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Ricky Miller v. Larry Glover

March 14, 2012

RICKY MILLER, PETITIONER,
v.
LARRY GLOVER, ET AL., RESPONDENTS.



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

OPINION

This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner Ricky Miller, challenging his 2006 New Jersey state court conviction. For the reasons stated below, this Court will deny the habeas petition for lack of merit.

I. PROCEDURAL BACKGROUND

Petitioner, Ricky Miller ("Miller"), was arrested on November 24, 2004, by the New Jersey State Police, on charges of first degree robbery, second degree aggravated assault, third degree possession of a weapon for an unlawful purpose, fourth degree unlawful possession of a weapon, and third degree theft. These charges were the result of an armed robbery that occurred on November 22, 2004 at Smitty's Liquor Store in Knowlton Township, New Jersey.

On February 17, 2005, an Early Disposition Conference ("EDP") was held at which the State offered that Miller plead guilty to one count of first degree robbery and be exposed to a twelve (12) year sentence at the New Jersey State Prison. The sentence also would include a mandatory minimum period of confinement equal to 85% of the maximum sentence, pursuant to New Jersey's No Early Release Act ("NERA"). Miller rejected the plea offer and the matter was then held for Grand Jury.

On March 2, 2005, the Warren County Grand Jury returned an indictment on all the above charges except the theft charge. An arraignment conference was held on April 3, 2005. On or about April 20, 2005, petitioner's application to represent himself was heard, and the state court granted the application, allowing Miller to represent himself with the assistance of stand-by counsel to be appointed by the Public Defender's Office.

Numerous pre-trial motions were filed and heard from April 26, 2005 through November 16, 2005, including Miller's motion to suppress, which was denied on November 16, 2005.

On November 18, 2005, a pre-trial conference was held. The pre-trial memorandum indicated that a Wade hearing and a motion to dismiss would be heard immediately before trial. Trial was scheduled to commence on November 29, 2005. Jury selection commenced on November 29, 2005. The Wade hearing was conducted on December 5, 2005, after which the trial court ruled that the in-court and out-of-court identification of Miller by the victim could be used at trial. The trial started on December 6, 2005, with opening statements.

On December 20, 2005, the jury returned a verdict of guilty against Miller on all counts. Miller filed a motion for a new trial which was denied on January 23, 2006, after a hearing was held on the motion on January 20, 2006. On April 3, 2006, the trial court sentenced Miller to an aggregate term of twenty (20) years in prison with an 85% parole disqualifier pursuant to NERA.

Miller filed a direct appeal from his conviction and sentence before the State of New Jersey Appellate Division. On February 5, 2008, the Appellate Division affirmed the conviction, but remanded the matter for an amendment of the judgment of conviction to reflect that the conviction for third degree possession of a weapon for an unlawful purpose should have merged for sentencing purposes with the conviction for first degree robbery. Miller filed a petition for certification before the Supreme Court of New Jersey. The New Jersey Supreme Court denied certification on April 2, 2009.

Miller filed his initial habeas petition pursuant to 28 U.S.C. § 2254, on or about June 2, 2009.*fn1 Miller filed a motion to amend his petition on February 8, 2010, which included the amended petition with supporting declaration. (Docket entry no. 8). This Court granted the motion to amend in an Opinion and Order entered on September 29, 2010. (Docket entry nos. 13 and 14). The amended petition was docketed on October 5, 2010 (Docket entry no. 15), but it was the same petition that had been submitted by Miller when he filed his motion to amend the petition on February 8, 2010.*fn2

The respondents filed an answer to the habeas petition on or about February 19, 2010, with a limited record. (Docket entry no. 10). On October 5, 2010, Miller filed a motion seeking to have the respondents certify and file all transcripts from the state court record. (Docket entry no. 16). This Court granted Miller's motion in an Opinion and Order entered on May 31, 2011. (Docket entry nos. 18 and 19). On June 3, 2011, respondents filed the relevant state court transcripts. (Docket entry no. 20). Miller filed his traverse/reply to respondents' answer on or about July 5, 2011.*fn3 (Docket entry no. 22).

II. FACTUAL BACKGROUND

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 factual recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on February 5, 2008, with respect to petitioner's direct appeal from his judgment of conviction and sentence:

Defendant was charged with having committed the following offenses regarding the allegation that he robbed a liquor store in Knowlton Township and assaulted the store's clerk, Rajeshbhai Patel, on November 22, 2004: first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).

Defendant sought to represent himself at trial. Following a hearing, the trial judge found that defendant knowingly and voluntarily waived his right to counsel and that he could proceed pro se; the judge, however, also appointed a standby counsel.

The trial occurred over the course of six days. Evidence that the jury was entitled to credit revealed that at approximately 8:00 a.m. on November 22, 2004, Patel was working alone at his cousin's liquor store in Knowlton when defendant entered and walked to a beer cooler. No one else was then in the store. Although Patel did not then know defendant's name, he recognized defendant from his appearance in the store four or five times within the prior two weeks, and on another occasion approximately two months earlier.

Defendant removed a malt liquor from the cooler and placed it on the counter in front of Patel. He then walked to the deli counter and asked Patel to get him a quarter pound of potato salad. Patel advised defendant that the total cost was about four dollars. Defendant said he did not have enough money; Patel responded that defendant could pay what he had and bring the balance the next time. When Patel returned from the deli counter with the potato salad, defendant reached out and cut Patel on the left side of his face with a box cutter. Defendant then placed the box cutter against Patel's neck and made a "slight cut" there as well.

While continuing to hold the box cutter against Patel's neck, defendant pulled him toward the cash register and demanded its contents. Patel complied and defendant next demanded all the money in the nearby lottery-game register. Again Patel followed defendant's instruction. Patel later testified that he was "scared" and felt "the pain there on my neck" where defendant held the box cutter. He also testified that $820 was stolen from the liquor store.

After obtaining the cash from both registers, defendant released Patel and told him not to try to follow him as he "rushed through the door." Patel did not attempt to follow, but instead tried to stop the flow of blood "oozing" from his face and neck.

Soon thereafter, a customer approached the store and saw inside that Patel was bleeding. The customer approached a state trooper who was conducting radar speed surveillance on the highway about 200 to 300 yards away. The trooper notified his dispatcher and went to the store, where he found Patel holding a towel over cuts on his face and neck. Later, Patel gave a description of his assailant, telling the police that the man had a scar or some abnormality involving his nose. Following this, Patel was transported to a hospital, where the cut on his face was closed with sixteen stitches and the cut on his neck was closed with four stitches. He was released from the hospital the same day.

Detective Howard Brown of the State Police led the ensuing investigation. He contacted the Pennsylvania State Police (PSP) concerning a report that a suspect may have crossed a nearby bridge into Pennsylvania. This lead proved insubstantial, but the PSP advised Detective Brown that similar crimes had been committed in Pennsylvania during the previous three days by a man with a "cut scar" on his face, who was armed with a box cutter and driving a Volvo. The PSP sent Detective Brown a composite depiction of the suspect in the Pennsylvania crimes, which Brown later showed to Patel. Patel noticed similarities but indicated that the scar on his assailant's nose and face was different.

The next day, November 23, 2004, the PSP received an informant's tip which indicated that defendant was the person who committed the Pennsylvania robberies. The PSP prepared a six-man photographic array that included defendant's photograph. The State Police also learned that at least one of the Pennsylvania crime victims positively identified defendant as the culprit. In addition, the PSP gathered information that indicated defendant had used his father's Volvo during the robberies. This information was relayed to Detective Brown.

Later that same day, Detective Brown had another trooper show the six-man photographic array to Patel, who immediately selected defendant's photograph as depicting the robber of the liquor store. At trial, Patel positively identified defendant as the man who assaulted him and robbed the liquor store.

With Patel's positive identification, the police began searching for defendant and the Volvo he was believed to be using. The State Police learned that defendant was employed by a tree-trimming company in the Rockaway area and may have been staying in the Mountainside Inn in Rockaway. They determined at the Mountainside Inn that defendant had a room there but had not been present for a week.

On November 24, 2004, a police officer in Washington Township observed defendant "fall[] off a lumber truck" and then "jump on another moving vehicle." When defendant failed to comply with the officer's directions, he was arrested for disorderly conduct.

The arresting officer testified that defendant smelled of alcohol and was "hard to understand ... because he was rambling." The Washington Township police subsequently learned that there were "active warrants" outstanding for defendant's arrest. That same day, the Washington Township police contacted Detective Brown to advise that they had arrested defendant. Brown was also advised that defendant had been in the vicinity of the Broadway Motel on Route 57 when he boarded the lumber truck from which he fell prior to his arrest.

Armed with this information, Detective Brown and other investigators went to the Broadway Motel where they found a Volvo, which matched the description and had the same license plate number as the Volvo that defendant was reported to be operating in the area. Detective Brown then checked with the motel staff and learned that a man fitting defendant's physical description had rented a room there in the name of defendant's father. Brown then was led by a motel staff member to this rented room, which they found "in disarray [as if] a possible fight had gone on in the room." The officers did a quick sweep to make sure no injured person was present in the room. Detective Brown directed another officer to guard the room so that it would not be disturbed pending issuance of a search warrant. The officers also looked through the windows of the Volvo, and observed that it was filled with clothes. Brown ordered that the vehicle be impounded and taken to a State Police compound where it could be safeguarded pending the issuance of a search warrant. He took this action because he "didn't know if anybody else had the key to the vehicle" and was concerned that someone could come and drive it away or tamper with or remove its contents.

A superior court judge later issued a search warrant for the Volvo. The ensuing search uncovered a utility knife with red stains on its blade and handle that tested positive for human blood. At trial, the State presented expert testimony drawn from DNA analysis, which revealed that the blood that stained the box cutter's blade and handle came from Patel. At the trial's conclusion, defendant was found guilty as charged in the indictment. (Ra*fn4 288-294, February 5, 2008 Appellate Division Opinion, at pp. 1-7).

III. STANDARD OF REVIEW

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Thus, because Miller is proceeding as a pro se litigant in this matter, the Court will accord his habeas petition the liberal construction intended for pro se petitioners.

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 Adamson 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.*fn5 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 court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

IV. ANALYSIS

Miller raises five grounds for relief in his habeas petition, as follows:

A. The admission of other crime evidence after the State made a stipulation that other crime evidence would not be offered denied Petitioner of a fair trial.

B. The State Prosecutor violated Petitioner's right to a fair trial by vouching for the credibility of the victim's eyewitness identification.

C. The trial court erred in denying Petitioner's motion to suppress evidence seized from the automobile and motel room.

D. The State violated Petitioner's Sixth Amendment right to a speedy trial and his Fourteenth Amendment right to due process.

E. The victim was shown an unduly suggestive photograph, tainting the identification procedure and denying Petitioner his right to a fair trial.

The State responds that Miller's claims should be denied for lack of merit.

A. Admission of Other Crime Evidence Miller's first ground for relief asserts that the admission of other-crimes evidence at trial deprived him of his constitutional right to a fair trial. Miller alleges that the State had introduced other-crimes evidence at trial after stipulating that other-crimes evidence would not be offered. The other-crimes evidence pertained to his arrest in Washington Township on a disorderly conduct charge. Miller claims that the State's conduct deprived him of a fair trial and violated his Fourteenth Amendment right to due process.

Miller raised this claim on direct appeal in state court. The Appellate Division addressed Miller's claim in a ...


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