United States District Court, D. New Jersey
September 21, 2005.
MACGOOHAN ROMELUS, Petitioner,
ROY L. HENDRICKS, et al., Respondents.
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.
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
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. § 2254(e)(1)). "A
finding that is well-supported and subject to the presumption of
correctness is not unreasonable." Abu-Jamal, 2001 WL 1609690 at
*12 (citing Duncan, 156 F.3d at 198).
Furthermore, federal habeas courts ordinarily refrain from
revisiting credibility determinations as "it would be wholly
inappropriate for a federal court to repastinate soil already
thoroughly plowed and delve into the veracity of the witnesses on habeas review." Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir.
2001). A habeas petitioner therefore "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).
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting
submissions must 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); United States v. Brierley, 414 F.2d 552, 555 (3d Cir.
1969), cert. denied, 399 U.S. 912 (1970).
B. Petitioner's Claims Regarding Ineffective Counsel
1. Conflict-Free Counsel (Ground One)
Petitioner asked for different counsel before jury selection
due to Petitioner's disagreement with counsel on whether to
proceed with the alibi defense, contrary to the statement that he
had given to police. His request was denied. (Ra 26 at pp. 41-2).
The trial judge ruled that Petitioner could present his alibi
defense. Counsel said he would represent Petitioner and that he
would "do [his] best to fulfill [his] client's wishes within the
bounds of the Rules of Evidence." (Ra 26 at p. 6). Counsel requested to be relieved as counsel before presentation
of the defense's case, asking to withdraw for ethical reasons.
However, the court denied the request, finding that counsel had
no proof that Petitioner was perpetrating a fraud on the court.
(Ra 34 at pp. 39-43). Indeed, Petitioner stated that he wished
counsel to continue to represent him. (Ra 34 at p. 43).
Petitioner objects to counsel's comments in summation, where
counsel commented that if even if the jury thought that
Petitioner was lying about the alibi, that fact of him lying does
not mean he is guilty of murder. Counsel stated, "I want you to
bear that in mind if that's what you decide, because I submit to
you I think that that's the more rational explanation." (Ra 36 at
Petitioner argues that counsel's comments demonstrated that he
had a conflict of interest because counsel's ethics conflicted
with Petitioner's alibi defense a defense counsel believed was
untrue. He further argues that counsel's ethics caused him to
abandon Petitioner's alibi defense during summation, and that
counsel had a duty to present that defense.
2. Counsel's Alleged Abandonment of the Alibi Defense (Ground
Petitioner also argues that counsel was ineffective because he
abandoned Petitioner's alibi defense in summation and also conceded Petitioner's guilt of the crimes of robbery and felony
murder. Counsel stated in summation:
Now, the state wants you to believe, and I'm
anticipating, this was a robbery. Ladies and
gentlemen, that may have been true for Mr. Romelus,
but as to the others, they came there for one purpose
and one purpose only, and that was to murder Richard
Jerry Myers. . . .
My client, Mr. Romelus, didn't share that purpose. If
you are going to rob somebody, you are going to chase
them and fire a gun at them? No. You are going to go
up and you are going to stick a gun in their face and
say, "Give it up. Hand over your cash. I want it
now." If you are going to rob somebody, you rob them,
you don't shoot them.
* * *
. . . and I submit to you, ladies and gentlemen, that
robbery, Mr. Romelus went there to commit a robbery
of the crowd. . . .
(Ra 36 at pp. 30-33).
Petitioner argues that counsel's concessions "diluted the
State's burden of proof and denied Petitioner due process." He
states that these concessions constituted ineffective assistance,
and were based on counsel's misunderstanding of the law of felony
murder. (Petition, p. 6).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court held that in order to establish that trial counsel is
ineffective, the petitioner must show that "counsel's performance
was deficient," in that "counsel made errors so serious that
counsel was not functioning as `counsel' guaranteed . . . by the Sixth Amendment," and "that the deficient
performance prejudiced the defense." Id. at 687. In order to
establish prejudice, the defendant must show "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." State v.
