The opinion of the court was delivered by: Chesler, District Judge
This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner Donyelle Locust, on or about May 30, 2008. Petitioner also filed a motion to have this habeas action stayed while he exhausts his state court remedies, pursuant to 28 U.S.C. § 2254(c). For the reasons stated below, this Court will deny Petitioner's motion for a stay and abeyance.
Petitioner, Donyelle Locust ("Locust"), was indicted by a Monmouth County grand jury on August 23, 1999, on charges of first degree murder, first degree robbery, possession of a weapon for an unlawful purpose and third degree theft. Before trial in the Superior Court of New Jersey, Law Division, Monmouth County, Locust's counsel brought a motion to suppress Locust's statements. The Honorable Patricia Del Bueno Cleary, J.S.C., heard argument and testimony on the motion on March 28, 29, 30 and April 11, 2000. The motion was denied. Thereafter, trial was held on June 1, 6, 7, 8, 12, 13, 14, 15 and 16, 2000, before Judge Cleary and a jury. On June 16, 2000, the jury found Locust guilty of all charges in the indictment.
On August 8, 2000, a sentencing hearing was conducted before Judge Cleary. Judge Cleary merged counts three and four (possession of a weapon and theft, respectively) into count three (first degree robbery). Judge Cleary also granted the State's motion to sentence Locust under the No Early Release Act ("NERA") and sentenced Locust to a prison term of 75 years with a 63 year parole bar on count one (first degree murder) and a consecutive term of twenty years in prison with a 17-year parole bar on the robbery count. Accordingly, Locust was sentenced to an aggregate term of 95 years in prison with an 85% parole disqualifier.
On September 20, 2000, Locust filed a direct appeal with the Superior Court of New Jersey, Appellate Division. In his brief by counsel, Locust alleged that the trial judge erred by admitting an inculpatory statement, refusing to permit testimony from a defense expert, and imposing an illegal and excessive sentence. Locust also argued that his confession should have been suppressed on the following grounds: (1) that petitioner's request to see his mother was an invocation of his right to silence, which should have been scrupulously observed; (2) that he had not accompanied the officers to the police station voluntarily and his arrest was without probable cause, making his statement unattenuated as a result of the illegal arrest; (3) that his statement was involuntary because his will was overborne due to the fact that he was exhausted and hungry during an eight-hour interrogation where the police officers lied to him. On May 1, 2003, the conviction was affirmed, but the sentence remanded because NERA did not apply to murders committed before June 2001. The Supreme Court of New Jersey denied certification on July 21, 2003. (Petition at ¶¶ 1-9). At the re-sentencing hearing, the 85% parole disqualifier under NERA was deleted. In addition, the sentence on the robbery count was made to run concurrent with the sentence on the murder count.
Locust then filed a petition for post-conviction relief ("PCR") before the Superior Court of New Jersey, Monmouth County.*fn1 Locust asserted a claim of ineffective assistance of counsel as follows: (1) trial counsel failed to object to the jury composition, in particular, to the fact that a former employee of the Prosecutor's Office was a member of the panel; (2) trial counsel failed to raise that Locust's confession was coerced; (3) trial counsel failed to raise that unknown DNA was found on his clothing; (4) trial counsel failed to raise the possibility of a setup by Detective Seitz, a former police officer in the City of Long Branch where Locust's mother had filed a lawsuit against the City of Long Branch; and (5) trial counsel failed to investigate two witnesses, Brian Pisano and Barbara Latham. Locust also claimed that the cumulative effect of these counsel errors warranted a new trial. State v. Locust, 2007 WL 2274949, *3 (N.J. App. Div. May 30, 2007), certif. denied, 195 N.J. 420 (2008).
The state PCR petition was denied on November 18, 2005. Locust appealed the decision to the Appellate Division. In the brief on appeal, in addition to the arguments raised in the PCR petition, the following arguments were raised concerning ineffective assistance of counsel:
A. Trial counsel failed to challenge and object to an all white jury seated in a matter in which the appellant, a Black male, was charged with killing a white victim knowing that appellant's mother had successfully litigated a racial harassment claim against police officer in Monmouth County.
B. Counsel was ineffective for his failure to raise during the Miranda hearing that prior to the appellant's confession, the detectives kept him barefoot on a cold floor.
