United States District Court, D. New Jersey
October 4, 2005.
LONNIE DANIELS, Petitioner,
TERRY MOORE, et al., Respondents.
The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge
This matter is before the Court on petitioner Lonnie Daniels'
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, Lonnie Daniels ("Daniels"), is presently confined
at the South Woods State Prison in Bridgeton, New Jersey, serving
a 45 year prison term, with a 22½ year parole disqualifier.
On December 17, 1991, a Mercer County Grand Jury indicted
Daniels on one count of robbery in the first degree; one count of
burglary in the second degree; and one count of attempted
aggravated sexual assault in the second degree. Daniels was tried
by jury before the Honorable David J. Schroth, J.S.C. in a
three-day trial in January 1993. The jury found Daniels guilty on
the first degree robbery count, the second degree burglary count,
and on a lesser-included offense on the third count, attempted
aggravated criminal sexual contact in the third degree.
On September 17, 1993, Judge Schroth sentenced Daniels. The
court granted the State's motion for an extended term. In
determining the sentence, the court reviewed the aggravating
factors and found that factors one (the gravity and seriousness
of the harm inflicted on the victim), six (the extent of his
prior criminal record with serious criminal convictions), and
nine (need for deterrence) were present. The court found no
mitigating factors. Daniels was sentenced to 40 years in prison
with a 20 year parole ineligibility on the robbery count, and a consecutive term of five years in prison with a 2½ year parole
disqualifier on the third count. The court granted the defense
counsel's motion to merge the burglary count into the robbery
count for sentencing purposes.
Daniels filed a direct appeal from this conviction and
sentence, and the New Jersey Appellate Division affirmed both on
June 9, 1995. The New Jersey Supreme Court denied certification
on November 15, 1995. Daniels then filed his first state motion
for post-conviction relief ("PCR"), which was denied after a
hearing held before the Honorable Anthony J. Parillo, J.S.C. on
February 7, 1997. On January 12, 1998, the Appellate Division
reversed Judge Parillo's ruling and remanded the matter for a
full evidentiary hearing.
On June 28, 1999, the Honorable B. Thomas Leahy, J.S.C.
conducted an evidentiary hearing on Daniels' PCR motion. Judge
Leahy denied the motion that same day. On November 14, 2001, the
New Jersey Supreme Court denied Daniels' petition for
certification. See State v. Daniels, 170 N.J. 388 (2001).
Daniels filed this federal habeas petition on or about
September 16, 2002. After three extensions to file an answer were
granted by this Court, the Court received respondents' motion to
dismiss the petition as time-barred on August 4, 2003. This Court
denied the respondents' motion, by Opinion and Order dated
November 19, 2004 (Docket Entry Nos. 16 & 17), finding the petition was timely filed. The Court directed the respondents to
file an answer to the petition, with the relevant record, within
45 days of the November 19, 2004 Order. The respondents filed
their answer on January 3, 2005, together with the relevant state
B. Factual Background
The facts of this case were recounted below and this Court,
affording the state court's factual determinations the
appropriate deference under 28 U.S.C. § 2254(e)(1), will simply
reproduce the New Jersey Appellate Division's factual recitation:
At home in bed late at night, the victim heard an
intruder inside the house. She called the police via
911, and while she was talking to the police
dispatcher, the defendant suddenly appeared in the
bedroom doorway. What followed was overheard on the
open 911 line, including the victim's protestations
and defendant's threats and demands. When the police
arrived they proceeded upstairs, heard a struggle in
the bedroom and found the victim, naked, and
defendant with his hands on the victim's shoulders
and neck area. The defendant was handcuffed and when
searched, the victim's credit card was found. Both
the victim and the dispatcher testified at the trial,
providing a substantial basis for the jury to convict
defendant of robbery, burglary and attempted assault
by sexual contact.
(R42-43, Appellate Division opinion decided June 9, 1995).
II. CLAIMS FOR HABEAS RELIEF
Daniels raises the following claims in his federal habeas
petition:*fn1 Ground One: Daniels was denied effective assistance of trial
counsel. (Petition, ¶ 12.A).
Ground Two: Daniels was denied effective assistance of
appellate counsel. (Pet., ¶ 12.B).
