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Kadonsky v. Barkowski

United States District Court, Third Circuit

November 20, 2013

GREG BARKOWSKI, et al., Respondents.

Steven Kadonsky, Pro Se, New Jersey State Prison, Trenton, NJ.

Michael McLaughlin, Somerset County Prosecutor's Office, Somerville, NJ, Attorney for Respondents.


ANNE E. THOMPSON, District Judge.

Petitioner, Steven Kadonsky, submitted this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and Respondents submitted an answer to the petition (ECF No. 12), with the available state court record. For the following reasons, the petition will be denied.


The facts set forth by the state court in Petitioner's direct appeal are as follows:

In February of 1992, as a result of an ongoing narcotics investigation, a search warrant was executed at a warehouse in Piscataway. Property and contraband were found at that location which are used in the indoor cultivation of marijuana. As a result of arrests made that day, detectives discovered an enormous amount of marijuana in a "safehouse", operated by defendant and his employees, where marijuana was vacuum-packed in large plastic jars for re-sale. Detectives also located an overwhelming amount of records and documents, including numerous sets of fictitious identification. These records detailed the large amounts of marijuana, sold in cases at a price of $2, 000 per case, the operational expenses of the indoor grow, as well as salaries and Christmas bonuses for its employees. Detectives also found bank accounts, mailbox drops, telephone services, trucking and real estate rentals, and supply store accounts set up under false names and fictitious corporations. Information supplied by co-defendants, as well as this extensive paper trial [sic], confirmed defendant's involvement as Leader of this criminal enterprise.

State v. Kadonsky, 288 N.J.Super. 41, 44 (App. Div. 1996).

Petitioner pled guilty to New Jersey's "drug kingpin" statute, N.J.S.A. 2C:35-3. The sentencing provision of that statute required the trial court to sentence Petitioner to life imprisonment with a twenty-five year period of parole ineligibility. See Kadonsky, 288 N.J.Super. at 43. On February 29, 1996, the Superior Court of New Jersey, Appellate Division ("Appellate Division") found Petitioner's contentions on appeal (concerning the nature of the marijuana trafficking statute, the trial court's decision not to hold a hearing on the warrantless search, and the adequacy of the factual basis at the plea) without merit, and affirmed. See id. The New Jersey Supreme Court denied certification on May 23, 1996. State v. Kadonsky, 144 N.J. 589 (1996)(Table).

Petitioner's petition for post-conviction relief ("PCR") to correct an illegal sentence was denied by the trial court and the appellate courts, with the New Jersey Supreme Court denying certification on May 26, 1999. State v. Kadonsky, 160 N.J. 477 (1999)(Table). A second motion for PCR, concerning counsel's effectiveness, fines, and prosecutorial misconduct was denied by the New Jersey Courts, with the New Jersey Supreme Court denying certification on March 4, 2010. State v. Kadonsky, 201 N.J. 440 (2010)(Table).

Having exhausted his state court remedies, Petitioner then filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. In this petition, he asserts the following claims: (1) Petitioner was denied his right to effective assistance of counsel throughout every state of Petitioner's litigation; (2) prosecutorial misconduct when the prosecutor "double crossed" Petitioner by not dismissing charges in exchange for information; (3) due process violation due to excessive fines; (4) unconstitutional sentencing in violation of the Eighth Amendment; (5) due process violation in warrantless search; (6) inadequate factual basis for guilty plea; and (7) conflict of interest and prosecutorial misconduct. See Petition, ¶ 12.


A. Section 2254 Cases

"As amended by [the Antiterrorism and Effective Death Penalty Act of 1996] 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." Cullen v. Pinholster , ___ U.S. ____, ___, 131 S.Ct. 1388, 1398 (2011). Section 2254(a) permits a court to entertain only claims alleging that a person is 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 when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). If a claim has been adjudicated on the merits in state court proceedings, this Court has "no authority to issue the writ of habeas corpus unless the [state c]ourt'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, ___ U.S. ___, 132 S.Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)). However, when "the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA... do not apply." Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)).

A court begins the analysis under § 2254(d)(1) 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). "[C]ircuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court, ' [and] therefore cannot form the basis for habeas relief under AEDPA." Parker, 132 S.Ct. at 2155 (quoting 28 U.S.C. § 2254(d)(1)).

