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SHAHID v. MOORE

September 21, 2005.

Abdul-Halim N. SHAHID, Petitioner,
v.
Terrance MOORE, et al., Respondents.



The opinion of the court was delivered by: WILLIAM BASSLER, District Judge

OPINION

Petitioner Abdul-Halim N. Shahid ("Petitioner"), formerly Gerald Gooding, files this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1984, Petitioner was convicted of felony murder, robbery, and possession of a weapon for the purpose of using it unlawfully. After appealing his conviction through the state court system and filing four separate requests for Post Conviction Relief ("PCR"), Petitioner now seeks relief in this Court. He claims that (1) the admission of certain in-person and photographic identifications into trial violated his right to due process and a fair trial rights; (2) he was denied the effective assistance of counsel; (3) the trial court's failure to define the elements of criminal attempt in its jury instruction on robbery violated his rights to due process and a fair trial; (4) the improper and prejudicial remarks made by the prosecutor during the summation violated his rights to due process and a fair trial.

  For the reasons set forth in this opinion, Petitioner's petition for habeas relief is denied.

  I. Factual Background

  The crime with which Petitioner was charged occurred approximately 4 a.m. on February 18, 1984. The victim, Bernard Cruder ("Bernard"), and his adult son, Robert Cruder ("Robert"), were in their parked vehicle on the corner of Miller Street and Broad Avenue in Newark, New Jersey. Bernard was sitting in the front seat, and Robert was sitting in the back seat receiving oral sex from a male prostitute. A few minutes later an assailant, armed with a knife, entered the rear of the vehicle and demanded their money. Bernard and Robert struggled with the assailant. During the struggle, Bernard was stabbed, and the assailant was also injured. After the assailant fled from the scene, Robert drove Bernard to St. James Hospital where Bernard died shortly after arrival. While at the hospital, Robert gave a description of the assailant to the police. The police matched the description to Petitioner. Petitioner had just been taken to Beth Israel Hospital, alleging that he had been the victim of a street mugging. After Robert identified Petitioner at the hospital and again in a photographic identification, the police arrested Petitioner.

  A jury convicted Petitioner of felony murder, first degree robbery, and third degree possession of a weapon for the purpose of using it unlawfully. The trial court merged robbery conviction into the felony murder conviction and sentenced Petitioner to a term of 30 years without parole eligibility. The court also sentenced Petitioner to a concurrent term of five years on the weapon conviction.

  II. Procedural Background

  Tried to a jury, Petitioner was convicted on May 24, 1984. On direct appeal, Petitioner unsuccessfully argued that: (1) the trial judge erred in admitting Robert's out-of-court identifications, and (2) acts of prosecutorial misconduct committed during the summation were improper and prejudicial.

  On June 19, 1986, the Appellate Division, in a per curium decision, affirmed the decision of the trial court on both issues. The New Jersey Supreme Court denied certification on March 21, 1988. The issues contained in Petitioner's direct appeal are claims one and four of his habeas petition.

  On October 6, 1989, oral arguments were held for Petitioner's first petition for PCR. There, Petitioner claimed that he was denied effective assistance of counsel as guaranteed under the Sixth Amendment of the United States Constitution. The court denied relief and Petitioner did not appeal the decision.

  Petitioner subsequently filed a second petition for PCR, but Petitioner does not raise those issues in his habeas petition.

  In 1993, Petitioner filed a third petition for PCR. He claimed ineffective assistance of appellate and trial counsel. The trial court dismissed the petition on the basis that the ineffective assistance of appellate counsel argument claim should be decided by the Appellate Division. The Appellate Division remanded Petitioner's third petition for PCR and ordered the trial court to fully dispose of the issue. On September 2, 1998, the trial court denied Petitioner's third PCR petition on the merits. The court also concluded that the claim was procedurally barred from relitigation pursuant to New Jersey Court Rules 3:22-5, because the claim was adjudicated on the merits before, and 3:22-4, because the claim could have been raised in a prior proceeding. On September 2, 1998, Petitioner appealed. On February 24, 2000, the Appellate Division affirmed the holding of the trial court. On June 7, 2000, the New Jersey Supreme Court denied Petitioner's petition for certification. Portions of the claims in the third PCR petition make up the second claim in his habeas petition.

