United States District Court, D. New Jersey
October 3, 2005.
MILTON RIDER, Petitioner,
ALFARO ORTIZ, et al., Respondents.
The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
This matter is before the Court on petitioner Milton Rider'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, Milton Rider ("Rider"), is presently confined at
the Riverfront State Prison in Camden, New Jersey, serving a
prison term of 50 years with a 25-year parole disqualifier.
On February 13, 1986, Rider and another defendant, James
Williams, were indicted by a Bergen County grand jury for (1)
robbery, in violation of N.J. STAT. ANN. 2C:15-1(a)(2); (2)
possession of a weapon for unlawful purposes, in violation of
N.J. STAT. ANN. 2C:39-4; (3) possession of a prohibited weapon or
device, specifically, a sawed-off shotgun, in violation of N.J.
STAT. ANN. 2C:39-3(a); and (4) possession of a handgun without a
permit, in violation of N.J. STAT. ANN. 2C:39-5.
A twelve-day jury trial commenced on December 2, 1986 and
lasted through December 19, 1986. The jury found Rider guilty on
all charges. On July 31, 1987, the judge sentenced Rider to 50
years with a 25-year parole disqualifier on the robbery count. On
the count for possessing a handgun without a permit, Rider was
sentenced to four years in prison to be served concurrently. The
other two counts were dismissed for sentencing purposes.
B. Factual Background
The pertinent factual background is taken from the respondents'
answer and the relevant state court record provided. On February 13, 1986, a Bergen County grand jury was convened
to consider charges against petitioner in this case. The
assistant prosecutor, who presented the case to the grand jury,
listed all the witnesses expected to testify and asked the jurors
if they knew any of the listed witnesses. One juror stated that
he had been a close personal friend of one witness since 1977,
but insisted that he could remain impartial on the grand
jury.*fn1 The assistant prosecutor allowed the juror to
remain on the panel to hear the testimony, but directed that the
juror was to abstain from any participation, deliberations and
voting. The juror agreed to follow the prosecutor's admonitions.
Before trial, defense counsel moved to dismiss the indictment
based upon the prosecutor's disqualification of the grand juror.
It was argued that allowing the juror to remain on the panel
violated the requirement of grand jury secrecy during the
presentation, deliberation, and voting stages of the proceedings.
In response to the motion, the State argued that the juror was
qualified to sit and that the presenting prosecutor had been
overcautious in his admonitions to the juror. The State also
noted that no evidence had been adduced that the juror
deliberated and voted on the indictment, but he could have done
so without violating the rules. The trial judge denied the motion, finding no prosecutorial
misconduct and no evidence of prejudice from the grand juror's
presence in the grand jury room. (Respondents' Exhibit 3 at
26-27). On appeal, the Superior Court of New Jersey, Appellate
Division, found Rider's claim to be "clearly without merit."
State v. Milton Rider, Docket No. A-626-87T4 (App. Div. 1989)
(Rider I) (Resp. Ex. 4 at 9). This claim was not raised by
Rider's appellate counsel on his petition for certification to
the Supreme Court of New Jersey.
Rider raised the claim of prosecutorial misconduct and
ineffective assistance of appellate counsel in an earlier federal
habeas petition filed before this Court. The petition was
dismissed without prejudice for failure to exhaust state court
remedies. Rider v. Hendrix, et al., Civil No. 98-5852 (JAG)
(Resp. Ex. 32). Accordingly, Rider attempted to file a petition
for certification nunc pro tunc to the New Jersey Supreme
Court, raising these claims for state court review. The New
Jersey Supreme Court denied the application by Order filed
October 17, 2002. State v. Milton Rider, Docket No. 53, 633.
(Resp. Ex. 33).
Rider then filed a petition for a writ of mandamus before the
United States Court of Appeals for the Third Circuit, seeking to
compel this Court to "file" his federal habeas petition. In the
interim, Rider also filed this habeas petition. On September 2, 2003, the Third Circuit denied mandamus relief. In re Rider,
C.A. No. 03-2354 (Resp. Ex. 34) (Docket Entry No. 9, 10).
