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Alquan Muslim v. Michelle R. Ricci

February 22, 2011

ALQUAN MUSLIM, PETITIONER,
v.
MICHELLE R. RICCI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Peter G. Sheridan United States District Judge

NOT FOR PUBLICATION

OPINION

Petitioner, Alquan Muslim, a prisoner confined at the New Jersey State Prison in Trenton, New Jersey, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Michelle Ricci, and the Attorney General of New Jersey. Also before this Court is Respondents' Motion to Amend the Answer (docket entry 44).

For the reasons stated herein, the motion will be dismissed as moot, and the petition must be denied.

BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division ("Appellate Division"), in Petitioner's post-conviction relief ("PCR") proceedings.*fn1 See Respondents' Exhibit ("RE") P.

Defendant was tried to a jury. At the trial, the State presented evidence that, on the evening of August 25, 1996, Mary Francis and Carol Hutchins were sitting in Rodney Hutchins' car in Newark when Rodney approached them on a bicycle. Rodney was speaking with the women and defendant approached on foot. He pulled out a sawed-off shotgun, pointed it at Rodney, and told him to put his hands up. Rodney told the women to run. Carol Hutchins got out of the car and began to run.

Mary Francis remained in the car.

Defendant's brother, co-defendant Patrick Bryant, exited a car, and struck Rodney in the face. Rodney knocked the gun out of defendant's hands and began to run. Patrick said, "[g]et that mother fucker, kill that mother fucker." Defendant chased Rodney and shot him in the back. Defendant returned to the car, pointed the shotgun at Mary, and began pumping it. Patrick told defendant to leave her alone and Patrick and defendant drove away. Rodney died as a result of the gunshot wounds in his back.

In addition to presenting testimony from eyewitnesses to the shooting, the State presented testimony from Cantrell Wilkes, who stated that on the evening before the shooting, he saw Rodney and defendant talking "face to face" at the Club Safari in Newark. Wilkes said that Rodney appeared frustrated.

The State additionally presented testimony from Cleveland Barlow, who stated that sometime in the summer of 1996, he saw Patrick with a shotgun that was similar to the gun used in the shooting. Barlow also said that he saw defendant rob certain drug dealers. Barlow testified that Rodney was a known drug dealer. Barlow further testified that in August 1997, while he and defendant were incarcerated in the Essex County jail, defendant admitted that he shot Rodney because defendant wanted what belonged to him, which Barlow understood to mean money.

See Appellate Division Opinion, RE P.

B. Procedural Background

An Essex County Grand Jury returned an indictment charging Petitioner with murder; conspiracy to commit murder; attempted murder; aggravated assault; possession of a weapon; and possession of a weapon with purpose to use it unlawfully, all in violation of New Jersey state law.

Trial was held in Essex County from October 17 through 27, 1997. Petitioner was acquitted of first-degree attempted murder, and convicted of the remaining counts. On November 12, 1997, Petitioner was sentenced to life imprisonment plus 6 1/2 years with a 39-year period of parole ineligibility.

Petitioner appealed. On October 20, 1999, the Appellate Division affirmed the conviction and sentence. Petitioner filed a petition for certification with the New Jersey Supreme Court, which was denied on February 8, 2000.

On April 13, 2000, Petitioner filed a motion for post-conviction relief (PCR) in the sentencing court. The judge held a five-day evidentiary hearing on various dates spanning from August 2, 2002, through April 22, 2003. After the evidentiary hearing, the judge issued an opinion and order on September 15, 2003, denying the PCR motion in its entirety. The Appellate Division affirmed the denial on January 24, 2006. Petitioner's petition for certification to the New Jersey Supreme Court was denied on April 4, 2006.

On May 1, 2006, Petitioner filed a second PCR motion. Following oral argument, the judge denied Petitioner's PCR motion by written opinion dated March 16, 2007.

On March 9, 2007, Petitioner filed a petition for a writ of habeas corpus in this Court. On May 21, 2007, Petitioner asked that his petition be stayed and held in abeyance.

