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April 8, 2004.

Robert O. Marshall, Petitioner,
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 IRENAS, District Judge


Currently before the Court is Petitioner's application for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The application comes to the Court on remand from the United States Court of Appeals for the Third Circuit as to the sole issue of whether Petitioner's counsel was constitutionally effective at the sentencing phase of Petitioner's capital murder trial. After holding an evidentiary hearing on Petitioner's claim, we find that counsel was not effective and grant Petitioner's application for writ of habeas corpus.


  The procedural history of this case is extensively discussed in previous decisions of both this Court and the United States Court of Appeals for the Third Circuit. See Marshall v. Hendricks, 307 F.3d 36 (3d Cir. 2002) ("Marshall V"); Marshall v. Hendricks, 103 F. Supp.2d 749 (D.N.J. 2000) ("Marshall IV").*fn1 Therefore, we will avoid an exhaustive recital of the procedural history and provide only a brief summary in order to put the current matter in context and to include the most recent proceedings. On May 5, 1986, Robert O. Marshall ("Marshall" or "Petitioner") was convicted in New Jersey state court of murder and conspiring to murder his wife, Maria Marshall, and was sentenced to death by lethal injection. Marshall IV, 103 F. Supp. at 757. Marshall's direct appeals at the state level were unsuccessful and, on October 30, 1997, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this Court.*fn2 Marshall's twenty-two count petition included claims of ineffective assistance of counsel at both the quilt and sentencing phase of his trial as well as requests for discovery and evidentiary hearings to explore those claims. On June 23, 2000, this Court, relying on the state court record and without holding separate evidentiary hearings, denied Marshall's application in its entirety. Id. Marshall then appealed to the Third Circuit.

  On September 11, 2002, the Third Circuit affirmed this Court's denial of Marshall's application for writ of habeas corpus as to all issues except Marshall's claim of ineffective assistance of counsel during the sentencing phase of his trial. On that issue, the Third Circuit reversed and remanded, concluding that a determination of counsel's effectiveness at sentencing was impossible "without conducting an evidentiary hearing." Marshall V, 307 F.3d at 117. Pursuant to the Third Circuit's remand, this Court held an evidentiary hearing in September 2003, and heard final oral arguments on January 30, 2004, to determine the merit of Petitioner's claim that his counsel failed at every level to investigate, prepare, present, and argue a mitigation case during the penalty phase of his trial. See Br. Supp. Pet'r Robert O. Marshall's Pet. Writ Habeas Corpus at 51 [hereinafter Pet'r Br.].


  As with the procedural history, the facts of this case have been thoroughly discussed in prior court decisions, see Marshall V, 307 F.3d at 44-48; Marshall IV, 103 F. Supp.2d at 758-59; State v. Marshall, 690 A.2d 1, 23-25 (N.J. 1997) ("Marshall III"); State v. Marshall, 586 A.2d 85, 97-114 (N.J. 1991) ("Marshall I"), therefore, the Court will relate only those facts relevant and necessary to the disposition of Petitioner's claim of ineffective assistance of counsel at the penalty phase.

  On the morning of March 5, 1986, after a month-long trial, Robert Marshall was convicted of murder and conspiracy to commit murder in Superior Court of New Jersey, Criminal Division, Atlantic County for hiring someone to murder his wife, Maria.*fn3 Marshall IV, 103 F. Supp. at 757. Marshall was represented by Glenn Zeitz, a private attorney with experience defending capital cases. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 134, 1. 9-22; Tr. Sept. 4, 2003, Test. of Glenn Zeitz at 4-5.*fn4

