United States District Court, D. New Jersey
September 20, 2005.
ANTHONY JULIEN, Petitioner,
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,
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
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
that cannot reasonably be justified under existing Supreme Court
precedent. Id.; see also Jacobs v. Horn, 395 F.3d 92, 100
(3d Cir. 2005).
Finally, federal courts are required to apply a "presumption of
correctness to factual determinations made by the state court."
Id.; see also 28 U.S.C. § 2254(e)(1). The Third Circuit has
ruled that this presumption of correctness based upon state court
factual findings can only be overcome by clear and convincing
evidence. See Duncan, 256 F.3d at 196 (citing
28 U.S.C. § 2254(e)(1)). Consequently, a habeas petitioner "must clear a high
hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose,
274 F.3d 590, 597-98 (1st Cir. 2001).
IV. ANALYSIS OF PETITIONER'S CLAIMS
Having set forth the analytical framework for a habeas review
under § 2254(d)(1), the Court will now address the claims
presented by Julien in his petition for habeas relief.
A. Request for an Evidentiary Hearing
Julien seeks an evidentiary hearing in this matter concerning
the out-of-court identification of Julien by eyewitness, Gilly
Williams, and the statement made by Stephen Bessier concerning
petitioner's admission about committing a murder. Respondents
contend that all of the facts concerning the out-of-court
identification claim were fully explored in a pre-trial hearing
conducted pursuant to N.J.R.E. 104(a) and United States v.
Wade, 388 U.S. 218 (1967).
Prior to enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1217 (April 24,
1996), the Supreme Court held that "where an applicant for a writ
of habeas corpus alleges facts which, if proved, would entitle
him to relief, the federal court to which the application is made
has the power to receive evidence and try the facts anew."
Townsend v. Sain, 372 U.S. 293, 312 (1963). Indeed, in certain
circumstances, an evidentiary hearing was mandatory.
Where the facts are in dispute, the federal court in
habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair
evidentiary hearing in a state court, either at the
time of the trial or in a collateral proceeding. In
other words a federal evidentiary hearing is required
unless the state-court trier of fact has after a full
hearing reliably found the relevant facts.
. . .
[A] federal court must grant an evidentiary hearing
to a habeas applicant under the following
circumstances: If (1) the merits of the factual
dispute were not resolved in the state hearing; (2)
the state factual determination is not fairly
supported by the record as a whole; (3) the
fact-finding procedure employed by the state court
was not adequate to afford a full and fair hearing;
(4) there is a substantial allegation of newly
discovered evidence; (5) the material facts were not
adequately developed at the state-court hearing; or
(6) for any reason it appears that the state trier of
fact did not afford the habeas applicant a full and
fair fact hearing.
Id. at 312-13. The Supreme Court later refined this standard
with respect to the fifth circumstance enumerated in Townsend,
requiring a prisoner to "show cause for his failure to develop
the facts in the state-court proceedings and actual prejudice
resulting from that failure," but not otherwise curtailing the
Townsend list. Keeney v. Tamayo-Reyes, 504 U.S. 1, 11 (1992).
Keeney's threshold standard of diligence was codified by AEDPA
in the opening clause of new 28 U.S.C. § 2254(e)(2). Williams v.
Taylor, 529 U.S. 420
Title 28 Section 2254(e) now defines the circumstances under
which a federal district court may grant an evidentiary hearing.
It provides: (e)(1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a
determination of a factual issue made by a State
court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the
factual basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing on
the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2254(e).
Thus, if a prisoner fails to develop the factual basis of a
claim in State court proceedings, through some lack of diligence
or greater fault attributable to the prisoner or the prisoner's
counsel, an evidentiary hearing cannot be granted unless the
prisoner's case meets the other conditions of § 2254(e)(2).
Williams, 529 U.S. at 429-37. Conversely, where the facts have
not been developed in State court proceedings through no fault of
the prisoner or the prisoner's counsel, the prisoner is "excused
from showing compliance with the balance of the subsection's
requirements." Id. at 437. However, even if a new evidentiary hearing is
permitted under AEDPA when it is solely the state's
fault that the habeas factual record is incomplete
AEDPA, unlike Townsend and Keeney, does not
require that such a hearing be held. Instead, federal
courts have discretion to grant a hearing or not. In
exercising that discretion, courts focus on whether a
new evidentiary hearing would be meaningful, in that
a new hearing would have the potential to advance the
Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000), cert.
denied, 531 U.S. 1084 (2001).
