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Frederick Simmons v. Michelle R. Ricci et al

September 13, 2011

FREDERICK SIMMONS, PETITIONER,
v.
MICHELLE R. RICCI ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner Frederick Simmons ("Petitioner") filed the instant petition ("Petition") seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(a); he is challenging his judgment of conviction rendered by the Superior Court of New Jersey. See Docket Entry No. 1. Petitioner duly paid his filing fee. See Docket Entry dated Jan. 22, 2010. The Court informed Petitioner of his rights, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), see Docket Entry No. 3; Petitioner did not respond to the Court's Mason notice, hence indicating that Petitioner wished for the Court to rule on his Petition as submitted. The Court directed Respondents to file an answer to the Petition, and allowed Petitioner an opportunity to traverse. See Docket Entry No. 4. Upon the Court's finding that Respondents' initial answer failed to comply with the Court's order directing responsive pleading, see Docket Entries Nos. 7 and 8 (replicating Respondent's original answer and the Court's order detailing its shortcomings), and upon the Court's reorder of answer, seeDocket Entry No. 8,Respondents complied. See Docket Entries Nos. 11-20.

Petitioner did not traverse as to either Respondents' initial answer or their re-answer. See generally, Docket.

For the reasons expressed below, the Court will dismiss the Petition and will decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c), 2254(a), (b), (c).

I. STANDARD OF REVIEW

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to entertain a habeas petition challenging a state conviction or sentence only where the inmate's custody violates federal law:

[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.

28 U.S.C. § 2254(a).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982). "If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts." Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982).

"[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause." Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, "it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citation omitted); see also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).

A district court must give deference to determinations of state courts. See Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 534 U.S. 919 (2001); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Federal courts "must presume that the factual findings of both state trial and appellate courts are correct, a presumption that can only be overcome on the basis of clear and convincing evidence to the contrary." Stevens v. Delaware Correctional Center, 295 F.3d 361, 368 (3d Cir. 2002). Where a federal claim was "adjudicated on the merits" *fn1 in state court proceedings, § 2254 does not permit habeas relief unless adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined 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.

28 U.S.C. § 2254(d).

A decision is "'contrary to' a Supreme Court holding if the state court 'contradicts the governing law [as it is interpreted or] set forth in [the Supreme Court's, rather than in any state court's or any circuit court's] cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). In other words, under the "'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Whether a state court's application of federal law is "unreasonable" must be judged objectively, which means that an application may be incorrect, but still not unreasonable.

Id. at 409-10.

A court begins the analysis by determining the relevant clearly established law. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71, 72 (2003).

II. BACKGROUND

A. Underlying Facts

The Superior Court of New Jersey, Appellate Division, detailed the underlying events as follows:

The events that led to the indictment and convictions occurred at the Firehouse Tavern in Wildwood on May 10, 1996, at about 2:00 a. m. Michael James, the part-owner and bartender, was getting ready to close when two black men, whom he did not know, walked into the bar at about 2:10 a.m. and one of them asked for a case of beer. James had a "gut feeling" that he was about to be robbed, but dropped his guard when one of the men, [Petitioner], was recognized and greeted by Robert Connors, the only customer left in the bar. However, the man nearest to James, later identified as Poteat, pulled put a club from under his jacket and hit him in the head, knocking him to the ground.

James got up and started to fight for his life, he grabbed Poteat and punched him in the mouth while yelling for help. Poteat threatened to shoot James if he didn't keep the noise down. During this time, James could not see what was going on between [Petitioner] and Connors. James and Poteat continued grappling and rolled out through the door onto the sidewalk. James kept yelling for help while continually being clubbed by Poteat.

[Petitioner] then came out the front door and kicked James in the throat. When a customer returned in has car to the tavern after having dropped off another patron, Poteat and [Petitioner] ran off in different directions. The returning patron and James then drove . . . towards the police station . . . .

Once at the police station, James and the patron told the police of the robbery and informed their that [another] patron [i.e., Connors,] was still in the tavern. An ambulance was called and patrol cars were dispatched to the tavern where police found Connors lying dead, face down on the bathroom floor in a puddle of blood and hot water from pipes where the sink had been broken off the wall. Two of the three cash registers in the bar were open and emptied, only change remained.

