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ROMELUS v. HENDRICKS

September 21, 2005.

MACGOOHAN ROMELUS, Petitioner,
v.
ROY L. HENDRICKS, et al., Respondents.



The opinion of the court was delivered by: FAITH HOCHBERG, District Judge

OPINION

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 gun.

  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.

  2. Procedural History

  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 court record.

  PETITIONER'S CLAIMS

  Petitioner asserts the following arguments for habeas relief:
1. Petitioner was denied his right to conflict-free counsel.
2. Petitioner was deprived of effective assistance of counsel.
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 counsel.
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 testify.
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 proceeding.
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. § ...


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