Fritz, 105 N.J. 42, 60-61 (1997) (quoting Strickland,
466 U.S. at 694). "In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel's assistance was
reasonable considering all the circumstances." Strickland,
466 U.S. at 688. 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. 1996), cert. denied
519 U.S. 1020 (1996). In this case, Petitioner raised these ineffective assistance
claims on direct appeal. The Appellate Division declined to
resolve the issue on direct appeal, stating that it was more
appropriate in a petition for post-conviction relief. (Ra 7 at
pp. 24-25). Thereafter, Petitioner raised the claims in his
motion for post-conviction relief. The trial court, citing the
appropriate Strickland standard, found:
What counsel was faced with was an admission by Mr.
Romelus that he was present at the scene. That was a
fact that was going to go before the jury that
defendant had made a statement placing himself at the
scene. What counsel attempted to do was to craft a
defense around that fact that Mr. Romelus was present
at the scene, but that his presence did not involve
him in the murder; essentially that Mr. Romelus may
have been there, but that other people were engaged
in purposeful and knowing conduct; that they
committed a murder; that Mr. Romelus did not share
that purpose, that he did not participate in that
act, and that therefore he is not responsible as
either a principal or an accomplice to active murder.
A difficult defense, but one that was crafted around
the existing fact that Mr. Romelus admitted he was
there. The defense didn't work. Defendant was
convicted. That does not mean that counsel was
deficient in presenting the defense.
In evaluating whether or not counsel was deficient,
as I indicated the standard is were the errors
committed by defense counsel so serious as to
effectively deny the defendant of representation.
This is a case where defense counsel worked with what
he had. While it can be argued and has been argued by
[counsel] that he would have tried the case in a
different way, I suppose any number of experienced
defense counsel may have looked at the record of this
case, picked it apart and found other places where
they would have acted differently, perhaps asked a
different question, presented something in a
different way. I do not conclude that counsel's performance in this
case was so deficient as to deny the defendant
representation of an attorney. He worked with the
facts he had. He advanced a defense as it turns out
was not accepted by the jury, but it was a defense
which had to it certain logic, a certain attempt to
mitigate Mr. Romelus's involvement in an act in which
Mr. Romelus placed himself at the scene.
(Ra 39 at pp. 14-15). The trial court went on to hold that
counsel's actions were not ineffective assistance, and that the
evidence against Petitioner was "substantial, almost
overwhelming." (Ra 39 at p. 17).
The Appellate Division, again citing Strickland, agreed with
the trial judge that "there is an insufficient basis for a
finding that defendant received ineffective assistance." Further,
the Appellate Division noted that "in light of the factual
background, there is no basis for a finding that the result would
have been different even if the alibi defense had been proved."
The Appellate Division concluded that Petitioner's arguments were
"without sufficient merit to warrant further discussion." (Ra 15
at p. 4).
This Court has reviewed the record. The evidence against
Petitioner, including eyewitness testimony and the Petitioner's
own statement, were weighed by the jury to find Petitioner
guilty. Petitioner cannot overcome the strong presumption that
the complained of actions of counsel were sound trial strategy.
Additionally, both the trial court and the Appellate Division
cited the appropriate Strickland standard, and reasonably determined how to apply the law to the facts. As such, Petitioner
has not demonstrated that the actions of the state courts, which
applied the proper federal law, "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,
these grounds for a writ of habeas corpus will be denied.
C. Claim Regarding Witness Identifications (Ground Three)
Petitioner argues that the witness identifications of him were
unreliable due to the time that elapsed between the charged
crimes and the photographic identifications, approximately 10
In this case, a lengthy, pre-trial hearing was held pursuant to
United States v. Wade, 388 U.S. 218 (1967). The trial court
found that the identifications were sufficiently reliable to be
presented at trial. (Ra 25 at pp. 22-27). The trial court found:
I'm satisfied that with respect to any photo
identification of the defendant Romelus by any of the
witnesses that detectives ? did not make any
suggestive answer to the witnesses that Mr. Romelus'
picture was in the display, nor did he suggest to any
of them which photograph to pick out. They were in
effect merely asked can you identify anyone. I'm
satisfied each identification was the result of independent recollection of each witness. I'm also
satisfied that none of the photos used to identify
Mr. Romelus were impermissibly suggestive. [Certain
photos] all contained Black males of approximately
the same age with various skin tones. In neither
[photo] is Mr. Romelus the only one with a dark
complexion and a broad nose, and in [a certain photo]
he too is not the only one with a broad nose. The
size of the faces shown in each photograph is also
approximately the same.