A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that "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 [the 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 [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. However, under § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 131 S.Ct. at 785 (quoting Williams at 410). As the Supreme Court explains,

A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.... Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.

Harrington, 131 S.Ct. at 786 (citations and internal quotation marks omitted).

"This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen, 131 S.Ct. at 1398 (citations and internal quotation marks omitted). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Id.

B. Petitioner's Habeas Claims Will Be Denied.

1. Ineffective Assistance of Counsel (Ground 1)

The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added).

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show both that his counsel's performance fell below an objective standard of reasonable professional assistance and that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. at 694. Counsel's errors must have been "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.

With respect to guilty pleas, "counsel is required to give a defendant information sufficient to make a reasonably informed decision whether to accept a plea offer.'" Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013)(quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). The Third Circuit has also noted that "in the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.'" Id. (quoting Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012)). "If a defendant rejects a plea, he must show that but for counsel's deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea' and the resulting sentence would have been lower." Id. (quoting Lafler, 132 S.Ct. at 1391)(other citations omitted).

Petitioner argues that counsel was ineffective due to dual representation of a co-defendant, for failing to challenge an excessive fine, for failing to move to withdraw the guilty plea, for failure to seek enforcement of the agreement to dismiss charges against him, and for failure to investigate a prosecutorial conflict of interest. See Petition, ¶ 12. Petitioner raised these issues in his second PCR motion before the state trial court.

The Appellate Division rejected the arguments for the reasons expressed in the PCR judge's May 8, 2007 written opinion. See State v. Kadonsky, 2009 WL 3429572 (N.J. App. Div. Oct. 27, 2009) at *5. In that opinion, the PCR judge cited Strickland and found:

First, Defendant merely alleges that trial counsel failed to move to have Defendant withdraw the guilty plea after the court sentenced him to a term greater than the plea agreement when his attorney had the opportunity to do so, trial counsel improperly coached Defendant to lie and told him what to say during his plea allocution, trial counsel conspired with the court to create waivers that Defendant never made and did not exist, that he received ineffective assistance of appellate counsel, and ine4ffective assistance of post-conviction relief counsel. These contentions made by the defendant prove to be nothing more than blatant accusation that are complete[ly] lacking in any factual or legal basis. Defendant provides little to no support to prove any of these alleged actions on the part of any of his attorneys, the Somerset County Prosecutor's Office, or the bench. Therefore, with regard to the above noted arguments, this Court cannot find that Defendant's counsel was ineffective under Strickland and Fritz.
* * *
Defendant's newest allegations of ineffective assistance of counsel due to dual representation must also be addressed. First and foremost, this allegation could have, and should have been brought on direct appeal. Defendant has been aware of this dual representation for many years... this is the first time this allegation is being brought by Defendant. As such, this allegation should fail under R. 3:22-4.
However, even decided on the merits, this argument of dual representation must also fail.... [The state law case cited by Petitioner] contemplates dual representation between co-defendants at trial. .... In this case however, the Defendant's case did not go to trial. In fact, Defendant knowingly and willfully entered into a plea agreement where he would plead guilty for the mutual benefit of himself and his co-defendants.... It is completely disingenuous for the Defendant to enter into a plea agreement in concert with, and for the benefit of, his co-defendant... and now allege a conflict of interest as a result of dual representation.... The defendant brings forth not a scintilla of evidence as to how this potential dual representation prejudiced him in the least. Thus here too, the Defendant's allegations must fail.

( See Answer, Respondents' Exhibit Pa-123). Petitioner's additional allegations concerning ineffective assistance of counsel were also denied by the PCR judge and the Appellate Division. Affirming the PCR judge, the Appellate Division reasoned:

In short, defendant dredges up allegations that are unsupported by any competent evidence, which were not previously raised and are therefore barred. From our thorough review of the PCR record, we conclude that Judge Ciccone correctly applied the Strickland/Fritz standard, with respect to the claim of ineffective assistance of trial, appellate and first PCR counsels. Moreover, we agree with her conclusion that defendant failed to meet his burden of making a prima facie showing of his attorneys' deficiency . State v. Preciose, 129 N.J. 451, 462-63, 609 A.2d 1280 (1992). With respect to allegations of improper conduct by defendant's trial ...

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