The opinion of the court was delivered by: FAITH HOCHBERG, District Judge
Petitioner, Macgoohan Romelus, filed the within petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Respondents
have filed an Answer. The Court has considered all submissions. BACKGROUND
1. Factual Background*fn1
Mezaac Pierre, of Haitian descent, was shot and wounded on
March 18, 1994. On March 20, 1994, at about 3:00 a.m., a group of
eight people, including victim Jerry Myers, were arguing on a
front lawn in Elizabeth, New Jersey. As they argued, they
witnessed two luxury cars drive and stop in front of the house.
One of the witnesses observed a front seat passenger loading a
The individual armed with the handgun, later identified as
Petitioner, got out of the car and announced, "I got you now,"
and began firing the gun. It appears that more people then got
out of the cars and started to fire guns. The group began to run
in different directions, pursued by the gunmen. One of the group
heard Petitioner instruct the victim, Jerry Myers, who had his
hands up, not to run. Trial testimony revealed that Petitioner
shot Myers in the back, and Myers fell onto his stomach.
Petitioner rolled Myers over and pulled on his jacket and patted
down his clothing. He then kicked Myers and grabbed Myers' gold
necklace. Petitioner then ran up to three of the group and addressed one
of them by name, revealing a Haitian accent. Petitioner held the
gun at one of them and told them "something along the lines of if
I wanted you dead, you would be dead. We know who we came for."
Petitioner then returned to one of cars, as did the other gunmen,
and they sped off.
Petitioner was identified by three witnesses as the first
gunman and the person who killed Myers. Petitioner was described
as having a large, distinctive nose. The record indicates that
Petitioner had an unusually large nose, disfigured by acne, and
was called "Broccoli Nose" on the street.
Four days after the crime, Petitioner was arrested. He told
police that he was at a tavern in Newark at the time of the
crime. However, about three weeks later, Petitioner gave a
statement to police that conflicted with the alibi defense.
Petitioner told police that prior to the shooting one of his
co-defendants told him that they had to "get even" with black
Americans because of the shooting of Mezaac Pierre. Petitioner
told the police that on the night of the shooting, he was at a
party along with a co-defendant and the victim, Jerry Myers. The
co-defendant and Myers had an argument and the co-defendant shot
Myers. Petitioner told police that the co-defendant then rolled
Myers over and took his necklace. Petitioner testified in his own defense at trial, and
disclaimed his statement to the police. He presented the alibi
defense at trial, stating that he was at a tavern in Newark at
the time of the crime. He presented three alibi witnesses to
corroborate his defense; however, one of the witnesses declined
to testify after being advised by the trial judge of his
privilege against self-incrimination.
In 1994, a Union County Grand Jury indicted the petitioner on
seven counts, including: murder, contrary to N.J.S.A.
2C:113-(a)(1) or (2) (counts one and two); attempted murder,
contrary to N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1(a)(1),
(2), or (3) (count three); felony murder, contrary to N.J.S.A.
2C:11-3(a)(3) (count four); robbery, contrary to N.J.S.A.
2C:15-1 (count five); possession of a weapon for an unlawful
purpose, contrary to N.J.S.A. 2C:39-4(a) (count six); and
unlawful possession of a weapon, contrary to N.J.S.A.
2C:39-5(b) (count seven). Petitioner was charged in the
indictment along with three co-defendants. Prior to trial
Petitioner's case was severed.
Pretrial hearings pursuant to Miranda and Wade were held in
March, May, and June, 1995.*fn2 Petitioner was tried by jury
from July 5, 1995 to July 20, 1995, in the Superior Court of New Jersey, Law Division, Union County ("Law Division"). The jury
found the petitioner guilty on all counts of the indictment,
including as an accomplice to murder. On October 6, 1995, the
petitioner was sentenced to an aggregate sentence of 70 years
imprisonment with 40 years of parole ineligibility.
Petitioner appealed his conviction and sentence. In a per
curiam decision dated August 19, 1999, the Superior Court of New
Jersey, Appellate Division ("Appellate Division") affirmed the
conviction, and sentence. (State v. Romelus, A-2717-95T4 (Aug.
19, 1999)). On January 19, 2000, Petitioner's petition for
certification was denied by the New Jersey Supreme Court. (State
v. Romelus, 163 N.J. 11 (2000)).
Petitioner filed a motion for Post-Conviction Relief ("PCR") in
the trial court. The petition was denied without an evidentiary
hearing. The petitioner appealed the denial, and on June 24,
2003, the denial was affirmed by the Appellate Division. (State
v. Romelus, A-3003-01T4 (Jun. 24, 2003)). Petitioner's petition
for certification to the New Jersey Supreme Court was denied on
October 13, 2003. (State v. Romelus, 178 N.J. 31 (2003)).
The instant petition was received and filed on April 19, 2004.
On April 30, 2004, Petitioner was advised of his rights pursuant
to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). On August 23, 2004, the respondents filed an Answer and the state
Petitioner asserts the following arguments for habeas relief:
1. Petitioner was denied his right to conflict-free
2. Petitioner was deprived of effective assistance of
3. Petitioner was denied due process because the
identifications of petitioner by certain witnesses
were not reliable.
4. Petitioner's oral and written statements were
taken in violation of his Sixth Amendment right to
5. Petitioner was deprived his right to present a
defense when the trial court's improper advice to a
proposed defense witness caused the witness to invoke
his privilege against self-incrimination and to not
6. The trial court's instruction on identity deprived
Petitioner of due process.
7. The trial court's instruction on accomplice
liability deprived Petitioner of due process.
See Petition for Writ of Habeas Corpus, ¶ 11.
Petitioner has raised the instant claims before the New Jersey
state courts. Therefore, they are properly before this Court for
a decision on the merits. See 28 U.S.C. § 2254(b)(1). DISCUSSION
A. Standards Governing Petitioner's Claims.
Section 2254 of Title 28, United States Code, provides that the
district court "shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2254(a).
Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), federal
courts in habeas corpus cases must give considerable deference to
determinations of the state trial and appellate courts. See
Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied
534 U.S. 919 (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
writ of habeas corpus. The statute reads as follows:
(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
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the
Supreme Court explained the application of § 2254(d)(1). The
Court analyzed subsection 1 as two clauses: the "contrary to"
clause and the "unreasonable application" clause. The Court held
that under the "contrary to" clause, "a federal court may grant
the writ if the state court 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.
A federal court may grant the writ under the "unreasonable
application" clause, 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
prisoner's case." Id. at 413. Habeas relief may not be granted
under the "unreasonable application" clause 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. See 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.), cert.
denied, Matteo v. Brennan, 528 U.S. 824 (1999). Thus, 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. See Werts, 228 F.3d at 197; see also Jacobs
v. Horn, 395 F.3d 92, 100 (3d Cir. 2005).
With regard to 28 U.S.C. § 2254(d)(2), a federal court must
confine its examination to evidence in the record. See
Abu-Jamal v. Horn, 2001 WL 1609690, at *12 (E.D. Pa. December
18, 2001). In addition, the state court record should be reviewed
to assess the reasonableness of the state court's factual
determinations. See id. 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 Court of Appeals for the Third Circuit has ruled
that this presumption of correctness can be overcome only by
clear and convincing evidence. See Duncan v. Morton,
256 F.3d 189, 196 (3d Cir. 2001) (citing 28 U.S.C. § ...