Around 6:30 or 7:00 that morning, some two hours after the arrest of Poteat, Kevin McLaughlin, a Wildwood police detective, was directed to look for [Petitioner]. McLaughlin went to the Quality Restaurant where [Petitioner] was employed, but the owner said [Petitioner] was not there. Other officers checked Commissioner's Court, [Petitioner] residence, to no avail. McLaughlin returned to the Quality Restaurant and was again told [Petitioner] was not [there], but would be in later to work the lunch shift. McLaughlin went back a third time between 10:30 a.m. and 11.00 a.m , and was once again told [Petitioner] was still not there, however, as he was about to leave the door opened and [Petitioner] said, "are you guys looking for me?" McLaughlin told him that they wanted to talk to him at police headquarters. [Petitioner] replied, "let's go" and did not ask why. Nor did [Petitioner] complain of physical injuries, or show any sign of being under the influence of drugs or alcohol.

At police headquarters, after McLaughlin administered Miranda warnings to [Petitioner,] who acknowledged his rights and waived them, [Petitioner initially] told McLaughlin that he was at the Firehouse Tavern, but had no involvement in any crime. He then changed his story and made an inculpatory statement which was held admissible after a hearing. A tape and transcript of [Petitioner's] confession were presented to the jury. In it, [Petitioner] said that about 1:20 a.m. Poteat approached him as he was standing by the Sportsmen's Bar on New Jersey Avenue and Garfield Avenue. Poteat wanted him to take a walk to see if they could make some money, which [Petitioner] understood to mean swindle someone or make a drug buy. As they walked to the Firehouse Tavern, Poteat told him there should be some "good money" there because it was a busy place. [Petitioner] did not know if they were going to ["]get money["] from someone there or from the bar itself.

They looked inside the bar from the Park Boulevard side and saw two heads. They walked in and [Petitioner] recognized the patron and greeted him. [Petitioner] asked the patron for a cigarette and he gave him one. [Petitioner] then heard scuffling between James and Poteat and because the patron wanted to help James, but [Petitioner] said he did not want to get involved, he pulled the patron into the bathroom. The event was described by [Petitioner] as "like a security thing at first . . . and then it became like a . . . shut the hell up." He threw the patron face down into the sink because he was afraid of being identified. The patron started yelling about helping James.

Then the patron made eye contact with [Petitioner] "which [-- according Petitioner --] was a no-no to [him]," so [Petitioner], who was six feet tall and weighed 290 pounds, slammed the patron to the ground and kicked him on the back of the neck. [Petitioner] claimed he did not "really want to hurt him1 but rather just to "shut him up." He straddled the victim, holding him down, and took a straight knife with a six-inch serrated edge from is back belt and "took it straight to him." "I went to the neck" [Petitioner stated,] and "just did the job." [Petitioner] kicked him in the head, wiped the knife with a paper towel, exited the bathroom and tried to leave, but ran into James and Poteat outside the door. [Petitioner] kicked James to get him out of the way, but because of the noise of the fighting he went back into the tavern and [exited] through the Pine Avenue door, [then] ran an "obstacle course," and eventually threw away the knife. Subsequent to the statement, McLaughlin arrested [Petitioner]. . . .

James suffered a fractured left hand, a fractured skull, cuts on his head which required eighty-two staples, and numerous bruises. Four to five days later, he identified Poteat and [Petitioner] as the two who came into the bar. According to James, about $700 was missing from the cash registers . . .

Thomas Austin worked with [Petitioner] at the Quality Restaurant in 1996 . . . testified that Poteat, whom Austin knew, told him that Poteat and a friend (Austin presumed the friend was [Petitioner] who was standing across the street), were going to rob the Firehouse Tavern and another bar and asked Austin to be the getaway driver, but Austin declined the proposal. Austin also said that [Petitioner] and Poteat appeared to be high on cocaine at the time.

Docket Entry No. 14-12, at 6-11.

B. Trial

The Appellate Division panel presiding over Petitioner's direct appeal, described the trial events as follows:

There was testimony by the State medical examiner of multiple wounds on the deceased victim, including several penetrating or stab wounds in the neck, as well as scald wounds about the face and arms. The neck wounds severed both jugular veins and a carotid artery. A knife found in a park two blocks from the tavern with a "scalloped appearance" was identified as consistent with the edge of the knife that inflicted the wounds.

[Petitioner] did not testify on his own behalf. Instead, he presented witnesses to support his argument that he had a mental disease or defect which, combined with cocaine ingestion, made him unable to form the intent to knowingly commit the murder.

Harold Lanzoni, a certified scientist, tested urine taken from [Petitioner] at 8:40 p.m. on May 10, 1996 [that is, about twenty hours after Petitioner and Poteat entered the tavern]. The analysis revealed that [Petitioner's] urine was positive for cocaine metabolite, a byproduct of cocaine. George Jackson, a forensic toxicologist called by the defense, tested [Petitioner's] hair on August 15, 1996, and found ethylegonidine and cocaethylene, metabolites of cocaine and also morphan, an opiate, which indicated chronic, repetitive drug use.

