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September 20, 2005.

ROY L. HENDRICKS, et al., Respondents.

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

  A. Procedural History

  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, Essex County.

  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

  B. Factual Background

  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.

  C. The Wade Hearing

  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 ground.

  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 time.
(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. (2T 63:18-25).


  Julien raises the following claims in his federal habeas petition:

  Ground One: Petitioner should receive an evidentiary hearing on this matter.

  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 fatally flawed.

  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).


  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 that ...

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