Rider filed this habeas petition on or about March 21, 2003. He
was granted leave to file an amended petition, by this Court's
Order dated April 15, 2003. Rider filed the amended petition on
or about May 14, 2003. He also wrote to the Court several times
seeking a statutory exception to the exhaustion requirement under
28 U.S.C. § 2254(b). (Docket Entry Nos. 6, 8, and 15). Rider
filed a motion on December 27, 2004, seeking interpretation and
application of the "fundamental fairness exception" with respect
to the issue of exhaustion.*fn2 (Docket Entry No. 16).
Respondents filed their answer to the petition on June 1, 2004.
II. CLAIMS FOR HABEAS RELIEF
Rider asserts claims of prosecutorial misconduct and
ineffective assistance of appellate counsel with respect to the
grand juror disqualification issue. In his amended petition, he
also asserts "illegal actions by the state courts" with respect
to the denial of the motion to dismiss the indictment. Rider
argues that the state courts' decisions are contrary to, or an unreasonable application of, clearly established Supreme Court
precedent. In particular, Rider contends that the state courts
failed to apply and adhere to a New Jersey Supreme Court case,
State v. Murphy, 110 N.J. 20 (1988), in which he argues that
the court dismissed an indictment under circumstances similar to
In their answer, respondents assert that petitioner's claims
are procedurally defaulted, and are not cognizable on federal
review. The State also contends that the ineffective assistance
of appellate counsel claim is without merit.
III. EXHAUSTION REQUIREMENT AND PROCEDURAL DEFAULT
Respondents argue that Rider's claims are procedurally
defaulted because the New Jersey Supreme Court denied Rider's
petition for certification as out of time, which had presented
these claims for review.
A state prisoner applying for a writ of habeas corpus in
federal court must first "exhaust? the remedies available in the
courts of the State," unless "there is an absence of available
State corrective process? or . . . circumstances exist that
render such process ineffective. . . ." 28 U.S.C. § 2254(b)(1);
see also 28 U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509,
510 (1982); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir.
2004). A petitioner exhausts state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims, either on direct appeal or in collateral
post-conviction proceedings. See, e.g., O'Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999) ("requiring state prisoners
[in order to fully exhaust their claims] to file petitions for
discretionary review when that review is part of the ordinary
appellate review procedure in the State"); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (collateral attack
in state court is not required if the petitioner's claim has been
considered on direct appeal), cert. denied, 532 U.S. 919
(2001); 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to
have exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the
question presented.") Once a petitioner's federal claims have
been fairly presented to the state's highest court, the
exhaustion requirement is satisfied. Castille v. Peoples,
489 U.S. 346, 350 (1989); Picard v. Connor, 404 U.S. 270, 275
The petitioner generally bears the burden to prove all facts
establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987
(3d Cir. 1993). This means that the claims heard by the state
courts must be the "substantial equivalent" of the claims
asserted in the federal habeas petition. Picard,
404 U.S. at 275. Reliance on the same constitutional provision is not
sufficient; the legal theory and factual basis must also be the
same. Id. at 277. Failure to exhaust may be excused on the basis that state
process is unavailable, but "state law must clearly foreclose
state court review of unexhausted claims." Toulson,
987 F.2d at 987. In addition, the Court of Appeals for the Third Circuit has
stated that, "if a prisoner could establish that the activities
of the state authorities made the prisoner's resort to the state
procedures in effect unavailable, exhaustion would be excused."
Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.), cert.
denied, 484 U.S. 946 (1987).*fn3
When a claim has not been fairly presented to the state courts
because state procedural rules bar the prisoner from seeking
further relief in state court, the exhaustion requirement is
satisfied because there is "an absence of available State
corrective process." 28 U.S.C. § 2254(b). See Werts v.
Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000), cert. denied,
532 U.S. 980 (2001); McCandless v. Vaughn, 172 F.3d 255, 260
(3d Cir. 1999). However, when a state procedural rule has
prevented the state courts from reaching the merits of a
petitioner's federal claims, federal habeas review of those claims ordinarily is barred
because the petitioner has procedurally defaulted the claims.
Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). Where one state
judgment rejects a petitioner's federal claims on state
procedural grounds, "later unexplained orders upholding that
judgment or rejecting the same claims rest upon the same ground."