Here, Julien seeks an evidentiary hearing on the out-of-court
identification issue, which he contends will determine the
likelihood of mis-identification. He claims that the Wade
hearing was inadequate. Petitioner relies on the factors set
forth in Townsend to support his claim for an evidentiary
In petitioner's brief, Julien contends that trial court's
determination that the identification was reliable and not
impermissibly suggestive was not supported by the evidence. He
also claims that the facts were not adequately developed at the
Wade hearing. To support his arguments, Julien substantially
lifts selected portions of Williams' testimony at trial and at
the Wade hearing to create a general sense of confusion about
the accuracy of Williams' identification. For instance, Julien
suggests that Williams was untruthful overall because he lied
about his age. Julien quibbles over Williams' testimony that the
picture was a "likeness" of the man he saw in the hallway. He also stresses that Williams was unable to make an in-court
identification of Julien. None of Williams' friends at the time
had identified petitioner. Further, Williams was not an
eyewitness to the actual crime. Julien argues at length that
Williams purportedly changed his story several times during the
Wade hearing about which man he actually saw. Finally,
Williams' description as to height did not fit the petitioner's
All of these arguments bear on the weight of the evidence, not
on the issue of admissibility as to whether or not the
identification was impermissibly suggestive. This was the main
argument raised on the motion to suppress. Defense counsel
principally argued that Williams had told Worrell that he only
picked Julien's picture because the police indicated that some
girl picked that photograph. This allegation is not corroborated
by Williams or by the police. Instead, the testimony by Williams
showed that he initially told the police that he did not
recognize any picture from the photo arrays, and that he
continued to look at them for almost two hours, even though he
recognized Julien's picture within 15 minutes, because he was
scared. Williams testified that he was afraid that the man would
come after him. The police also confirmed that Williams told them
that he had been afraid to identify the picture for fear of his
life. Other than the testimony of the defense investigator, there was no evidentiary support for the claim that the
identification was impermissibly suggestive. Furthermore, the
trial judge concluded that Williams did make the statement to
Worrell, but had done so to get Worrell to leave him alone.
Williams also told Worrell that he was not going to testify at
This Court finds nothing in the record, either at the trial
itself, or at the Wade hearing, to show that the merits of the
factual dispute were not adequately developed, reviewed, and
resolved in the state court proceedings. The factual finding of
the trial court was fairly supported by the evidence, that is,
Williams' out-of-court identification was found to be reliable
and not impermissibly suggestive. Julien does not allege any
newly discovered evidence that could have been previously
discovered through the exercise of due diligence. He does not
assert a new rule of constitutional law previously unavailable to
him. Further, he can demonstrate no material facts that would be
sufficient to establish by clear and convincing evidence that the
trial court's ruling was unreasonable. Thus, even if petitioner
claims that his counsel was deficient in failing to raise certain
arguments or presenting other witnesses to dispute Williams'
identification, such claims are not sufficient to warrant an
evidentiary hearing under the grounds listed in § 2254(e)(2), as noted above.*fn4 Therefore, having reviewed the relevant
transcripts and state court record, the Court finds no basis for
allowing an evidentiary hearing on the issue of Williams'
identification of petitioner, and petitioner's request is denied.
B. Admission of Out-of-Court Identification at Trial
Julien next argues that the admission at trial of Williams'
testimony concerning his out-of-court identification of
petitioner constitutes reversible error.
While the Sixth Amendment does not require that defense counsel
be present when a witness views police or prosecution
photographic arrays, see United States v. Ash, 413 U.S. 300
(1973), an accused nevertheless is entitled to due process
protection against the introduction of evidence of, or tainted
by, unreliable identifications elicited through an unnecessarily
suggestive photographic array, id. at 320; Manson v.
Brathwaite, 432 U.S. 98, 110-17 (1977); Simmons v. United
States, 390 U.S. 377 (1968) (due process prohibits in-court
identification if pre-trial identification procedure is "so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification"). The Supreme Court has recognized that "improper employment of
photographs by police may sometimes cause witnesses to err in
identifying criminals." Simmons, 390 U.S. at 383. The Court has
identified certain procedures that heighten the risk of
misidentification, including such practices as displaying the
photo of only a single individual who generally resembles the
person the witness saw, showing the witness photos of several
persons among which the photograph of a single individual recurs
or is in some way emphasized, or indicating to the witness that
police have other evidence that one of the persons pictured
committed the crime. Id. Despite the risk of misidentification,
the Supreme Court has not prohibited the employment of
photographic identification methods, either in the exercise of
its supervisory power or as a matter of constitutional
requirement. Id. Instead, the Court has required that each case
must be considered on its own facts and must be evaluated in
light of the totality of surrounding circumstances; also, the
Court has noted that the risk of conviction based on photo
misidentification "may be substantially lessened by a course of
cross-examination at trial which exposes to the jury the method's
potential for error." Id.
Where there has been an unnecessarily suggestive pre-trial
photographic identification of a suspect,
reliability is the linchpin in determining the
admissibility of identification testimony. . . . The factors to be considered . . . include the
opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of
attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and
the confrontation. Against these factors is to be
weighed the corrupting effect of the suggestive
Manson v. Brathwaite, 432 U.S. at 114 (citing Neil v.
Biggers, 409 U.S. 188
, 199-200 (1972)). "[C]onvictions based on
eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground
only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Simmons,
390 U.S. at 383. See also Stovall v. Denno, 388 U.S. 293
, 302 (1967),
overruled on other grounds, Griffith v. Kentucky,
479 U.S. 314
Where a trial court has failed to exclude identification
evidence obtained in violation of a defendant's due process or
Sixth Amendment rights, the habeas court must determine whether
the failure to exclude that evidence was harmless constitutional
error under Chapman v. California, 386 U.S. 18 (1967). See
Moore v. Illinois, 434 U.S. 220, 232 (1977).
