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Mercado v. Sherrer

February 2, 2009

EFRAIN MERCADO, PETITIONER,
v.
MR. L. SHERRER, ET AL., RESPONDENTS.



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

OPINION

Petitioner Efrain Mercado, a convicted state prisoner currently confined at the Northern State Prison in Newark, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New Jersey state court conviction and sentence. For the reasons stated herein, the Petition will be denied for lack of substantive merit.

I. BACKGROUND

A. Statement of Facts

The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the Appellate Division's factual recitation, as set forth in its October 7, 2003, unpublished Opinion on petitioner's direct appeal from his New Jersey state court conviction and sentence:

On May 11th, 2001, at approximately 7:30 p.m., Karen Scerbo (K. Scerbo) heard Rosemarie Fitzgerald (Fitzgerald), her neighbor in the Riverview Gardens apartment complex in North Arlington, screaming. Fitzgerald had noticed two men she did not recognize in the parking lot of Riverview Gardens. She watched the men and began to scream after she heard a "pop" and saw defendant using a screwdriver to force open the door to a Buick parked in the parking lot. K. Scerbo looked out the window, and Fitzgerald directed her attention up towards the parking lot area. K. Scerbo saw the driver's and passenger side doors of her vehicle, a gray, four door, 1990 Buick Century Bronco, open. She saw an individual standing on the driver's side and another standing on the passenger side. K. Scerbo called to her husband, John Scerbo (J. Scerbo), and ran outside toward the parking lot. She shouted at the individuals that the police had been notified. J. Scerbo came out of the apartment and yelled for K. Scerbo to get back in the house. After K. Scerbo returned to Fitzgerald's apartment with the registration renewal form, Fitzgerald provided the police with the Buick's license plate number and description.

J. Scerbo approached the Buick. When he was ten to fifteen feet away from it he asked the individual standing on the passenger side what he was doing there, to which the individual responded, "I'm not doing nothing." J. Scerbo continued toward the rear bumper of the vehicle and when he was seven to eight feet from it, the individual on the passenger side reached down toward his waistband and threw a half-full bottle of Pepsi at him. The bottle hit J. Scerbo's hand and grazed off the side of his face. No injuries resulted.

J. Scerbo continued to approach the Buick, which was parked nose in, with a car to the immediate left, twelve to eighteen inches away. J. Scerbo was on the driver's side of the Buick by the rear door, at which point he saw defendant pop his head up in the driver's side. Defendant then started the Buick, put it into reverse quickly and pulled out of the parking spot. It veered to the side instead of backing straight out. J. Scerbo was forced to back peddle to avoid being hit. Defendant turned the wheel hard and came within seven to eight inches of J. Scerbo. Haywood Mitchell, the individual on the passenger side, jumped into the car and they exited the complex in the Buick.

Officer Michael Hofmann of the North Arlington Police Department received a dispatch regarding the stolen Buick. He spotted it traveling southbound on Ridge Road and activated his emergency lights and sirens. The Buick pulled out of the lane, passed vehicles on the left, and proceeded to go through the red light. Officer Hofmann noticed a white Ford Escort following the Buick. The Ford Escort made a right turn onto Belleville Turnpike, while the Buick continued southbound on Ridge Road. The Buick was traveling at a high rate of speed, passing vehicles on the left, crossing over double yellow lines, and sideswiping several cars. It struck a pickup truck from behind and the driver, Mitchell, fled on foot while Officer Hofmann chased him. A passer-by stuck out his leg and tripped Mitchell, who was then handcuffed and placed in custody. The Buick was totaled.

Captain Fanning and Officers Frank Guanci and Robert Reilly also responded to the dispatch. Captain Fanning and Officer Guanci responded to the scene where the chase took place, and Officer Reilly went to Riverview Gardens and took a statement from J. Scerbo. He also obtained the bottle of Pepsi and a screwdriver that was found in the stolen Buick and both items were placed into evidence at trial.

Mitchell lied and initially told the police that his name was Haywood Harris and that he was a juvenile. He was treated at a hospital for a minor scrape on his forehead that he received as a result of being tripped. After being treated, Mitchell was brought to the North Arlington Police Department where he waived his rights and gave a taped statement.

In his statement, he indicated that defendant, known to him as Franky Sanchez, was his accomplice during the theft of the Buick. Mitchell testified that he and defendant had gone into North Arlington to go to a baseball store, and that they thereafter decided to steal the Buick. He said that J. Scerbo did not have to move out of the way when the Buick backed out of the spot. According to Mitchell, after they exited the complex in the Buick they drove to defendant's car, a white Ford Escort. Defendant got into the Ford Escort and told Mitchell to drive the stolen car. Mitchell, while being processed the next day by Officer Hofmann, admitted to smoking PCP before stealing the Buick. Mitchell agreed to plead guilty to eluding in exchange for a five year sentence with two and a half years of parole ineligibility.

