The opinion of the court was delivered by: Hillman, District Judge
Petitioner Richard Gibbs, a convicted state prisoner, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a New Jersey state court judgment of conviction that was originally entered against him on or about July 16, 1998. For the reasons stated herein, the Petition will be denied for lack of substantive merit.
The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on February 6, 2001, with respect to petitioner's direct appeal from his judgment of conviction:
The affidavit upon which the search warrant was based was prepared by Detective Sergeant Edwin Woods on August 28, 1996. He related that K.P., the mother of ten year old N.R., reported that the child had been the victim of sexual abuse committed by defendant, her soccer and football coach. We need not recount the lurid details of the acts described by N.R. to her mother except to say that they occurred over a prolonged period of time at defendant's house. Apparently, N.R. was lured into the illicit relationship by reason of her friendship with defendant's daughter, K.G.
The sexual acts were often preceded by viewing naked children on defendant's computer screen.
Woods interviewed N.R., who corroborated her mother's account and described her sexual relationship with defendant in graphic detail. N.R. described how defendant would show sexually suggestive photographs on a computer screen, and would ask N.R. to "rate" them. She also recounted that defendant had taken K.G. and her to a nude beach in Sandy Hook. Woods subsequently corroborated the existence of the nude beach at that site, and through additional investigation, learned that parking passes and admission tickets were issued as a prerequisite to entry on the beach. Woods learned that defendant had a proprietary interest in a child care facility located in Pennsylvania, that he assisted a local dance studio in videotaping a female dance group, and that he was active in the elementary school that N.R. and K.G. attended. In seeking a search warrant, Woods noted his experience and training in the investigation of pedophiles indicated that such criminals "rarely, if ever, disposed of sexually explicit material ... used in the seduction of victims," that they often collect photographs of children, that they generally maintain the names, addresses and telephone numbers of victims, that they sometimes record their sexual experiences by using a computer, and that such information is often coded in order to prevent detection by others.
The search warrant was issued on August 28, 1996. The warrant authorized the search of defendant's house, car and person and the seizure of: pornographic materials, including, but not limited to; video tapes, movie films, pictures and magazines depicting sexual acts; computer and computer equipment capable of generating pictures depicting sexual activity; any material indicating sexual activity with juveniles, writings or pictures which tend to indicate the identity of the victim(s) or other juveniles; photographs to be taken of the interior of the G residence, and a diagram of the interior layout; travel records and receipts correspondence, telephone books and records, and other documents tending to establish involvement with traveling to and/or frequenting areas permitting nudist activities with juveniles.
The warrant was executed on August 29, 1996. During the course of the search of defendant's residence, significant evidence was found. VHS video-cassettes and 8mm video-cassettes were seized. A review of the tapes revealed child pornography, and the defendant actually committing acts of sexual penetration and sexual contact with several child victims. Computer equipment was seized. A review of the computer equipment and the disks revealed 524 computer printouts containing child pornography. Other items seized from the residence included a receipt from the Blue Mountain Ski Resort in the name of N.R., a beach parking permit receipt, five receipts from Jenkinson's South Arcade, a business card for the Anderson Center for Young Children, camera equipment, several rolls of film, assorted paperwork, and ten CD-ROMS. The sole item seized from defendant's vehicle was a Sandy Hook beach parking permit and brochure. The videotape evidence led to the discovery of the identity of seven additional victims, including defendant's daughter. The other victims were playmates of N.R. and K.G.
(Ra11,*fn1 February 6, 2001 Appellate Division Opinion at pp. 2-4).
On February 7, 1997, the Burlington County Grand Jury returned a 35 count indictment charging petitioner Richard A. Gibbs ("Gibbs") with the following offenses: (Counts 1, 4, 8, 9, 10, 20, 21, and 26) second degree sexual assault in violation of N.J.S.A. 2C:14-2b; (Counts 2, 5, 6, 11, 12, 22-24, 28, 29, 31-35) endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a; (Counts 3, 7, 14 and 30) first degree kidnapping in violation of N.J.S.A. 2C:13-1b(1); (Counts 13, 25, 27 ) lewdness in violation of N.J.S.A. 2C:14-4b(1); and (Counts 15-19 ) first degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1). (Ra1, Indictment). Before trial, Gibbs filed a motion to suppress evidence, challenging the affidavit in support of the search warrant. The motion to suppress was denied by the Honorable Donald B. Gaydos, J.S.C., on September 10, 1997. (September 10, 1997 Motion Transcript, 2T).
On January 22, 1998, Gibbs entered a retraxit guilty plea before the Honorable Patricia Richmond LeBon, J.S.C., pursuant to a plea agreement. He pled guilty to one count of first degree aggravated sexual assault, two counts of second degree sexual assault, and six counts of endangering the welfare of a child. At the time of his plea, Gibbs had a pretrial Miranda*fn2 motion pending and a motion to recuse the trial judge.
On July 16, 1998, Judge LeBon sentenced Gibbs to an aggregate term of 45 years in prison with a 15-year parole ineligibility, pursuant to the negotiated plea agreement.
Gibbs filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. Gibbs argued that the search warrant was constitutionally defective and that his sentence was manifestly excessive. In an opinion issued on February 6, 2001, the Appellate Division rejected Gibbs' arguments concerning the search warrant, affirmed the conviction, but remanded the matter for reconsideration of the sentence. (Ra11 at pp. 4-11). The Supreme Court of New Jersey denied certification on April 27, 2001. (Ra12).