Id. at 803.*fn4
A procedural default occurs when a prisoner's federal
claim is barred from consideration in the state
courts by an "independent and adequate" state
procedural rule. See, e.g., Doctor[v. Walters,
96 F.3d 675, 683 (3d Cir. 1996)]. Federal courts may
not consider the merits of a procedurally defaulted
claim unless the applicant establishes "cause" to
excuse the default and actual "prejudice" as a result
of the alleged violation of the federal law or unless
the applicant demonstrates that failure to consider
the claim will result in a fundamental "miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722,
750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Carpenter v. Vaughn, 296 F.3d 138
, 146 (3d Cir. 2002).
On habeas review of state prisoner claims, a federal court
"will presume that there is no independent and adequate state
ground for a state court decision when the decision `fairly
appears to rest primarily on federal law, or to be interwoven
with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the
opinion.'" Coleman, 501 U.S. at 734-35 (quoting Michigan v.
Long, 463 U.S. 1032, 1040-41 (1983)).*fn5 Only a "firmly
established and regularly followed state practice" is adequate to
prevent subsequent habeas review in federal court. James v.
Kentucky, 466 U.S. 341, 348-351 (1984). See also Lee v.
Kemna, 534 U.S. 362, 376 (2002) ("Ordinarily, violation of
"firmly established and regularly followed" state rules . . .
will be adequate to foreclose review of a federal claim."
(citations omitted)). Generally speaking, "[a] state court's
refusal to address a prisoner's federal claims because he has not
met a state procedural requirement is both independent and
adequate." Cabrera v. Barbo, 175 F.3d 307, 312 (3d Cir. 1999)
(citations omitted), cert. denied, 528 U.S. 886 (1999).
The "cause" standard requires a petitioner to show that some
objective factor external to the defense impeded his efforts to
comply with the state procedural rule. See Coleman,
501 U.S. at 752 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). In
the absence of a Sixth Amendment violation, the petitioner bears
the risk in federal habeas for all attorney errors made in the
course of the representation. Coleman, 501 U.S. at 754. Neither
a pro se prisoner's ignorance of the procedural rule nor inadvertence
satisfies the cause standard. Murray at 485-87. Failure of the
state court to "bend the rules" for a pro se litigant is not
cause. Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir. 1992),
cert. denied, 504 U.S. 944 (1992).
To establish "prejudice," a petitioner must prove "`not merely
that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimension.'" Murray v. Carrier, 477 U.S. 478,
494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170
In the context of an ineffective assistance claim, the Court of
Appeals for the Third Circuit has held that prejudice occurs
where "there is a reasonable probability that, but for counsel's
deficient performance, the result of the proceeding would have
been different." Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir.
In the alternative, in order to establish that failure to
review an otherwise procedurally defaulted claim will result in a
"miscarriage of justice," a petitioner must show that "a
constitutional violation has probably resulted in the conviction
of one who is actually innocent." Carrier, 477 U.S. at 496.
"Thus, to establish a miscarriage of justice, the petitioner must prove that it is more likely than not that no reasonable juror
would have convicted him." Werts, 228 F.3d at 193 (citing
Schlup v. Delo, 513 U.S. 298, 326 (1995)).
Here, the New Jersey Supreme Court declined to hear Rider's
claims on a petition for certification filed out of time. Thus,
there is a clear and unambiguous determination by the highest
state court that Rider's claims, as asserted here, were dismissed
solely on the grounds of a procedural default or bar.
However, even if this Court determines that the claims are
procedurally defaulted or unexhausted, the Court may opt to
review the claims and deny them on the merits, pursuant to
28 U.S.C. § 2254(b)(2). Section 2254(b)(2) provides that "[a]n
application for writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State." Here, the
respondents have fully addressed each of petitioner's claims on
the merits, as well as asserting affirmative defenses to some of
them. Thus, the Court will deny this petition on the merits,
pursuant to 28 U.S.C. § 2254(b)(2), because "it is perfectly
clear that [Rider] does not raise even a colorable federal
claim." Lambert, 134 F.3d at 514-15.
IV. STANDARD GOVERNING REVIEW OF § 2254 CLAIMS
This 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); Duarte v. Hurley, 43 F. Supp.2d 504, 507 (D.N.J. 1999).
Because Rider is a pro se litigant, the Court will accord his
petition the liberal construction intended for pro se
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 at 197; 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).
A. Prosecutorial Misconduct
Rider principally argues that the prosecutor's allowance of a
disqualified grand juror to remain in the grand jury room during
the presentation, deliberation and voting stages of the
proceedings caused substantial prejudice in the indictment. He
claims that the indictment should have been dismissed.
