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Downer v. Warren

United States District Court, Third Circuit

May 13, 2013

CHARLES WARREN et al., Respondents.


REN§E MARIE BUMB, District Judge.

Petitioner Stephon Downer ("Petitioner") filed a petition ("Petition") seeking a writ of habeas corpus under 28 U.S.C. § 2254(a), challenging a judgment of conviction entered by the Superior Court of New Jersey. See Docket Entry No. 1.[1] The Court advised Petitioner of his rights under Mason v. Meyers , 208 F.3d 414 (3d Cir. 2000), and directed Respondents to answer. See Docket Entries Nos. 3 and 5. Petitioner moved for an evidentiary hearing seeking to enlarge the record presented to, and ruled upon, by the state courts. See Docket Entry No. 12. Pursuant to Cullen v. Pinholster , 131 S.Ct. 1388 (2011), the Court denied that motion. See Docket Entry No. 17. Respondents answered the Petition and filed the underlying record, that exceeded 1, 100 pages, and Petitioner traversed. See Docket Entries Nos. 18 and 22.

For the reasons detailed below, the Petition will be denied. No certificate of appealability will issue.


Addressing Petitioner's direct appellate challenges, the Superior Court of New Jersey, Appellate Division ("Appellate Division"), summarized the events underlying Petitioner's conviction as follows:

On the night of March 6, 1997, Carlos Ruiz, Edelmiro Robles and two other individuals went to Westfield Acres, a housing project in Camden, to purchase marijuana. Ruiz had $10 on his person for the intended purchase. Ruiz and Robles had purchased marijuana there three days earlier. Ruiz and Robles got out of the car while the two companions waited inside the car. Once they got out of the car, Ruiz and Robles were encountered by an individual, later identified as Petitioner, and another individual who directed Ruiz and Robles to proceed to a particular building. When Ruiz and Robles approached the building, Petitioner told Robles to stay outside and told Ruiz to enter the building. Ruiz and Robles complied. Petitioner then placed a handgun to Robles' head and began going through his pockets to rob him, but Robles had nothing of value. During this encounter, Robles observed Petitioner face-to-face and saw him clearly. Moreover, Robles had also seen Petitioner at this location when he was there three days earlier. Ruiz meanwhile had gone to the second floor inside the building. Petitioner left Robles and went up the stairs. Robles, who remained downstairs heard Ruiz utter an exclamation of surprise. He then heard a gunshot. Robles ran from the building to the two friends waiting in the car. As he was leaving the scene, he saw Petitioner come out of the building holding the handgun and looking directly at Robles. Robles and the others drove to the police station reporting their belief that Ruiz had been shot. They returned to the building with the police, who found Ruiz lying dead in the stairwell, having been shot in the back.

Docket Entry No. 18-8, at 3-4.

On the basis of these events, Petitioner was charged with murder, felony-murder, armed robbery, firearm offenses, as well as lesser-included offenses of these crimes. See id. at 2. The State's case against him relied on statements made by a multitude of witnesses, see Docket Entries Nos. 18-42 to 18-44, but was mainly based upon the testimony and identifications provided by Robles as well as statements given by two other individuals, Mark Trainor ("Trainor") and Francis Campbell ("Campbell"). Trainor and Campbell briefly shared a Camden County Correctional Facility ("CCCF") prison cell with Petitioner in February 1999.[2] Trainor and Campbell testified that the three shared their life stories, and Petitioner told them about the circumstances of his arrest and the Westfield Acres incident when, being "high on wet, '" he "busted loose" and shot someone. Id.[3]

Petitioner pled not guilty, maintaining that he had nothing to do with either Ruiz's death or Robles' robbery. See, generally, Docket Entry No. 18-8, at 2-12. Initially, he filed a notice of alibi. The notice, which was filed by his original counsel - whose actions are not challenged in this matter - asserted that on the date of the incident Petitioner had "injured his ankle" and called his girlfriend, Tawana Williams. Williams then picked Petitioner up and had him driven to her residence where Petitioner "stayed for the remainder of the evening and overnight." Docket Entry No. 1-2, at 7. However, by the time of his trial, Petitioner had elected not to testify or call any witnesses. See Docket Entry No. 18-43, at 85-86 (Petitioner's statements to trial judge that, despite the filing of the notice of alibi, Petitioner chose neither to testify nor call any witnesses in his defense).

