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Douglas v. Cathel

August 8, 2006

ROBERT E. DOUGLAS, APPELLANT
v.
*RONALD H. CATHEL, ADMINISTRATOR OF NEW JERSEY STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, ZULIMA FARBER*FN1 *AMENDED, SEE CLERK'S ORDER DATED 10/25/05



On Appeal from the United States District Court for the District of New Jersey. D.C. Crim. Action No. 99-cv-05642. (Honorable William H. Walls).

The opinion of the court was delivered by: ALARCÓN, Circuit Judge

PRECEDENTIAL

Argued April 25, 2006

Before: FUENTES, STAPLETON, and ALARCÓN,*fn2 Circuit Judges.

OPINION OF THE COURT

Robert E. Douglas appeals from the order denying his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Douglas contends that the District Court failed to apply the correct standard of review pursuant to the terms of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). He also argues that his Sixth Amendment rights were violated because (1) he was denied a speedy trial, (2) his counsel was ineffective for failing to pursue his right to a speedy trial, and (3) he was effectively denied his right to counsel because he was unrepresented at a critical stage of the proceedings while he was in custody on capital charges. We will affirm because we conclude that the District Court applied the correct standard of review in determining that the Appellate Division's decision was not "contrary to, [or did not involve] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

I.

On August 7, 1987, Estella and Charlene Moore lived together with Charlene's infant daughter in Apartment 2E in a building in East Orange, New Jersey. Mr. Douglas, whose nickname is "Skeet" lived next door to the Moore sisters in Apartment 2D. Georgianna Broadway and Deborah Neal lived together nearby in Newark, New Jersey. Ms. Broadway and Ms. Neal were friends of the Moore sisters. Ms. Broadway was introduced to Mr. Douglas through the Moore sisters.

In late July or early August of 1987, Ms. Broadway had lunch with the Moore sisters at their apartment. She stayed about forty-five minutes. Mr. Douglas was also in Apartment 2E at the same time. After repairing the front door of Apartment 2E, Mr. Douglas and the Moore sisters sat in the living room area conversing and consuming mixed drinks. Ms. Broadway sat approximately twenty feet away in the kitchen area listening to Mr. Douglas's conversation with the Moore sisters as she ate her lunch.

On the evening of August 7, 1987, Ms. Broadway visited the Moore sisters in Apartment 2E. At approximately 5:30 a.m. on August 8, 1987, Charlene Moore and Ms. Broadway went to sleep in the bedroom. Mervin Matthews, a friend of the Moore sisters, arrived at their apartment building at around 6:00 a.m. to drop off Estella Moore's keys and cigarettes. As he approached the building, Mr. Matthews saw Mr. Douglas standing outside the entrance talking to another gentleman. Mr. Matthews greeted Mr. Douglas. The two men went upstairs together; Mr. Matthews entered the Moores' apartment, while Mr. Douglas entered his own apartment. About fifteen minutes later, when Mr. Matthews left the Moores' apartment, Mr. Douglas also exited his apartment and joined Mr. Matthews as he walked down the stairs. When Mr. Matthews left that morning, Mr. Douglas was standing outside the apartment building.

Kenneth Hampton, an acquaintance of Mr. Douglas's who needed a place to stay, spent the night of August 7, 1987 at Mr. Douglas's apartment. At around 6:45 a.m. or 7:00 a.m., Mr. Hampton left the apartment to go outside and catch a ride to work. He saw Mr. Douglas sitting alone on the front stoop of the apartment building. The two men spoke briefly and Mr. Hampton ran to the corner to catch his ride.

Ms. Broadway awakened some time around 7:00 a.m. or 7:30 a.m. and heard Estella Moore speaking to Mr. Douglas in the kitchen area. Ms. Broadway asked Charlene Moore to bring her Ms. Broadway's pocketbook and keys from the kitchen. Charlene Moore complied. Ms. Broadway asked Estella Moore to prepare a meal for her. Estella Moore brought Ms. Broadway a tray of Chinese food. Ms. Broadway noticed that Estella Moore had "a very scared look on her face" when she entered the bedroom. Ms. Broadway asked Estella Moore "what was wrong." Estella replied, "Nothing. Nothing."