This claim was raised initially on direct appeal, and the
Appellate Division summarily rejected it, finding that the claim
was "clearly without merit." (Resp. Ex. 4 at 9).
Habeas review of a claim based on prosecutorial misconduct is
limited to determining whether the conduct "so infected the trial
with unfairness as to make the resulting conviction a denial of
due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). "The touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial,
not the culpability of the prosecutor." Smith v. Phillips,
455 U.S. 209, 219 (1982). If it does not infect the entire trial,
misconduct alone is not enough to warrant a new trial. Id. at
220. "A criminal conviction is not to be lightly overturned on
the basis of a prosecutor's comments [or conduct] standing alone,
for the statements or conduct must be viewed in context." United
States v. Young, 470 U.S. 1, 11 (1985).
However, the Supreme Court has recognized the obligation of a
prosecutor to conduct a criminal prosecution with propriety and
He may prosecute with earnestness and vigor indeed,
he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just
one. . . . Consequently, improper suggestions,
insinuations, and, especially, assertions of personal
knowledge are apt to carry much weight against the
accused when they should properly carry none.
Berger v. United States, 295 U.S. 78
, 88 (1935).
"Supreme Court precedent counsels that the reviewing court must
examine the prosecutor's offensive actions in context and in
light of the entire trial, assessing the severity of the conduct,
the effect of the curative instructions, and the quantum of
evidence against the defendant." Moore v. Morton, 255 F.3d 95,
107 (3d Cir. 2001). Here, the claim of prosecutorial misconduct centers on the
grand jury proceeding. A claim as to the validity of a state
indictment, as opposed to the fairness of a trial, does not
typically rise to the level of a constitutional deprivation
because any such claims alleging error in a state grand jury
proceeding are rendered harmless by the subsequent guilty verdict
by a petit jury. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.
1989). See also United States v. Mechanik, 475 U.S. 66,
72-73 (1986); United States v. Enigwe, 17 F. Supp.2d 390, 393
(E.D. Pa. 1998), aff'd, 248 F.3d 1131 (3d Cir. 2000), cert.
denied, 531 U.S. 1185 (2001). Therefore, the petit jury's
eventual conviction of Rider renders harmless Rider's claim that
the indictment was wrongly issued based on the continued presence
of a disqualified grand juror during the entire proceedings.
Further, in United States v. Bank of Nova Scotia,
487 U.S. 250, 256 (1988), the Supreme Court held that violations of Rule 6
of the Rules of Criminal Procedure are subject to harmless error
analysis. Thus, when a court is asked to dismiss an indictment
based on procedural or technical grounds in the grand jury
proceeding, dismissal is warranted only if it is shown that the
violation substantially influenced the grand jury's decision to
indict, or if there is grave doubt that the decision to indict
was free from the substantial influence of the alleged procedural
or technical violation. Id. The Court held that the district court "had no authority to dismiss the indictment on the basis of
prosecutorial misconduct absent a finding that petitioners were
prejudiced by such conduct." Id. at 263.
Here, the state trial court found no evidence of prejudice or
substantial influence by the disqualified grand juror to suggest
that the decision to indict was unduly tainted. Accordingly, the
prosecutor's decision to leave the juror in the grand jury room,
but subject to restrictions from participation in the
deliberations and voting, was a harmless technical or procedural
Moreover, Rider's claim is based wholly on an issue of state
procedural law, as set forth in State v. Murphy, 110 N.J. 20
(1988). In Murphy, the New Jersey Supreme Court ruled that when
the bias of a grand juror is at issue, the County Assignment
Judge supervising the grand jury must decide whether the grand
juror may remain or be removed from the panel.
Generally, matters of state procedural law are not reviewable
in a federal habeas petition. The Supreme Court has stated that
"it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions." Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). This is generally true even
where the state court incorrectly applied state law. Id. at 71.
Rather, a federal habeas claim will lie only where a state court determination violated some federally protected
right. Id. at 68. The Third Circuit likewise stated:
Our review of a federal habeas corpus petition is
limited to remedying deprivations of a petitioner's
federal constitutional rights. We can take no
cognizance of non-constitutional harm to the
defendant flowing from a state's violation of its own
procedural rule, even if that rule is intended as a
guide to implement a federal constitutional
Wells v. Petsock, 941 F.2d 253
, 256 (3d Cir. 1991), cert.
denied, 505 U.S. 1223 (1992); see also Smith v.