C. Counsel was ineffective for his failure to bring the jury's attention that there was DNA found on appellant's clothes that could not have originated from him or Mr. Amison.
D. Counsel was ineffective for his failure to adequately show possible motive on the part of the detectives to frame appellant because his mother, Gloria Locust, previously sued the Long Branch Police Department for racial discrimination and was successful.
E. Trial counsel was ineffective for ignoring the appellant when he told him that the detectives lied about seeing blood on his clothes and to highlight that it was not until 5:00 p.m. that Detective Seitz informed the detectives, who initially met with appellant, that he noticed blood at 10:50 a.m.
F. Trial counsel was ineffective for his failure to investigate Brian Pisano timely since he had already made a plea deal with the State prior to speaking with counsel's investigator as well as Barbara Latham, prior to meeting with the Prosecutor.
G. Trial counsel was ineffective for his failure to argue that the State falsified information in his formal typed statements.
H. Trial counsel was ineffective for his failure to file a motion to suppress the appellant's clothes and to request a probable cause hearing.
I. Counsel was ineffective for his failure to argue that appellant with his diminished capacity was tricked into believing that he would be released if he gave the police his clothes.
J. Counsel was ineffective for his failure to inquire as to why appellant's investigation and waiving of his rights were not videotaped, if so, to disclose a tape.
K. Counsel was ineffective for his failure to produce pictures of the appellant depicting his general condition as appearing high.
L. Counsel was ineffective for his failure to pursue any independent areas of investigation in developing his defense strategy.
i. Psychiatric and Substance Abuse Experts
ii. Scientific Experts (R3, Brief of Petitioner-Appellant, State v. Locust, No. A-1885-05T1, at pp. 23-36, dated April 28, 2006).*fn2 In a Certification signed and dated April 24, 2006, Locust affirms that he had read counsel's brief and that the allegations were true. Specifically, he alleges in his Certification the same points raised in the brief on PCR appeal, as well as adding three more claims:
6. Knowing that I was a drug addict, they purposely prolonged their investigation to force me to give a false confession out of frustration and desperation.
10. One of the jurors and the forewoman, Mrs. Reynolds, used to work in the prosecutor's office.
13. My indictment should have been dismissed because it was based on lies and twisted facts presented to the grand jury.
(R3, Locust Certification at ¶¶ 4,5, 7-9, 11, 12, 14-19 and ¶¶ 6, 10, and 13). The State addressed all of these claims, albeit briefly, in its response on PCR appeal. (R4).
The Appellate Division affirmed the denial of the PCR petition, on August 10, 2007, "substantially for the reasons stated in Judge Del Bueno Cleary's thoughtful and comprehensive oral opinion of November 18, 2005." State v. Locust, 2007 WL 2274949, *7 (N.J. Super. A.D. Aug. 10, 2007). Locust then filed a petition for certification with the New Jersey Supreme Court. On or about April 8, 2008, the New Jersey Supreme Court denied certification. (Petition at ¶¶ 10-11); State v. Locust, 195 N.J. 420 (2008). Locust filed a motion for reconsideration, and on May 30, 2008, the Supreme Court of New Jersey denied same.
Thereafter, on or about May 27, 2008, Locust filed this habeas petition under 28 U.S.C. § 2254. His petition sets forth the following grounds for habeas relief:
(I) The trial court erred in denying suppression of petitioner's inculpatory statements, both because the police did not honor his request to invoke his right to counsel and to remain silent, and because the statements were the "unattenuated" product of an illegal arrest and involuntary under the totality of circumstances.
A. The trial court erred in its evident determination of credibility.
B. The police failed to scrupulously honor the defendant's invocation of his right to remain silent.
C. The defendant was arrested without probable cause, and his inculpatory statement was the unattenuated result of the illegal arrest.
D. The purported confession was the result of an overbearing of the defendant's will and accordingly must be suppressed.
(II) The trial court erred in refusing to allow petitioner to add a witness during trial, resulting in a denial of his right to a fair trial and due process of law.
(III)Trial counsel was ineffective in that he failed to properly investigate or adequately prepare for trial.
A. Trial counsel failed to object to an all-white jury.
B. Trial counsel was ineffective for failing to object about a juror who once worked for ...