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MILNE v. BURNS

August 24, 2005.

SHAWN MILNE, Petitioner,
v.
JEFFREY J. BURNS, et al., Respondents.



The opinion of the court was delivered by: MARY COOPER, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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

This matter is before the Court on petitioner Shawn Milne's petition for writ of habeas corpus, pursuant to 28 U.S.C. § ("Section") 2254. The Court, for the reasons stated herein, will deny Milne habeas corpus relief and the writ will not issue.

BACKGROUND

  I. Procedural History

  Milne, who was fifteen years old at the time of the offense, was tried and convicted for the murder and sexual assault of a thirteen-year-old girl in June of 1987. (11-22-04 State Br. at 1-3; 10-5-04 Berman Letter, at 1-2.)*fn1 Milne's "counsel considered, but ultimately did not present, a diminished capacity defense." State v. Milne, 842 A.2d 140, 142 (N.J. 2004).*fn2 Milne's counsel, instead, presented a theory of self-defense at trial. (11-22-04 State Br. at 2.)*fn3

  A judgment of conviction was entered against Milne on July 23, 1987 in the Superior Court of New Jersey, Ocean County, for knowing and purposeful murder in violation of N.J.S.A § 2C:1-3(a)(1) and aggravated sexual assault in violation of N.J.S.A. § 2C:14-2(a)(6). (10-21-99 Mem. Op. at 2.)*fn4 Milne was sentenced to 30 years without parole and 20 years with parole eligibility, respectively, to be served consecutively. (Id.)*fn5

  Milne appealed from the conviction and sentence to the Superior Court of New Jersey, Appellate Division ("Appellate Division"). (Id.) He presented nine grounds of appeal, none of which are asserted in the instant petition. (Id. at 3.) The Appellate Division affirmed the conviction on October 13, 1989. (Id.) Milne, raising primarily the same issues as he did before the Appellate Division, filed a petition for certification with the New Jersey Supreme Court, which was denied on January 23, 1990. (Id.) The United States Supreme Court denied Milne's petition for writ of certiorari on October 1, 1990. (Id.)

  Milne filed a petition for post-conviction relief ("PCR petition") in the state trial court on July 21, 1992 (the "first PCR petition"). (10-5-04 Berman Letter, at 2.) Milne sought relief on 3 grounds he was: (1) denied due process of law as a result of the unconstitutional statutory restrictions on the defense of diminished capacity; (2) incompetent to stand trial at the time of trial; and (3) denied effective assistance of counsel at trial because his trial counsel failed to: (a) request a court determination of his competency to stand trial and (b) assert a defense of diminished capacity. (10-21-99 Mem. Op. at 3-4.) Milne's trial counsel, Bonnie Richman, filed an affidavit dated January 19, 1993, stating, inter alia, (1) why she did not pursue a diminished capacity defense and (2) that Milne "seemed completely disinterested in what was going on in the courtroom . . . and at times he almost seemed catatonic." (App. to Milne Br., Vol I., Ex. 21a, Richman Aff., at 53a-55a.)

  Judge Giovine denied Milne's first PCR petition in its entirety, on March 16, 1993. (10-5-04 Berman Letter, at 2.) Milne appealed from the denial of his first PCR petition to the Appellate Division, "challenging the trial court's failure to hold an evidentiary hearing on his Mellaril and Sixth Amendment claims." (9-4-97 Milne Br. at 5.) The Appellate Division affirmed Judge Giovine's decision on April 19, 1994. (10-5-04 Berman Letter, at 2.) The New Jersey Supreme Court denied Milne's petition for certification on November 16, 1994. (Id.)