The Court of Appeals for the Third Circuit has explained that
Simmons/Stovall inquiry is essentially two-pronged.
The first question is whether the initial
identification procedure was "unnecessarily" or "impermissibly" suggestive. This inquiry actually
contains two component parts: "that concerning the
suggestiveness of the identification, and that
concerning whether there was some good reason for
the failure to resort to less suggestive
procedures." If a procedure is found to have been
unnecessarily suggestive, the next question is
whether the procedure was so "conducive to . . .
mistaken identification" or gave rise to such a
"substantial likelihood of . . . misidentification"
that admitting the identification would be a denial
of due process.
United States v. Stevens, 935 F.2d 1380
, 1389 (3d Cir. 1991)
(citations omitted) (emphasis added by Third Circuit).
Here, Julien contends that the trial court should have
suppressed witness Gilly Williams' out-of-court identification
because it was unreliable and impermissibly suggestive.
Specifically, Julien contends that Williams' pre-trial
identification was flawed because: (1) Williams' told
investigator Worrell that he only picked the defendant's picture
because that's the one the girl picked; (2) his testimony at the
Wade hearing was inconsistent as to which man he actually saw;
(3) Williams' description of height and age did not match
petitioner; (4) Williams testified that the picture was a
"likeness" of the man he saw; (5) Williams initially told the
police that he did not recognize any of the pictures in the photo
arrays; (6) Williams spent almost two hours looking at the four
photo arrays before selecting petitioner's picture; (7) none of
Williams' friends at the time could identify petitioner; and (8)
Williams could not make an in-court identification. Petitioner also notes that, other than his alleged confession to Stephen
Beisser (in which he allegedly admitted that he shot a man over a
drug deal gone bad), the only evidence linking him to the crime
was Williams' identification.
Respondents counter that all of the relevant facts pertaining
to the alleged suggestiveness of Williams' out-of-court
identification were fully explored in the Wade hearing.
Moreover, the trial court found no impermissible circumstances of
suggestion at the police station identification and thus, no
likelihood of an "irreparable misidentification." Simmons,
390 U.S. at 383-84.
As noted above, the trial court held a Wade hearing
immediately preceding the trial, on June 20 and 21, 1995. The
trial court made the following findings of fact: (1) that
Williams did tell investigator Worrell that he only picked
defendant's picture because the police told him some girl picked
the same photograph, (2T 62:11-16); (2) that Williams' statement
to Worrell was not truthful and was given so as to make the
investigator leave him alone, (2T 62:21-63:1); (3) there was no
objective evidence to support the defense motion's claim that the
police told Williams that another witness identified defendant's
picture, (2T 63:2-4); and (4) the victim's girlfriend, Dina
Bryant, had given the police the names of other suspects, and the
pictures of those suspects were also included in the photo arrays; thus if the police had directed Williams, it is likely
that they would have had him identify the other suspects also.
In denying the motion to suppress, the trial court ruled that
there was no challenge to the suggestibility of the photo arrays
themselves and that the petitioner failed to present any
competent evidence of "suggestibility in the case whatsoever."
(2T 63:12-19). The court concluded that Williams had ample time
to observe the petitioner, and that Williams was "quite certain"
of his identification. (2T 63:20-25).
On direct appeal, the Appellate Division found that "[a]though
a reluctant witness, Gilly Williams' identification of defendant
from four photographic arrays was neither unreliable nor made
under suggestive circumstances, citing Manson v. Brathwaite,
432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); and
Simmons v. United States, 390 U.S. 377 (1968). (Ex. H,
Appellate Division Opinion, A-1248-95T4, filed February 7, 1997).
The Appellate Division further held that the trial court's
decision on the motion to suppress was "supported by substantial
credible evidence, [citation omitted] and the issue was properly
submitted to the jury." (Ex. H).
This Court finds that the procedure utilized by law enforcement
in the Williams' out-of-court identification was not unduly
suggestive. Further, the claims that Williams either lied or was inconsistent go to credibility, and the defense had the
opportunity to attack the credibility of the witness at trial.
This Court finds that the state court adjudication of this
claim did not result in a decision that (1) was contrary to
clearly established federal law, (2) involved an unreasonable
application of clearly established federal law, or (3) was based
on an unreasonable determination of the facts. See
28 U.S.C. § 2254(d). The state court correctly identified and applied the
governing legal rule and reasonably determined the applicable
facts. Most importantly, without any indicia of suggestiveness in
the photo array, the photographic identification procedure was
not so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.
Accordingly, petitioner's claim on this point is denied.