Amelia Preister, [Petitioner's] step-daughter, testified that [Petitioner] had married her mother, Mina, in April 1992 or 1993, and had lived with her for ten years before that. [Petitioner] was "like a real father' to Mina's six children. Mina died of a brain aneurism in September 1995, and this assertedly devastated [Petitioner]. The children were placed with various relatives, despite [Petitioner's] wanting to care for them, and he was evicted from his home. After Mina's death, [Ameria] said [Petitioner] increased his drinking, did not eat, and stopped taking care of his physical appearance. Kimberly Fashaw, Mina s best friend, echoed Preister's testimony, adding that after Mina's death, [Petitioner] "looked all crazy" and was often high and agitated.

Sereather Pine, [Petitioner's] sister, recalled that as children, one of his five brothers and sisters was given to one of her mother's friends because their mother could not care for them, and eventually, [Petitioner] was forced to live with relatives. One time, [Petitioner] was caught in a cross-fire and was shot with fifteen pellets. She stated that after Mina died, [Petitioner] became unhygienic and frequently used drugs and alcohol.

David Bogacki, an expert in forensic psychology, performed a total of eight tests on three dates in 1996 to determine whether [Petitioner] had a mental disease or defect. Bogacki determined that [Petitioner], then age 35, had no organic brain damage, but was in the "borderline" range of intelligence, with an IQ of 75-81, and a mental age of thirteen. [Petitioner] showed signs of a thought disorder, bipolar disorder (formerly known as manic-depression), inappropriate affect (inappropriate emotional responses), autistic thought process ("I think it so it's true"), low frustration level, and poor impulse control. His negative personality characteristics were accentuated by his drug use. Bogacki concluded that [Petitioner] suffered from a mental disease or defect, including depression, anxiety, bipolar disorder and mixed personality disorder, with paranoid traits, borderline traits, and dependent traits.

Kenneth Weiss, a forensic psychiatrist, met with [Petitioner] four times and reviewed Bogacki's findings. [Petitioner] told him a story similar to what he told the police, emphasizing that he wanted to stay out of danger and that the killing was unintended. Weiss noted [Petitioner's] multiple losses, his cocaine addiction and his ingestion of alcohol that night. He determined that while in the Firehouse Tavern, [Petitioner] was "craving" drugs, and in a "dream-like" state. He said that due to his mental disease or defect, [Petitioner] did not have the ability to form the mental capacity to act knowingly and purposefully.

Leon Rosenberg, a psychiatrist, also interviewed [Petitioner] and reviewed his history. He concluded that his cocaine use contributed to [Petitioner] paranoia about the victim identifying him, and that due to the cocaine, [Petitioner] was unable to purposefully and knowingly commit murder. Rosenberg recognized that his view was contrary to Weiss's view that there was insufficient evidence to establish voluntary intoxication.

Id. at 11-14.

During Petitioner's post-conviction relief ("PCR") proceedings, the Appellate Division supplemented the foregoing discussion with the following observations:

In support of this defense, [Petitioner] first presented the testimony of Dr. Kenneth J. Weiss, a forensic psychiatrist, who stated that [Petitioner] had told him that, in the hours immediately prior to the incident, [Petitioner] had consumed cocaine and two to three forty-ounce bottles of malt liquor. In his report, however, Dr. Weiss had opined that "the evidence was not conclusive that [Petitioner] was intoxicated or that he would meet the prostration of faculties test in which voluntary intoxication itself negates elements of culpability." The prosecutor confronted Dr. Weiss with this portion of his report on cross-examination.

Defendant then presented Dr. Leon Rosenberg, a forensic psychiatrist, who testified that [Petitioner] had told him that he had used twenty to twenty-four bags of cocaine and had consumed eighty ounces of malt liquor and two beers on the evening in question. Dr. Rosenberg concluded that "because of the cocaine in his system," [Petitioner's] faculties were prostrated and he was not capable of performing a knowing or purposeful act on the occasion in question. On cross-examination, Dr. Rosenberg acknowledged that his conclusion contradicted that of Dr. Weiss. The prosecutor commented extensively in summation on the discrepancy between the two defense experts' opinions.

Docket Entry No. 11-23, at 5-6.