A few minutes later, the bedroom door was pushed open and six shots were fired in rapid succession. Ms. Broadway did not see the perpetrator. She received bullet wounds under her chin and on her right arm. She also was grazed by bullets on her chest and thumb. The Moore sisters died instantly from close range bullet wounds. After determining that the sisters were dead, Ms. Broadway saw the baby's foot move. The baby was unharmed. Ms. Broadway placed the baby inside her coat.

Ms. Broadway waited for up to thirty minutes to leave the apartment building because she was unsure of the perpetrator's whereabouts. She drove herself to her residence. When she entered the apartment, she told Ms. Neal: "Skeet just shot all three of us and Stella and Charlene is [sic] dead." Ms. Neal telephoned the East Orange Police Department to report the homicides. She indicated that "Skeet," the occupant of Apartment 2D, was a possible suspect.

Officer Alfred Rizzolo arrived at Ms. Broadway's residence at 9:35 a.m. on August 8, 1987. Ms. Broadway was being treated by emergency medical service personnel. She appeared to be nervous, excited, and in a lot of pain. Ms. Broadway told Officer Rizzolo that "Skeet" had shot her while she was at Apartment 2E and that "there were two dead bodies in that apartment."

Sergeant Michael Brown, Officer Ronald Tisdale, and Officer Ben Powell of the East Orange Police Department responded to the dispatcher's call about a double homicide in Apartment 2E. Sergeant Brown was also informed that the perpetrator might be in Apartment 2D. Finding the door of Apartment 2E ajar, the officers entered and discovered Estella and Charlene Moore lying on the bedroom floor. Each of them had multiple gunshot wounds. The officers did not find any other person or weapons in the bedroom. They recovered a round of ammunition under a radiator in the bedroom.

The officers discovered the door of Apartment 2D ajar. They entered in order to perform a plain-view search for weapons and/or persons. Captain John Armeno of the East Orange Police Department arrived at Apartment 2D at 10:00 a.m. He conducted a search for weapons or "any other thing of evidentiary value." He believed it was important to identify the perpetrator quickly. Captain Armeno removed a photograph of a man from Apartment 2D. The building's manager identified the man in the photograph as Mr. Douglas.

Sergeant Ronald Sepe of the East Orange Police Department took the photograph to the University Hospital where Ms. Broadway was being treated for her gunshot wounds. Sergeant Sepe showed the photograph to Ms. Broadway and asked her if the man in photograph was the person who shot her. Ms. Broadway nodded her head and told Sergeant Sepe: "Yes."

Warrants for the arrest of Mr. Douglas and the search of his apartment were executed later that day. The search of Mr. Douglas's apartment yielded "[a]n Ohaus tripple beam scale, a Derring gram scale, one hand held scale, glass bowl pipe, single edge razor, one spoon with residue, another spoon with residue, one bag of suspect marijuana, one bag of suspect marijuana seed, one pack of suspect cocaine, one black leather holster, two black leather cestus and one beige Rolodex file." The Rolodex included the name Irving Gaskins.

The next day, on August 9, 1987, eleven police officers went to Mr. Gaskins's apartment in Newark, New Jersey to locate Mr. Douglas. Sergeant Sepe, Sergeant Alan Sierchio and four other police officers from the East Orange Police Department, were assisted by Sergeant Charles Whitner of the Newark, New Jersey Police Department Tactical Unit; Officer Wayne Dooley, Officer George Davey and Officer Thomas Hughes, also of the Newark Police Department. Sergeants Sepe, Sierchio and Whitner, along with Officers Hughes, Dooley and Davey, walked up to the third floor apartment. Sergeant Whitner knocked on the door. They were admitted by Bonita Allen who indicated that Mr. Douglas was in the living room.