Ground Three: The trial court erred in admitting the altered,
prejudicial emergency 911 tape and transcript into evidence.
(Pet., ¶ 12.C).
Ground Four: The judge committed plain error when he permitted
non-expert testimony. (Pet., ¶ 12.D).
Ground Five: Daniels' sentence was excessive because of
aggravating factors one and two. (Pet., ¶ 12.E).
Ground Six: The trial court denied Daniels his right to a trial
by jury and his due process right to a fair trial because of
improper charges to the jury. (Pet., ¶ 12.F).
Ground Seven: The cumulative effect of the errors complained of
rendered the trial unfair. (Pet., ¶ 12.G).
III. STANDARD GOVERNING REVIEW OF § 2254 CLAIMS
The 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 Daniels is a pro se litigant, the Court will accord his petition the
liberal construction intended for pro se petitioners.
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 178, 197 (3d Cir. 2000),
cert. denied, 532 U.S. 980 (2001); 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. Ineffective Assistance of Trial Counsel
Daniels asserts a litany of errors by his trial counsel, which
he claims denied him effective assistance of counsel in violation
of his Sixth Amendment rights. He complains that (1) counsel
failed to give an opening statement at trial; (2) counsel failed
to object to testimony and cross-examine key state witnesses; (3)
counsel was antagonistic to Daniels during the aborted plea
agreement, and during Daniels' direct testimony at trial; (4)
counsel failed to make a motion for a directed verdict on first
degree robbery and attempted sexual assault based on the victim's
lack of serious injury; (5) counsel failed to obtain appropriate
medical records of the victim and cross-examine her on her
injuries; (6) counsel failed to object to the admission of
prejudicial portions of the 911 tape, which Daniels asserts was
doctored; and (7) counsel failed to request a self defense charge
to the jury.
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,
Daniels 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.
1. Failure to Give an Opening Statement
In his PCR motion, Daniels argued that his trial counsel was
ineffective for failing to give an opening statement. The PCR
court noted that, under N.J. Ct. R. 1:7-1(a), the opening
statement in a criminal trial is optional with the defendant.
This rule accords with the right of a criminal defendant not to
have to disclose his defense in advance of trial. See State v.
Trantino, 44 N.J. 358 (1965). (6T, 14:16-25). The court also found that trial counsel's failure to give an opening statement
"will not ordinarily constitute remedial ineffective assistance
of counsel" [Pressler, comment 1 to N.J.Ct.R. 1:7-1] because such
a waiver is generally construed to be a strategic decision, which
are virtually unchallengeable. (6T, 15:1-11).
The trial court further found that petitioner's claim was
baseless and purely speculative because he was unable to
"identify what, if anything, trial counsel could have offered in
opening statement which would have materially altered the result
below." (6T, 15:12-20). Given the strength of the State's case,
the court ruled that trial counsel's failure to give an opening
statement did not materially affect the jury's verdict. (6T,
After reviewing the record, this Court finds nothing to
indicate that the state court decision on this issue was based on
an unreasonable application of the facts in light of the evidence
presented at trial. Nor were the decisions contrary to
established federal law. The state PCR court found that the
decision by defense counsel not to give an opening statement was
plainly trial strategy, as admitted by counsel during the
evidentiary hearing on the matter. (7T, 5:20-7:11). Daniels has
not demonstrated that the state court decisions, when evaluated
objectively and on the merits, resulted in an outcome that cannot be reasonably justified. Matteo, 171 F.3d at 891. Accordingly,
this claim of ineffective assistance of counsel is without merit.
2. Failure to Object to Testimony and Cross-Examine Key State
Next, Daniels argues that his trial counsel should have
objected during the testimony of Detective John Guido; Officer
O'Donnell; and Investigator Martin Killmer regarding the 911 tape
and its authenticity.
At the evidentiary hearing on the remanded PCR motion, Daniels'
trial counsel testified that Daniels had written to him urging
counsel to use the 911 tape as part of his defense. Trial
counsel, Edward Belmont, Esq., testified that he had listened to
the tape two or three times before the Driver hearing.*fn2
At the Driver hearing, Belmont compared the tape to the
transcript and objected to one or two discrepancies. The tape's
authenticity was not disputed, although it had been enhanced to
reduce background noise and the talking by the police. (7T,
32:1-33:24). Belmont further testified that he declined to
cross-examine these witnesses with respect to the 911 tape
because it would have drawn more attention to the tape, which
counsel felt "was devastating enough without corroborative
testimony from other witnesses who heard the same tape and who
either iterated or reiterated graphic aspects of the tape which were inimical to
my client's penal interest." (7T, 34:17-35:13).