It can be said arguably that photograph number 3 and
of Mr. Romelus in [a certain photo] showing his
side view is suggestive in the sense that the orange
collar of his shirt is similar to the collar shown in
[the other photo], but it is not impermissibly
suggestive since the reason for [the side view photo]
was to have [a witness] look at the profile of Mr.
Romelus after she had already identified him in
[another photo] wearing an orange collar.
Also as to [one of the photos] I find that no
impression of prior writing of any witness on the
back of the photograph could be observed by the later
witness when shown the array in the manner in which
it was shown. Also the one-on-one view . . . I find
was not impermissibly suggestive since [it] was shown
to him only after he had described the defendant to
Detective Furda and then was asked if the photograph
was that of Mr. Romelus. Therefore, none of the
identifications of the defendant Romelus are
(Ra 25 at pp. 26-27).
Petitioner raised this argument on direct appeal. The Appellate
Division, finding no error, cited Simmons v. United States,
390 U.S. 377 (1968), and found that there was "no evidence to support
a finding that the identification was unduly suggestive and the
mere passage of time does not violate Simmons." (Ra 7 at p. 14)
(citations omitted). In Simmons v. United States, the Supreme Court held that:
. . . each case must be considered on its own facts,
and that convictions 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
Simmons, 390 U.S. at 384; see also Neil v. Biggers,
409 U.S. 188
(1972) (mere passage of time between crime and the
identifications is not determinative of admissibility, but bears
on weight of identification evidence).
This Court has reviewed the record and finds no constitutional
violation concerning the witness identifications. Further, the
jury was able to consider the reliability of the identifications,
make credibility determinations as to the witnesses, and consider
all factors in making its decision. In this case, the jury found
Petitioner guilty. Petitioner has not demonstrated that the
actions of the state courts, which applied the proper federal
law, "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. Claim Regarding Petitioner's Statements (Ground Four)
After Petitioner's arrest and placement in the county jail, but
before his indictment was issued, Petitioner had an acquaintance
at the jail tell detectives that he wanted to speak with them.
The detectives told the acquaintance that because Petitioner was
represented, they would only speak to him if Petitioner initiated
contact with them. Petitioner contacted the detectives, was given
his Miranda rights, and made written and oral statements that
contradicted earlier statements and placed him at the scene of
the crime. These statements were used against him at trial.
Petitioner argues that these statements were taken in violation
of his Sixth Amendment right to counsel, as the detectives who
took the statements knew that he was represented by an attorney.
Petitioner was afforded a pre-trial hearing pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966). The trial judge ruled
that all statements made by Petitioner were voluntary, and that
Petitioner executed a valid waiver of his rights for each
statement. (Ra 25 at pp. 3-13).
Petitioner raised the argument that the statements were taken
in violation of his Sixth Amendment right to counsel on direct
appeal. The Appellate Division noted that Petitioner's Sixth
Amendment right to counsel had not yet attached, as he had not
yet been indicted for the crimes. (Ra 7 at pp. 16-17). Further, the Appellate Division found that Petitioner initiated
the conversation with the detectives, and that while that may
have demonstrated poor judgment, it was not tantamount to a
violation of his Fifth Amendment right against
self-incrimination. (Ra 7 at p. 18). The Appellate Division held:
Defendant here received his Miranda rights,
executed the waiver, and then, within the statement
expressly indicated his intention to speak to
investigators without an attorney present. The mere
fact that a suspect has an attorney representing him
cannot be construed to preclude the suspect from
waiving that right so long as the waiver is knowing
and intelligent. We find no error in the admission of
(Ra 7 at pp. 18-19) (internal citations omitted).
