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Kieron Jackson v. Michelle Ricci

March 28, 2011

KIERON JACKSON, PETITIONER,
v.
MICHELLE RICCI, ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner Kieron Jackson, a prisoner currently confined at Northern State Prison in Newark, New Jersey, has 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 the State of New Jersey.

For the reasons stated herein, the Petition must be denied.

I. BACKGROUND

The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division.*fn1

A. Factual Background

The convictions stem from a string of armed robberies of Chinese restaurants in Jersey City and Bayonne in November and December 2001. One restaurant was victimized four times.

The first armed robbery occurred on November 28, 2001, at the Yoan Fong restaurant in Jersey City. Tony Zhu was working at the restaurant when defendant entered with a gun and demanded money. Zhu testified that defendant pointed the gun at the employees and said "take the money out, take the money out." Zhu gave defendant money from the register, and defendant left. Zhu did not see defendant's face on that occasion. [fn]

[fn] Defendant was acquitted of this charge.

Defendant returned to Yoan Fong two days later. Zhu was again working at the restaurant. He testified that defendant came in, pointed a gun at him, and demanded money. Zhu gave defendant the money from the register and defendant left. Defendant returned to Yoan Fong again on December 6, 2001. On this occasion, defendant climbed over the counter near the front of the restaurant and came to the back where the employees were eating. Defendant pointed a gun at the employees and demanded money, and again Zhu provided money from the register and defendant left.

Zhu testified that during the November 30 and December 6, 2001 incidents, he was able to see defendant's face in the course of the robberies. Zhu also recognized defendant as a customer in the restaurant "once or twice." He was able also to identify defendant in a photo array and at trial.

On the evening of December 22, 2001, defendant returned to Yoan Fong. On this occasion, Yun Yang, delivery person for the restaurant, was on his bicycle returning to the restaurant after making a delivery. Defendant stopped Yang on the sidewalk in front of the restaurant, demanded money, and struck Yang on the forehead and the back of the head with a gun. Yang fell to the ground, and defendant then pointed the gun at Yang's right temple and neck. Yang then provided defendant with the twenty dollars he had in his possession. Defendant searched Yang for more, and upon finding nothing, left. Yang testified that he had seen defendant in the restaurant "many times," and identified defendant from a photo array and at trial.

Also on December 22, 2001, defendant robbed the Cheun Xing restaurant in Jersey City. At the time of the robbery, Li Li Xu, the owner of the restaurant was in her second-floor apartment directly above the restaurant. Xu observed the robbery occurring via a monitor in her apartment that displayed the video of a security camera in the restaurant. Upon seeing the robbery in progress, Xu ran downstairs with a phone, saw defendant leaving, and called the police. Xu authenticated the video recording at trial before it was played for the jury.

On December 28, 2001, defendant committed robberies number six and seven. First, at approximately 10 p.m., defendant entered the Neptune Cafe in Jersey City, also owned by Li Li Xu. Xu was working that evening, and observed defendant enter, armed with a gun. Although defendant covered his face with a mask, Xu saw defendant's clothing, including a black jacket with a pattern on the back. Xu watched as defendant struck two of her employees, took money, and left the restaurant. Xu also authenticated a video of this robbery, taken by a security camera in the restaurant, which was likewise played for the jury.

Defendant's second robbery of the evening took place at the Kung Hing restaurant in Bayonne. At approximately 11 p.m., Xiaomin Chen and his sister were working in the Kung Hing restaurant when defendant entered, wearing a ski mask and holding a gun. According to Chen, defendant ran into the restaurant, ordered Chen to open the cash register, hit Chen on the head with the gun's handle, and again ordered Chen to open the register. When Chen complied, defendant grabbed the cash and ran. Chen testified at trial that defendant was wearing blue jeans during the robbery and that he was sure that defendant was the man that robbed the restaurant.

On December 29, 2001, the day after the last two robberies, Officer Al Roesinger of the Bayonne police and his partner were on patrol when they observed a black Honda Accord double-parked on the street with no occupants. A mobile computer check revealed that the plate was assigned to a white Oldsmobile rather than a black Honda, so the officers checked the vehicle identification number, called for back-up units and waited for the driver to return to the vehicle. About five minutes later, four people entered the vehicle. Before the car drove off, the officers approached and conducted a motor vehicle "stop." The officers observed a male and a female juvenile in the rear of the vehicle, defendant in the driver's seat, and co-defendant Lance Rose in the passenger seat. The officers placed the individuals under arrest and searched the vehicle. Rose and the male juvenile were in possession of handguns, one of which was a fake.

The search also revealed a ski mask and a black BB gun. The BB gun was discovered between the driver's seat and the console of the vehicle.