The state PCR court found that counsel's decision not to
cross-examine witnesses on the 911 tape, which emphasis could
only have hurt Daniels, was a tactical or strategic decision, as
admitted by counsel during the evidentiary hearing on the matter.
Decisions by trial counsel with regard to examination of
witnesses are strategic by nature and necessitate a strong level
of deference to the attorney's assessment. See Diggs v.
Owens, 833 F.2d 439, 444-45 (3d Cir. 1987), cert. denied,
485 U.S. 979 (1988). Here, counsel decided that cross-examining
these witnesses with respect to the 911 tapes would have unduly
highlighted the importance of the tapes. There is no deficient
performance when counsel's decision was plainly a strategic
choice. The Court finds nothing to indicate that the state court
decision on this issue was based on an unreasonable application
of the facts in light of the evidence presented at trial. Nor was
the court's decision contrary to established federal law set
forth in Strickland. Daniels has not demonstrated that the
state court decision, when evaluated objectively and on the
merits, resulted in an outcome that cannot be reasonably
justified. Matteo, 171 F.3d at 891. This claim will be denied
for lack of merit. 3. Failure to Object to Admission of Portions of the 911
As discussed above, a Driver hearing was conducted with
respect to the authenticity of the 911 tapes. It was determined
by the trial court that the 911 tapes were authentic and they
were admitted at trial with the transcript. Trial counsel made
several objections as to the transcript, on certain portions
where he found discrepancies. Thus, there is absolutely no basis
for petitioner's claim of that counsel was deficient in this
4. Failure to Obtain Medical Records and Cross-examine Victim
on her Injuries.
Next, Daniels contends that his trial counsel was ineffective
for failing to obtain the victim's medical records and vigorously
cross-examine the witness/victim on the extent of her injuries,
namely, that she had suffered a fractured cheekbone or broken
nose. Daniels quibbles with the victim's testimony that her nose
was broken, and that the victim sustained serious medical
The PCR court found these claims to be groundless:
On the issue of the victim saying that she had a
fractured cheekbone, people can say things about
their own body. . . . There was absolutely nothing
wrong with her saying that or in counsel not making a
big deal out of it. All you needed was for him to
cross-examine her heavily and hard to make her a
martyr and generate the sympathy of the jury because
of an argument about whether she had a fractured
cheekbone. (7T, 59:9-18).
As stated earlier, counsel's decision not to press the issue of
the injuries was a calculated strategy with respect to the nature
and extent of his cross-examination of the victim. At the
evidentiary hearing, counsel responded:
I don't think I did any inquiry as to the nature of
the injuries to the victim, because the charges were
such that the injuries themselves were largely
irrelevant. The way that the aggravated assault
charges, the aggravated sexual assault or aggravated
assault charge statute is drafted it's the intention
of the perpetrator not necessarily the sustaining of
wounds. If someone shoots at someone else with
purpose to inflict bodily injury or serious bodily
injury if that person happens to miss that doesn't
make the nature of the assault any less severe.
(7T, 13:21-14:5). Counsel further stated:
I certainly don't go out of my way on
cross-examination to try to reinforce in the minds of
the jurors injuries or actions taken which are
inimical to my client's penal interests. That
undoubtedly would have just reinforced in the minds
of the jury her own testimony as graphic as that was
and as blood curdling as it sometimes was, so that
would have been a very good tact for me not to have
asked any further questions of her regarding her
This Court finds that trial counsel's decision not to press the
victim with respect to her injuries was a well-reasoned,
strategic decision. The decision does not demonstrate a
deficiency in trial performance; rather, it shows an astute
counsel trying to minimize the damage such testimony would have
on defendant's case. There is nothing in the record to indicate
that the state court decision on this issue was based on an unreasonable application of the facts in light of the evidence
presented at trial. Nor was the court's decision contrary to
established federal law set forth in Strickland. Thus, Daniels
has not demonstrated that the state court decision, when
evaluated objectively and on the merits, resulted in an outcome
that cannot be reasonably justified. Matteo, 171 F.3d at 891.