Again, a review of the record indicates that Petitioner,
himself, initiated statements to the police through his
acquaintance. As the Supreme Court noted in Miranda:
Any statement given freely and voluntarily without
any compelling influences is, of course, admissible
in evidence. The fundamental import of the privilege
while an individual is in custody is not whether he
is allowed to talk to the police without the benefit
of warnings and counsel, but whether he can be
interrogated. There is no requirement that police
stop a person who enters a police station and states
that he wishes to confess to a crime, or a person who
calls the police to offer a confession or any other
statement he desires to make. Volunteered statements
of any kind are not barred by the Fifth Amendment and
their admissibility is not affected by our holding
Id. at 478; see also Rhode Island v. Innis, 446 U.S. 291
With regard to the Fifth Amendment, once a suspect invokes his
right to counsel or his right to remain silent, the police must scrupulously honor that assertion. See Miranda,
384 U.S. at 478-79. Once an accused has invoked the right to counsel all
interrogation must cease until an attorney has been made
available to him. See Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). In the case at issue, Petitioner did not invoke
the right to counsel before making his voluntary statements to
With regard to the Sixth Amendment, "a person is entitled to
the help of a lawyer `at or after the time that adversary
judicial proceedings have been initiated against him . . .
whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.'" Estelle v. Smith, 451 U.S. 454,
469-470 (1981) (citations omitted). In this case, the statements
at issue were made before Petitioner was formally charged with
Further, the state courts invoked the correct law, held a
hearing pursuant to Miranda, and reasonably determined the
facts in light of the evidence presented. Thus, Petitioner 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." Accordingly, this ground for a writ of habeas corpus
will be denied.
E. Claim Regarding Trial Court Actions (Ground Five)
Petitioner argues that the trial court improperly appointed an
attorney to speak with one of his alibi witnesses, to inform the
witness of his Fifth Amendment privilege against
self-incrimination. The witness was told by counsel that if his
statement in court was different from his out-of-court statement,
he could be charged with a crime. The witness invoked his right
against self-incrimination, and the trial court ruled it would
not compel his testimony. (Ra 34 at pp. 126-143).
Petitioner raised this argument on direct appeal. Citing New
Jersey law, the Appellate Division found that the trial judge did
not abuse his discretion in advising the witness of his privilege
against self-incrimination and appointing an attorney to inform
and represent him. The Appellate Division held:
We find no basis for any claim of plain error in this
case. The proposed testimony was cumulative to two
other witnesses who did in fact testify. It is
speculative to assume that [this witness'] absence,
unknown by the jury, had any effect on the verdict.
In fact, the statements of the proposed witness and
the understandable reluctance of defense counsel to
call the witness show that [the witness'] attitude
and his prior inconsistent statement could well
compromise or defeat the alibi testimony of the other
We find no abuse of discretion in the trial judge
advising [the witness] of his privilege against
self-incrimination and appointing an attorney to
represent him. No abuse of discretion occurs so long
as the possibility that the witness will be charged
with a crime as a result of his or her testimony is not
remote, unrealistic or speculative. Even assuming
error in failing to require [the witness] to testify,
we find that the error was harmless and does not meet
the plain error standard.
(Ra 7 at p. 21) (internal citations omitted).
Petitioner asserts that the actions of the trial judge violated
his constitutional rights. However, it has been held that federal
courts must afford the states deference in their determinations
regarding evidence and procedure. See Crane v. Kentucky,
476 U.S. 683, 690 (1986) (stating "we have never questioned the power
of the States to exclude evidence through the application of
evidentiary rules that themselves serve the interests of fairness
and reliability, even if the defendant would prefer to see that
evidence admitted"). It is well-established that "a state court's
misapplication of its own law does not generally raise a
constitutional claim. The federal courts have no supervisory
authority over state judicial proceedings and may intervene only
to correct wrongs of constitutional dimension." Smith v. Horn,
120 F.3d 400, 414 (3d Cir. 1997) (citations omitted), cert.
denied, 522 U.S. 1109 (1998).