The jury acquitted Petitioner of murder but convicted him of reckless manslaughter, felony-murder, robbery and firearm offenses. See Docket Entry No. 18-8, at 1. He was sentenced to "life imprisonment plus fifteen years, with a thirty-five-year parole disqualifier" on the manslaughter and felony-murder charges and a consecutive term of "fifteen years imprisonment, with a five-year parole disqualifier" on the charges of robbery. State v. Downer, 2011 WL 941090, at *1 ( N.J.Super. Ct. A.D. Mar. 21, 2011).

Petitioner challenged both his conviction and sentence on direct appeal, which resulted in a remand as to his sentence but an affirmance of the conviction. See id. at *2. The Supreme Court of New Jersey denied certification. See State v. Downer, 178 N.J. 251 (2003).

Petitioner thereafter filed a series of counseled and pro se post-conviction relief ("PCR") applications asserting a multitude of claims. The Superior Court of New Jersey, Law Division ("Law Division"), conducted many days of evidentiary hearings and found the challenges to be without merit. See Downer, 2011 WL 941090, at *2. His appeal was dismissed by the Appellate Division. See id. at *6. After his application for certification was denied by the New Jersey Supreme Court, see State v. Downer, 208 N.J. 338 (2011), this Petition followed.


The Petition does not list Petitioner's instant challenges; rather, it refers the Court's attention to the document Petitioner labeled "Addendum II." See Docket Entry No. 1, at 3. The "Addendum II" submission states nine grounds, each of which consists of many sub-claims.[4] See id. at 13-32.

Ground I: Trial counsel was ineffective for his failure to contact, interview or call Douglas Scott in violation of 6th Amendment compulsory proces[s] for obtaining witnesses in his favor.
Ground II: Counsel was ineffective for failing to contact, interview and present as witness Deshaun Milton, in violation of 6th Amendment compulsory process for obtaining witnesses in his favor.
Ground III: Trial counsel was ineffective in the cross examination of State witnesses, Trainor and Cam[p]bell, for repeatedly eliciting prejudicial testimony and for the failure to impeach their inconsistent testimonies.
Ground IV: Trial counsel was ineffective for his failure to challenge prosecutor's references to [Petitioner's] unrelated arrest as inadmissible and for his failure to impeach State witness Cam[p]bell on his ability to have read about [Petitioner's] unrelated arrest in the newspaper.
Ground V: Trial counsel was ineffective for his failure to consult a fingerprint expert and revealing ignorance of the subject.
Ground VI: Trial counsel was ineffective for failing to impeach the credibility of State witness Detective Kellegan regarding his grand jury testimony, and the inaccuracy of the stories he affirmed as true.
Ground VII: Trial counsel was ineffective [] for his failure to prepare for defense and familiarize himself with [Petitioner's] case and relevant facts.
Ground VIII: The State engaged in prosecution misconduct when it introduced other crimes evidence in violation of [Rule] 404 (b) and while knowing that portions were false, and in failing to correct state witness false testimony that he could not have read about [Petitioner's] unrelated arrest in the newspaper, thus rendering [Petitioner's] trial unfair in violation of [the] 14th [A]mend[ment].
Ground IX: The cumulative effects of trial errors and trial counsel's ineffective assistance denied [Petitioner] the right to a fair trial and due process....

Docket Entry No. 1-1, at 2-3; accord Docket Entry No. 1, at 13-32.


The general standard of federal habeas review is long-established. It sets forth a narrowly-tailored test. See Cullen v. Pinholster , 131 S.Ct. 1388, 1398 (2011) ("As amended by AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner"). Thus, Section 2254(a) permits a federal court to entertain only claims alleging that a person is held in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The AEDPA further limits a federal court's authority to grant habeas relief by providing that, when a state court has adjudicated a petitioner's federal claim on the merits, a district court "has no authority to issue the writ of habeas corpus unless the [state court's] decision was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States, ' or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Parker v. Matthews , 132 S.Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)).