This claim will be denied for lack of merit.
5. Failure to Make a Motion for a Directed Verdict.
Daniels also contends that his counsel was deficient for
failing to make a motion for a directed verdict on first degree
robbery and second degree aggravated sexual assault. This claim
is clearly without merit. Daniels' trial counsel cannot be
expected to make a motion for a directed verdict when the State's
case was overwhelming and strong against defendant.
To establish ineffective assistance of counsel based on a
failure to make a motion, Daniels must be able to show that the
motion would have succeeded. Counsel's failure to make motions
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
Cir. 1987). Thus, "[c]ounsel cannot be faulted for failing to
pursue meritless or futile objections." Johnston v. Love,
940 F. Supp. 738, 776 (E.D. Pa. 1996), aff'd 118 F.3d 1576 (3d Cir.),
cert. denied, 522 U.S. 972 (1997); see also Bolender v.
Singletary, 16 F.3d 1547, 1573 (11th Cir.), cert. denied,
513 U.S. 1022 (1994) (failure to raise non-meritorious issues
does not constitute ineffective assistance of counsel).
This Court finds nothing in the record to support Daniels'
meritless claim that counsel should have requested a directed
verdict after the mountain of evidence shown at trial on the
State's case. The PCR court found that the evidence against
Daniels "was so strong and so voluminous. There was so much of it
and it was so persuasive that nobody could have saved [Daniels']
skin." (7T, 61:22-24). Counsel cannot be expected to raise a
motion for a directed verdict when the evidence presented by the
State strongly indicated that such a motion plainly would not
6. Failure to Request a Self Defense Charge
Daniels next asserts that his counsel was deficient in failing
to request a self defense charge. At the evidentiary hearing,
counsel stated that his decision not to request a self defense
charge to the jury was a tactical choice so as not to lose any
credibility counsel may have established with the jury. (7T,
10:16-12:20). The PCR court agreed, finding that:
On the issue of self-defense instruction, I am
satisfied that the law does not require an attorney
to pull the rug out from under his client every time the defendant
says it was self-defense. The law does not require
that defense counsel make an ass of himself and an
idiot of his client by arguing that there should be a
charge regarding the state's burden to prove the
absence of self-defense every time a client in the
face of proofs that it clearly was no self-defense
when you're the intruder in someone's home in the
dark of night and enters their bedroom and they're
injured. It's not a self defense situation.
There is nothing in the record to indicate that the state court
decision on this issue was based on an unreasonable application
of the facts in light of the evidence presented at trial. Nor was
the court's decision contrary to established federal law set
forth in Strickland. Thus, Daniels has not demonstrated that
the state court decision, when evaluated objectively and on the
merits, resulted in an outcome that cannot be reasonably
justified. Matteo, 171 F.3d at 891. Therefore, on this claim,
the Court concludes that Daniels has failed to demonstrate
ineffective assistance of trial counsel.
7. Counsel's Antagonism at Trial and Plea Hearing
Daniels also complains that his counsel was deficient and
prejudiced him at trial, by being argumentative and portraying
Daniels in a bad light during Daniels' direct examination.
Daniels further states that his counsel should not have been so
belligerent during the plea hearing. a. Plea Hearing
On the second day of trial, after the victim's testimony from
the day before, defense counsel indicated that Daniels wished to
enter a plea agreement on all three charges. The matter was
discussed before Judge Schroth, who reviewed the four-page plea
form with Daniels and his attorney. Judge Schroth informed
Daniels of his right to trial, the State's burden of proof, the
consequences of a plea, the maximum penalty that could be
imposed, and the requirement that Daniels would have to be
examined at the Adult Diagnostic and Treatment Center in Avenel,
New Jersey, based on the sexual assault charge, for determination
as to whether he should be sentenced at Avenel due to repetitive
and compulsive behavior. (3T, 5:21-8:12).
Daniels responded that he understood the implications of his
decision to accept the plea agreement. (3T, 3:19-10:1). Yet when
he had to recite the factual basis on each charge, Daniels
refused to allocute with respect to the third count of attempted
aggravated sexual assault. (3T, 13:16-14:3). The State withdrew
its plea offer.