Assuming, arguendo, that the trial judge did err under state
law in informing the witness of his right against
self-incrimination, a state's misapplication of its own law may
constitute a violation of due process only in "rare" cases. See id. ("when that misapplication has the effect of depriving a
person of life, liberty, or property without due process of law
in violation of the Fourteenth Amendment, the resulting federal
constitutional error can be corrected by a federal habeas
court"). Evidentiary rulings may violate due process when the
petitioner "was denied fundamental fairness at trial." Hutchins
v. Hundley, 1991 WL 167036 at *4 (D.N.J. Aug. 22, 1991) (Wolin,
J.) (citations omitted); see also Kontakis v. Beyer,
19 F.3d 110, 120 (3d Cir.), cert. denied, 513 U.S. 881 (1994);
Lisenba v. California, 314 U.S. 219, 228, 236 (1941) (holding
that state court's evidentiary rulings may form the basis for
habeas relief when they "so infused the trial with unfairness as
to deny due process of law").
The appropriate inquiry is "whether the claimed error of law is
a fundamental defect which inherently results in a complete
miscarriage of justice or in an omission inconsistent with the
rudimentary demands of fair procedure." Hutchins, 1991 WL
167036 at *4 (citing United States v. De Luca, 889 F.2d 503,
506 (3d Cir. 1989), cert. denied, 496 U.S. 939 (1990)) (other
citations omitted). The Supreme Court has further stated that "an
otherwise valid conviction should not be set aside if the
reviewing court may confidently say on the whole record that the
constitutional error was harmless beyond a reasonable doubt."
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). An error is not harmless if "it aborts the basic trial process or denies it
altogether." Hutchins, 1991 WL 167036 at *5 (citing Rose v.
Clark, 478 U.S. 570, 578 n. 6 (1986)).
In the instant case, this Court finds that Petitioner's case is
not the "rare" instance where evidentiary rulings have violated
his rights to due process. A review of the whole record
demonstrates that the trial process was fundamentally fair.
Further, as the Appellate Division pointed out, the testimony of
the witness would have been cumulative to the testimony of the
two previous witnesses: that Petitioner was not at the scene of
the crime. And, as the Appellate Division noted, there was a
strong likelihood that the witness' statement may have
compromised or defeated the alibi testimony of the previous
Thus, the Court finds that the testimony presented at trial and
considered by the jury was sufficient to render Petitioner's
conviction a valid conviction, and that he was not deprived of
due process due to the lack of this witness' testimony.
Further, the state court determinations have not "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.
F. Claims Regarding Jury Instruction
1. Identity Instruction (Ground Six)
Petitioner argues that the trial court's charge regarding
identity was incomplete and incorrect in that the trial court:
(1) did not remind the jury that one of the witnesses, hours
after the crime, was unable to identify Petitioner; (2) did not
mention that the identification took place ten months after the
crimes, and that each witness told police hours after the crimes
that they could not make an identification; and (3) that the
trial court stated that someone had identified Petitioner,
although that person had testified that he did not identify
The trial judge charged, in relevant part:
In order to meet its burden with respect to the
identification of the person who committed the crimes
charged, you will recall the state has presented the
testimony of various witnesses: [list of witnesses].
You recall that those witnesses identified the
defendant as the person who committed the offenses
charged either as a principal or accomplice.
According to those witnesses, their identification of
the defendant is based upon the observations and
perceptions which they made of defendant on the scene
at the time the offenses were being committed. It's
your function as jurors to determine what weight, if
any, to give to their testimony. You must decide
whether it is sufficient or reliable evidence upon
which to conclude that this defendant is the person
or one of the persons who committed the offenses
(Ra 36 at p. 133). Petitioner raised this claim on direct appeal. The Appellate
Division found that although the trial judge mistakenly listed
one witness as having testified against Petitioner, who did not
actually testify against Petitioner, that there was "no plain
error clearly capable of producing an unjust result but only
harmless error that could not have caused the jurors to convict
when they otherwise would have acquitted." (Ra 7 at p. 22). The
Appellate Division also found no plain error due to the fact that
the trial judge instructed jurors that regardless of what he said
in recalling the facts, their recollection of the facts
controlled. (Ra 7 at p. 23; Ra 36 at p. 73).