C. Jury Charge on Out-of-Court Identification
Julien also asserts reversible error in the trial judge's
charge to the jury on the out-of-court identification because the
trial judge declined to include an instruction that the
eyewitness was unable to make an in-court identification of
Julien. The respondents argue that jury instructions in state
trial are matters of state procedural law not generally
reviewable in a federal habeas petition. The State also contends
that under State v. Robinson, 165 N.J. 32, 41 (2000), a trial
court is not obligated to give fact-specific identification instructions that comment on apparent weaknesses in the State's
Questions relating to jury charges are normally matters of
state law and are not cognizable in federal habeas review. See
Engle v. Isaac, 456 U.S. 107 (1982); Henderson v. Kibbe,
431 U.S. 145 (1977); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3d
Cir.), cert. denied, 502 U.S. 902 (1991); Grecco v. O'Lone,
661 F. Supp. 408, 412 (D.N.J. 1987) (Thompson, J.). Only where
the jury instruction is "so prejudicial as to amount to a
violation of due process and fundamental fairness will a habeas
corpus claim lie." Id.
Where a federal habeas petitioner challenges jury instructions
given in a state criminal proceeding,
[t]he only question for us is "whether the ailing
instruction by itself so infected the entire trial
that the resulting conviction violates due process."
It is well established that the instruction "may not
be judged in artificial isolation," but must be
considered in the context of the instructions as a
whole and the trial record. In addition, in reviewing
an ambiguous instruction . . ., we inquire "whether
there is a reasonable likelihood that the jury has
applied the challenged instruction in a way" that
violates the Constitution. And we also bear in mind
our previous admonition that we "have defined the
category of infractions that violate `fundamental
fairness' very narrowly." "Beyond the specific
guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation."
Estelle v. McGuire, 502 U.S. 62, 72-73 (1991) (citations
omitted). Thus, the Due Process Clause is violated only where
"the erroneous instructions have operated to lift the burden of proof on an essential element of an offense as defined by state
law." Smith v. Horn, 120 F.3d 400
, 416 (1997), cert.
denied, 522 U.S. 1109 (1998). See also In re Winship,
397 U.S. 358
, 364 (1970) ("the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute th crime with which
he is charged"); Sandstrom v. Montana, 442 U.S. 510
(1979)) (jury instructions that suggest a jury may convict
without proving each element of a crime beyond a reasonable doubt
violate the constitutional rights of the accused).
Where such a constitutional error has occurred, it is subject
to "harmless error" analysis. Smith v. Horn, 120 F.3d at 416-17
(1997); Neder v. United States, 527 U.S. 1, 8-11 (1999). "[I]f
the [federal habeas] court concludes from the record that the
error had a `substantial and injurious effect or influence' on
the verdict, or if it is in `grave doubt' whether that is so, the
error cannot be deemed harmless." Smith v. Horn,
120 F.3d at 418 (citing California v. Roy, 519 U.S. 2, 5 (1996)). In
evaluating a challenged instruction,
a single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the
context of the overall charge. If the charge as a
whole is ambiguous, the question is whether there is
a reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the
Constitution. Middleton v. McNeil, 541 U.S. 433, 437 (2004) (internal
quotations and citations omitted).
Here, the relevant charge dealt with the issue of
identification. Petitioner points out that the charge was
critical because there was only one eyewitness who placed Julien
at the scene, and no direct, physical evidence placed petitioner
there. The court instructed the jury as follows:
Now, one item of evidence introduced by the state in
order to meet its burden with respect to the
identification of the culprit was the testimony of
Mr. Gilly Williams. You will recall that Mr. Williams
testified that he identified the defendant in a
picture as one of the persons Mr. Williams saw
entering Mr. Davis' apartment. According to Mr.
Williams, Mr. Williams identification of the
defendant is based upon the observations and
perceptions he made of the defendant on the scene at
the time the offense was being committed. It is your
function as jurors to determine the reliability of
this testimony and the weight, if any, to be given to
Mr. Williams' identification of the defendant and his
testimony in that regard.
In going about your task you should consider the
testimony of the witness in the light of the
customary criteria with regard to credibility that
I've previously explained to you. It is particularly
appropriate that you consider the capacity or the
ability of the witness to make observations or
perceptions as you gauge it to be and that you
consider the opportunity which the witness had at the
time and under all of the attendant circumstances for
seeing that which he says he saw or that which he
says he perceived with regard to his identification
of the person who committed the alleged offenses.
If after a consideration of all the evidence you have
a reasonable doubt as to the identity of the
defendant as the person present at the time and place
of the crime, you must acquit him. However, after a
consideration of all, if after a consideration of all
of the evidence you are convinced beyond a reasonable
doubt of the defendant's presence at the scene, you
will then go onto consider whether or not the state has proven each and every element of the crimes
charged beyond a reasonable doubt.
At the conclusion of the jury instructions, defense counsel
asked the court to add a specific charge on the fact that Gilly
Williams was unable to make an in-court identification. The court
declined, stating that it was a request for the court to
"improperly comment on the evidence." (5T 144:5-10).
