The opinion of the court was delivered by: FAITH HOCHBERG, District Judge
This matter is before the Court on petitioner Anthony Julien's
application for habeas corpus relief under 28 U.S.C. § 2254. For
the reasons stated below, the petition for habeas relief will be
denied for failure to make a substantial showing of a federal
statutory or constitutional deprivation. I. BACKGROUND
Petitioner, Anthony Julien ("Julien"), is presently confined at
the New Jersey State Prison in Trenton, New Jersey. He challenges
a July 28, 1995 state court conviction and sentence imposed by
the Superior Court of New Jersey, Law Division, Criminal Part,
Julien was indicted on August 16, 1994 by an Essex County Grand
Jury on the following offenses: Count 1: first degree robbery, in
violation of N.J.S.A. 2C:15-1; Count 2: first degree felony
murder, in violation of N.J.S.A. 2C:11-3a(3); Count 3: knowing
and purposeful murder of Selvon Davis in the first degree, in
violation of N.J.S.A 2C:11-3a(1),(2); Count 4: third degree
possession of a firearm without a permit, in violation of
N.J.S.A. 2C:39-5(b); and Count 5: second degree possession of a
weapon for an unlawful purpose, in violation of N.J.S.A.
2C:39-4a. (Respondent's Exhibit A).*fn1 On June 20, 1995, the Honorable Francine A. Schott, J.S.C.,
conducted a Wade hearing on the out-of-court identification of
Julien by witness Gilly Williams. Judge Schott denied defendant's
motion to suppress the identification testimony. (2T 63:24-25).
Trial commenced on June 21, 1995 and concluded on June 30, 1995.
After the evidence had been presented, defense counsel requested
a jury instruction on passion-provocation manslaughter, which was
denied by the trial court. The jury found Julien guilty of Counts One and Two, robbery and felony
murder, but acquitted defendant of the remaining charges on
Counts Three through Five. (7T 4:3-5:20).
On June 30, 1995, Julien's counsel moved for a new trial and to
vacate the verdict as against the weight of the evidence. The
court denied both motions and sentenced Julien to 30 years in
prison without parole. (8T). On October 25, 1995, Julien's
counsel filed a Notice of Appeal and a motion to file a Notice of
Appeal nunc pro tunc, which was granted by the Superior
Court of New Jersey, Appellate Division on November 13, 1995. The
conviction and sentence were affirmed by the Appellate Division
by unreported opinion on February 7, 1997 (Petition at ¶ 9).
Julien's petition for certification to the Supreme Court of New
Jersey was denied on May 21, 1997. (Petition at ¶ 9; Answer at ¶
9). Julien then filed a petition for post-conviction relief
("PCR") in state court on February 10, 1998. (Petition at ¶ 11).
The state PCR petition was denied by Judge Schott in an
unpublished letter opinion on August 9, 1999. (Petition at ¶
11(a)(6)). On September 22, 2000, Julien appealed from the denial
of his PCR petition. The Appellate Division affirmed the state
court's denial decision by an unpublished opinion filed on
October 24, 2001. (Petition at ¶ 11(b)). The petition for
certification to the Supreme Court of New Jersey was denied on
March 20, 2002. (Petition at ¶ 11(c)). On or about June 21, 2002, Julien filed this petition for
federal habeas relief under 28 U.S.C. § 2254.*fn2 The State
filed an answer to the petition, with the relevant state court
record, on November 21, 2002.*fn3
The following rendition of facts is taken from the petition,
the State's answer, and the state court record.
On August 16, 1994, three men confronted Selvon Davis in an
apartment Davis shared with his girlfriend at 94 South Harrison
Street in East Orange, New Jersey. There was a loud argument; the
men fled; and Davis was found dead.
The victim and petitioner were business partners in an illegal
drug transaction involving ten pounds of marijuana. On August 16, 1994, the three men went to the victim's apartment and
allegedly argued over an amount of marijuana that was stolen from
the victim's "stash". The argument led to a fight, which resulted
in the victim being shot to death. The three men left the victim
on his back with his hands bound by tape. They then ransacked the
apartment and stole several items belonging to the victim and his
girlfriend, Dana Bryant.
At trial, a witness, Gilly Williams, testified that he had
observed three men entering the victim's apartment before the
murder on August 16, 1994. He also saw the same three men running
from the apartment after the shooting. Williams testified that
before the men had entered the victim's apartment, one of the men
looked right at him. In an out-of-court identification, Williams
picked Julien's picture out of several photo arrays shown to him
by the investigating police several days after the shooting.