Daniels complains that his counsel was belligerent and cut-off
the plea agreement. However, the record does not bear this out.
Daniels was unwilling to admit to the facts supporting the
attempted aggravated sexual assault charge. The trial court and
the prosecutor both rejected Daniels' plea because it was not supported by a proper factual basis. Defense counsel had to
pointedly question Daniels in an effort to have Daniels allocute
a legally sufficient basis for the plea. When it became apparent
to counsel that Daniels was not able to do so, counsel strongly
advised his client: "we're either going to trial or not, it's
your choice, Lonnie. Forget this nonsense." (3T, 13:7-10).
There is absolutely no factual basis for Daniels' claim that
his counsel was deficient in this regard. Daniels chose to go
forward with his trial because he was unwilling to admit to facts
concerning the attempted aggravated sexual assault charge. At
that point, there was nothing defense counsel could do to effect
the plea agreement because Daniels refused to plead the necessary
factual basis for such plea. The trial court would not accept it
and the State withdrew its offer. Thus, this claim will be denied
as substantially meritless.
b. Daniels' Direct Examination
Daniels also takes issue with trial counsel's direct
examination of Daniels at trial. Daniels claims that counsel was
hostile, contradictory, and belligerent to him during his
testimony, which portrayed Daniels in a bad light to the jury. He
cites specific examples, such as, the question posed about people
having guns in their home to protect themselves from people like
Daniels; and questioning Daniels on the difference between a
fractured nose and a broken nose. Defense counsel testified at the evidentiary hearing that he
was trying to maintain his credibility with the jury during
Daniels' testimony. The PCR court found that Belmont was a highly
Any argument that Mr. Belmont did not advocate
zealously on your behalf is totally wrong. His
performance was excellent. He did advocate zealously
his representation of you and I doubt that I can make
this clear to you, but I'm going to try. It was more
sophisticated than you could understand. He did
better by you than you could grasp that he was doing.
You wanted a buddy to argue what you wanted and that
you were a nice guy. He was being much smarter than
you in the defense he gave you. He wanted to persuade
the Jury not to find you guilty of the worst level of
each charge against you. To do that he was trying to
show the Jury that you admitted when you were wrong
and you're only fighting about the things the state
was exaggerating. You wouldn't play.
(7T, 57:19-58:7). The court also found no prejudice against
petitioner, even if trial counsel was deficient:
[E]ven if you had had inadequate counsel it wouldn't have made
any difference. The evidence against you was so strong and so
voluminous. There was so much of it and it was so persuasive that
nobody could have saved your skin. So, even if there was error it
did not in anyway impact the result adverse to your interest. So
the second prong of the Strickland test was not met either.
The Court finds that the state court did not unreasonably apply
established federal law in reaching its decision. The state court
decision was clearly based on a reasonable application of the
facts in light of the evidence presented at trial. Thus, Daniels
has not demonstrated that the state court decision, when
evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified. Matteo,
171 F.3d at 891. Accordingly, this claim of ineffective assistance of
counsel is without merit.
In sum, Daniels has failed to show any instances of deficient
performance by counsel in his case, which would give rise to a
claim of constitutional deprivation. Moreover, even if there was
any small instance of counsel's deficiency, Daniels cannot prove
the second prong of prejudice. There was overwhelming and strong
evidence against Daniels at trial that would not support an
argument that Daniels was prejudiced by counsel's errors.
Therefore, the ineffective assistance of counsel claims are
denied on the merits.
B. Ineffective Assistance of Appellate Counsel
Daniels also broadly asserts that his appellate counsel was
ineffective for failing to raise certain issues on appeal, such
as the improper jury charges, the admission of the 911 tape and
transcript into evidence, and the introduction of non-expert
testimony. These claims were raised on Daniels' remanded PCR
petition in state court, and were denied.
Claims of ineffective assistance of appellate counsel are
evaluated under the Strickland standard previously discussed.
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, Daniels 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).
Here, Daniels has failed to show that the performance of his
appellate counsel was deficient and that he was prejudiced
thereby, and in light of the evaluation of this issue by the
state court, this Court cannot conclude that the 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. Accordingly, the Court will
deny relief on this claim.
C. The 911 Tape and Transcript
Next, Daniels contends that the 911 tapes were altered and
should not have been admitted into evidence at trial. Before
trial, the court conducted a Driver hearing with respect to the
911 tape and transcript. The State produced two witnesses who
testified as to the authenticity, accuracy, and integrity of the
recording of the assault. It was admitted that the tape had been
sent to the FBI to enhance the voices of the victim and defendant
and minimize the voice of the 911 operator. Defense counsel did
not object to the authenticity and integrity of the tape, but
objected to the inclusion of words of the dispatcher in the transcript that make reference to "rape". The court declined to
excise the reference since it would be inconsistent with the tape
recording. The court also found the tape was authentic and
accurate, and admitted both the transcript and the tape into
On the remanded PCR hearing, the court ruled that the tape was
admissible and that there was no error in failing to object to
its admission. (7T, 59:7-8).
The respondents assert that the tape recording was properly
authenticated and shown to be accurate, and that the defense had
full and fair opportunity to cross-examine the State witnesses at
the Driver hearing, and make a comparison between the master
tape and the duplicate. Thus, there was no denial of due process
or a fair trial by the trial court's admission of the tape and
transcript into evidence.
This Court finds that petitioner's claim is a matter of a state
evidentiary ruling. Generally, matters of state law and rules of
procedure and evidence 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). Federal courts must afford the states deference in its
determinations regarding evidence and procedure. See Crane v.
Kentucky, 476 U.S. 683, 690 (1986) ("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
However, 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. 1994), 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 this case, the Court finds that the state court's
evidentiary ruling with respect to the admission of the 911 tape
and transcript did not violate Daniels' right to due process. The
trial court committed no errors of a constitutional dimension and
a review of the whole record demonstrates that the trial process
was fundamentally fair. A Driver hearing was conducted, and the
defense had the opportunity to review the tape and object to it.
Further, there is no showing that the state court determinations
"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." Williams,
529 U.S. at 412-13. Accordingly, this ground for a writ of habeas corpus will
D. Admission of Non-Expert Testimony
Daniels further asserts that the trial court erred in allowing
non-expert opinion testimony at trial. Specifically, Lt. McKee of
the Trenton Police Department gave opinion testimony as to the
victim's appearance when he arrived on the scene of the crime. He
stated that the victim "looked like she had been beaten
unmercifully." (3T, 52:5-14). Respondents argue that the
testimony was relevant to the crime of robbery, and involved the
officer's direct observation of the victim's injuries at the
This issue was raised on Daniel's PCR motion. The PCR court
found the officer's description of the victim's appearance to be
"perfectly admissible, that's the kind of thing that a non-expert
can give his observations. It's similar to the case law that
somebody can say that somebody appeared to be drunk. You don't
have to be an expert for that. It's part of human experience. So
is the kind of description the officer gave as to the victim
looking as though she had been badly beaten." (7T, 61:6-12).
The Court finds petitioner's claim to be an issue of state
evidentiary law not generally subject to federal habeas review. Daniels has failed to establish any due process violation in the
admission of this testimony about a direct observation, nor has
he shown undue prejudice that resulted in a manifest injustice or
an unfair trial with respect to allowing the non-expert
description of the victim's appearance. Thus, Daniels is not
entitled to federal habeas relief on this ground.
E. Excessive Sentence
In Ground Five of his petition, Daniels argues that the
sentencing court improperly weighed the aggravating factors to
sentence him to the maximum term possible. He disputes the
court's finding as to aggravating factor number one, that the
crime was committed in a heinous, cruel, or depraved manner. He
also contends that the court misapplied the aggravating factor
relating to the gravity of the harm inflicted. The court found
the "gravity of the seriousness of the emotional harm inflicted
on the victim who was incapable of resistance because of the fact
that you are a large, strong individual, and she was not, she was
no match for you." (5T, 24:6-10). Daniels argues that the victim
was not elderly, handicapped, or young, and her physical
resistance was not virtually impossible.
