August 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MYRON HUGHLEY, A/K/A SHAHID ALLEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2419.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 5, 2010
Before Judges Cuff and C.L. Miniman.
Defendant Myron Hughley appeals from a March 26, 2007, order denying his petition for post-conviction relief (PCR) in connection with his March 22, 2002, conviction of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); second- degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b, under Indictment No. 99-07-2419. Defendant was sentenced to a term of ten years on the aggravated-assault conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with three years of parole supervision; a term of ten years on the conviction for possession of a weapon for an unlawful purpose; and a term of five years on the conviction for unlawful possession of a weapon. These sentences were to run concurrently with each other and concurrently with the sentence he was then serving under Indictment No. 99-09-2948.*fn1
On direct appeal, State v. Hughley, No. A-5902-01 (App. Div. Dec. 1, 2003), we described the facts as follows:
The events giving rise to these charges occurred on January 19, 1999, when Norman Henderson encountered defendant on the street. Henderson knew defendant because he had previously purchased drugs from defendant. After his conversation with defendant, Henderson started walking home when he heard someone behind him. He turned around and saw defendant. Defendant took out a gun and fired a single shot, wounding Henderson in the chest, puncturing a lung and kidney. Henderson ran to the street, flagged down a car and was driven to University Hospital, where he was treated for the gunshot wound.
Henderson told police he knew defendant by the name of "Black" and, although he did not know where Black lived, he knew where the man hung out. The police showed Henderson a photo array, but he did not recognize his assailant. Henderson gave Detective Richard Flourney a verbal description, however, and when the detective subsequently saw a person on the street who fit the description, he detained him for questioning. This person was later identified as defendant. The detective added a photo of defendant to the prior array and showed it to Henderson, who then identified defendant as his assailant. Henderson also identified defendant at trial.
Defendant presented the testimony of Beatrice Washington, who said she was driving by during the shooting and that she knew defendant from school but could not identify him as the shooter. Defendant testified that he did not remember where he was that day but denied seeing Henderson, shooting him or ever selling drugs to him. Defendant acknowledged that when he was first questioned by police, he gave his name as Myron Hughley, which was not his actual name, because he knew that there were outstanding traffic warrants for him and did not want to go to jail. [Id. at 2-3.]
In his direct appeal, defendant raised four issues:
THE TRIAL COURT ERRED BY FAILING TO SUPPRESS THE VICTIM'S PRETRIAL PHOTOGRAPHIC IDENTIFICATION AS A RESULT OF THE FAILURE OF THE POLICE TO PRESERVE THE PHOTOGRAPHIC ARRAY.
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT II CHARGING AGGRAVATED ASSAULT. (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY IMPROPERLY SENTENCING THE DEFENDANT IN ACCORDANCE WITH THE NO EARLY RELEASE ACT SINCE A "VIOLENT CRIME" WAS NOT COMMITTED IN THE PRESENT CASE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. [Id. at 3-4.]
We affirmed defendant's convictions and the sentences imposed on the aggravated-assault and unlawful-possession convictions, but remanded for correction of the judgment of conviction to reflect merger of the conviction for possession a weapon for an unlawful purpose with the aggravated-assault conviction. Id. at 10. Defendant's petition for certification was thereafter denied. State v. Hughley, 179 N.J. 311 (2004).
Defendant filed his PCR petition on or about March 23, 2005, asserting that his trial counsel was ineffective (1) in failing to investigate and call an alibi witness and (2) in failing to object to "identification issue and testimony." Defendant's appointed PCR counsel filed a supplemental brief in which he raised the following issues on defendant's behalf, which we have renumbered to run sequentially to defendant's pro se points:
THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING DEFENDANT TO A SENTENCE GREATER THAN THE PRESUMPTIVE TERM BASED ON FACTORS NOT FOUND BY THE JURY.
THE DEFENDANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT MITIGATING CIRCUMSTANCES CONCERNING PETITIONER'S DISABILITIES AT SENTENCING.
PETITIONER'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO SUPPRESS THE PHOTOGRAPHIC ARRAY IN LIGHT OF THE VICTIM'S OWN TESTIMONY THAT HE DID NOT IDENTIFY PETITIONER FROM THE PHOTOGRAPHIC ARRAY AND THAT IN FACT HE NEVER IDENTIFIED ANY INDIVIDUAL IN THE COPY OF THE PHOTO ARRAY PRODUCED AT TRIAL.