  The jury rendered its verdict at approximately 11:30 a.m.*fn5 See Marshall V, 307 F.3d at 48 (stating that the verdict came in "shortly before noon"); Marshall III, 690 A.2d at 108 (Handler, J., dissenting) (stating that the jury returned its verdict "at approximately 11:30 a.m."). Immediately thereafter, Marshall's family members, including his youngest son John, his sister Oakleigh, and his brother Paul, left the courthouse to return to their home in Toms River, New Jersey, which is located roughly forty-five minutes away. Tr. Sept. 3, 2003, Test. of Douglas DeCarlo at 142, 1. 10-18; Tr. Sept. 4, 2003, Test. of John Marshall at 333, 1. 5-25. They did not return for the sentencing phase; indeed, nothing in the record indicates that they knew or understood that the penalty phase would be held that same day. Tr. Sept. 4, 2003, Test. of John Marshall at 133, 1. 17-25; 134, 1. 1; Tr. Sept. 8, 2003, Test. of Richard Ruffin, Jr. at 19, 1. 15-21 (indicating that Oakleigh DeCarlo "rushed John, the youngest son, out of the courtroom in order to avoid the press and the activity and she thought that the penalty phase would follow in a few days and she was very surprised that the penalty phase went on in her absence"); Tr. Sept. 3, 2003, Test. of Douglas DeCarlo, at 143, 1. 2-7 (stating that he "couldn't imagine" that his wife Oakleigh would have left the courthouse and not been present for the penalty phase had she known about it).

  At approximately the same time, Marshall fainted while being led from the courtroom by Sheriff's officers. Marshall V, 307 F.3d at 48; Marshall III, 690 A.2d at 108 (Handler, J., dissenting). An ambulance was called at 11:36 a.m. and medical personnel took Marshall to a nearby hospital where he was treated by an emergency room physician at approximately 12:30 p.m. Marshall V, 307 F.3d at 48; Marshall III, 690 A.2d at 109 (Handler, J., dissenting). The hospital discharged Marshall at approximately 1:16 p.m., at which time Sheriff's officers returned him to the courthouse. Marshall V, 307 F.3d at 49; Marshall III, 690 A.2d at 109 (Handler, J., dissenting). Marshall arrived at the courthouse at approximately 1:30 p.m., fifteen minutes before the penalty proceeding began. Marshall V, 307 F.3d at 49.*fn6

  While Marshall was being treated at the hospital, Zeitz met with the prosecution regarding the penalty proceeding. Zeitz testified that he "extracted" an agreement from the prosecution as to how the penalty phase would be conducted. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 20, 1. 12-25. The parties agreed that: (1) both the prosecution arid the defense would waive openings, refrain from presenting evidence and limit themselves to a single short closing statement to the jury; (2) the prosecution would dismiss two of the three aggravating factors charged;*fn7 and (3) the prosecution would stipulate to a single mitigating factor, namely, that Marshall did not have a prior criminal record.*fn8 Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 19-20; see also Tr. Sept. 8, 2003, Test. of Kevin Kelly at 151.

  In arranging this agreement, Zeitz relied on information he had gathered in his investigation for the guilt phase. Prior to May 5, 1986, Zeitz had not specifically prepared for a potential penalty hearing. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 75-79, 82, 111. Neither Zeitz nor his investigator, Russell Kolins, ever had a targeted conversation with individual family members, friends, neighbors, or business associates to determine: (1) if any of those individuals would be willing to testify at a penalty phase should Marshall be found guilty; or (2) what those persons might say if called to testify. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 75, 1. 8 to 76, 1116; 82, 1. 8-19; 126, 1. 4-13.*fn9 Moreover, Zeitz had not hired a mitigation specialist, social worker, or psychologist*fn10 to evaluate Marshall, to interview potential witnesses, to investigate his school or medical records, or to conduct an investigation into the existence of any potentially mitigating information. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 111, 119-170. Therefore, at the end of the guilt phase, Zeitz did not have a draft list of potential mitigating factors, penalty phase discovery, or penalty phase witnesses. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 64-66.*fn11

