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Torres v. Ricci

January 6, 2010

ERWIN TORRES, PETITIONER,
v.
MICHELLE R. RICCI, ET AL., RESPONDENTS.



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

OPINION

Petitioner Erwin Torres, a convicted state prisoner, 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the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the factual recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on December 10, 2001, with respect to petitioner's direct appeal from his judgment of conviction and sentence:

Tried by separate juries, co-defendants DeJesus and Torres were convicted of multiple offenses, including kidnapping, murder and first degree robbery. The convictions arose from a single indictment which charged, in seventeen separate counts, these and other related offenses committed in three separate incidents: one on September 16, 1995, in Staten Island; one on November 1, 1995, in Englewood Cliffs; and one on November 8, 1995, in Teaneck. All three involved first degree robberies; the Staten Island incident also included a kidnapping, while the Teaneck incident included a murder. In inculpatory police statements and in their respective separate trials, each defendant admitted participation in the three incidents but denied the requisite criminal states of mind; defendant DeJesus imposed a defense of diminished capacity. ... ... ... evidence established that early in the fall of 1995 unindicted co-conspirator Afirm Tairi convinced the defendants to assist him in robbing Howard Lewis, the murder victim in the Teaneck robbery. In furtherance of the plan, they followed Lewis three times between August and October to learn his routines. During this same time period, and prior to the commission of the Teaneck robbery, defendants and Tairi committed the Staten Island robbery on September 16, 1995, and the Englewood Cliffs robbery on November 1, 1995. Although clearly separate incidents and, despite the State's contention to the contrary, not demonstrated to be part of a single integrated plan, all three had similarities as reflected by the following.

On September 16, 1995, defendants lay in wait for the victim outside his home in Staten Island; when he arrived they attacked him, bound him with duct tape and drove him around in his car before returning to the residence where his mother and father were. One defendant wore a Halloween mask and both were armed with handguns. Threats of being "with the Mafia" were made. They demanded ransom from the father, threatened to rape the mother and took approximately $5000 in cash and jewelry. When the victim tried to escape, defendants caught and pistol-whipped him, bound his head and hands with duct tape, placed him in the trunk of the family car and drove to Torres' Paterson residence. They parked nearby, leaving the car unattended, and the victim escaped.

On November 1, 1995, defendants, with Tairi, waited near the home of the victim in the Englewood Cliffs robbery. Defendants were armed with guns and both wore masks. They assaulted the victim in his garage, pistol-whipping him in the face. The victim managed to set off the burglar alarm, causing the attackers to flee.

On November 8, 1995, defendants, again masked and again with Tairi, followed Lewis to his home in Teaneck from his place of employment and waited outside until he pulled into his garage. Before the garage door closed, Tairi and Torres rushed inside and assaulted Lewis, duct-taping his head and mouth. The assault and duct-taping resulted in his death. Tairi took money and a credit card from the victim's pockets and gave it to DeJesus, who waited outside. DeJesus left the scene and used the card before it could be reported stolen. Meanwhile, Torres and Tairi dragged Lewis' body up to the bedroom of his mother, Lillian Lewis, and demanded money. They duct-taped her face, handcuffed and bound her and ransacked the house before driving away in Lewis' Cadillac.

(Ra3,*fn1 December 10, 2001 Appellate Division Opinion at pp. 2-5).

B. Procedural History

On November 13, 1996, a Bergen County Grand Jury indicted petitioner, Edwin Torres ("Torres"), Felix DeJesus and Dennis Rolon under Indictment No. S-1570-96. The Indictment charged Torres and DeJesus with seventeen (17) counts, including three counts of first degree robbery, one count of knowing or purposeful murder, one count of felony murder, second-degree kidnapping, and various counts of automobile theft, possession of firearms for unlawful purposes, aggravated assault and conspiracy to commit armed robbery and burglary.

Before trial, Torres moved to sever the charges in the Indictment arising from the three separate and distinct incidents. The motion for severance was denied by the Honorable William C. Meehan, J.S.C., by oral opinion rendered on July 25, 1997, and by Order dated August 5, 1997. On September 1, 1998, Judge Meehan granted the State's motion for separate trials of defendants Torres and DeJesus. Torres also moved for suppression of un-counseled statements and out-of-court identifications, which motions were denied on March 25, 1998 and September 2, 1998, respectively.

Torres was tried before the Honorable John A. Conte, J.S.C., and a jury, from November 2, 1998 through November 16, 1998. A jury returned a verdict of guilty on all charges. Judge Conte sentenced Torres on December 18, 1998, to an aggregate term of life plus sixty-nine (69) years in prison with a fifty-eight (58) year parole disqualifier.

Torres filed a direct appeal from his conviction and sentence with the Superior Court of New Jersey, Appellate Division. Torres' appeal was denied in a per curiam opinion decided on December 10, 2001. State v. Edwin Torres, Docket No. A-5292-98T4 (App. Div. 2001). The Supreme Court of New Jersey denied certification on February 14, 2002. State v. Torres, 171 N.J. 338 (2002).

