cumulative effect of trial errors on the right to a fair trial. Lower
federal courts are divided, with some developing the "cumulative error
doctrine." Although the Third Circuit has not officially adopted the
doctrine, it has stated in dicta that the cumulative effect of alleged
errors may violate due process. See United States ex rel. Sullivan v.
Cuyler, 631 F.2d 14, 17 (3d Cir. 1980). Also, at least one court in this
district has recognized the cumulative error doctrine. See Hutchins v.
Hundley, 1991 WL 167036 at *11 (D.N.J. Aug. 22, 1991).
Assuming the cumulative effect doctrine is applicable, this Court finds
that Petitioner has not demonstrated that there were minor trial errors
which, when aggregated render his trial fundamentally unfair. The
Appellate Division summarily dismissed this ground under R. 2:11-3(e)(2)
finding that it was clearly without merit. (N.J. Super. Ct. App. Div.
Op. 1995 at 24-25). For the reasons discussed, this Court finds that
Petitioner's trial was fair and his verdict was supported by sufficient
evidence. As such, this Court finds that the Appellate Division's
decision did not involve an unreasonable application of clearly
established federal law or an unreasonable application of the facts.
VII. Petitioner Was Not Denied A Direct Appeal
Petitioner asserts that he was denied an adequate and effective "as of
right" direct appeal by the failure of the State to provide him with
transcripts of proceedings related to his appeal. (Ground Fifteen). The
PCR court has reviewed this claim and found that it is not an "issue
anymore because the transcript has been provided and is now in the
possession of the Court, the State and the defendant." (PCR Tr. at 49).
This court agrees with the PCR court's decision that the issue is moot.
Petitioner further contends that he was denied an "as of right" direct
appeal because the Appellate Division utilized an erroneous legal standard
in declining to rule on Petitioner's claims and not remanding the case.
(Ground Sixteen). On direct appeal, Petitioner sought relief on grounds
including denial of speedy trial, denial of counsel, ineffective
assistance of counsel and conflict of interest of counsel. The Appellate
Division declined to rule on these grounds finding that the "record on
appeal is too undeveloped and incomplete to weigh properly defendant's
constitutional arguments or to determine if he was prejudiced." (N.J.
Super. Ct. App. Div. Op. 1995, at 26) (citing State v. Precoise,
129 N.J. 451, 460-61, 609 A.2d 1280, 1285 (N.J. 1992). The Appellate
Division ordered that the record for these claims be developed at a PCR
hearing. The PCR court found that "the failure of the Appellate Court to
order a remand did not constitute a violation of petitioner's
constitutional right to direct appeal." (PCR Tr. at 47). This Court
agrees with the PCR court and finds that the Appellate Division's
decision was proper, and was not a denial of an "as of right" direct
VIII. Appellate Divisions' Opinion Was Not Erroneous
Petitioner contends that he was denied his right to be heard at a
meaningful time and in a meaningful manner by the state courts' failure
to correct factual errors with regard to identification, claims of
exigency. (Ground Fourteen). He further asserts that the Appellate
Division attributed statements to Judge Weiss which he never stated.
(Ground Fourteen). Petitioner requests that this Court correct these
allegedly erroneous rulings. (Ground Seventeen). This Court has already
found in Ground Four that the trial court judge did not abuse his
discretion in permitting the in-court identification. Similarly, this
Court found in Ground Seven that the trial court did not err in finding
that the warrantless police search was justified on the basis of
exigency. As such, Petitioner has not demonstrated that there were any
factual errors made by the trial court which should have corrected.
Furthermore, after reviewing the record, the PCR opinion and the
Appellate Division's opinion, this Court finds that the Appellate
Division's summary of the facts and proceedings was accurate. Further,
this court rejects Petitioner's argument that it was erroneous for the
Appellate Division to omit certain facts. The Appellate Division has the
discretion to omit certain statements from its opinion so long as its
summary is accurate.