Consequently, the starting point of federal habeas review under a § 2254(d)(1) analysis is to determine the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado , 541 U.S. 652, 660 (2004). A decision is "contrary to" a Supreme Court holding, within the meaning of 28 U.S.C. § 2254(d)(1), if: (a) the state court outright "contradicts the governing law set forth in [the Supreme Court] cases"; or (b) the state court "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." Williams, 529 U.S. at 413. Notably, under § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter , 131 S.Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at 410). Correspondingly, the standard posed by federal habeas review "is difficult to meet, [since it is a] highly deferential standard for evaluating state-court rulings, [and that standard] demands that state-court decisions be given the benefit of the doubt." Cullen , 131 S.Ct. at 1398 (citations and internal quotation marks omitted).

Much of Respondents' answer and Petitioner's traverse are dedicated to the issue of procedural default. Respondents maintain that Petitioner "has procedurally defaulted on [his] Grounds Three, Four, Five, Six, Eight and Nine, as he failed to properly present these issues before the state court as part of his direct appeal and consequently, is now barred from seeking relief based upon state procedural rules." Docket Entry No. 18, at 20.

Respondents' argue the above challenges should be deemed procedurally defaulted because they: (a) were raised during Petitioner's PCR proceedings could have been brought on direct appeal; and/or (b) the state courts dismissed some of these claims without analysis, merely stating that Petitioner's challenges warranted no discussion in a written opinion. See id. at 21-26. Respondents' argument, however, is misplaced. A habeas petitioner must exhaust state remedies by presenting his federal constitutional claims to each level of the state courts empowered to hear those claims either on direct appeal or in post-conviction proceedings. See Ross v. Petsock , 868 F.2d 639 (3d Cir. 1989); see also O'Sullivan v. Boerckel , 526 U.S. 838 (1999). This means that the claims heard by the state courts must be the "substantial equivalent" of the claims asserted in the federal habeas petition. See Picard v. Connor , 404 U.S. 270, 275 (1971). Where any available procedure remains, even only theoretically, the petitioner cannot be deemed to have exhausted the available state remedies. See 28 U.S.C. § 2254C. Thus, district courts are obligated to dismiss habeas petitions containing unexhausted claims, even if it is not likely that a state court will consider the claims on the merits. See Rose v. Lundy , 455 U.S. 509, 522 (1982); Banks v. Horn , 126 F.3d 206, 212-14 (3d Cir. 1997); see also Toulson v. Beyer , 987 F.2d 984, 989 (3d Cir. 1993).

However, a different analysis applies to those petitions that consist of (or include within themselves) unexhausted challenges with regard to which the petitioner cannot obtain state court review. Section 2254(b)(1)(B)(i) excuses exhaustion where there is "an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i); see also Duckworth v. Serrano , 454 U.S. 1, 3 (1981) (per curiam). Thus, a habeas petition containing claims that are unexhausted but procedurally barred cannot be dismissed as unexhausted: because the doctrine of procedural default excuses failure to exhaust. See Toulson , 987 F.2d at 987; accord Coleman v. Thompson , 501 U.S. 722, 730-32 & n.1 (1991); Harris v. Reed , 489 U.S. 255 (1989). Still, while procedural default excuses exhaustion, it is a double-edged sword, i.e., the doctrine was not created as an incentive for state litigants to circumvent state court review. Even when petitioner's failure to comply with a state procedural rule has actually prevented the state courts from reaching the merits of his federal claims, federal habeas review of those claims is ordinarily barred, see Ylst v. Nunnemaker , 501 U.S. 797, 801 (1991), "unless the habeas petitioner can show cause' for the default and prejudice' attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris , 489 U.S. at 262 (citations and internal quotation marks omitted); accord Coleman , 501 U.S. at 750; Cabrera v. Barbo , 175 F.3d 307, 312-14 (3d Cir. 1999); McCandless v. Vaughn , 172 F.3d 255, 260 (3d Cir. 1999). It follows that, once the state courts addressed a certain claim on the merits, a "substantial equivalent" of that claim cannot be deemed procedurally defaulted for the purposes of a Section 2254 action, regardless of whether such state review on merits was performed on direct appeal or by means of a PCR proceeding. Accord Coleman , 501 U.S. at 732.