However, Williams was unable to identify Julien in court. Also at
trial, Stephen Bessier, a friend of Julien, testified that he had
a conversation with Julien in which Julien allegedly admitted
that he had recently fought and killed someone in the cities of
Orange over a drug deal "gone bad." Dina Bryant, the victim's
girlfriend, testified about the marijuana. She identified Julien
and Hillary Edwards as the victim's business partners in a drug
operation. She also stated that property had been stolen from her
apartment. Hillary Edwards testified that the victim was upset about a pound of
marijuana that had been stolen from him. Edwards stated that the
victim blamed Edwards and Julien for the missing marijuana and
demanded repayment. Edwards said that he repaid the victim, but
he was not sure if Julien had done so.
At trial, there was no direct, physical evidence placing Julien
at the apartment; there was only Williams' testimony based on an
out-of-court identification. Four useable fingerprints were found
at the apartment. These four fingerprints did not match Julien,
Bryant, the victim, or Edwards, and the police were unable to
identify the fingerprints. However, there was testimony by the
police and by Williams that Williams and friends had entered the
apartment after the shooting.
The jury found Julien guilty of first degree robbery and felony
murder. They acquitted him of the remaining charges of murder,
possession of a weapon for an unlawful purpose, and possession of
a firearm without a permit.
Before trial, the court conducted a Wade hearing with respect
to the admissibility of Gilly Williams' out-of-court
identification. Defense counsel argued that the identification
was unreliable and was made under suggestive circumstances. The
following persons testified at the Wade hearing: Gilly
Williams; Detective Thomas Koundry of the East Orange Police
Department; and William Worrell, a criminal defense investigator employed
with the Public Defender's office.
Williams first testified about what he saw the night of the
shooting. He and a few friends were sitting on some steps inside
the apartment building where the victim was killed. One of
Williams' friends opened the outside door to let the three men
inside. The men then went up the stairs to the victim's
apartment. Williams stated that two of the men leaned on the
wall, while one of them knocked on the door. He also stated that
the area was brightly lit and that one of the men looked directly
at him. Williams looked at the man. The other two shielded their
faces. When one of the men knocked on the victim's door and said
"it's Tony", the victim let the men inside. Williams then heard
loud voices arguing, in what sounded like a foreign language. He
did not hear what was said. He also testified that music was
turned up loud so that the men could not be heard. Feeling
uncomfortable about the situation, Williams and his friends left
the apartment building. Shortly afterwards, Williams saw the
three men running from the apartment. Williams and his friends
then went inside the apartment and found the victim lying on the
When the police arrived, Williams voluntarily went to them to
give information about what he saw. The police took Williams to
the police station for the purpose of taking a statement. Williams admitted that he lied to the police about his age,
saying he was only 17 at the time, because he did not want to get
involved. Several days later, Williams again was taken to the
police station to see if he could make an identification from
photo arrays of any of the men he saw at the apartment on the
night of the murder. Williams stated that he recognized Julien's
picture shortly after he saw it, but sat for almost two hours
without making an identification. He finally identified Julien's
picture as that of the man he saw the night of the murder. He
admitted to the police that he was afraid that the man would come
after him. Then he told the police his correct age; he was
eighteen years old at the time.
Williams also testified that he spoke with an investigator from
the public defender's office by telephone. He stated that he was
irritated because he did not want to be bothered anymore with
questions about the matter. He told the investigator essentially
what he told the police. Williams also told the investigator that
he was not going to go to court. Williams testified that the
investigator read selected parts of Williams' statement that had
been given to the police. Williams stated that he never told the
investigator that the police or anybody else had indicated that a
woman has selected Julien's picture.
Detective Koundry also testified about the circumstances of the
photo identification conducted at the police station. He confirmed that Williams had sat for almost two hours. The
detective also stated that he observed Williams looking at one
photo array for some time. Koundry further testified that
Williams told him that he was reluctant to identify the picture
as one of the men he saw because Williams was afraid the man
would come after him. Koundry confirmed that he did not tell
Williams that another woman had identified the picture of Julien.
Although he was not in the room the entire time, Koundry stated
that he never heard the other investigating officer tell Williams
that a woman had identified Julien. Koundry stated that Dina
Bryant's identification of Julien took place several days later.
William Worrell was the investigator who had spoken to Williams
over the phone. It was Worrell who testified that Williams told
him that he picked the defendant's picture because "the cop told
me that's the one the girl picked." There was no independent
evidence or testimony to corroborate Worrell's testimony.
At the conclusion of the testimony, the court ruled that there
was nothing in the out-of-court identification by Williams that
was so suggestive as to result in a substantial likelihood of
misidentification. The court found that the photo arrays were not
suggestive in and of themselves, although there was no challenge
to the identification on that basis. The only evidence of
suggestion that would warrant suppression was the alleged statement by Williams to the investigator Worrell that the police
told him that Julien's picture had been picked by "some girl". In
this regard, the court found that Williams may have made the
statement but he was not being truthful because Williams was
"trying to get rid of [Worrell]", and wanted to be left alone.