Zimmerman, 768 F.2d 69
, 73 (3d Cir. 1985) ("a `mere error of
state law' is not a denial of due process").
Here, Rider was not denied due process or other federally
protected right. There was no showing of substantial influence or
prejudicial impact on the grand jury indictment by the
disqualified juror remaining on the panel, because he was
restricted from deliberations and voting during the proceedings.
Further, the New Jersey Appellate Division found this claim to be
without merit. There is nothing to suggest that the decision of
the Appellate Division was contrary to, and or involved an
unreasonable application of, clearly established federal law.
Therefore, Rider has failed to establish any due process
violation or other violation of a federally protected right that
would entitle him to federal habeas relief. This claim for habeas
relief shall be denied for lack of merit.
B. Ineffective Assistance of Appellate Counsel Next, Rider asserts that his appellate counsel was ineffective
for failing to raise a claim for dismissal of the indictment due
to prosecutorial misconduct on his petition for certification to
the New Jersey Supreme Court.
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, Rider
must also 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. Further, counsel's failure to file motions, defenses, or claims
does not per se constitute ineffective assistance of counsel.
See Kimmelman v. Morrison, 477 U.S. 365, 383-84 (1986);
Jelinek v. Costello, 247 F. Supp.2d 212 (E.D.N.Y. 2003).
Rather, a determination of ineffectiveness depends on whether the
motion or objection would have been granted or sustained had it
been made. United States v. Oakley, 827 F.2d 1023, 1025 (5th
Claims of ineffective assistance of appellate counsel are also
evaluated under the Strickland standard. See Wright v.
Vaughn, 2004 WL 1687865, *6, n. 10 (E.D. Pa. July 26, 2004). In
order to prevail on a claim that appellate counsel was
ineffective, Rider 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).
There is no dispute in this Circuit that matters of appellate
strategy lie within the discretion of appellate counsel. See
Caruso v. Zelinsky, 515 F. Supp. 676, 685 (D.N.J. 1981), aff'd
in part, vacated and remanded in part sub nom., United States
ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir. 1982).
Appellate counsel is not required to raise every colorable claim of error on appeal, even if the defendant
suggests it. See Jones v. Barnes, 463 U.S. 745, 754 (1983);
United States v. Hart, 933 F.2d 80, 83 (1st Cir. 1991).
While it may be arguable that Rider's appellate counsel should
have presented the issue in the petition for certification, since
it was raised and decided on direct appeal before the Appellate
Division, Rider cannot show that he was prejudiced by the alleged
deficiency. The state court denied the motion for dismissal of
the indictment because there was no evidence that the
prosecutor's alleged procedural violation in keeping the
disqualified grand juror on the panel substantially influenced or
prejudiced the decision to indict. The state appellate court
likewise found the claim of prosecutorial misconduct with respect
to the grand jury proceeding to be without merit. Thus, Rider has
failed to satisfy the second prong in his ineffective assistance
of appellate counsel claim. There was no reasonable probability,
had appellate counsel raised the suggested claim, that the
conviction would have been reversed on appeal.
Accordingly, this Court cannot conclude that 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. Rider's claim of ineffective assistance of appellate counsel shall be denied for lack of
C. "Illegal Actions by the State Courts"
In his amended petition, Rider asserts that the state courts
wrongfully denied the motion to dismiss the indictment based on
their failure to apply State v. Murphy, 110 N.J. 20 (1988). He
claims that the state courts' determination was contrary to, or
involved an unreasonable application of clearly established
Supreme Court case law.
As discussed in Section IV.A above, State v. Murphy involved
an issue of state procedural law. The Supreme Court of the United
States has stated that "it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This
is generally true even where the state court incorrectly applied
state law. Id. at 71. Accordingly, this Court shall dismiss
this claim for failure to state a cognizable federal claim for
habeas relief.*fn6 V. CERTIFICATE OF APPEALABILITY
This 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 Rider demonstrates that he has failed to make a
substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue. Thus, this
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 Rider's § 2254
habeas petition should be denied on the merits. A certificate of
appealability will not issue. Rider's applications and motion for
an "interpretation and application of fundamental fairness" on
the issue of exhaustion (Docket Entry Nos. 6, 8, 15 and 16) will
be denied as moot.
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