On April 25, 2002, Torres filed a verified petition for post-conviction relief ("PCR") in state court. Assigned counsel filed a brief and supporting appendix on Torres' behalf on April 24, 2004. A hearing was held on November 15, 2004, and Judge Conte granted a postponement to allow Torres' counsel time to investigate Torres' claims and file a supplemental brief. A second and final hearing was held on March 23, 2005. Oral arguments were heard, and Judge Conte reserved judgment. He issued a letter opinion on April 5, 2005, denying an evidentiary hearing and post-conviction relief. An Order was filed on April 15, 2005.

Torres appealed from the denial of his state PCR petition to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed Judge Conte's denial of post-conviction relief in a per curiam opinion decided on July 25, 2007. State v. Edwin Torres, Docket No. A-6445-04T4 (App. Div. 2007). The Supreme Court of New Jersey denied certification on October 24, 2007. State v. Torres, 192 N.J. 599 (2007).

Torres filed this habeas petition pursuant to 28 U.S.C. § 2254, on or about August 12, 2008. The State filed a response to the petition on June 5, 2009, with the relevant state court record. Torres did not file a traverse.

II. STATEMENT OF CLAIMS

Torres asserts the following claims in his petition and amended petition for habeas relief:

A. Petitioner must be sentenced to the 30-year sentence that he allegedly agreed to before trial because he accepted the plea offer and it was improper for the prosecutor to withdraw the offer because the co-defendant had rejected it. (Petition, Ground one).*fn2

B. Ineffective assistance of state PCR counsel for his failure to investigate claims raised by petitioner. (Pet., Ground two).*fn3

C. The trial court erred in denying petitioner's pre-trial motion to sever the counts of the indictment for trial with respect to the three separate and distinct crimes. (Pet., Ground three, Amended Petition at Point II).

D. Ineffective assistance of trial counsel. (Pet., Ground four, Amended Pet., Point III).

E. Petitioner is entitled to an evidentiary hearing. (Amended Pet., Point I).

F. Statements made by petitioner should have been suppressed, but were not, in violation of petitioner's Fifth, Sixth and Fourteenth Amendment rights. (Amended Pet., Point IV).

G. Ineffective assistance of appellate counsel. (Amended Pet., Point V).

The State essentially contends that the petition should be denied for lack of substantive merit or because it fails to raise claims of federal constitutional dimension. The State also argues that petitioner's claim concerning the admissibility of his statements is procedurally defaulted.

III. STANDARD OF REVIEW

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Because petitioner is a pro se litigant, the Court will accord his petition the liberal construction intended for pro se petitioners.

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to entertain a habeas petition challenging a state conviction or sentence only where the inmate's custody violates federal law. 28 U.S.C. § 2254(a).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dep't, 128 F.3d 152, 159 (3d Cir. 1997). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982). Generally, "[i]f a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable," Engle v. Isaac, 456 U.S. 107, 120 n. 19 (1982), and "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

In reviewing a § 2254 petition, a federal court is not permitted to address a federal constitutional claim pertinent to the facts of the case unless the petitioner asserts the claim as a ground for relief. That is, "errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause." Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). In addition, "it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997)(citations and internal quotation marks omitted); see also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).

In addition to the case law, the Antiterrorism and Effective Death Penalty Act ("AEDPA") limits a federal court's authority to grant habeas relief when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Where a federal claim was "adjudicated on the merits" in state court proceedings, the writ must be denied unless adjudication of the claim either involved an unreasonable application of clearly established federal law, or was based on unreasonable determination of the facts in light of the evidence before the state court. See 28 U.S.C. § 2254(d).

The unreasonableness standards of § 2254(d) govern only claims that were "adjudicated on the merits in State Court proceedings." 28 U.S.C. § 2254(d). "An 'adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004)(citations and internal quotation marks omitted), reversed on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005); see also Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006). A state court may render an adjudication on the merits of a federal claim by rejecting the claim without any discussion whatsoever. See Rompilla, 355 F.3d at 247. See also Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002), cert. denied, 538 U.S. 1000 (2003)(citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)(even a summary adjudication by the state court on the merits of a claim is entitled to § 2254(d) deference)). On the other hand, "[i]f the petitioner's legal claims were presented but not addressed by the state courts, 28 U.S.C. § 2254(d) does not apply." Rolan, 445 F.3d at 678. See also Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000)(with respect to claims presented to, but unadjudicated by, the state courts, however, a federal court may exercise pre-AEDPA independent judgment), cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL 1523144, *6 n.4 (D.N.J. 2000).

If the New Jersey courts adjudicated the petitioner's claims on the merits, this Court may not grant relief unless either § 2254(d)(1) or § 2254(d)(2) is satisfied. See 28 U.S.C. § 2254(d). Accordingly, this Court may not grant habeas relief to the petitioner unless the adjudication of a federal claim by the New Jersey courts involved an unreasonable application of clearly established Supreme Court law, see 28 U.S.C. § 2254(d)(1), or was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding and Adamson is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a), (d)(2).

When the grounds raised in the petition are governed by 28 U.S.C. § 2254(d)(1), the court must begin its analysis by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for "the governing legal principle or ...


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