On state collateral review, the Appellate Division found no
merit to Julien's claim that the trial judge's identification
charge to the jury violated due process. "The instruction as
given essentially tracked the model charge. While the trial
judge's charge could have been more closely tailored to the facts
of the case, we cannot fairly say that the instruction was
incorrect or that it otherwise misled the jury. [citation
omitted] We discern no abuse of the trial judge's discretion."
(Ex. U, Appellate Division Opinion on petitioner's appeal from
denial of state PCR petition, filed October 24, 2001).
Upon review of the jury instruction, this Court's review is
limited to asking whether the instruction so infected the entire
trial that the conviction violated due process. Did it deny
Julien the right to a fair trial? Did it operate to lift the
burden of proof of an essential element? The New Jersey Appellate
Division looked closely at this issue and stated that the charge
could have been more closely tailored to the facts, but it did not mislead the jury. The charge correctly instructs
the jury on its role and function in making factual
determinations as to the credibility and weight to be given to
identification testimony. The charge also reminds the jury that
even if they determine that defendant was at the scene of the
crime, they must next consider whether or not the state has
proven each and every element of the crimes charged beyond a
reasonable doubt. Thus, it is clear that the instructions did not
"lift" the burden of proof. See Sandstrom, 442 U.S. at 523
(jury instructions that suggest a jury may convict without
proving each element of a crime beyond a reasonable doubt violate
the constitutional rights of the accused).
Finally, Julien has not demonstrated that the trial court's
jury instructions and the state court's review of the issue on
appeal "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
"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." Accordingly, this ground for a writ
of habeas corpus will be denied.
D. Ineffective Assistance of Trial Counsel
Julien next contends that trial counsel was constitutionally
deficient in the following manner: (1) failing to cross-examine Williams with respect to his out-of-court identification; (2)
failing to call investigator Worrell as a witness at trial; and
(3) failure to conduct an adequate investigation in preparation
of the case.
The "clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), is
the standard for ineffective assistance of counsel as enunciated
in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, a petitioner seeking to prove a Sixth Amendment
violation must demonstrate that his counsel's performance fell
below an objective standard of reasonableness, assessing the
facts of the case at the time of counsel's conduct. Id. at
688-89; Jacobs v. Horn, 395 F.3d 92, 102(3d Cir. 2005); Keller
v. Larkins, 251 F.3d 408, 418 (3d Cir.), cert. denied,
534 U.S. 973 (2001). Counsel's errors must have been "so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 688. "In any case presenting
an ineffectiveness claim, the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances." Id. The Supreme Court further explained:
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action "might be
considered sound trial strategy."
Id. at 689 (citations omitted); see also Virgin Islands v.
Wheatherwax, 77 F.3d 1425
, 1431 (3d Cir.), cert. denied,
519 U.S. 1020 (1996).
If able to demonstrate deficient performance by counsel, Julien
must next show that counsel's substandard performance actually
prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice
is shown if "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id. at 694. The reviewing court must evaluate the effect of any
errors in light of the totality of the evidence. Id. at 695-96.
Thus, the petitioner must establish both deficient performance
and resulting prejudice in order to state an ineffective
assistance of counsel claim. Id. at 697. See also Jacobs,
395 F.3d at 102; Keller, 251 F.3d at 418.
1. Failure to Cross-Examine Witness Williams Petitioner asserts that his counsel's performance at trial was
deficient because he failed to cross-examine an eyewitness on an
out-of-court identification. Julien states that the witness'
testimony at the Wade hearing showed many inconsistencies in
his statement to the police. It also showed discrepancies as to
the description he gave police as to the culprit's height and age
and Julien's actual height and age. Williams also was unable to
identify Julien in court as the man he saw the night of the
murder. In short, petitioner argues that, given the lack of
direct, physical evidence that Julien was one of the culprits at
the scene of the victim's apartment, and the fact that Williams'
testimony and Stephen Beisser's testimony were the only
circumstantial evidence against petitioner elicited at trial,
trial counsel was constitutionally ineffective in failing to
cross-examine Williams to undermine his out-of-court
The trial court rejected this claim in the state PCR
proceeding, finding that the decision by trial counsel was
"clearly strategy", and "given the testimony of Mr. Williams the
Court cannot say that strategy was so unreasonable that to fall
below the basic standard of competency of trial counsel." (9T
11:9-12). The court further stated in its August 9, 1999 letter
opinion, that counsel acknowledged at trial that:
Because of the events in the trial or the ability, in
particular of Mr. Williams to identify my client at
trial, I elected not to cross-examine him nor call Mr.
Worrell to allow the prosecutor to recall Mr.
Williams to try to open up other avenues of
testimony. So, it was a tactical decision I made. (3T
(Ex. P, at pg. 6). The trial court concluded:
Defense counsel's strategic decision in regard to
Williams and Worrell cannot be said to be "beyond the
realm of objectively reasonable representation."
[citation omitted] With regard to Williams, defense
counsel already had, through Williams' direct, that
which most defendants hope to get through
cross-examination an admission that Williams could
not make an in-court identification. To cross-examine
him would have been to provide the State with an
opportunity to rehabilitate that testimony. Defense
counsel also already had before the jury Williams'
testimony that, although he told the picture was of
the guy that went into the apartment, he picked the
picture because it "looked like" the guy. To have
continued questioning Williams after this concession
would have been to risk a repetition of Williams'
more damaging Wade testimony it didn't just "look
like" the guy, but rather looked "just like the
guy." [emphasis added].
