The opinion of the court was delivered by: Hon. Faith S. Hochberg
NOT FOR PUBLICATION CLOSED
HOCHBERG, District Judge.
Petitioner Thomas W. Mills, a prisoner currently confined at East Jersey State Prison in Rahway, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his July 18, 1996 conviction and August 15, 1996 sentence for first degree aggravated manslaughter and second degree possession of a handgun for unlawful purposes was contrary to the Fifth, Sixth, and Fourteenth Amendments. The Respondents are Administrator Donald Mee and the Attorney General of New Jersey.
This case arises from an August 15, 1995 confrontation between Petitioner and Isaac Buie outside the complex at Seth Boyden Terrace and Center Terrace in Newark, New Jersey. During the confrontation, Buie suffered a fatal gunshot wound.
Petitioner's version of events, taken from a statement he gave to police, is as follows: Petitioner was installing new locks for a customer when he went to check on his van. (Ex. C 158:5-11) Upon returning, he noticed that one of his tools was missing from the hallway. Id. He was then informed that Buie was around the corner trying to sell the tool. (Ex. C 158:14.) Buie's description matched that of an individual who had previously made remarks to Petitioner about items in his van. (Ex. C 158:19-24.) When Petitioner confronted Buie and demanded that he return his property, Buie responded by pulling Petitioner towards him and simultaneously reaching into his wasteband and pulling "something" out. (Ex. C 159:12-16.) Petitioner thought Buie had a knife or gun and a struggle ensued. (Ex. C 159:17-19.) Petitioner was hit several times on the side and the gun started "going off at the same time." (Ex. C 159:20-21.) Petitioner said that Buie "still had [the gun] in his hand" when Petitioner left the scene. (Ex. C 161:11-12.) Petitioner's statement was admitted into evidence. At trial, it was Petitioner's theory that he did not bring the gun to the scene, and that he was trying to defend himself from Buie when the gun discharged. (Petitioner's Br. 3.)
On the day of his death, Buie was accompanied by Pamela Henderson, who testified at trial and gave the following version of events:
Henderson and Buie were trying to acquire funds to purchase drugs. They had already used cocaine with Buie's girlfriend when they noticed Petitioner's van parked at the complex at Seth Boyden Terrace and Center Terrace. (Ex. C 59:9-61:15.) They knew the van belonged to Petitioner because they had seen it parked there on other occasions. (Ex. C 61:16-19.) Henderson and Buie saw Petitioner talking to a group of men across the street from his van. (Ex. C 62:9-14.) Petitioner gave some money to the one of the men, who departed and returned shortly and handed something to Petitioner. (Ex. C 64:13-20.) Buie told Henderson that he believed Petitioner had some money. He went to Petitioner's van and removed a toolbox, which he proceeded to dangle in front of Petitioner. (Ex. C 65:1-21.) When Petitioner asked for his toolbox back, Buie told him that he would return it for $5. (Ex. C 66:2-15.) Petitioner went to his van, retrieved a .25 caliber handgun, "brought it up toward [Buie]," and asked for his property back once again. (Ex. C 66:16-68:6.) Buie tried to knock the gun out of Petitioner's hand with the toolbox, and the gun went off. (Ex. C 68:15-21.) Buie retreated to some nearby dumpsters, but Petitioner continued to fire shots at him. (Ex. C 70:3-16.) While holding his side, Buie asked, "Why you doing this to me, man?" before collapsing face down. (Ex. C 70:21-72:2.) Petitioner got in his van and left the scene. (Ex. C 71:21-22.)