With regard to Petitioner's claim that the trial judge did not
detail the time issues concerning the witness' identifications,
the Appellate Division found that under the facts of the case,
the judge was not required to do so. The Appellate Division found
that "considering the multiple identifications both in-court and
out of court in the case at bar we find the identification charge
to be adequate, appropriate and not plain error." (Ra 7 at p.
2. Accomplice Liability Instruction (Ground Seven)
Petitioner argues that the trial court failed to include in its
instruction regarding accomplice liability the facts of the case
that would have explained the possible difference in intents between a principal and an accomplice. The trial court charged,
in relevant part:
A person is legally accountable for the conduct of
another when he is an accomplice of such other person
in the commission of an offense. A person is an
accomplice of another person in the commission of an
offense if, with the purpose of promoting or
facilitating the commission of the offense, he
solicits such other person to commit it or aids or
agrees or attempts to aid such other person in
planning or committing it.
It is not your concern, nor is it a defense, that the
other person or persons claimed to have also
committed the offenses are not being prosecuted in
this case. That is because not only is one who
actually commits a criminal act responsible for it,
but one who acts as his accomplice is also
responsible. Therefore, you are instructed that the
defendant would be guilty of the crime charged if
committed by himself or if he acted as an accomplice
of another person provided you are convinced beyond a
reasonable doubt that he solicited, aided or
attempted to aid or agreed to aid the other person
who committed the crime and did so with the purpose
of facilitating the commission of the crime.
(Ra 36 at pp. 125-126). The court went on to charge the
definition of the word "aid." (Ra 36 at pp. 126-127).
Petitioner raised this claim on direct appeal, and the
Appellate Division found the argument "lacked substance" and that
the instructions were in accord with New Jersey law. (Ra 7 at
Challenges to jury instructions solely as in error under state
law do not state a claim cognizable in federal habeas corpus
proceedings. See Engle v. Isaac, 456 U.S. 107 (1982); 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.) ("Questions concerning
instructions are normally matters of state law and are not
cognizable in federal habeas corpus review."). The finding by the
state appeals court should be "the end of the matter of possible
error based on the measuring of the evidence against the state
law because state, not federal, courts decide these things."
Morgan v. Krenke, 232 F.3d 562, 567 (7th Cir. 2000), cert.
denied, 532 U.S. 951 (2001).
Federal courts will evaluate jury instructions in the context
of the overall charge to the jury as a component of the entire
trial process. See Estelle v. McGuire, 502 U.S. 62 (1991);
Cupp v. Naughten, 414 U.S. 141, 146 (1973); Henderson v.
Kibbe, 431 U.S. 145, 154 (1977); United States ex rel. Harding
v. Marks, 541 F.2d 402, 405 (3d Cir. 1976). The court will then
determine whether the ailing instructions so infected the entire
trial so that the resulting conviction violated due process
rendering the trial fundamentally unfair. See Estelle,
502 U.S. at 71. 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); 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 the crime with which
he is charged"); Sandstrom v. Montana, 442 U.S. 510, 523 (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. See Smith v. Horn,
120 F.3d at 416-17; see also 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." Id. 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
Middleton v. McNeil, 541 U.S. 433
, 436 (2004) (internal
quotations and citations omitted).
The Court has reviewed the record and the challenged
instructions. The Court finds that the jury instructions did not
result in a fundamentally unfair trial or a violation of Petitioner's due process rights. Evidence at trial consisted of
various witnesses' testimony, the credibility of which was to be
weighed by the jury. There is no indication that the jury
misapplied the challenged instruction; as explained by the
Appellate Division, the trial judge's charges were adequate and
consistent with state law. However, even if the charges were
improper, which neither the state courts nor this Court finds,
any error would be considered harmless in that it did not have a
substantial effect on the verdict.
Thus, Petitioner 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." Accordingly, these
grounds for a writ of habeas corpus will be denied.
For the foregoing reasons, the Petition for a Writ of Habeas
Corpus, pursuant to 28 U.S.C. § 2254 is denied. The Court further
finds that no certificate of appealability will issue because
Petitioner has not made a substantial showing of the denial of a constitutional right, as required by
28 U.S.C. § 2253.
An appropriate Order accompanies this Opinion.
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