  Regardless, Zeitz prepared to go forward with the penalty phase that afternoon. In the fifteen minutes between Marshall's return to the courthouse and the start of the sentencing hearing, Zeitz had two conversations with his client regarding how to proceed. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 22, 1. 2-12; 24, 1. 1-13; 2b, 3. 1-9. The first conversation focused on the agreement made with the prosecution and whether Marshall's sons should testify in the penalty phase. Id. at 25, 1. 1-9; 35-36. In that discussion, Marshall stated that he did not want his sons to testify and that he approved the agreement. Id. The second conversation confirmed with Marshall that they would proceed as per the agreement. Id. Zeitz claims that he told his client that they could request a continuance, but Marshall did not want to wait. Id. at 26, 1. 3-25. In fact, Marshall said that he just wanted to get it over with. Tr. Sept. 9, 2003, Test. of Robert Marshall at 28, 1. 13-18 (indicating that upon his return from the hospital, Zeitz told him they could "do this now or later. What do you want to do" and that Marshall replied, "[l]et's get it over with"). Zeitz, therefore, did not request a continuance.

  The penalty phase began at 1:45 p.m. with the parties explaining their agreement to Judge Manuel Greenberg outside the presence of the jury.*fn12 At 1:55, the jury was called in, and [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES] after introductory statements by Judge Greenberg, counsel made their closing statements to the jury. Id. As per the agreement, Zeitz spoke first. The entirety of Zeitz's statement is as follows:
Yes. Thank you, your Honor. It would be an understatement for me to say that this is not a difficult moment for me, and I'm sure it's difficult for everyone in terms of the proceedings that we now have to deal with.
What, in essence, we are at right now at this stage is a situation where the State has agreed that there is one mitigating factor which you must find exists in the case, and that that [sic] Rob Marshall has never had any type of criminal record of any kind.
The reason why I believe, when you look to the legislative history of the death penalty when it came into New Jersey that that clearly is a mitigating factor, is because, if you will, people feel, and I think quite rightly, that if you live a law-abiding life, that at some point in time you may be in a position where you may have to ask people to allow you to draw, if you will, maybe a credit because of the fact that you've led such a life. There are people obviously who have not led law-abiding lives and have been in situations where they've been in front of a jury arid the jury has convicted them of a capital offense, and the jury will hear that this person has led a life, not law-abiding, but in fact, has had a juvenile record, has had a record of other offenses and, for the most part, has lived a life that in all ways, shapes, and forms never conformed to what our society at least requires. In this particular case it's been agreed that Rob Marshall has led a law-abiding life, and that you must consider that as a mitigating factor.
The State has one aggravating factor which they are going to ask you to consider, and that is the fact, under the statute, this offense as you have found — and at this point, as a lawyer, I have to accept that you have found that — was procured by the payment or the thought of payment for some pecuniary gain.
The other mitigating factor that Judge Greenberg referred to deals with other circumstances and factors which a jury may consider in mitigation with regard to the death penalty. In this particular case, in addition to the fact that Rob Marshall has no prior criminal record, there's certain things, at least with regard to his life, that he has done, which he is entitled for you to consider.
He was involved in, among other things, with the Ocean County Businessmen's Association. You've heard that. He was campaign chairman for United Way, and for a number of years worked with them in community affairs, raising money for United Way. In addition to that, he served with his family on various social activities, involving the swim leagues and certain other things of a community nature.
I don't want to stand here and go through the whole litany of things that he's done in forty-six years that — either for other people or for his family or of a civic nature. Suffice it to say, the record is substantial in that area, and you have an absolute right to consider that as a mitigating factor.
As the Judge told you, now, in terms of a defense, we do not have to prove to you that the mitigating factors in some way outweigh the aggravating factor. The State has to prove to you, beyond a reasonablbe I [sic] doubt, and you certainly know what that standard is, because you've been told that and you've been explained that by counsel, you have to use that standard when you determine whether or not you feel he deserves the death penalty.
One thing I have to tell you about this, which I think makes it an individual decision for each one of you, and that is that the only way that the death penalty can be imposed is if all twelve of you agree to do it unanimously. So that you, in essence, have a power in your hands that, quite candidly, I would never have in my hands, because, as a lawyer, we generally don't serve as jurors. So I have no way of knowing what it must be like.
All I can say is this, that I hope when you individually consider the death penalty, that you're each able to reach whatever opinion you find in your own heart, and that whatever you feel is the just thing to do, we can live with it.
Tr. of Proceedings at 14-17, New Jersey v. Marshall, N.J. Super. Ct. Crim. Div., Atlantic County, Indictment No. 26-1-85, Supreme Court Docket No. 25532 (March 5, 1986). Mr. Zeitz did not present any witnesses, did not present any documentary or physical evidence and did not make a plea for his client's life. Tr. Sept. 3, 2003, Test, of Glenn Zeitz at 13, 1. 6-19; 112, 1. 13-24. Marshall did not speak, on his own behalf. The Government then made its presentation.*fn13 After receiving their instructions and deliberating for ninety minutes, the jury sentenced Marshall to death by lethal injection. Marshall V, 307 F.3d at 98; Marshall I, 586 A.2d at 114.