(Ex. P, at pg. 7).
On appeal from denial of the PCR petition, the Appellate
the record indicates that counsel's decision not to
cross-examine the witness constituted a strategic
choice that is "virtually unchallengeable."
[citations omitted] Williams' testimony on direct
examination was highly equivocal. Among other things,
Williams was unable to make a positive in-court
identification. Defense counsel's decision not to
cross-examine the witness thus constituted a
strategic and tactical choice falling within the
"broad zone of attorney discretion." [citation
(Ex. U, at pg. 2).
Given trial counsel's admission that his decision not to
cross-examine Williams was a strategic choice, and Williams'
testimony at trial and the Wade hearing tends to support that tactical decision,*fn5 this Court will not second guess
counsel's strategy and will duly accord that decision with the
deference exhorted by Strickland.
Further, the Court finds that the state courts did not
unreasonably apply established federal law in reaching their
decisions. The state court decisions were based on a reasonable
application of the facts in light of the evidence presented at
trial. Thus, Julien has not demonstrated that the state court
decisions, when evaluated objectively and on the merits, resulted
in an outcome that cannot be reasonably justified. Matteo,
171 F.3d at 891. Accordingly, this claim of ineffective assistance of
counsel is without merit.
2. Failure to Call Worrell as a Witness
Julien next argues that trial counsel was deficient in not
calling the investigator Worrell as a witness to impugn the
reliability of Williams' out-of-court identification. Again, at
the state PCR proceeding, the trial judge found that the decision
of Julien's counsel not to call Worrell was a strategic choice.
(9T 11:7-12). In its letter opinion, the court further
elaborated: As to the failure to call Worrell, if counsel had
called Worrell it would have provided the State the
opportunity, as noted by counsel, "to recall
Williams, to open up other avenues of testimony." To
have called Worrell could actually have hurt the
defendant. Worrell would have testified that Williams
denied the undeniable Williams denied ever having
given a statement to police. Worrell would also have
testified that Williams threatened to flee rather
than testify. Worrell's testimony about Williams'
statements, coupled with Williams' direct testimony
that Williams was scared to get involved, could have
led the jury to speculate as to a reason why Williams
failed to make an in-court identification that had
nothing to do with a claimed uncertainty as to the
identity of the defendant as one of the persons
Williams saw enter the apartment. Trial counsel's
strategic decisions provide defendant no avenue of
(Ex. P. At pg. 7).
The Appellate Division affirmed denial of Julien's PCR
Defense counsel's decision not to present Worrell as
a witness is equally unassailable. At the
identification hearing, Worrell recounted that
Williams told him he selected defendant's picture
from a photographic array only because the police
told him another witness had identified defendant as
the culprit. However, Williams testified that he felt
pestered by Worrell and that he just wanted Worrell
to "leave him alone." Worrell served as an
investigator for the Public Defender's Office.
Defense counsel clearly did not want to create the
appearance that the defense was attempting to coerce
or cajole the witness, particularly in light of
Williams' highly equivocal trial testimony. We stress
that lawyers are not required to call every witness
suggested to them. This is precisely the type of
strategic decision the United States Supreme Court in
Strickland v. Washington, [citation omitted] held
to be protected from second guessing. As emphasized
by Judge Schott, defense counsel's tactical decision
was well within the realm of objectively reasonable
(Ex. U, at pg. 3). Thus, for the same reasons as set forth above with respect to
petitioner's claim regarding trial counsel's failure to
cross-examine Williams, this Court finds this claim, that counsel
was deficient in failing to call Worrell as a witness at trial,
to be equally without merit.
3. Failure to Conduct an Adequate Investigation
"[A]n attorney must investigate a case, when he has cause to do
so, in order to provide minimally competent professional
representation." United States v. Kauffman, 109 F.3d 186, 190
(3d Cir. 1997); Lewis v. Mazurkiewicz, 915 F.2d 106, 111 (3d
Cir. 1990) (counsel has a duty to investigate or to make a
reasonable decision that makes particular investigations
unnecessary). When assessing an ineffectiveness claim based on
failure to investigate, a court must assess the decision not to
investigate "for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments."
Strickland, 466 U.S. at 691; Kimmelman v. Morrison,
477 U.S. 365, 384 (1986); see also Duncan v. Morton, 256 F.3d 189,
201 (3d Cir.), cert. denied, 534 U.S. 919 (2001).
"[S]trategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation."