On July 24, 2002, Judge LeBon re-imposed the same sentence after placing on the record further amplification of her reasons for the sentence. (Ra13, Ra14). Gibbs appealed the sentence. On July 10, 2003, following oral argument on the excessive sentence oral argument calendar, the Appellate Division affirmed the sentence. (Ra16). The Supreme Court of New Jersey denied certification on January 21, 2004. State v. Gibbs, 178 N.J. 454 (2004). (Ra18).*fn3
On June 24, 2003, Gibbs filed a petition for post-conviction relief ("PCR") and a motion for recusal of Judge LeBon. The recusal motion was denied on February 17, 2006. (7T, Transcript of motion to recuse). Gibbs' PCR petition was denied on June 27, 2006. (Ra26, 8T PCR transcript).
Gibbs appealed from denial of his state PCR petition. The Appellate Division affirmed the trial court's decision in an opinion issued on June 27, 2008. (Ra30). The Supreme Court of New Jersey denied certification on October 6, 2008. State v. Gibbs, 196 N.J. 597 (2008). (Ra26).
Gibbs filed this habeas petition pursuant to 28 U.S.C. § 2254, on or about March 4, 2009. On May 1, 2009, this Court issued an Opinion and Order directing the petitioner to show cause why his petition should not be dismissed as time-barred. (Docket entry nos. 2 and 3). Gibbs responded on May 26, 2009. (Docket entry no. 5). In an Opinion and Order entered on November 13, 2009, this Court found that the petition was timely filed and directed that respondents file an answer to the petition. (Docket entry nos. 6 and 7).
Respondents answered the petition on March 1, 2010, providing the relevant state court record. (Docket entry nos. 14, 15 and 16). Petitioner filed a reply/traverse on April 5, 2010. (Docket entry no. 17).
Gibbs asserts the following claims in his petition for habeas relief:
A. Ineffective assistance of trial counsel during sentencing.
B. Ineffective assistance of counsel in failing to advise petitioner as to the impact of the State's violation of petitioner's Fifth and Sixth Amendment rights when the police denied petitioner access to counsel during custodial interrogation.
C. Plea should be withdrawn because petitioner was denied access to counsel during custodial interrogation.
D. Prosecutorial misconduct and vindictive prosecution in violation of petitioner's right to due process in violation of his First, Fifth and Sixth Amendment rights.
The State essentially contends that the petition should be denied for lack of substantive merit or because it fails to raise claims of federal constitutional dimension.
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. 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 Dep't, 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). Generally, "[i]f a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable," Engle v. Isaac, 456 U.S. 107, 120 n. 19 (1982), and "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
In reviewing a § 2254 petition, a federal court is not permitted to address a federal constitutional claim pertinent to the facts of the case unless the petitioner asserts the claim as a ground for relief. That is, "errors 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). In addition, "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)(citations and internal quotation marks omitted); see also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).
In addition to the case law, the Antiterrorism and Effective Death Penalty Act ("AEDPA") limits a federal court's authority to grant habeas relief when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Where a federal claim was "adjudicated on the merits" in state court proceedings, the writ must be denied unless adjudication of the claim either involved an unreasonable application of clearly established federal law, or was based on unreasonable determination of the facts in light of the evidence before the state court. See 28 U.S.C. § 2254(d).
The unreasonableness standards of § 2254(d) govern only claims that were "adjudicated on the merits in State Court proceedings." 28 U.S.C. § 2254(d). "An 'adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004)(citations and internal quotation marks omitted), reversed on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005); see also Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006). A state court may render an adjudication on the merits of a federal claim by rejecting the claim without any discussion whatsoever. See Rompilla, 355 F.3d at 247. See also Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002), cert. denied, 538 U.S. 1000 (2003)(citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)(even a summary adjudication by the state court on the merits of a claim is entitled to § 2254(d) deference)). On the other hand, "[i]f the petitioner's legal claims were presented but not addressed by the state courts, 28 U.S.C. § 2254(d) does not apply." Rolan, 445 F.3d at 678. See also Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000)(with respect to claims presented to, but unadjudicated by, the state courts, however, a federal court may exercise pre-AEDPA independent judgment), cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL 1523144, *6 n.4 (D.N.J. 2000).
If the New Jersey courts adjudicated the petitioner's claims on the merits, this Court may not grant relief unless either § 2254(d)(1) or § 2254(d)(2) is satisfied. See 28 U.S.C. § 2254(d). Accordingly, this Court may not grant habeas relief to the petitioner unless the adjudication of a federal claim by the New Jersey courts involved an unreasonable application of clearly established Supreme Court law, see 28 U.S.C. § 2254(d)(1), or was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding and petitioner is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a), (d)(2).
When the grounds raised in the petition are governed by 28 U.S.C. § 2254(d)(1), the court must begin its analysis by determining the relevant law clearly established by the Supreme Court. 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 v. Taylor, 529 U.S. 362, 412 (2000). 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).
A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court "contradicts the governing law set forth in [the Supreme 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, 529 U.S. at 405-06. Under the "'unreasonable application' clause of § 2254(d)(1), 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; an application may be incorrect, but still not unreasonable.*fn4 See id. at 409-10. "The unreasonable application test is an objective one-a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Thomas v. Varner, 428 F.3d 491, 497 (3d Cir. 2005) (quoting Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005)).
Finally, federal courts are required to apply a "presumption of correctness to factual determinations made by the state court." Id.; see also 28 U.S.C. § 2254(e)(1). The Third Circuit has ruled that this presumption of correctness based upon state court factual findings can only be overcome by clear and convincing evidence. See Duncan, 256 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)). Consequently, a habeas petitioner "must clear a high hurdle before a federal ...