ASWAD CHARLES, Petitioner pro se #503840/226593-Cell # 22 New Jersey State Prison, South Compound 3EE, Trenton, New Jersey.
SARA BETH LIEBMAN, Counsel for Respondents Union County Prosecutor's Office, Elizabeth, New Jersey,
JOSE L. LINARES, District Judge.
Petitioner Aswad Charles ("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 Charles E. Warren and the Attorney General of New Jersey. For the reasons stated herein, the petition will be denied.
This Court, affording the state court's factual deteiminations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the recitation of facts as set forth by Superior Court of New Jersey, Appellate Division on direct appeal:
The victim was Eddie Fernandez, who was defendant's best friend at one time. Eddie lived with his mother, Monserrate Gonzalez in Mrvalag Manor, where defendant had also previously resided. On October 31, 2002, defendant and Eddie were both at a birthday party at Mrvalag Manor. An argument ensued between the two men and eventually, after the intervention of Monserrate and others, defendant left, However, while walking to his car, defendant yelled, "I'm gonna shoot your ass."
On November 5, 2002, Eddie left his mother's home between 6:00 and 6:40 p.m. to go to a store. At about 7:00 p.m., a witness heard a bang, and Eddie was seen "wobbling and moaning, " with a bloody hole in his jacket. An ambulance was summoned, and police officers arrived. Eddie was still alive, but did not say anything before he expired at 7:52 p.m. from a shotgun blast to his chest.
The following day, defendant asked a friend to lie about his whereabouts on the day of the shooting. Responding to questioning by the police after being arrested on November 8, defendant claimed to have been with others all day on November 5, and only to have learned of Eddie's death on the afternoon of November 6 when he was told by his uncle that he (defendant) was being accused of the murder. On November 12, defendant agreed to take a polygraph examination administered by the police, at the conclusion of which he was told he had failed. He then agreed to give another statement to the police in which he admitted to being the driver of the car involved in the shooting but claimed that Luther (Lex) Lilliewood had shot Eddie.
State v. Charles, 2007 WL 209085, at *1 (N.J.Super. Ct. A.D. Jan. 29, 2007).
After a jury trial, Petitioner was convicted of murder, N.J.S.A. 2C:11-3 (count one); conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3 (count two); unlawful possession of a weapon, N.J.S.A. 2C:39-5c(2) (count three); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). Id. Following his conviction, Petitioner pled guilty to one count of a separate indictment charging possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). Id. On October 5, 2004, after merging count two and count four into count one, the state court imposed a sentence of forty-five years in prison with an 85% parole disqualifier on count one, and a concurrent five-year tent on count three. Id. A concurrent four-year term was imposed on the drug offense. Id. On appeal, the Appellate Division affirmed the convictions and sentence. Id. The New Jersey Supreme Court denied certification. State v. Charles, 921 A.2d 446 (N.J. 2007).
Petitioner thereafter filed a petition for post-conviction relief ("PCR"), which the Superior Court granted, vacating Petitioner's conviction for first-degree murder, conspiracy to commit murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. State v. Charles, 2011 WL 3425596 (N.J.Super. Ct. A.D. Aug. 8, 2011). The State appealed and the Appellate Division reversed, reinstating Petitioner's convictions and sentence. Id. The New Jersey Supreme Court denied Petitioner's motion for leave to appeal. State v. Charles, A-001039-10 (N.J. Nov. 4, 2011).
The instant petition followed. Petitioner raises three grounds for relief:
1. The trial court, post conviction relief court, and appellate court all erred in not suppressing Defendant's November 12, 2002 post polygraph statement therefore violating Defendant's rights to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and was [sic] contrary to clearly established federal law.
2. The Appellate Court's reversal of the PCR court's proper grant of Defendant's petition for post-conviction relief on the grounds of retroactivity based on the New Jersey Supreme Court decision in State v. A.O., 198 N.J. 69 (2009), violated Defendant's rights to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and was contrary to clearly established federal law.
3. Defendant's appellate attorney was ineffective for failing to argue on appeal the uncounseled and stipulated polygraph, thereby violating Defendant's rights [under] clearly established federal law.
(Pet., ECF No. 1.)
Respondents filed an answer, arguing that the petition must be denied because the claims are procedurally defaulted and/or without merit. (ECF No. 11.) Petitioner did not file a reply.
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