Strickland, 466 U.S. at 691-92. Even if counsel was deficient
in his decision not to investigate, a petitioner must show a
reasonable likelihood that, but for the deficiency, the result of the proceeding would have been different. Lewis,
915 F.2d at 115.
It is firmly established that a court must consider the
strength of the evidence in deciding whether the second prong
under Strickland, i.e., prejudice, has been satisfied. A
court "must consider the totality of the evidence before judge or
jury." Strickland, 466 U.S. at 695. This is necessary because
prejudicial error by counsel requires a court to determine
whether there is a reasonable probability that, but for counsel's
errors, the trial result would have been different. Id.;
Flamer v. Delaware, 68 F.3d 710, 728 (3d Cir. 1995), cert.
denied, 516 U.S. 1088 (1996). A court simply cannot make this
determination without considering the strength of the evidence
against the defendant.
The principal argument asserted by petitioner here is that
trial counsel did not adequately investigate and prepare a
defense on the first degree robbery charge.*fn6 The State's
case with respect to the robbery charge was based on the
testimony of the victim's girlfriend, Dina Bryant. Ms. Bryant
stated that while she was in the hospital the victim came to visit her that
day shortly before the murder. She testified that the victim was
wearing a watch, gold chain and a gold bracelet. The police did
not find these items after the victim's murder. Ms. Bryant
further testified that upon her return home from the hospital,
she noticed that a pair of her sneakers, eight rings, and a
beeper, which was in the victim's possession, were missing also.
Through the police report and the statements of witnesses,
which counsel had been provided in discovery, counsel was aware
that many persons had entered the apartment after the victim was
killed. Julien argues that counsel never investigated and
questioned these witnesses about whether they saw anyone taking
anything from the apartment.
Counsel also never investigated the fingerprint evidence. Only
four useable fingerprints were found at the apartment. They were
not the fingerprints of Julien, Dina Bryant (who lived in the
apartment), the victim, or another suspect, Hillary Edwards.
Petitioner states that his counsel should have investigated the
identity of the fingerprints since one set was found on a "cold"
can of beer, which would suggest that the person was recently in
Julien also contends that counsel was deficient in failing to
interview pertinent witnesses who were present in Stephen Beisser's apartment at the time the petitioner allegedly made
incriminating statements to Beisser about killing someone.
The state PCR court rejected each of these claims. The court
stated that it was presented with "nothing that would indicate
that that investigation would have produced results that Mr.
Julien seems desirous of them producing. There's been no
affidavits from any witnesses. There's been no tangible items of
evidence submitted to the Court that would indicate that the
matters that Mr. Julien wished to have investigated would have
produced any evidence different from that which was produced at
trial." (9T 11:13-20).
The court ruled that in the absence of such a showing,
petitioner had failed to sustain his burden of proving the second
prong under Strickland, that is, prejudice, or that there would
have been an effect on the outcome of the trial. (9T 11:21-12:1).
In a letter opinion, the trial court further concluded that
presented no evidence that the investigation he now
argues should have been conducted would have actually
produced any evidence. He argues that independent
interviews may have produced a statement that one of
the witnesses saw another of the witnesses take
something from the apartment. Such interviews may
also have produced no such evidence. In this regard
the witness statements provided in discovery make no
mention of observation of such activity. Defendant
argues further pursuit of the fingerprints on the
beer can might have shown a match to one of the crime
scene witnesses. Further pursuit of the prints might
have shown no such thing. In the absence of some
competent proof that the investigation would have
actually produced different evidence at trial,
defendant cannot be said to have demonstrated a reasonable probability that, but for a
failure to investigate, the result of the trial would
have been different. See Strickland,
466 U.S. at 687.
(Ex. P, Letter Opinion of PCR court, dated August 9, 1999). The
court also remarked that further investigation to show the
fingerprints on the cold can of beer matched one of Williams'
friends would not necessarily affect the outcome of the case. In
any event, it was not necessary since Williams had already
testified that he and his friends had entered the apartment, so
the fingerprint evidence would be unnecessary to establish their
As to the witnesses at Beisser's apartment, the court found
that there was nothing presented by petitioner that would imply
their testimony would have been any different than Beisser.
Further, petitioner did not show the court any evidence "to imply
that `Fat Cat', who refused to be interviewed by the police,
would have provided defense counsel with any exculpatory
On appeal from denial of Julien's PCR petition, the Appellate
Division found petitioner's arguments "devoid of substance." The
court held that "[t]he claim that other persons stole
articles from the victim's apartment long after the killing is pure
conjecture. Nothing was presented below or here that would
support this highly speculative thesis. In the absence of some
competent proof that additional investigation would have produced exculpatory evidence, we cannot find any merit in
defendant's claim. (Ex. U).
This Court observes that trial counsel is only required to make
"reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary." See Strickland,
466 U.S. at 691. Here, without determining that trial counsel was
deficient in investigating and preparing a defense, it is plain
from the lack of evidence produced by petitioner that he could
not have met the second prong under Strickland, that is, that
the investigation would have resulted in a different outcome at
trial. It appears from the weight of the evidence presented at
trial that the jury would not have reached a different verdict.