(2T 61:23-63:4). The objective evidence did not support defense
counsel's claim. The court noted:
The testimony makes clear that there was a woman who
had given names of suspects, each of those suspects
were included in the various photo arrays presented
to Mr. Williams. If in fact the statement that the
officers told Mr. Williams who to pick out was
truthful, there would be no reason why they would not
also point out the other suspects to him as well and
tell him to pick those other suspects out at the same
(2T 63:4-11). The court ruled that there was no evidence of
suggestibility based on the testimony. The court also found that
Williams was "quite certain in his identification". Therefore the
motion to suppress the out-of-court identification was denied.
II. CLAIMS FOR HABEAS RELIEF
Julien raises the following claims in his federal habeas
Ground One: Petitioner should receive an evidentiary hearing on
Ground Two: Petitioner's conviction must be reversed because
eyewitness' out-of-court identification of petitioner's photo
resulted in an irreparable mis-identification. Ground Three: The jury charge on the identification issue was
Ground Four: Ineffective assistance of trial counsel.
Ground Five: Ineffective assistance of appellate counsel.
Ground Six: The cumulative errors in the state trial
proceedings warrant a new trial.
It appears from the state court record that all of petitioner's
claims for habeas relief were presented to the state courts on
direct and collateral review. The State does not contend that any
of the claims raised by petitioner here are unexhausted under
28 U.S.C. § 2254(b).
III. STANDARDS GOVERNING PETITIONER'S § 2254 CLAIMS
The Court recognizes that a pro se pleading is held to less
stringent standards than more formal pleadings drafted by
attorneys. Estelle v. Gamble, 429 U.S. 97
, 106 (1976); Haines
v. Kerner, 404 U.S. 519
, 520 (1972). Thus, a pro se habeas
petition should be construed liberally and with a measure of
tolerance. See Royce v. Hahn, 151 F.3d 116
, 118 (3d Cir.
1998); Lewis v. Attorney General, 878 F.2d 714
, 721-22 (3d Cir.
1989); Duarte v. Hurley, 43 F. Supp.2d 504, 507 (D.N.J. 1999).
Because Julien is proceeding pro se in his application for
habeas relief, the Court will accord his petition the liberal
construction intended for pro se litigants. Under § 2254, as amended by the Anti-Terrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), federal courts in habeas
matters must give considerable deference to determinations of the
state trial and appellate courts. See 28 U.S.C. § 2254(e);
Duncan v. Morton, 256 F.3d 189
, 196 (3d Cir.), cert.
denied, 122 S.Ct. 269 (2001); Dickerson v. Vaughn,
90 F.3d 87
, 90 (3d Cir. 1996) (citing Parke v. Raley, 506 U.S. 20, 36
(1992)). Section 2254(d) sets the standard for granting or
denying a habeas writ:
(d) 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).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court
explained that subsection (d)(1) involves two clauses or
conditions, one of which must be satisfied before a writ may
issue. The first clause, or condition, is referred to as the
"contrary to" clause. The second condition is the "unreasonable
application" clause. Williams, 529 U.S. at 412-13. In the
"contrary to" clause, "a federal court may grant the writ if the state arrives at 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. Under the
"unreasonable application" clause, a federal court may grant the
writ 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 petitioner's] case."
Id. at 413. Habeas relief may not be granted under the
"unreasonable application" condition unless a state court's
application of clearly established federal law was objectively
unreasonable; an incorrect application of federal law alone is
not sufficient to warrant habeas relief. Id. at 411. See
also Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000),
cert. denied, 532 U.S. 980 (2001); Matteo v. Superintendent,
SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999), cert. denied
sub nom Matteo v. Brennan, 528 U.S. 824 (1999).
Consonant with Williams, the Third Circuit has held that §
2254(d)(1) requires a federal habeas court to make a two step
inquiry of the petitioner's claims. First, the court must examine
the claims under the "contrary to" provision, identify the
applicable Supreme Court precedent and determine whether it
resolves petitioner's claims. See Werts, 228 F.3d at 196-97;
Matteo, 171 F.3d at 888-891. If the federal court determines that the state court's decision was not "contrary to" applicable
Supreme Court precedent, then the court takes the second step of
the analysis under § 2254(d)(1), which is whether the state court
unreasonably applied the Supreme Court precedent in reaching its
decision. Werts, 228 F.3d at 197.
This second step requires more than a disagreement with the
state court's ruling because the Supreme Court would have reached
a different result. Id. AEDPA prohibits such de novo review.
Rather, the federal habeas court must determine whether the state
court's application of the Supreme Court precedent was
objectively unreasonable. Id. In short, the federal court must
decide whether the state court's application of federal law, when
evaluated objectively and on the merits, resulted in an outcome