Moreover, even if the Appellate Division attributed a false statement
to Judge Weiss or erroneously omitted a fact from its opinion, such error
would be harmless. The Appellate Division based its decision primarily on
its determination to distinguish the relative weight to be given to a
"`deliberate attempt to delay the trial in order to hamper the defense'
and a more `neutral' reason such as negligence or an overcrowded court
system" and the prejudicial effect of the delay. State v. Douglas,
322 N.J. Super. 156, 171, 730 A.2d 451, 461 (N.J. Super. Ct. App. Div.
1999) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972). The statements and omissions which Petitioner contests are
unrelated to the court's finding that the delay was not deliberate and
that the defendant was not prejudiced by any such delay. Rather, the
statements were only made to provide background and to support the
defense's view that remand would not be appropriate to explore the
details regarding Gaskins' potential testimony, the potential witness who
died before trial. See id. at 172. Therefore,
any misstatement or
omission is at most harmless error and is not appropriate for habeas
IX. Petitioner Was Not Deprived A Timely Appeal and Even
Assuming He Was, Habeas Relief Is Not Available
Petitioner contends that the three year period between sentencing and
the filing of the appellate brief by designated counsel violated his
constitutional rights. (Ground Thirteen).
Standard for Violation of Speedy Appeal Right
The Third Circuit instructs that the analysis for deciding a
deprivation of a timely appeal is the same as that for a deprivation of a
speedy trial. See Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991),
cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992).
"Under either constitutional amendment, we analyze whether after
conducting the sensitive balancing test under Barker v. Wingo, the scales
tip in favor of petitioner or the government." The four factors
identified in Barker are: (1) length of delay; (2) reason for delay; (3)
defendant's assertion of his right; and (4) whether defendant was
prejudiced by the delay. Barker, 407 U.S. at 530-32, 92 S.Ct. at 2192-93,
33 L.Ed.2d at 116-118. The Supreme Court explained that no single factor
is dispositive and that these factors should "be treated as related
factors to be considered with such other circumstances as may be
relevant." Barker, 407 U.S. at 533, 92 S.Ct. at 2190, 33 L.Ed.2d at 118.
Although Barker is applied to both speedy trial and appeal violations,
the Third Circuit has approved a district court's distinction "between
personal prejudice in a pretrial context, the particular situation
implicating the speedy trial clause factors for which the Barker factors
were designed, and prejudice in a post-conviction context." Heiser v.
Ryan, 15 F.3d 299, 305 (3d Cir. 1994). One reason for the distinction is
that "most of the traditional interests of the speedy trial guarantee is
designed to protect `diminish or disappear altogether once there has been
a conviction.'" Id, 15 F.3d at 305 (quoting Burkett, 951 F.2d at 1442).
Another reason is that "the presumption of innocence, which underlies the
societal concerns expressed in the Speedy Trial Clause, can no longer
apply once the defendant has been found, or pleads, guilty." Id. As such,
the Third Circuit instructed that "only unusual or specific problems of
personal prejudice will satisfy the Barker test." Id. (citing Government
of the Virgin Islands v. Pemberton, 813 F.2d 626, 629 (3d Cir. 1987));
cf. Burkett, 951 F.2d at 1445-46 (finding prejudice because of the
combination of "the continued inability to participate in rehabilitative
programs, the anxiety of not knowing when his appeal would be decided and
the further passing of time affecting his ability to reconstruct his
In this case, Petitioner does not assert any prejudice not even
personal prejudice in his petition. The only facts he provides in support
of this claim is that "the time between sentencing and the filing of the
appellate brief by designated counsel was approximately 3 years." (Pet.
Br. at 36). The mere delay in appeal, without more, is not a sufficient
basis for finding a constitutional due process violation.
Further, even if this court found that there was prejudice and that the
delay of appeal was a violation of Petitioner's constitutional rights,
this Court would be constrained to deny Petitioner relief pursuant to
28 U.S.C. § 2254. The Third Circuit has cited with approval the
Circuit's approach with respect to the appropriate relief
available when a post-conviction delay is found to be a violation of due
process rights. Heiser, 15 F.3d at 306. In Simmons v. Reynolds, the Second
Circuit denied a writ despite its finding of a speedy appeal violation
because before the petition for habeas relief was decided, the appeal was
decided and the conviction was affirmed. 898 F.2d 865 (2d Cir. 1990). The
Second Circuit explained:
Release from custody is an extraordinary remedy,
especially in a delay-of-appeal case where release
would in effect nullify a state court conviction on
grounds unrelated to the merits of the case. The usual
disposition of a meritorious habeas petition based on
a delayed appeal is to grant an alternative writ that
orders the state either to prosecute the appeal within
a specified reasonable period of time, or to release
Id. at 869. The Second Circuit found that release was not appropriate
because "any prejudice [petitioner] may have suffered from the delay did
not harm his ability to get a fair, albeit late, review of his