Further, upon review of the trial record, the Court finds that
trial counsel ably represented petitioner with a clear
understanding of the evidence, witnesses and the critical issues
in the case. It cannot be said that he was ill-prepared to defend
petitioner. Therefore, the Court concludes that Julien is not
entitled to habeas relief based on allegations that trial counsel
failed to investigate and prepare a defense. There is no
indication that the state courts unreasonably applied established
federal law in reaching their decisions, or that the state court
decisions were based on an unreasonable application of the facts
in light of the evidence presented at trial. Julien has not demonstrated that the state court decisions, when evaluated
objectively and on the merits, resulted in an outcome that cannot
be reasonably justified. Matteo, 171 F.3d at 891.
E. Ineffective Assistance of Appellate Counsel
Petitioner broadly asserts that his appellate counsel was
ineffective in violation of his constitutional rights for his
failure to raise obvious issues of error that were meritorious
and would have likely led to his conviction being reversed on
appeal. In his state PCR petition, the claim relating to the
ineffectiveness of appellate counsel was limited to counsel's
failure on appeal to challenge the trial court's refusal to
remind the jury that Williams failed to make an in-court
identification. The trial court had stated that that was "a
request for me to improperly comment on the evidence." (4T
Claims of ineffective assistance of appellate counsel are
evaluated under the Strickland standard previously discussed.
See Wright v. Vaughn, 2004 WL 1687865, *6, n. 10 (E.D. Pa.
July 26, 2004). In rejecting petitioner's claim, the trial court
To demonstrate ineffectiveness of Appellate counsel,
defendant must demonstrate that if this claimed error
in refusing to comment on the evidence had been
raised, the defendant's conviction would have been
reversed. This the defendant cannot do, for the
Appellate Division has most recently made clear the
propriety of a trial court's refusal to make such
comments. [citation omitted] . . . Defense counsel in the within matter met this
responsibility and argued in his closing all issues
regarding identification. (4T 20:20-22:9).
As Walker makes clear, any challenge to the Court's
ruling refusing the requested comment would not have
caused a different result in the Appellate Division.
Defendant's claim of ineffective assistance of
Appellate counsel hence provides him no avenue of
(Ex. P, at pp. 9-10).
Affirming the PCR decision on appeal, the Appellate Division
found that appellate counsel was not ineffective for failing to
raise this point on direct appeal because there was no abuse of
the trial judge's discretion with respect to the jury charge on
identification. (Ex. U, at pg. 4).
In order to prevail on a claim that appellate counsel was
ineffective, Julien must show that (1) counsel's performance fell
below an objective standard of reasonableness, and (2) there was
a reasonable probability, but for counsel's deficiency in raising
the arguments on appeal, that the conviction would have been
reversed on appeal. See Buehl v. Vaughn, 166 F.3d 163, 173-74
(3d Cir. 1999), cert. dismissed, 527 U.S. 1050 (1999).
Here, Julien has failed to show that the performance of his
appellate counsel was deficient and that he was prejudiced
thereby, and in light of the evaluation of this issue by the
state courts, this Court cannot conclude that that the
determination of this issue resulted in a decision that was
contrary to, or involved an unreasonable application or determination of law or fact. Williams v. Taylor, supra.
Accordingly, the Court will deny relief on this claim.*fn7
F. Cumulative Errors
Finally, Julien asserts that the cumulative effect of trial
errors deprived him of his due process and his constitutional
right to a fair and impartial trial.
Even if none of the claims on its own amounts to a
constitutional violation, the "cumulative effect of the alleged
errors may violate due process." United States ex rel. Sullivan
v. Cuyler, 631 F.2d 14, 17 (3d Cir. 1980); Pursell v. Horn,
187 F. Supp.2d 260, 374 (W.D. Pa. 2002) ("That the reliability of
a state criminal trial can be substantially undermined by a
series of events, none of which individually amounts to a
constitutional violation, is an idea that has been accepted by
nearly every federal court to have addressed the
issue.").*fn8 In Marshall v. Hendricks, the Court of Appeals for the Third Circuit evaluated
a cumulative error claim and found:
Here, even were we to cumulate all the claimed errors
and superimpose them over the extensive trial
proceedings, given the quantity and quality of the
totality of the evidence presented to the jury, we
could not conclude that the New Jersey Supreme Court
unreasonably applied Supreme Court precedent or
unreasonably determined the facts in making its
See 307 F.3d 36
, 94 (3d Cir. 2002), cert. denied,
538 U.S. 911 (2003).
As found in Marshall, supra, Julien has not demonstrated
that the actions of the state courts "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 "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." This
conclusion is the same when the claimed errors are cumulated.
Accordingly, this ground for a writ of habeas corpus will be
V. CERTIFICATE OF APPEALABILITY
The Court next must determine whether a certificate of
appealability should issue. See Third Circuit Local Appellate
Rule 22.2. The Court may issue a certificate of appealability
only if the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons discussed above, this Court's review of the claims
advanced by Julien demonstrates that he failed to make a
substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue. Thus, the
Court declines to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c)(2).
For the foregoing reasons, this Court finds that Julien's §
2254 habeas petition should be denied on the merits. A
certificate of appealability will not issue. An appropriate Order
accompanies this Opinion.
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