Moreover, a state court may render an adjudication on the merits of a federal claim by rejecting the claim without any discussion whatsoever.[5] Here, not a single claim contained in Petitioner's Grounds, if raised before the state courts, was dismissed by the state courts with the statement indicating refusal to review that claim on merits. Thus, Respondents' procedural bar argument is facially misplaced. While some claims of Petitioner's Grounds were never raised before the state courts, these claims cannot be deemed procedurally barred: being left unexhausted, they are subject to review under the Court's § 2254(b)(2) mandate.[6]


One of Petitioner's nine Grounds challenges matters unrelated to the assistance rendered by his trial counsel. His remaining eight Grounds address various aspects of his counsel's performance and, in addition, challenge the cumulative effect of his counsel's alleged errors.


Petitioner's Ground Eight focuses on the statements made by his prosecutor. Some claims within Petitioner's Ground Eight were duly presented to the state courts when Petitioner argued that certain parts of the prosecutor's summation exceeded permissible boundaries of vigorous litigation. See Docket Entry No. 18-6, at 10-11. His other Ground Eight claims are unexhausted because he now raises new challenges, claiming that the prosecutor improperly questioned and elicited witness testimony as to how Petitioner was arrested. See Docket Entry No. 1-1, at 41-42. This Court will examine the exhausted part of Petitioner's Ground Eight to determine whether the state courts' ruling was not an unreasonable application of Supreme Court precedent, while the unexhausted remainder of Petitioner's Ground Eight will be examined under this Court's § 2254(b)(2) mandate.

1. Governing Legal Principles

In Darden v. Wainwright , 477 U.S. 168, 181(1986), the Supreme Court articulated the test applicable to the claims asserting prosecutorial misconduct. The Court held that "the relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 180 (quoting Donnelly v. DeChristoforo , 416 U.S. 637 (1974)). This analysis applies to prosecutorial opening statements and summations as well as to the questions asked by prosecutors. See Marshall v. Hendricks , 307 F.3d 36, 73 (3d Cir. 2002) (observing that, where a petitioner "contends that the prosecutor deliberately led' [a witness] to the improper disclosure, and that... the prosecutor's entire [line of questioning of that witness] was aimed at these topics, " habeas relief was not warranted unless the record unambiguously showed that the improper disclosure was instigated by the prosecutor rather than volunteered by the witness); see also Schrader v. Fowler , 852 F.2d 569 (6th Cir. Tenn. 1988) (quoting Goins v. McKeen , 605 F.2d 947 (6th Cir. 1979), for the proposition that a petitioner claiming he was denied a fair trial because the jury was, in the petitioner's opinion, left insufficiently "indifferent" as a result of prosecutorial comments, had to "prove bias not [by] speculation but [by] demonstrable reality").[7]

The quantum or weight of the evidence is crucial to determining whether the prosecutor's statements before the jury were so prejudicial as to result in a denial of due process. See Darden , 477 U.S. at 182; Donnelly , 416 U.S. at 644; Moore v. Morton , 255 F.3d 95, 111 (3d Cir. 2001).

2. Challenges Relying on State Rules of Evidence

Petitioner asserts, inter alia, that some statements made during his trial should not have been allowed under state rules of evidence. However, "[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). In other words, "errors of state law cannot be repackaged as federal errors." Johnson v. Rosemeyer , 117 F.3d 104, 110 (3d Cir. 1997). For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. See Keller v. Larkins , 251 F.3d 408, 413 (3d Cir.), cert. denied, 534 U.S. 973 (2001). Because, as set forth below, Petitioner's rights to a fundamentally fair trial were not violated, his claims based on state law fall outside the scope of this Court's habeas review and, thus, cannot warrant habeas relief.

3. Prosecutorial Statements Challenged by Petitioner

As noted supra, upon his arrest and placement in a CCCF cell, Petitioner made his acquaintances with Trainor and Campbell and told them about the events underlying his current conviction. Presenting Trainor and Campbell's testimonies to Petitioner's jurors, the prosecutor had to establish the rather unique circumstances under which Petitioner met Trainor and Campbell and uttered his statements. In other words, the prosecutor had to explain how Petitioner landed in the CCCF cell, why he had the time and reasons to interact with Trainor and Campbell, and why it was plausible for him to disclose details of his past to these two men. Correspondingly, as to Trainor, the following questions were asked:

Prosecutor: Now, during the time you were in the cell with [Petitioner] and... Campbell, what - what did you guys do?
Trainor: Besides the normal play cards, sleep, wake, sleep, eat and what have you, you know, conversations about how we all got here. War stories I guess you would call it. And more... or less found out about one another. Why we were here.
Prosecutor: Now, did [Petitioner] participate in this discussion?
Trainor: Yes, he did.
Prosecutor: Okay. And did he tell you how he ended up in the cell with you? How he got - ended up getting... arrested?
Trainor: He was ah, arrested -
Prosecutor: Well, don't - Take it a step at a time.
Trainor: Okay.
Prosecutor: Did he tell you how he got arrested?
Trainor: Ah he -
Prosecutor: Just - just answer... [y]es or no.
Trainor: Yes.
Prosecutor: Now, did he - did he tell you where the arrest took place?
Trainor: Ah, yes.
Prosecutor: And where did he say the arrest took place ?
Trainor: Ah, it was in a bar.
Prosecutor: Okay. And did he describe who arrested him?
Trainor: Yes.
Prosecutor: And what was that?
Trainor: That was like a SWAT team or something to that effect....
Prosecutor: Did he tell you he committed any crimes?
Trainor: Ah, in his statement, yes.
Prosecutor: Okay. Now, I want you to tell us whether he described the crime that occurred in the stairwell?
Trainor: Yes, he did....[I]t was in a conversation where we're exchanging how we all got there where he was in a stairwell and I believe it was Westfield or Westfield Gardens where he was waiting for an individual that owned (sic) him money. He referred to him in a derogatory ethnic slur, quote, unquote, "spic." He was waiting for him. When he arrived he used the metaphor, "busted loose on him."

Docket Entry No. 18-43, at 16-17 (the italicized text reflects the emphases supplied by Petitioner in his memorandum, Docket Entry No. 1-1, at 45, filed in support of his Petition).

Campbell's line of questions and answers included, inter alia, the following:

Prosecutor: And how many people were in the cell?
Campbell: Three [of us].
Prosecutor: Now, when the three of you were in the cell together, what - what did you do?
Campbell: Um, primarily - lot of it was a lot of sleep and - and did a lot of talking.
Prosecutor: Okay. Now, did [Petitioner] describe to you how he ended up being... incarcerated?
Campbell: Yes.
Prosecutor: And did he tell you where he was arrested?
Campbell: Yes, he did.
Prosecutor: Where did he say he was arrested?
Campbell: He was arrested in a bar or a night club in the Fairview Section... of Camden.
Prosecutor: And did he say who arrested him?... Well, no. Well, no don't - I just want to know who arrested him?
Campbell: Oh, the police.
Prosecutor: Did he say how many officers or what kind?
Campbell: He said it looked like a SWAT Team running down on him.
Prosecutor: Now, did he describe to you any criminal conduct that he engaged in?
Campbell: Yes.
Prosecutor: And I want to direct your attention, most particularly, to a shooting. Did he describe a shooting to you?
Campbell: He described - oh, a shoot - shooting, yes.
Prosecutor: Okay. Now, I want you to tell us what he said about the shooting?
Campbell: Um, it started off where he was - he was... explaining to me how he was high on wet. He [saw] a gentleman [who] owed him some money. They went into a stairwell and ah, started talking. At that point in time, um, something... incurred and he just started busting off at him....
Prosecutor: Now, did he say... where... he busted off on him?
Campbell: It was in um, I can't remember the name of it. It was off Westfield Acres. I mean, Westfield Avenue. [I] think it's the Westfield Acres, I believe the name of it is.

Id. at 29-30 (the italicized text reflects the emphases supplied by Petitioner in his memorandum, Docket Entry No. 1-1, at 43).

Then, in light of Petitioner's theory of the case (which maintained, inter alia, that Campbell obtained all information about Petitioner's involvement in Ruiz's death, not from Campbell's interactions with Petitioner but from a certain newspaper article), [8] the prosecutor asked Campbell additional questions establishing that: (a) the information, to which Campbell testified, was obtained from Petitioner first-hand, and its scope well exceeded the limited information disclosed in the newspaper article; and (b) Campbell used the newspaper article not as a ...

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