In ruling on defendant's PCR petition, Judge Michael L. Ravin first refused to consider Point Five, and thus inferentially Point Two, because the issue had been raised on direct appeal and was thus barred by Rule 3:22-5. Defendant does not contest this obviously correct determination, which also applies to Point Three respecting the sentence imposed in this matter. The judge rejected this point on the ground that excessiveness was distinct from illegality and did not satisfy the requirements of Rule 3:22-2(c), which provides a ground for PCR where a sentence is illegal.
After summarizing the case law governing ineffective-assistance-of-counsel claims, including Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), Judge Ravin determined that defendant's claim of ineffective assistance of counsel with respect to investigation and presentation of mitigating circumstances at sentencing lacked merit. This was so because these contentions were "not substantiated by any certification or affidavit. The claims are based on pure speculation." He also noted that sentencing judges do consider the contents of the presentence report prepared by the Probation Department, which indicated that defendant had attended several alternative schools during his formative years and may have been receiving some form of Social Security.
The judge concluded that defendant failed to prove that his counsel's performance was ineffective, because "'Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing[, n]or does Strickland require defense counsel to present mitigating evidence at sentencing in every case,'" quoting Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 2541, 156 L.Ed. 2d 471, 492 (2003). The judge also found that defendant had not demonstrated that the outcome would have been different even had this evidence been developed and presented at the time of sentencing, the second prong of Strickland.
The judge did not specifically address Point One, in which defendant pro se asserted that his trial counsel was ineffective for failing to investigate and call an alibi witness. However, we note that defendant did not submit a certification or affidavit from the alleged witness and thus did not meet his burden of proof under Strickland. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). This appeal followed.
Defendant raises the following issues for our consideration:
THE [PCR] COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE [PCR] COURT ERRED IN ITS FINDING THAT DEFENDANT FAILED TO DEMONSTRATE A PRIMA FACIE CASE OF INEFFECTIVENESS OF APPELLATE COUNSEL (NOT RAISED BELOW).
THE WITHIN MATTER SHOULD BE REMANDED SO THAT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF COUNSEL MAY BE CONDUCTED.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR [PCR] (NOT RAISED BELOW).
In his first point on appeal, defendant claims that he provided "trial counsel with the name and address of an alibi witness [who] would have testified that he helped defendant remove furniture from defendant's storage space using a U-Haul rental truck at the time of the assault." He contends that trial counsel's failure to investigate this witness and have him testify to establish reasonable doubt constituted ineffective assistance of counsel and that a new trial is required. Neither he nor any of his attorneys have identified this witness or submitted an affidavit or certification from him.
Defendant next contends that his appellate counsel was ineffective because he failed to argue that "defendant's sentence was unconstitutional as it was based upon facts not found by a jury or admitted to by defendant."*fn2 He has not identified what those facts were, but the judgment of conviction states that the judge found aggravating factors (3),*fn3 (6),*fn4 and (9),*fn5 all of which are based on defendant's criminal record and do not require fact-findings by the jury.*fn6 State v. Thomas, 188 N.J. 137, 151-54 (2006).
Defendant next contends that the PCR judge abused his discretion when he determined that no evidentiary hearing was required. He urges that the facts established that he made out a prima facie case of ineffective assistance of counsel and a hearing should have been scheduled to develop the facts to which the alibi witness would have testified.
Finally, defendant contends that his PCR counsel was ineffective because he "presented a Blakely*fn7 argument without acknowledging or addressing the pipeline retroactivity limitation set forth in Natale.*fn8*fn9 " He contends that other than "in the context of an ineffectiveness of appellate counsel argument, [PCR] counsel's Blakely theory for relief was explicitly precluded by Natale." He also contends that PCR counsel's suggestion "that defendant was operating under 'some form of mental limitation,' was purely speculative and unsupported by any documentation." He also should not have raised the issue with respect to the photographic array as it was raised on direct appeal and failed to develop the alibi evidence at all.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.
We have reviewed the record in its entirety and are satisfied that defendant has not marshaled the requisite proofs to satisfy the Strickland/Fritz standard. We affirm the March 26, 2007, order denying defendant's petition for PCR substantially for the reasons expressed by Judge Ravin in his comprehensive and well-reasoned opinion of the same date.