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MILLER v. SHERRER

August 3, 2005.

BRYAN MILLER, Petitioner,
v.
LYDELL SHERRER, et al., Respondents.



The opinion of the court was delivered by: JOSEPH RODRIGUEZ, Senior District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

Bryan Miller ("Miller"), who is confined at the Northern State Prison in Newark, New Jersey, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a), raising several grounds for relief. The State filed an Answer opposing the Petition, accompanied by relevant portions of the state court proceedings. For the reasons discussed herein, the Court will deny habeas relief, dismiss the Petition, and decline to issue a certificate of appealability. See 28 U.S.C. §§ 2254 (a) and (d); 2253 (c)(2).

I. BACKGROUND

  On April 19, 2000, Miller was convicted of first-degree robbery in violation of N.J.S.A. 2C:15-1 (count one), and second-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1) (count two). (See RE4.) The jury acquitted Miller on two other related charges of third-degree terroristic threats, N.J.S.A. 2C:12-3a (count three), and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). (See RE4.)

  The Honorable Samuel Natal, J.S.C. ("Judge Natal") gave a standard jury instruction on the crimes charged. (See RE15 at 168-14 to 168-23.) He did not receive objections to the instructions. (See id. at 173-7 to 176-10.) During deliberation, the jury asked the following question about the difference between serious and significant bodily injury:
THE COURT: Counsel, I've received the following question from the jury, it says: "The difference between serious bodily injury and significant." Counsel, what I propose to do is I'm just going to read definitions from 2C:11-1. I would start with bodily injury, then I would read serious bodily injury, and then significant bodily injury.
* * *
Any objection to the Court answering that way?
Mr. Nieves (Defendant): No, Your Honor.
Ms. Ruggero (State): No, Your Honor.
(Id. at 166-22 to 167-14.) After the jury listened to Judge Natal's instruction, it returned a verdict of first-degree robbery, which involved an attempt to inflict serious bodily injury in the course of committing the crime, and found Miller not guilty of second-degree aggravated assault, which involved an attempt to cause serious bodily injury. (See id. at 169-20 to 172-25.) The jury, however, found Miller guilty of third-degree aggravated assault, which involved an attempt to cause significant bodily injury. (Id.)
  The judge interrupted the verdict and conferred with counsel about the inconsistent verdict of first-degree robbery and third-degree aggravated assault. (See id. at 173-6 to 174-11.) He obtained agreement from Miller's attorney in order to request the jury to further deliberate on the inconsistent verdict. (See RE15 at 173-6 to 174-11.) The judge gave the following supplemental instructions:
THE COURT: Members of the jury, listening to your verdict, I'm a little confused in that under count one, you have found the defendant guilty of robbery. And you have answered specifically question number two, did the defendant in the course of committing the robbery purposely inflict or attempt to inflict serious bodily injury, and you've answered yes.
Yet on count two, the aggravated assault where you were asked whether or not the defendant attempted to cause serious bodily injury to Thomas Johnson and/or did purposely or knowingly cause serious bodily injury to Thomas Johnson and/or under circumstances manifesting extreme indifference to the value of human life did recklessly cause serious bodily injury, you've answered not guilty.
They seem inconsistent with each other in that under count two you've answered did the defendant, in the course of committing a crime, attempt to cause — attempt to inflict serious bodily injury, and yet you found him not guilty of attempting to cause serious bodily injury under count two.
It appears to be a conflict.
Members of the jury, I don't want to go into your reasons at this point, however, I'd like to have you go back and reconsider these verdicts before I take them as final verdicts because it does appear to be inconsistent on its face.
Counsel, is that agreeable?
MR.NIEVES (Defendant): Yes, Your Honor.
MS. RUGGERO (State): Yes.
THE COURT: Members of the jury, I'm going to ask you to go back and please I will not accept any of these verdicts at this point. I want you to go back and deliberate and let me know whether or not you feel any of these verdicts as delivered to the Court are inconsistent or you feel may be changed so that they are consistent. Again, it's your decision that applies.
But if you can see what I'm getting at, it appears to be inconsistent in those questions.
And, members of the jury, if you come back, let me know that you wish that to be your final verdict, I will take it. However, I feel in reviewing this, it appears that they are inconsistent.
I will return your verdict sheet to you and ask that you please go back to continue your deliberations and let me know when you have reached a verdict. (Jury Out)
THE COURT: Counsel, anything further at this time?
MR. NIEVES (Defendant): Not at this time, Your Honor.
MS. RUGGERO (State): Not at this time.
(RE15 at 174-13 to 177-1.) Neither counsel objected to this instruction. The judge acknowledged that his supplemental instruction gave Miller the potential of being found guilty on a lesser charge and stated:
THE COURT: I felt that while we had the jury here, there was an opportunity for the jury to let us know if, in fact, there was a mistake inasmuch as even if the defendant has been convicted at this point of the more serious offense, it would merge and, therefore, the defendant was in no further exposure at that point.
He did have the opportunity, if the jury felt the other way, to find him guilty of only a second degree robbery and, therefore, there was no down side to the defendant.
The State was running the risk that, in fact, they might not have a first degree conviction, it would only be a second degree.
(Id. at 185-21 to 186-8.) The jury deliberated and returned a verdict of first-degree robbery and second-degree aggravated assault. (See id. at 177-18 to 183-17.) Then, the judge merged the second-degree assault conviction into the first-degree robbery conviction. See infra Part II.B.; (See also RE15.)