On May 17, 2001, Officer Guanci presented a photo array to J. Scerbo, from which he picked defendant as the individual who drove the stolen Buick out of Riverview Gardens. At trial, Officer Guanci and Mitchell each identified defendant as the individual who drove the stolen Buick out of the apartment complex. (October 7, 2003 Appellate Division Opinion, Exhibit 3 to respondents' exhibits).*fn1

B. Procedural History

On or about August 20, 2001, petitioner, Efrain Mercado ("Mercado"), and a co-defendant Haywood Mitchell, were indicted by a Bergen County Grand Jury on charges of first degree carjacking (Count One), first degree robbery (Count Two), and third degree burglary (Count Three). Mercado also was charged with second degree aggravated assault (Count Four), and co-defendant Mitchell was charged with second degree eluding (Count Five) and third degree hindering apprehension (Count Six).*fn2

Mercado was tried before a jury and the Honorable Donald R. Venezia, J.S.C., on April 24, April 25, April 29, and April 30, 2002. (Exhibits 14 through 17). The jury acquitted Mercado of aggravated assault, but convicted him of carjacking, second degree robbery, and burglary. Mercado moved for a judgment notwithstanding the verdict on the carjacking conviction, but the motion was denied. The State also moved for an extended term of imprisonment and for restitution of property damages. These motions also were denied. (Exhibit 18).

At sentencing, on June 28, 2002, the trial judge merged Mercado's convictions for third degree burglary and second degree robbery with his conviction for carjacking, and sentenced Mercado to twenty years in prison with a ten-year parole ineligibility period. This sentence was to run consecutive to a previously imposed prison term. (Exhibit 18).

Mercado appealed his conviction and sentence to the Superior Court of New Jersey, Appellate Division on August 14, 2003. (Exhibit 1). In an unpublished opinion filed October 7, 2003, the Appellate Division affirmed the conviction and sentence, except to remand to amend the judgment of conviction by deleting the Victims' Crimes and Compensation Board ("VCCB") penalties on the merged offenses of robbery and burglary. (Exhibit 3). Mercado then filed a petition for certification on October 22, 2003, to the Supreme Court of New Jersey. (Exhibit 4). The petition for certification was denied on December 11, 2003. State v. Mercado, 178 N.J. 376 (2003).

Thereafter, Mercado filed a petition for post-conviction relief ("PCR") in state court, on March 22, 2004. (Exhibit 6). Assigned counsel for Mercado later filed an amended PCR petition on Mercado's behalf. (Exhibit 8). On March 2, 2005, Judge Venezia heard the arguments of counsel and denied Mercado's state PCR petition. (Exhibit 19). An order denying the PCR petition was filed on March 9, 2005. Mercado appealed this decision to the Superior Court of New Jersey, Appellate Division, which later affirmed denial of the PCR petition in an unpublished opinion filed September 25, 2006. (Exhibits 9, 11). Mercado then filed a petition for certification with the Supreme Court of New Jersey. (Exhibit 12). The Supreme Court of New Jersey denied certification on December 8, 2006. State v. Mercado, 189 N.J. 104 (2006).

Mercado filed this federal habeas petition under 28 U.S.C. § 2254 on or about April 5, 2007. Respondents answered the petition, providing the relevant state court record, on November 13, 2007. Mercado filed several motions with this Court seeking additional time to file his reply or traverse to the State's answer. On July 31, 2008, this Court issued an Order granting Mercado thirty days to file his reply/traverse. (Docket Entry No. 13). Mercado has not filed a traverse or reply as he had requested.

II. STATEMENT OF CLAIMS

Mercado raises the following claims for habeas relief in his petition:

Ground One: Ineffective assistance of trial counsel in failing to conduct any pretrial investigation and present character witnesses at trial.

Ground Two: There was no evidence or proof at trial to support petitioner's conviction on the robbery charge.

Ground Three: Petitioner asserts that an issue of identification at trial shows him to be innocent of the charges for which he was convicted.

Ground Four: There was no evidence or proof at trial to support petitioner's conviction for carjacking.

The State contends that the petition should be denied for lack of substantive merit. The State also argues that many of Mercado's claims are procedurally defaulted.

In reviewing the claims asserted by Mercado, and the relevant state court record submitted by the State, this Court finds that Grounds Two and Three of this habeas petition were never presented for state court review, and thus, were not exhausted before bringing this habeas petition, as required under 28 U.S.C. ยง 2254(b)(1)(A). However, Section 2254(b)(2) provides that "[a]n application for a 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." 28 ...


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