  28 U.S.C. § 2254, the statute governing federal court review of habeas petitions brought by persons "in custody pursuant to the judgment of a State court," permits that review only where the petitioner alleges that he "is in custody in violation of the Constitution or laws or treaties of the United States." § 2254(a) (2004). Only after a petitioner successfully proves that he or she "seeks to apply a rule of law that was clearly established at the time his [or her] state-court conviction became final," may a federal court assess the merits of the habeas application. Williams v. Taylor, 529 U.S. 362, 390 (2000) (finding that the phrase "clearly established" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision").

  In evaluating the merits of a habeas application, a federal court is permitted to grant a writ only where it finds that the adjudication of the claim on the merits in State court:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d);*fn14 see also Marshall V, 307 F.3d at 50; Marshall IV, 103 F. Supp.2d at 772-773.*fn15

  In Williams, the Supreme Court clarified the meanings of "contrary to" or "an unreasonable application of" Supreme Court precedent.*fn16 529 U.S. at 413 (stating explicitly that the two phrases have independent, meanings). A state court decision is contrary to Supreme Court precedent if the state court reached a "conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id.; see also Bell v. Cone, 535 U.S. 685, 694 (2002); Williams v. Price, 343 F.3d 223, 228-29 (3d Cir. 2003); Werts, 228 F.3d at 195-96. A state court's application of Supreme Court precedent is unreasonable "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 365, 408, 413. An unreasonable application must be "more than incorrect or erroneous" it must be "`objectively unreasonable.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 409-411. Thus, to successfully apply for writ of habeas corpus under § 2254, Petitioner must demonstrate that: (1) at the time of his trial, the Supreme Court's standard for ineffective assistance of counsel was clearly established; and (2) the state court decision either contradicts that standard, Williams, 529 U.S. at 405-06, or the "decision, evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified." Werts, 228 F.3d at 204; see also Matteo, 171 F.3d at 888; Rompilla v. Horn, 355 F.3d 233, 250 (3d Cir. 2004), reh'g denied, 359 F.3d 310 (3d Cir. 2004).

  As to the first element of a successful § 2254 application, Petitioner has met his burden of claiming a violation of a clearly established constitutional right. The Supreme Court first articulated the standard for ineffective assistance of counsel claims under the Sixth Amendment in Strickland v. Washington, 466 U.S. 668 (1984), a full two years prior to Marshall's trial. Since that time, the Court has consistently applied the standard and recognized its clarity for the purposes of § 2254 petitions. See, e.g., Williams, 529 U.S. at 390 (finding that petitioner met his burden under § 2254 where he claimed ineffective assistance of counsel, the merits of which were "squarely governed by . . . Strickland"). Thus, the Court may evaluate the substance of Petitioner's claim that the New Jersey Supreme Court's determination that ...

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