The opinion of the court was delivered by: Linares, District Judge
Petitioner Paul Reid ("Petitioner"), a prisoner currently confined at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Greg Bartkowski and Paula Dow. For the reasons stated below, the Petition will be denied.
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the appropriate deference, see 28 U.S.C. § 2254(e)(1)*fn1 , will simply reproduce the recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division:
Defendant and one of his co-defendants, Tariq Maqbool, were involved in the sale of cellular telephones and prepaid calling cards at a discount. Jawad "Jay" Mir was the roommate of Amit "Andy" Vishal, who was involved in the same business.
With the assistance of Mir and Vishal, defendant and Maqbool arranged for the sale of a large number of prepaid calling cards and cellular telephones, purportedly at a steep discount, to Joong "John" Ahn and Mun "Mike" Ahn. The buyers arrived at the location where the sale was to take place, carrying with them a substantial amount of cash that they had brought in order to consummate the deal. Because they had been involved in bringing the parties together, Mir and Vishal were also there to help finalize the transaction. However, defendant, Maqbool and two other co-defendants, Zaid Tariq and Steven Reid, overpowered the buyers, and also overpowered Mir and Vishal.
The four co-defendants bound the four others with duct tape and took the money that the buyers had brought with them for the purchase. Defendant and the three co-defendants then forced Mir and Vishal to assist them in taking Joong Ahn and Mun Ahn from the location where the transaction was to have taken place and to drive them to a remote location. Mir and Vishal were later left in a motel room and were eventually permitted to leave. The two Ahns were killed, and their bodies were left in a vehicle that was set afire in a bus company's parking lot. The medical examiner determined that one died from strangulation and one from blunt trauma to the brain and smoke inhalation.
State v. Reid, 2005 WL 3747511, at * 1 (N.J. Super. Ct. App. Div. February 09, 2006). Following a jury trial, Petitioner was found guilty of two counts of felony murder, N.J.S.A. 2C:11-3a(3), one count of first-degree kidnapping, N.J.S.A. 2C:13-1b, and one count of second-degree armed robbery, N.J.S.A. 2C:15-1. Id. The jury acquitted him of two counts of murder, N.J.S.A. 2C:11-3a(1); 3a(2), but found him guilty of two lesser included charges of aggravated manslaughter, N.J.S.A. 2C:11-4a. Id. The jury acquitted him of two additional counts of first-degree kidnapping, but found him guilty of two lesser included charges of third-degree criminal restraint, N.J.S.A. 2C:13-2a. Id. The jury also acquitted Petitioner of an additional count of aggravated assault, N.J.S.A. 2C:12-1b(4), and acquitted him of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and conspiracy to commit robbery, N.J.S.A. 2C:5-2. Id.
Petitioner was sentenced to consecutive thirty-year terms of imprisonment on each of the felony murder counts, to be served without parole, and to two concurrent five-year terms of imprisonment for the two criminal restraint counts, with all other counts being merged into the felony murder counts for sentencing purposes. Id.
Petitioner filed an appeal and on February 9, 2006, the Appellate Division upheld his conviction and sentence. Id. Thereafter, the New Jersey Supreme Court denied certification. State v. Reid, 902 A.2d 1237 (N.J. July 19, 2006). On November 20, 2006, Petitioner filed a petition for post-conviction relief ("PCR"). (Resp't's Br., Ex. 16, Pet'r's Pro Se PCR Mem.) On December 14, 2007, the state court entered an opinion and order denying PCR. (Id. at Exs. 66-67.) Petitioner appealed and on July 9, 2010, the Appellate Division affirmed the decision of the lower court. State v. Reid, 2010 WL 4054277 (N.J. Super. Ct. App. Div. July 09, 2010). Petitioner filed a petition for certification which was denied by the New Jersey Supreme Court on January 7, 2011. State v. Reid, 12 A.3d 209 (N.J. January 07, 2011).
Thereafter, Petitioner filed the instant petition with this Court. (Docket Entry No. 1.) He raises the following grounds:
1. The state court's ruling that trial counsel's dual representation was not a conflict of interest, and counsel was not ineffective was contrary to clearly established federal law and United States Supreme Court precedence under ineffective assistance of counsel violated Petitioner's rights under U.S. Const. Amend Sixth and Fourteenth.