C. Conviction and Sentencing

After a jury trial, [Petitioner] was found guilty . . . of murder . . . , felony murder . . . , conspiracy to commit armed robbery . . . , two counts of armed robbery . . . , attempted murder (N.3S.A. 2C:ll-3 and 2C:5-l); aggravated assault . . . , possession of a weapon for an unlawful purpose . . . , unlawful possession of a weapon . . . and hindering apprehension . . . . Various pretrial motions were denied. . . . Poteat was indicted as a co-defendant, but tried separately before a different jury and was also found guilty of all counts on the same indictment, [Poteat's conviction was affirmed on appeal].

The jury considered capital punishment, but was unable to reach a unanimous decision. The trial judge vacated the conviction on one robbery charge, merged the felony murder conviction into the murder conviction and sentenced [Petitioner] to life in prison, thirty years without parole eligibility. The judge also merged the conspiracy to commit armed robbery and armed robbery convictions into the remaining armed robbery conviction and imposed a fifteen year prison term, to run consecutively to the sentence on the murder conviction. The judge merged the conviction for aggravated assault into the attempted murder conviction and imposed a twenty year sentence, consecutive to the murder term, with eight years of parole ineligibility. The aggravated assault conviction was merged into the attempted murder conviction and the possession of a weapon for an unlawful purpose and the unlawful possession of a weapon convictions were merged into the attempted murder, murder and robbery convictions. In addition, on the hindering apprehension conviction, a consecutive four year term was imposed. Thus, [Petitioner's] aggregate sentence was a life term, plus thirty-nine years, with thirty-eight years of parole ineligibility.

Docket Entry No. 14-12, at 2-4.

III. PETITIONER'S INSTANT CHALLENGES

In his Petition, Petitioner raised the following seventeen Grounds (which, with sub- grounds factored in, amount to the total of twenty grounds):

GROUND ONE: The trial court erred in ruling that petitioner voluntarily waived his Miranda rights in violation of the Fifth Amendment of the U.S. Constitution which compelled petitioner to be a witness against himself in a criminal case which violated petitioner's right to defend life and liberty with due process of law as secured by the Fifth and Fourteenth Amendment of the U.S. Constitution and his right to a fair trial by an impartial jury as secured by the Sixth Amendment of the U.S. Constitution.

GROUND TWO: The trial court erred by admitting into evidence the tape recorded confession of petitioner as that recording failed to meet the standards for its admission which deprived petitioner of his right to defend life and liberty with due process of law as secured by the 5th and 14th Amendments of the U.S. Constitution and a trial by an impartial jury, U.S Const[itution] 6th [A]mendment.

GROUND THREE: The trial court erred by denying the motion for a judgment of acquittal in violation of the due process clause of the 5th and 14th Amendments of the U.S. Constitution.

GROUND FOUR: The trial court erred by admitting the autopsy photos as they were unduly prejudicial and not probative in value thereby violating petitioner's right to a fair trial by an impartial jury contrary to the 6th Amendment of the U.S. Constitution and also violated petitioner's right to defend life and liberty with due process of law as secured by the 5th and 14th Amendments of the U.S. Constitution.

GROUND FIVE: The charge to the jury in its entirety, including the manner in which the court responded to jury requests for clarification, was confusing, misleading and prejudiced the petitioner's right to a fair trial by an impartial jury violating the 6th Amendment of the U.S. Constitution as well as depriving petitioner of his right to defend life and liberty with due process of law as secured by the 5th and 14th Amendments of the U.S. Const[itution].

GROUND SIX: The verdict is against the weight of the evidence and the petitioner is entitled to a new trial; and this deprived petitioner his right to defend life and liberty with due process of law secured by the 5th and 14th Amendments of the U.S. Const[itution].

GROUND SEVEN: The conduct of the prosecutor, which exceeded the bounds of proper advocacy, denied petitioner a fair trial by an impartial jury in violation of the 6th Amendment of the U.S. Constitution and deprived petitioner of his right to defend life and liberty with due process of law as secured by the 5th and 14th Amendments of the U.S. Constitution.

GROUND EIGHT: The errors committed, in their entirety, dented the petitioner a fair trial by an impartial jury in violation of the 6th Amendment of the U.S. Constitution and constituted cumulative error contrary to the due process clause of the 5th and l4th Amendments of the U.S. Constitution.