Meanwhile, on October 9, 2008, the Appellate Division affirmed the order denying Petitioner's second PCR motion, ruling it was time barred. Petitioner's petition for certification was denied on February 4, 2009.

On October 10, 2008 (one day after the Appellate Division affirmed the denial of Petitioner's second PCR motion), Judge Greenaway, formerly of this Court and currently a Circuit Judge in the Court of Appeals for the Third Circuit, entered an order dismissing Petitioner's application for a writ of habeas corpus, without prejudice, finding the petition was a "mixed petition" which was dismissible for failure to exhaust state court remedies.

Petitioner filed this, his second habeas petition, on January 30, 2009, and an amended petition on February 23, 2009. Petitioner was advised of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). Respondents filed an Answer to the petition and the available state court record on or about March 22, 2010. On January 3, 2011, Petitioner filed a brief in further support of his habeas petition.

On January 7, 2011, Respondents filed a motion to amend/correct their Answer, noting that they did not assert the affirmative defense of statute of limitations violations. Petitioner opposed the motion with a certification filed on January 21, 2011. Finally, on February 2, 2011, Petitioner provided missing pages of his habeas petition, asserting all grounds for relief.

C. Petitioner's Claims

Petitioner cites twenty grounds for relief in his habeas petition:

1. The trial court erred by refusing to excuse a juror for cause because she was a corrections officer at the county jail.

2. Petitioner's right to a fair trial was violated when the trial court allowed Cleveland Barlow to testify about other crimes evidence.

3. The State's misconduct deprived Petitioner of a fair trial. 4. Petitioner's motion for a mistrial should have been granted because of a state witness' disruptive behavior.

5. The trial court failed to instruct the jurors that before they could consider Petitioner's alleged out-of-court oral statements to Cleveland Barlow, they must first find such statements to be credible.

6. The trial judge erred in admitting hearsay evidence under the "present sense impression" exception to the hearsay rule.

7. Petitioner should have been allowed to introduce the sworn police statement of Limonique Scott, an eyewitness.

8. The trial judge improperly denied the request for a Clawans charge.

9. The trial judge should have recused himself. 10. The State's knowing use of perjured testimony constitutes a Brady violation and prosecutorial misconduct.

11. The trial judge shifted the burden of proof to Petitioner with the renunciation as to attempted murder charge, and placed Petitioner at the crime scene when Petitioner repeatedly expressed his complete innocence.

12. The trial judge commented on Petitioner's reluctance to testify during the charge, violating Petitioner's right to a fair trial.

13. Petitioner was denied effective assistance of counsel.

14. Petitioner was denied effective assistance of appellate counsel.

15. The jury instruction on identification was insufficient and unbalanced in favor of the State.

16. The trial court erred by charging conspiracy to murder. 17. The prosecutor withheld exculpatory evidence from the grand jury.

18. The State suppressed criminal case histories of State witnesses and secret deals.

19. Petitioner received newly discovered evidence that Barlow lied about Petitioner's confession.

20. Petitioner's sentence, imposing an extended term, was unconstitutional.

(Petition, ¶ 12).

Petitioner also cites an additional 11 grounds for relief in his amended petition for habeas relief (docket entry 2), including:

1. Petitioner's right to a fair trial was violated when Barlow was allowed to testify about other crimes.

2. Petitioner has obtained evidence that Barlow presented false testimony when he testified that Petitioner confessed to him in jail.

3. Ineffective assistance of counsel- failed to argue prosecutorial misconduct because state did not present exculpatory evidence to grand jury.

4. Ineffective assistance of counsel- failed to raise that Appellate Division rule that trial judge erred in charging conspiracy to murder in co-defendant's case.

5. Ineffective assistance of counsel- failed to argue that the state suppressed criminal case histories of state witnesses and secret plea deals.

6. Ineffective assistance of counsel- failed to argue that trial court failed to instruct on lesser included offenses.

7. Ineffective assistance of counsel- failed to argue that trial judge's charge reduced state's burden of proof.

8. Ineffective assistance of PCR counsel.

9. Ineffective assistance of PCR counsel when PCR counsel failed to present ...


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