2. Trial counsel's failure to object and move to have the juror who claims that he was threaten [sic] by Petitioner's brother along with the juror whom he shared this information with dismissed and replaced, was ineffective assistance of counsel. Counsel's actions were contrary to the United States Supreme Court ruling in Strickland v. Washington and clearly established federal law.
3. The state court's ruling that the state did not violate a rule of law adopted in State v. A.G.D., 178 N.J. 56 (2003), grounded in the United States Constitution, was contrary to clearly established federal law, and an unreasonable application thereof, as well as an unreasonable determination in light of the evidence presented violating Petitioner's Fifth and Sixth Amendment [sic] of the United States Constitution.
4. Petitioner contends that his conviction should be vacated as the trial court's instruction to the jury on the theory of accomplice liability did not enunciate the shared intent requirement, nor did the trial court adequately repeat the charge of accomplice liability in the content of the lesser included offenses. Trial counsel's failure to object to trial court's erroneous instructions on accomplice liability was ineffective assistance of counsel, and rendered Petitioner's trial fundamentally unfair in violation of his right to a fair trial and due process under the United States Constitution Amendments Fifth, Sixth and Fourteenth.
5. Trial and appellate counsels failure to protect Petitioner's constitutional rights to due process of law and a fair trial when they failed to challenge and/or argue that Petitioner was illegally arrested and that the subsequent alleged consent to search was fruits of said illegal arrest was ineffective assistance of counsel, contrary to clearly established federal law, or an unreasonable application of federal law, or an unreasonable application of federal law and so is not procedurally barred, therefore a writ should issue.
6. The conviction was obtained and/or sentence imposed in violation of the Fifth and Fourteenth Amendment to the Constitution of the United States, the right to a fair trial free from prosecutorial misconduct. A.) The record overwhelmingly establishes that the state regularly vouched for the credibility of its witnesses, and stated numerous time [sic] that Petitioner was a liar. Using perjured testimony to secure Petitioner's convictions.
B.) Detective Diaz's testimony before the grand jury, and the petit jury was false. C.) The false testimony renders Petitioner's trial fundamentally unfair requiring that a new trial be granted. D.) The need for an evidentiary hearing is warranted here.
7. The state court's ruling that appellate counsel's failure to raise any of the issues mounted herein on direct appeal, and to adequately consult with Petitioner prior to submitting Petitioner's brief was not ineffective assistance of counsel, was contrary to the United States Supreme Court ruling in Strickland v. Washington and clearly established federal law. Therefore, the writ should issue. (B). PCR counsel was ineffective for failing to secure an affidavit or certification to support a deposition taken from a witness by a state investigator from the public defender's office.
(Pet., Docket Entry No. 1.) Respondents filed an answer, arguing that Petitioner is not entitled to habeas relief. (Docket Entry No. 10.) Petitioner did not submit a reply.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 now provides, in pertinent part:
(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. ...
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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 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.
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." Williams v. Taylor, 529 U.S. 362, 405--06 (2000). 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, 312 F.3d 597, 606 (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); Purnell v. Hendricks, 2000 WL 1523144, *6 n. 4 (D.N.J. 2000). 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." Appel, 250 F.3d at 210.
The deference required by § 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 not contradict relevant Supreme Court precedent." Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v. Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19 (2002)).
1. Ineffective Assistance of Counsel
The Sixth Amendment, applicable to states through the Due Process Clause of the Fourteenth Amendment, guarantees the accused the "right ... to have the Assistance of Counsel for his defense." U.S. Const. Amend. VI. The right to counsel is the right to the effective assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984).
A claim that counsel's assistance was so defective as to require reversal of a conviction has two components, both of which must be satisfied. See Strickland, 466 U.S. at 687. First, the defendant must "show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. "[C]counsel should be 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)(citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). "To overcome that presumption, a defendant must show that counsel failed to act 'reasonabl[y] considering all the circumstances.'" Id. (citing Strickland, 466 U.S. at 688).
Further, a "convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The court must then determine whether, in light of all the circumstances at the time, the identified errors were so serious that they were outside the wide range of professionally competent assistance. Id.
To satisfy the prejudice prong, the defendant must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding'...Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, 131 S.Ct. 770, 788 (2011)(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). As the Supreme Court explained, In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
Strickland, 466 U.S. at 695-96.
The Supreme Court instructs that a court need not address both components of an ineffective assistance claim "if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient ...