The opinion of the court was delivered by: Simandle, District Judge
Petitioner Charles C. Staples ("Petitioner") brings this civil action for habeas corpus relief pursuant to 28 U.S.C. § 2254. On November 18, 1996, Petitioner was acquitted of knowing and purposeful murder but was convicted of second degree burglary, third degree theft and second degree eluding. The jury "hung" on the remaining charges for felony murder, unlawful possession of a weapon and possession of a weapon for unlawful purposes. The State re-tried Petitioner for felony murder, and he was convicted of that charge on February 7, 1997 in the Superior Court of New Jersey, Gloucester County.
Staples was sentencted on February 27, 1997, receiving life imprisonment on the felony murder conviction withy a thirty-year mandatory minimum, and a consecutive seven-year term for eluding, and a three-year concurrent term for theft.*fn1
Staples now alleges that he was denied the right to a fair trial because (1) the jury at his re-trial for felony murder was not instructed on the lesser included offense of burglary; (2) he was denied the effective assistance of trial counsel; and (3) he was improperly denied an evidentiary hearing on the ineffective counsel claim.
Because all of Petitioner's claims fail on the merits, this petition for Writ of Habeas Corpus will be denied in its entirety.
I. BACKGROUND AND PROCEDURAL HISTORY
On May 16, 1995, in Franklin Township, New Jersey, Petitioner and his friend, Robert Simon, burglarized the Environmental Heating Business. Police Sergeant Ippolito Gonzalez stopped Petitioner and Simon in a motor vehicle driven by Petitioner as they were driving from the scene of the burglary. Simon shot Sergeant Gonzalez twice in the head and neck and Petitioner and Simon fled the scene, crashing a short time later. It was later discovered that Simon had shot and killed the officer with Petitioner's gun. Staples drove the vehicle at 75-85 mph attempting to elude a pursuing police officer until crashing. Simon later confessed to the shooting, plead guilty to murder and was sentenced to death.
At his trial, Petitioner admitted planning and participating in the burglary of the business but denied any knowledge of, or complicity in, Sergeant Gonzalez's shooting. Petitioner was subsequently convicted of second degree burglary, third degree theft and second degree eluding. The jury hung on the charge of felony murder, but Petitioner was later convicted of felony murder at a subsequent re-trial.
On direct appeal, Petitioner claimed that the trial judge: (1) deprived Petitioner of a fair trial; (2) erred when he improperly admitted "other crimes" evidence; and (3) erred in the jury charge by (a) charging improperly on the meaning of deadly weapon, (b) failing to instruct the jury on the limited evidentiary use of weapons taken from Petitioner's home, (c) failing to charge the jury on a lesser included offense, and (d) not including a burglary charge on the verdict sheet. Petitioner also claims that the trial judge abused his discretion by ordering that the sentences for felony-murder and eluding be served consecutively. The Appellate Division affirmed the judgment of conviction and the New Jersey Supreme Court denied the petition for certification.
In his post-conviction relief ("PCR") petition, Petitioner claimed he received ineffective assistance of trial counsel due to counsel's failure to move for a change of venue, and that he was denied a fair trial based on the non-inclusion of a lesser included offense of burglary on the verdict sheet. The PCR court found no merit to Petitioner's claim of ineffective assistance of counsel because Petitioner failed (1) to overcome the presumption that trial counsel's conduct constituted sound trial strategy, and (2) to show that a motion to change venue would have succeeded.
Petitioner appealed the PCR court decision, re-raising the issues of denial of fair trial and ineffective assistance of trial counsel; and raising new claims alleging that the PCR court erred in failing to grant an evidentiary hearing on the ineffectiveness of counsel claim and in ruling that the jury-charge claim was procedurally barred. The Appellate Division affirmed the trial court's denial of the petition for post-conviction relief. The Supreme Court of New Jersey denied the petition for certification.
Petitioner timely filed this petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 10, 2004.
II. CLAIMS FOR HABEAS RELIEF
Petitioner here claims (1) he was denied due process and a fair trial because the jury was not presented with the option of choosing burglary on the verdict sheet; (2) he was denied effective assistance of counsel; and (3) the PCR court erred in refusing to hold an evidentiary hearing on the ineffective assistance claim.
III. STANDARD OF REVIEW OF § 2254 CLAIMS
For a federal court to grant a petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, the petitioner must have exhausted all state claims. Where a petitioner presents a "mixed petition" of exhausted and unexhausted issues, however, the writ may be denied on the merits. 28 U.S.C. § 2254(b)(2).
When considering a petition under 28 U.S.C. § 2254 as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts must give considerable deference to determinations of the state courts. According to § 2254(d)(1) & (2), an application may be granted only if a claim adjudicated on the merits in state court "resulted in a decision that: (1) was contrary to, or involved and unreasonable application of, clearly established Federal law, or . . . (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court . . . ." 28 U.S.C. § 2254. A federal court may grant the writ under (d)(1) "if the state court arrives at a conclusion opposite to that reached by [a federal court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," or under (d)(2) "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Under (d)(2), the court must evaluate "whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified." Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000).
Finally, under 28 U.S.C. § 2254 federal courts are required to apply a "presumption of correctness to factual determinations made by the state court." 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 ...