Respondents counter that Daniels met the minimum statutory
predicates for a discretionary extended term under the persistent
offender statute, N.J.S.A. 2C:44-3a. Daniels raised a similar excessive sentence claim in his direct
appeal to the New Jersey Appellate Division. The Appellate
Division ruled that, "[w]hile the sentence is severe, given
defendant's past record the trial judge did not abuse his
discretion in deciding that the aggravating factors outweighed
the mitigating factors. [State v. Roth, 95 N.J. 334, 364-65
(1984)]. There was no prohibited double counting of aggravating
factors. [See State v. Yarbough, 100 N.J. 627, 643-44 (1985),
cert. denied, 475 U.S. 1014 (1986)]. We conclude the sentence
was not excessive." (R43)
Based on the record, this Court finds that petitioner's
sentence fell within the permissible statutory limit in effect at
the time. The Court also finds the determining factors advanced
by the sentencing judge in support of the extended term were
sound and reasonable. (5T 24:3-25:11). Moreover, even if this
Court was of the opinion that the sentence was excessive, which
is not the case, it is well established that "the severity of the
defendant's sentence alone constitutes no ground for [habeas]
relief." United States ex rel. Jackson v. Myers, 374 F.2d 707,
711 n. 11 (3d Cir. 1967); see also Townsend v. Burke,
334 U.S. 736, 741 (1948).
Sentencing is generally considered a matter of state criminal
procedure, which does not fall within the purview of federal
habeas review. Ervin v. Beyer, 716 F. Supp. 163, 165 (D.N.J. 1989); see also Johnson v. Beto, 383 F.2d 197, 198
(5th Cir. 1967), cert. denied, 393 U.S. 868 (1968); U.S.
ex rel. Jackson v. Meyers, supra. Indeed, absent some
constitutional violation, federal courts cannot review a state's
alleged failure to adhere to its own sentencing procedure. Rorie
v. Beard, Civ.A. No. 04-3380, 2005 WL 825917, *5 (E.D. Pa. April
7, 2005) (citing Branan v. Booth, 861 F.2d 1507, 1508
(11th Cir. 1988)). Thus, a federal court will not reevaluate
a sentence in a habeas proceeding unless it exceeds the statutory
limits. Jones v. Superintendent of Rahway State Prison,
725 F.2d 40 (3d Cir. 1984); see also Williams v. Duckworth,
738 F.2d 828, 831 (7th Cir. 1984), cert. denied,
469 U.S. 1229 (1985) ("As a general rule, federal courts will not review
state sentencing determinations that fall within statutory
limits."); Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir.
1975) ("This Court will not upset the terms of a sentence within
statutory limits unless so disproportionate to the offense as to
be completely arbitrary and shocking").
Here, petitioner has not alleged that his sentence violates any
federal constitutional rights. Only issues of state law were
raised below in state court, and the state appellate court found
that the excessive sentence claim was without merit. Moreover,
Daniels' sentence does not exceed the statutory limits. Consequently, Ground Five of the petition is not subject to
federal review and will be denied.
F. Jury Instructions
In Ground Six, Daniels asserts that the trial court denied him
a fair trial and due process based on improper jury charges. He
first contends that the trial judge improperly used the term "not
guilty" instead of "innocent" in charging the jury on the
presumption of innocence. Second, Daniels alleges that the trial
judge failed to give a curative instruction to the jury with
respect to Daniels' outburst during trial. Finally, Daniels
argues that the jury charge on circumstantial evidence was
misleading when the court stated that "[c]ircumstantial evidence
is equally worthy of supporting a finding of fact, even though
there may be an alternate explanation." (4T, 50:17-19).
Respondents counter that Daniels' claims are specious and that
he fails to raise a federal constitutional question.
Questions relating to jury charges are normally matters of
state law and are not cognizable in federal habeas review. See
Engle v. Isaac, 456 U.S. 107 (1982); Henderson v. Kibbe,
431 U.S. 145 (1977); 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.). Only where
the jury instruction is "so prejudicial as to amount to a
violation of due process and fundamental fairness will a habeas corpus claim lie."
Where a federal habeas petitioner challenges jury instructions
given in a state criminal proceeding,
[t]he only question for us is "whether the ailing
instruction by itself so infected the entire trial
that the resulting conviction violates due process."