  Milne filed a writ of habeas corpus (the "habeas petition"), pursuant to Section 2254(a), in this Court on April 18, 1997. (10-21-99 Mem. Op. at 4.) Milne claimed that he was unlawfully confined because he was denied: (1) due process of law by N.J.S.A. § 2C:4-2, which placed upon him the burden of proving by a preponderance of the evidence that he suffered from a diminished capacity ("the Humanik claim"); (2) due process of law as a result of the State's administering him the antipsychotic drug, Mellaril, throughout his trial ("the Mellaril claim"); and (3) effective assistance of counsel at trial because his counsel failed to pursue the defense of diminished capacity ("the Sixth Amendment Claim"). (Id. at 4-5; see App. Milne Br., Vol. I, Ex. 21a, Habeas App., at 56a-62a.) Discovery with respect to Milne's Mellaril claim was completed by April 7, 1998. (10-5-04 Berman Letter, at 3.) This Court dismissed without prejudice and without an evidentiary hearing Milne's habeas petition for failure to exhaust state remedies with respect to the Humanik claim on October 21, 1999. (10-21-99 Mem. Op. at 14, 17.) However, this Court stayed this matter pending the New Jersey state courts' consideration of Milne's Humanik claim. (Id.)

  Milne filed a second PCR petition ("the second PCR petition") in state court on September 29, 2000. (10-5-04 Berman Letter, at 4.) The second PCR petition only raised the Humanik claim, asserting "that [Milne's] `right to due process was denied by virtue of the unconstitutional burden of proof imposed upon by the New Jersey diminished capacity statute.'" (Id.) The petition was denied on May 14, 2001. (Id.; State's Ex. 21b, 5-14-01 Ord. at 187a.) The Appellate Division, on December 3, 2002, reversed and remanded. State v. Milne, 810 A.2d 588 (N.J. App. Div. 2002). The Appellate Division held that Milne's Humanik claim was not time-barred and required that Milne be afforded an opportunity to prove that he could have presented a triable jury issue regarding a diminished capacity defense at an evidentiary hearing. Id. at 597-98. The State then filed a petition for certification to the New Jersey Supreme Court. (10-4-05 Berman Letter, at 5.) That petition was granted on January 20, 2003. State v. Milne, 815 A.2d 480 (N.J. 2003). The New Jersey Supreme Court reversed, on March 2, 2004, holding that the 5-year time limit for seeking post-conviction relief would not be relaxed as to Milne's Humanik claim. State v. Milne, 842 A.2d 140, 145-46 (N.J. 2004). The Court issued an order reopening this matter on July 2, 2004.

  II. Humanik and Culley Decisions

  The diminished capacity defense, at the time of Milne's trial, was governed by a version of N.J.S.A. § 2C:4-2, which required a defendant to prove a defense of diminished capacity by a preponderance of the evidence. That statute was found unconstitutional, in 1989, in Humanik v. Beyer, 871 F.2d 432, 443 (3d Cir. 1989). The New Jersey Supreme Court directed trial courts, in response to Humanik, not to "require a defendant raising the diminished capacity defense to prove the asserted disease or defect by a preponderance of the evidence" on November 2, 1989 ("the first Humanik directive"). Milne, 842 A.2d at 142. The New Jersey Supreme Court issued the second Humanik directive, which "extended [the first Humanik directive] to appeals as of December 8, 1989, but cautioned that [Humanik] does not require a reversal of every case presenting a diminished-capacity issue because other appellate principles may dictate a different result" (collectively the "Humanik directives"). Id. (quotations omitted). This second Humanik directive was issued while Milne's direct appeal was pending. Id.

  The Appellate Division held in State v. Culley, 595 A.2d 1098, cert. denied, 599 A.2d 164 (1991), that the New Jersey Supreme Court's Humanik directives only applied to pending appeals and future trials, not to PCR petitions. Milne, 842 A.2d at 142. The New Jersey Supreme Court, in 1995, held by implication in State v. Reyes, 658 A.2d 1218, 1222 (N.J. 1995), that a criminal defendant may pursue a Humanik claim in a PCR proceeding. Milne, 842 A.2d at 142-43.

  DISCUSSION

  I. Standards Governing Milne's Claims

  Section 2254 of Title 28, United States Code, provides that a district court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner has the burden of ...


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