Upon entering the apartment, the officers observed Mr. Douglas sitting on the couch in the living room. Sergeant Sepe, Sergeant Whitner, Sergeant Sierchio, and Officer Dooley approached Mr. Douglas in the living room. Mr. Douglas stood up as the officers approached him. Mr. Gaskins was seated in the living room on a chair near the couch. Sergeant Sepe placed Mr. Douglas under arrest. Sergeant Whitner handcuffed Mr. Douglas from behind while Sergeant Sepe, who was face-to-face with Mr. Douglas, performed a protective search. When searching Mr. Douglas, Sergeant Sepe came across a hard object and announced that he had found a gun. Sergeant Sierchio moved in closer and observed Sergeant Sepe lift Mr. Douglas's shirt and seize a fully loaded six shot Spesco Taurus .38 caliber revolver from "the front portion of his pants in the waistband area." The six rounds in the weapon were hollow-point bullets. Sergeant Whitner, Officer Hughes, and Officer Davey also observed Sergeant Sepe remove the weapon from Mr. Douglas's waistband area. Sergeant Sierchio observed Sergeant Sepe remove an additional five rounds of ammunition, also hollow-point bullets, from Mr. Douglas's right front pocket. Prior to patting him down, Sergeant Sepe did not see the weapon or a bulge in Mr. Douglas's pants. The weapon was entirely concealed from view because Mr. Douglas's shirt was hanging down over his waistband.

The gun holster located in Apartment 2D bore unique striation marks matching those found on the weapon recovered from Mr. Douglas at the time of his arrest. Captain Carl Leisinger, a ballistics expert, testified that the bullets recovered from the bodies of the Moore sisters and the spent round recovered in Apartment 2E were fired from the revolver carried by Mr. Douglas at the time of his arrest. Captain Leisinger also testified that the revolver seized from Mr. Douglas had unique striation marks cut into the flutes of the outside cylinder. This is the only revolver Captain Leisinger had seen, in examining tens of thousands of revolvers, that had this particular type of fluting. These unique striation marks were plainly imprinted on the black leather holster found in Mr. Douglas's apartment.

A.

Ollie Douglas, an Assistant Deputy Public Defender ("ADPD") with the New Jersey Office of the Public Defender for Essex County ("OPD"), was appointed to represent Mr. Douglas on August 12, 1987, three days after he was arrested. At the time of his appointment to represent Mr. Douglas, ADPD Douglas had served as an Assistant Deputy Public Defender for fourteen years. He had tried two or three capital cases. After interviewing Mr. Douglas, ADPA Douglas requested that a field investigation be conducted, rather than telephone contacts, with several individuals whom Mr. Douglas disclosed might be witnesses to support his defense. The list of prospective witnesses that Mr. Douglas suggested should be questioned in person included Mr. Gaskins, Sheila Tucker, and Michael Tucker.

On October 14, 1987, Mr. Douglas was charged with two counts of murder, aggravated assault, possession of a handgun without a permit, and possession of a firearm for an unlawful purpose in violation of New Jersey law. ADPD Douglas represented Mr. Douglas at his arraignment on November 18, 1987. Mr. Douglas entered a not guilty plea. Pursuant to N.J. Ct. R. 3:7-3(c), the State served a notice of aggravating factors which, if proven at the penalty phase, would make Mr. Douglas eligible for the death penalty. Deputy Public Defender ("DPD") Mayer Winograd, the head of the Essex County OPD, was also assigned to represent Mr. Douglas. ADPD Douglas and DPD Winograd met with Mr. Douglas several times while he was in jail.