It is well established that the instruction "may not
be judged in artificial isolation," but must be
considered in the context of the instructions as a
whole and the trial record. In addition, in reviewing
an ambiguous instruction . . ., we inquire "whether
there is a reasonable likelihood that the jury has
applied the challenged instruction in a way" that
violates the Constitution. And we also bear in mind
our previous admonition that we "have defined the
category of infractions that violate `fundamental
fairness' very narrowly." "Beyond the specific
guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation."
Estelle v. McGuire, 502 U.S. 62, 72-73 (1991) (citations
omitted). 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), cert.
denied, 522 U.S. 1109 (1998). 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
(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. Smith v. Horn, 120 F.3d at 416-17
(1997); 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." Smith v. Horn,
120 F.3d 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
, 437 (2004) (internal
quotations and citations omitted).
At the PCR hearing, the trial court found that there was "no
real distinction in the two phrases ["not guilty' and "innocent"]
so I find no error to complain of by defendant. There was no
reason whatsoever for his attorney even object to that language
in the charge." (7T, 56:22-25). Further, the court did not find
any error in the trial judge not giving an instruction to the
jury to disregard Daniels' outburst. The failure of the Court or the decision by the Court
not to blow up the fact in front of the Jury and make
them madder than hell at the defendant for
interrupting the trial when he said he was being
railroaded is not error. The Judge has the discretion
to do as he sees best and you're lucky that the Judge
didn't chew you up one side and down the other for
acting that way. If he had made an issue of it, if he
had given some sort of curative charge it would only
have dramatized and emphasized to the Jury and turned
them against you. It would have backfired seriously.
The Judge used his discretion in your favor by not
making a big deal out of the way you acted after your
plea effort at entering a plea without admitting an
offense was rejected by the state and by the Court.
Daniels fails to point to a federal requirement that the jury
instructions he proposes were required; nor can he demonstrate
that the lack of the proposed jury charges deprived him of a
defense which federal law provided to him. Johnson v.
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, his
claims are wholly without merit. For the purposes of a jury
charge, there is no distinction between the terms "not guilty"
and "innocent"; they are interchangeable terms. The charge on
circumstantial evidence was perfectly acceptable and did not
mandate a conclusion by the jury that they have to accept
circumstantial evidence as true. Accordingly, Daniels' claims are
absolutely baseless, and he has not shown a federal
constitutional deprivation entitling him to habeas relief. G. Cumulative Errors
Finally, Daniels asserts that the cumulative effect of trial
errors deprived him of his due process and his constitutional
right to a fair and impartial trial.
Even if none of the claims on their own amounts to a
constitutional violation, the "cumulative effect of the alleged
errors may violate due process." United States ex rel. Sullivan
v. Cuyler, 631 F.2d 14, 17 (3d Cir. 1980); see also Douglas
v. Hendricks, 236 F. Supp.2d 412, 436 (D.N.J. 2002) (Walls, J.)
(no cumulative error when the trial was fair and verdict
supported by sufficient evidence); Pursell v. Horn,
187 F. Supp.2d 260, 374 (W.D. Pa. 2002) ("That the reliability of a
state criminal trial can be substantially undermined by a series
of events, none of which individually amounts to a constitutional
violation, is an idea that has been accepted by nearly every
federal court to have addressed the issue.").*fn3 In
Marshall v. Hendricks, the Court of Appeals for the Third
Circuit evaluated a cumulative error claim and found:
Here, even were we to cumulate all the claimed errors
and superimpose them over the extensive trial
proceedings, given the quantity and quality of the
totality of the evidence presented to the jury, we
could not conclude that the New Jersey Supreme Court unreasonably applied Supreme Court precedent or
unreasonably determined the facts in making its
See 307 F.3d 36
, 94 (3d Cir. 2002), cert. denied,
538 U.S. 911 (2003).
This Court has determined that no errors occurred or that, to
the extent errors did occur, they were harmless. A review of the
record reveals that any errors that may have occurred remain
harmless when cumulated, and that the trial was fair and the
verdict was supported by ample evidence. As found in Marshall,
supra, Daniels 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.
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 Daniels 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 Daniels' §
2254 habeas petition should be denied on the merits. A
certificate of appealability will not issue. An appropriate Order
accompanies this Opinion.
© 1992-2005 VersusLaw Inc.