Another witness, Ellen Fay Black, also observed the altercation between Petitioner and Buie and testified at trial. She testified that she was in her car nearby, listening to music while waiting for her girlfriend, when a confrontation between a white man (Petitioner) and a black man (Buie) caught her attention. (Ex. C 111:15-113:11.) She heard a gunshot (Ex. C 114:21-22.), and, looking back at the men, noticed the white man pointing a small gun at the black man. (Ex. C 114:23-115:13.) The white man then fired another shot at the black man, who was trying to move out of the way. (Ex. C 115:14-24.) The men started "wrestling" and the black man grabbed at the gun, but the white man pushed him away and fired at him again. (Ex. C 115:25-116:15.) The black man then "grabbed his side," yelled, "Why is you doing this to me?" and ran towards nearby dumpsters. (Ex. C 116:16-117:8.) The white man then fired another shot over the dumpsters. (Ex. C 117:9-13.) As the black man then fell (Ex. 117:15), the white man got into his van and drove away. (Ex. C 117:24-118:3.) Another man, who was sitting in the passenger's seat, laughed as the van left the scene. (Ex. C 118:9-21.)
Bonito Vasquez, who occasionally worked for Petitioner, also claimed to have witnessed the events in question. He testified at trial that he could not sleep on the night of August 15, 1995, and so he went outside, where he discovered Petitioner and Buie arguing on the corner. (Ex. E 4:13-20.) He saw Buie take out a gun, and then he heard one gun shot, causing him to run away. (Ex. E 6:10-18.) His testimony was in conflict with a statement he had given to police, in which he claimed to have heard "a couple of gunshots." (Ex. E 18:1-20:2.)
There was conflicting testimony by expert witnesses regarding the distance between Petitioner and Buie when the fatal shot was fired. The State's expert, who testified as a rebuttal witness, opined that the two men were ten inches apart (Ex. E 90:23-91:7), while Petitioner's expert estimated that the distance was between two and three inches. (Ex. D 62:24-63:4.)
An Essex County Grand Jury returned a three-count indictment against Petitioner on October 3, 1995, charging him with: (1) purposeful or knowing murder, contrary to N.J. Stat. Ann. § 2C:11-3(a)(1) or (2); (2) third degree unlawful possession of a firearm, contrary to N.J. Stat. Ann. § 2C:39-5(b); and (3) second degree possession of a handgun for unlawful purposes, contrary to N.J. Stat. Ann. § 2C:39-4(a).
The Honorable Paul J. Vichness, J.S.C., heard pretrial motions on July 10 and 11, 1996, and a jury trial commenced before him on July 12, 1996.On July 18, 1996, the jury found Petitioner guilty of first degree aggravated manslaughter (as a lesser included offense of murder) and second degree possession of a handgun for unlawful purposes. He was acquitted on the unlawful possession of a firearm charge.
Petitioner went before Judge Vichness for sentencing on August 15, 1996. Judge Vichness granted the State's motion to have Petitioner sentenced as a persistent offender, and he sentenced Petitioner to an extended term of forty years in prison with twenty years parole ineligibility. Petitioner's conviction for unlawful possession of a firearm was merged into his conviction for aggravated manslaughter. He was assessed applicable penalties and fines and was awarded credit for the time he had already spent in custody.
Petitioner filed a Notice of Appeal with the Appellate Division, which affirmed his conviction and sentence in a per curiam opinion dated March 2, 1998. (Petitioner's Br. Ex. A.) The New Jersey Supreme Court denied Petitioner's petition for certification on June 2, 1998. (Petitioner's Br. Ex. B) On May 6, 2005 Petitioner filed a petition for post-conviction relief ("PCR"), which Judge Vichness denied, following a hearing, on October 18, 2005. (Ex. M Da46.) Petitioner appealed to the Appellate Division, which affirmed Judge Vichness's denial of PCR in a per curiam opinion dated July 25, 2008. (Petitioner's Br. Ex. C.) The Supreme Court of New Jersey denied Petitioner's petition for certification on January 16, 2009. (Petitioner's Br. Ex. D.)
Petitioner filed this habeas petition asserting the following grounds for relief:
1. Ineffective Assistance of Counsel, as Petitioner's lawyer (1) failed to investigate the State's witness Henderson and (2) failed to object to the State's use of an expert rebuttal witness.
2. Due Process and Fair Trial rights violations, contrary to the Fifth, Sixth, and Fourteenth Amendments, as the trial court improperly permitted the State (1) to call an expert witness on rebuttal, and (2) to call Henderson as an ...