On January 21, 1988, DPD Winograd informed Mr. Douglas that the OPD had conducted a financial investigation and determined that he was ineligible for legal representation by the OPD.*fn3 In its investigation, the OPD discovered that Mr. Douglas owned a house with a market value of $70,000 to $110,000, depending on its condition. Similar houses in the immediate area had recently sold for $90,000 and $125,000. DPD Winograd advised Mr. Douglas that he had "a right to Appeal to the Appellate Division which has exclusive jurisdiction" over the determination that he was not entitled to the appointment of counsel based on indigency. In his letter to Mr. Douglas, DPD Winograd cited State v. Nilsen, 214 N.J. Super. 23 (1986).*fn4 A copy of the letter was sent to Judge Joseph A. Falcone, on January 28, 1988.

On February 2, 1988, Mr. Douglas appeared before Judge Falcone without counsel. Judge Falcone informed Mr. Douglas of his right to appeal the OPD's decision to terminate his representation. Judge Falcone requested that Mr. Douglas advise the court in writing of any developments of his attempts to persuade the OPD that he was entitled to the appointment of counsel. Judge Falcone also advised Mr. Douglas to consider State v. Nilsen, 214 N.J. Super. 23 (1986) in deciding whether to pursue his claim that he was eligible for the appointment of counsel because he was indigent.

ADPD Douglas provided Mr. Douglas with the name and address of James Smith, the deputy public defender "charged with handling appeals in [the OPD's] appellate section," along with a notice of appeal form to facilitate an appeal of the denial of representation. In a letter dated February 8, 1988, Mr. Douglas wrote to DPD Smith declaring that he challenged the OPD's determination that he was not eligible for representation.

During his next court appearance on February 16, 1988, Mr. Douglas informed Judge Falcone that he had corresponded with DPD Smith but had received no reply. Judge Falcone again informed him of his right to appeal from the decision denying his eligibility for the appointment of counsel and scheduled the next appearance on March 21, 1988. He also advised Mr. Douglas that he should inform the court in writing of any developments in his appeal from the refusal of the OPD to represent him.

When the matter came before the court on March 21, 1988, and again on April 19, 1988, Mr. Douglas appeared without counsel. At the April 19, 1988 hearing, Judge Falcone provided Mr. Douglas with a copy of the Nilsen opinion which set forth the proper procedure for appealing the OPD's non-indigency determination.

On May 16, 1988, Mr. Douglas wrote to New Jersey Public Defender Alfred A. Slocum, seeking review of the OPD's nonindigency determination. He explained to Mr. Slocum that Judge Falcone had informed him at the April 19, 1988 hearing that DPD Smith was not authorized to represent him in an appeal from the decision of the OPD that he was not an indigent entitled to appointed counsel. He further stated that his inability to receive envelopes and stamps at the county jail, or use their photocopying equipment, had prevented him from contacting Mr. Slocum until the date of the letter.

At a subsequent court appearance on June 14, 1988, Judge Falcone informed Mr. Douglas that he should submit his appeal of the denial of appointed counsel to the Appellate Division of the Superior Court. That same day, Mr. Douglas wrote to Elizabeth McLaughlin of the Clerk's Office of the Superior Court of New Jersey, Appellate Division, seeking review of the determination that he was not an indigent. He stated in his letter that the property he owned was worth very little because it had been damaged by fire and was in need of extensive repairs. Mr. Douglas also informed Ms. McLaughlin that the cost of repairs would be $20,000, and that there was a mortgage on the property in the amount of $8,379.60, as well as water and sewage liens in the amount of $565.62 plus interest.

Section 2A:158A-15.1 was amended, effective on April 3, 1988. As amended, it transferred the determination regarding whether a defendant is indigent from the OPD to the court. Mr. Douglas was informed of this fact by Public Defender Slocum in a letter dated June 20, 1988. Referring to the then recent amendment to N.J.S.A. 2A:158A-2, Mr. Slocum wrote that:

Effective April 5, 1988 by virtue of newly enacted legislation, the Office of the Public Defender was relieved of the responsibility of determining indigency. This determination is now made by the judiciary. Even if you were to successfully appeal Mr. Winograd's determination, the Office of the ...


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