  The trial court rejected the state's application to impose an extended term for which Miller was eligible, and sentenced Miller, on the robbery, to a maximum term of twenty years subject to ten years of parole ineligibility. (See RE16.) Thus, the second-degree aggravated assault charge did not affect Miller's sentence because it was merged into the first-degree robbery charge. Miller appealed the conviction to the Superior Court of New Jersey, Appellate Division ("Appellate Division"). (See RE4.) The conviction and sentence were affirmed on September 17, 2001. (Id.) Miller claimed that: (1) the trial court's directive that the jury re-deliberate their verdict on aggravated assault was plain error; (2) that the photo array was highly suggestive and should not have been allowed into evidence; (3) that there was not effective assistance of counsel; (4) that the verdict was against the weight of the evidence; and, (5) that the sentence was manifestly excessive. (See RE3.)

  On November 14, 2001, Miller filed a Petition for Certification with the New Jersey Supreme Court, which contended that the Appellate Division erred when it rejected the same five claims raised on appeal. (Id. at 2.) On February 19, 2002, the Supreme Court denied Miller's Petition for Certification. (See RE1.)

  On October 18, 2002, Miller filed the instant Petition, which asserts four (4) grounds for relief. First, Miller claims that Judge Natal's directive that the jury re-deliberate its verdict on aggravated assault was plain error because he unfairly benefitted the State when he alerted counsel of the verdict, controlled the conference, and conducted the conference in view of the jury. (See Pet. ¶ 12.A.) Second, Miller argues that the jury verdict was against the weight of the evidence. (See Pet. ¶ 12.B.) Third, Miller asserts that he received ineffective assistance of counsel. (See Pet. ¶ 12.C.) Lastly, Miller claims that the photo array exhibited at trial was an improper and suggestive identification. (See Pet. ¶ 12.D.) On March 20, 2003, the State filed its Answer. II. DISCUSSION

  A. Standard of Review for a § 2254 Petition in district court

  The standard of review of a § 2254 Petition in district court is mandated by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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); Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). A federal habeas court must presume that a state court's findings of fact are correct. See 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir. 2000).

  Section 2254(d)(1) defines two categories of cases where state prisoners can obtain habeas corpus relief for claims adjudicated on the merits in state court: (i) where the relevant state court decision was contrary to the clearly established federal law as determined by the Supreme Court; or, (ii) where it involved an unreasonable application of such law. See 28 U.S.C. § 2254(d)(1) (emphasis added).

  Under the first category, a state court decision is contrary to Supreme Court precedent under § 2254(d)(1) where 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." Marshall, 307 F.3d at 51 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Under the second category, a state court decision is an unreasonable application under § 2254(d)(1) if the court

 
identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court's precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002) (citing Williams, 529 U.S. at 407).

  The unreasonable application test is an objective one — a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003); Gattis, 278 F.3d at 228. AEDPA's deferential standards of review do not apply "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of ...


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