GROUND NINE: The petitioner's unconstitutional illegal arrest without a warrant violated the 4th amendment of the U.S. Constitution and based upon this the trial court committed plain error in admitting the tainted confession because the confession should have been suppressed because the casual chain between the illegal arrest and the interrogation was unbroken, consequently when the court allowed the confession for consideration by the petit jury, this clear error deprived petitioner of a fair trial by an impartial jury violative of the 6th amendment of the U.S. Constitution through tainted illegal arrest, and the fourth amendment illegal seizure of the petitioner is applicable to state officials through the due process clause of the 14th amendment of the U.S. Constitution which deprived petitioner of his right to defend life and liberty with due process of law and is therefore cognizable where judgment of conviction should be vacated and remanded for a new trial.

GROUND TEN: The exclusion of Detective McLaughlin's illegal warrantless arrest section of the testimony of the pretrial evidentiary hearings for review by the petit jury concerning the circumstances of petitioner's confession and taped statement resolved against petitioner at the pretrial hearing should have been included in exhibits for the petit jury as the testimony presented to the petit jury during trial was not complete, depriving petitioner of his fundamental right to defend life and liberty with due process of law under the 14th amendment of the U.S. Constitution, because the issues concerning credibility are for the jury to decide and exclusion of the transcripts undercut the petitioner's right to compulsory process, confrontation clauses, and the right to a fair trial by an impartial jury as secured by the 6th amendment of the U.S. Constitution constituting plain error requiring vacation of the judgment of conviction as this claim is cognizable upon which relief should be granted on this petition.

GROUND ELEVEN: The language of the indictment in Count One failed to establish that twelve jurors concurred in finding the petitioner indictable as a true bill for violation of either subsection (a)(l) or subsection (a)(2) of the murder statute in separate counts, . . . , contrary to Article I, paragraph 10 of the New Jersey Constitution based on the "Disjunctive Indictment" rendering Count One impermissibly and unconstitutionally vague depriving petitioner of his right to equal protection of the laws as secured by the 14th amendment of the US Constitution; further, the trial court lacked jurisdiction to submit Count One to a petit jury pursuant to R. 3:22-2[(]b) as the grand jury did not concur in Count One of the indictment pursuant to R. 3:7-3(b) to include the scienter of each subsection of the statute separately as required by statute and NJ court rules for purposeful, murder, knowing murder as separate counts violating petitioner's rights as secured by R. 3:22-2(a)(b)(d) when trial proceedings went forth to a petit jury of this disjunctive indictment using purposeful "or" knowing murder on Count One disjunctively, wherefore post-conviction relief must be granted due to lack of fundamental fairness in following the state constitution of N.J., the murder statute and court rules specifying grand jury proceedings and relief should be granted vacating the judgment of conviction and order for commitment and dismissing the indictment with prejudice as a new trial would violate the double jeopardy clause of the 5th Amendment of the U.S. Constitution, cum[u]latively depriving petitioner of tie process of law, U.S. Constitution 5th and 14th Amendments.

GROUND TWEL[]VE: The trial court vitiated the verdict of the jury by stating that the jury did not have to agree unanimously as to which form of murder is present if all jurors agree unanimously that one form of murder or the other was committed constituting structural error infecting the jury's deliberations depriving petitioner of his right to defend life and liberty with due process of law, U.S. Constitution 5th and 14th Amendments, depriving him of his right to a fair trial by an impartial jury, U.S. Constitution 6th Amendment and the conviction must be vacated and remanded for a new trial.

GROUND THIRTEEN: The petitioner was deprived of effective assistance of counsel on direct appeal in violation of the 6th Amendment of the U.S. Constitution when appellate counsel failed to litigate the illegal arrest without a warrant contrary to the 4th amendment of the U.S. Constitution issue; exclusion of testimony of pretrial hearings from the trial; the disjunctive indictment issue of Count One; and the trial court's vitiated verdict of the jury and the adjudication on direct appeal was therefore unconstitutional.

GROUND FOURTEEN: Counsel was ineffective in violation of federal constitutional requirements. Counsel compromised the defense by providing the prosecutor with diametrically opposed expert opinions as to the defense of intoxication; and by calling upon Dr. Weiss to testify. As a result of counsel violating the discovery rule; the rules of professional conduct for defense counsel to zealously represent their client within the bounds of law and ethics; counsel was constitutionally ineffective, depriving the petitioner of a defense; and such conduct compromised the integrity of the trial.

GROUND FIFTEEN: Appellate counsel was ineffective in violation of federal constitutional requirements.

GROUND SIXTEEN: Trial counsel was ineffective in violation of federal constitutional requirements and for not lodging appropriate objection to the charge; and appellate counsel for not challenging the appropriate section of the charge.

GROUND SEVENTEEN: Petitioner's convictions must be reversed due to ineffective assistance of counsel in violation of federal constitutional requirements this matter must be remanded because a prima ...


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