At the time of defendant's arrest, he was wearing a black jacket. Li Li Xu identified the jacket as the same one worn by the man who robbed the Neptune Cafe. After defendant's arrest, he was taken to the Bayonne Police Department Detective Bureau and interviewed by Detective William Nide. Defendant was informed of his rights, and signed a waiver statement. Defendant then provided Detective Nide with a formal statement. Defendant's statement described the robbery of the Kung Hing restaurant. After defendant gave his statement to Detective Nide, he was again advised of his rights, waived them, and provided another formal statement to Detective George Moore of the Jersey City Police. In this second statement, defendant confessed to the robbery of the Neptune Cafe. Defendant admitted to wearing a black jacket with a sword on the left arm and the word "Avirex" on the back, and hitting someone "near the head area" during the robbery. Defendant also admitted to committing other robberies of Chinese restaurants using a black BB gun. Defendant stated that he was the get-away driver for the robbery of the restaurant on Kennedy Boulevard and Winfield Avenue, and the back BB gun was used during that robbery as well.

State v. Jackson, 2005 WL 3005788, *1-*2 (N.J.Super. App.Div. Nov. 10, 2005)

B. Procedural History

Following a jury trial in the Superior Court of New Jersey, Law Division, Hudson County, Petitioner was found guilty of six counts of first degree robbery contrary to N.J.S.A. 2C:15-1, one count of third degree aggravated assault contrary to N.J.S.A. 2C:12-1b(7), and one count of second degree conspiracy to commit armed robbery contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:1501.

He was acquitted of one count of armed robbery. The trial court imposed an aggregate sentence of forty years' imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On direct appeal, the Superior Court of New Jersey, Appellate Division, affirmed the conviction, but remanded for reconsideration of the sentence. State v. Jackson, 2005 WL 3005788 (N.J.Super. App.Div. Nov. 10, 2005). On January 23, 2006, the trial court resentenced Petitioner, again to an aggregate term of forty years' imprisonment, subject to the No Early Release Act. (Ans., Ex. 15.) Petitioner appealed the new sentence as excessive, which the Appellate Division affirmed on Oct. 22, 2008. (Ans., Ex. 24.) It does not appear that Petitioner ever sought certification, on these direct appeals, from the Supreme Court of New Jersey.

On February 1, 2006, Petitioner filed with the trial court his first state petition for post-conviction relief, asserting that he had received ineffective assistance of counsel. Without granting an evidentiary hearing, the trial court denied relief on October 10, 2006. (Ans., Ex. 22.) On January 8, 2009, the Appellate Division affirmed the denial of PCR relief, State v. Jackson, 2009 WL 36393 (N.J.Super. App.Div. Jan. 8, 2009), and on April 23, 2009, the Supreme Court of New Jersey denied certification, State v. Jackson, 199 N.J. 133 (April 23, 2009).

On June 23, 2009, Petitioner filed his second state petition for post-conviction relief, raising claims of error in admitting certain evidence, prosecutorial misconduct, and ineffective assistance of trial, appellate, and post-conviction relief counsel. On August 25, 2009, the trial court denied relief, finding that all of Petitioner's claims were procedurally barred under state law. (Ans., Exs. 56, 57.)

Petitioner has filed a third state petition for post- conviction relief, raising claims not pertinent here, which remains pending.

This Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 followed. Here, Petitioner originally asserted two claims for relief: ineffective assistance of trial counsel and ineffective assistance of post-conviction-relief counsel.

Petitioner requested a stay of this proceeding in order to exhaust in state court his claim of ineffective assistance of PCR counsel. Because ineffective assistance of state PCR counsel is not a ground for federal habeas relief, see 28 U.S.C. § 2254(i), this Court denied the request for stay and ordered Respondents to answer with respect to the claim of ineffective assistance of trial counsel, only. Respondents have answered, Petitioner has replied, and this matter is now ready for decision.

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:

II. 28 U.S.C. § 2254

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

With respect to any claim adjudicated on the merits in state court proceedings, the writ shall not issue unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determinated by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent."

28 U.S.C. § 2254(d).

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor, J., for the Court, Part II). A state court decision "involve[s] an unreasonable application" of federal law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," and may involve an "unreasonable application" of federal law "if the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply," (although the Supreme Court expressly declined to decide the latter). Id. at 407-09. To be an "unreasonable application" of clearly established federal law, the state court's application must be objectively unreasonable.

Id. at 409. In determining whether the state court's application of Supreme Court precedent was objectively unreasonable, a habeas court may consider the decisions of inferior federal courts. Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).

Even a summary adjudication by the state court on the merits of a claim is entitled to § 2254(d) deference. Chadwick v. Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)). With respect to claims presented to, but unadjudicated by, the state courts, however, a federal court may exercise pre-AEDPA independent judgment. See Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000), cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL 1523144, *6 n.4 (D.N.J. 2000). See also Schoenberger v. Russell, 290 F.3d 831, 842 (6th Cir. 2002) (Moore, J., concurring) (and cases discussed therein). In such instances, "the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA." Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)). "However, § 2254(e)(1) still mandates that the state court's factual determinations are presumed correct unless rebutted by clear and convincing evidence." Simmons v. Beard, 581 F.3d q158, 165 (3d Cir. 2009).

The deference required by ยง 2254(d) applies without regard to whether the state court cites to Supreme Court or other federal caselaw, "as long as the reasoning of the state court does ...


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