  On March 28, 2001, Petitioner submitted his fourth petition for PCR petition, claiming ineffective assistance of counsel, denial of due process, and denial of the right to a fair trial because the jury was not instructed on the law of attempt concerning the robbery charge. In July 2001, the trial court denied the petition and concluded that the petition was procedurally barred by the five-year limitation period enunciated in Rule 3:33-12. Additionally, the claim was barred by Rule 3:22-4 because it could have been raised in prior proceeding. On September 19, 2002, the Appellate Division affirmed the denial. On November 15, 2002, the New Jersey Supreme Court denied certification. Portions of the claims in the fourth PCR is the fourth claim in his habeas petition.

  On January 7, 2003, Petitioner filed this petition seeking habeas relief from this Court pursuant to 28 U.S.C. § 2254.

  III. Discussion

  A. State Procedurally Barred Claims

  In the third petition for PCR, Petitioner raised the ineffective assistance of counsel claim. The state court held that the claim has been adjudicated on its merits previously, thus barring the claim pursuant to New Jersey Court Rule 3:22-5. Furthermore, because it should have been raised in prior proceeding, the claim was barred pursuant to Rule 3:22-4. In his fourth petition for PCR, Petitioner claimed he was denied due process and a fair trial because the jury was not instructed on the law of attempt for the robbery charge. The state courts barred the claim because it was filed after the five-year limitation period pursuant to Rule 3:22-12.

  In a case where the state court has dismissed a petitioner's claims on procedural default, the "federal habeas court is barred by the procedural default doctrine from considering the claims, unless the habeas petitioner can show `cause' for the default and `prejudice' attributable thereto." Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004) (internal citation omitted). The procedural default "must rest on `adequate and independent' state law grounds." Id. (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)).

  A state procedural default will not bar federal habeas relief if the state law ground is so "interwoven with federal law" that it can not be said to be independent of the merits of a petitioner's federal claims. Coleman v. Thompson, 501 U.S. 722, 740 (1991). The Supreme Court sets out in Harris the "plain statement" test for such determination. Harris, 489 U.S. at 261-63. The test was narrowed by Coleman. The federal habeas court must first determine whether the decision of the last state court to which the petitioner presented his federal claims "fairly appears to rest primarily on federal law, or to be interwoven with the federal law." Coleman, 501 U.S. at 735. If there is such a reliance on federal law, the federal habeas court will then determine whether the state court clearly and expressly based its ruling on a state procedural ground. Id.

  The last court to render judgments on both of the claims at issue here were the New Jersey Supreme Court, which denied Petitioner's petitions for certifications. These judgments, however, simply affirm the lower court's holdings. Thus, according to the Supreme Court's instruction, this Court must look to the "last explained state-court judgment on the . . . claim" to determine whether the court's decision "fairly appears to rest primarily on federal law" or instead relies upon a state procedural bar to deny relief. Ylst v. Nunnemaker, 501 U.S. 797, 802, 805 (1991); Pinchak, 392 F.3d at 557. Here, the Appellate Division rendered the last explained judgment on the ineffective assistance of counsel claim in its February 24, 2000 Opinion; the Appellate Division rendered the last explained judgment on the due process claim in its September 19, 2002 Opinion.

  In its February 24, 2000 Opinion the Appellate Division affirmed the trial court's holding by emphasizing Petitioner did not provide adequate evidence to establish ineffective assistance of counsel. The holding rested on federal law. State v. Shahid, A-1280-98T4, at 4. Furthermore, the court did not explicitly state its ruling was based on state law. ...


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