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Wilson v. Sweeney

United States District Court, D. New Jersey

February 24, 2014

KENNETH WILSON, Petitioner,
v.
CINDY SWEENEY, et al., Respondents.

KENNETH WILSON, Petitioner pro se, # 74578/130668B, East Jersey State Prison, Rahway, New Jersey.

BARBARA A. ROSENKRANS, ESQ., ESSEX COUNTY PROSECUTOR'S OFFICE, Newark, New Jersey, Counsel for Respondents.

OPINION

SUSAN D. WIGENTON, District Judge.

Petitioner Kenneth Wilson ("Petitioner" or "Wilson"), a convicted state prisoner presently confined at the East Jersey State Prison in Rahway, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New Jersey state court judgment of conviction entered on or about September 30, 1993. For the reasons stated herein, the Petition is dismissed as time-barred. Because the Court finds this action is time-barred, Petitioner's application for an evidentiary hearing (ECF No. 42) and his motion for leave to file to file a reply to Respondents' opposition letter brief[1] (ECF No. 50) are rendered moot and are denied accordingly.

I. BACKGROUND

A. Procedural History

In October 1992, an Essex County Grand Jury indicted Petitioner and co-defendants, Clara Sloan, Samuel Dugger and Eugene Jenkins with the following offenses: (Count One) second degree conspiracy to murder Matthew McDaniel, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a; (Count Two) first degree robbery, in violation of N.J.S.A. 2C:15-1; (Count Three) felony murder, in violation of N.J.S.A. 2C:11-3a(3); (Count Four) knowing or purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1) or (2); (Count Five) fourth degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d; and (Count Six) third degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d. (Ra1, [2] Essex County Indictment No. 3652-10-92.)

Before trial, Counts One through Three, the charges of conspiracy to commit murder, robbery and felony murder, were dismissed as against Petitioner and co-defendants Jenkins and Sloan. (Ra22, Mar. 12, 1993 Transcript at 6:11-8:24.) On April 3, 1993, Dugger pled guilty to the charge of conspiracy to commit murder pursuant to a plea agreement recommending a prison sentence not to exceed ten years in exchange for Dugger's testimony against Petitioner and co-defendants at trial. (Ra23.) In July and August 1993, Petitioner, Jenkins and Sloan were jointly tried before a jury and the Honorable Peter B. Cooper, J.S.C. (Ra24-Ra31.) Petitioner and co-defendants ultimately were convicted on the remaining counts of murder and weapons offenses (Counts Four, Five and Six). (Ra31, Aug. 5, 1993 Transcript at 28:5-20.)

On September 30, 1993, after denying Petitioner's motion for a new trial (Ra32, Sep. 30, 1993 Motion Transcript at 12:21-23), Judge Cooper merged Count Six into Count Four and sentenced Petitioner to life imprisonment with a 30-year parole disqualifier. On Count Five, Judge Cooper sentenced Petitioner to a concurrent term of 18 months in prison. (Ra2, Judgment of Conviction; Ra33, Sep. 30, 1993 Sentencing Transcript at 11:23-12:7.)

Petitioner thereafter filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. (Ra3.) On May 25, 1995, the Appellate Division affirmed Petitioner's conviction and modified the sentence on the judgment of conviction "to reflect a VCCB penalty of $30 on the conviction for murder." (Ra5, May 25, 1995 A.D. Op. at 9.) The Supreme Court of New Jersey denied certification on September 8, 1995. (Ra7.) Petitioner did not seek a writ of certiorari before the Supreme Court of New Jersey.

On May 21, 1997, Petitioner filed his first application for post-conviction relief ("PCR") in the Superior Court of New Jersey, Law Division, Essex County. (Ra8.) A PCR hearing was conducted before the Honorable Edward R. Schwartz, J.S.C., on October 18, 2000, (Ra34), and on that same date, Judge Schwartz issued an Order denying the PCR application. (Ra9.) Petitioner appealed from denial of his PCR petition. On May 30, 2002, the Appellate Division affirmed Judge Schwartz's denial of postconviction relief. (Ra11.) The Supreme Court of New Jersey denied certification on October 22, 2002. (Ra12.)

On May 7, 2003, Petitioner filed a motion for a new trial based on newly discovered evidence regarding co-defendant Dugger's plea agreement and anti-psychotic medication at the time of his trial testimony against Petitioner. (Ra13.) On January 18, 2008, the Honorable Jerome M. St. John, J.S.C. issued an Order denying Petitioner's motion for a new trial. (Ra14.) On March 15, 2008, Judge St. John filed a 10-page opinion explaining his denial of Petitioner's motion. (Ra15.) Petitioner thereafter filed an appeal from the denial of his motion. The Appellate Division affirmed the trial court's decision in an Opinion issued on August 19, 2010. (Ra19.) The New Jersey Supreme Court denied certification on January 20, 2011. (Ra21.)

On February 24, 2011, Petitioner filed this federal habeas petition under 28 U.S.C. § 2254. The petition was received and docketed March 2, 2011. (ECF No. 1.) On March 15, 2012, the State filed an answer to the petition with a copy of the relevant state court record. (ECF Nos. 18, 19, 20, 21, 22.)

On January 24, 2013, this Court issued an Opinion and Order directing Petitioner to show cause in writing why his petition should not be dismissed as untimely, pursuant to 28 U.S.C. § 2244(d). (ECF No. 36.) Petitioner filed his response on May 28, 2013, together with a request for an evidentiary hearing. (ECF Nos. 41 and 42.) On June 10, 2013, this Court directed the State to file a response/opposition to Petitioner's May 28, 2013 submission. (ECF No. 45.) The State filed a letter brief in opposition on June 17, 2013. (ECF Nos. 46, 47.) On July 3, 2013, Petitioner filed a motion for leave to file a reply to the State's opposition. (ECF No. 50.) Petitioner attached his certification and brief in reply with his motion. (ECF Nos. 50-1, 50-2.)

B. Factual Background

The facts of this case, as recounted by the state court on direct review, are afforded appropriate deference under 28 U.S.C. § 2254(e)(1). Accordingly, this Court will simply recite the abbreviated factual findings, as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on May 25, 1995, with respect to Petitioner's direct appeal, as follows:

The State's chief witness, Samuel Dugger, testified that the day of the murder, he, Jenkins, Wilson, and Sloan were smoking cocaine in his cousin's apartment. While returning from the bathroom, Dugger heard Jenkins tell Wilson "[l]et's kill a homo." Although Sloan remained silent, Wilson immediately agreed to participate in the plot. Dugger was initially concerned because he was a homosexual, but his fear dissipated because he believed only Sloan knew he was gay. At Dugger's suggestion, they all departed for Matthew McDaniel's' house a short distance away. Dugger knew McDaniels was a homosexual and in fact was going to McDaniels' apartment in the hope of engaging in sexual activities with him. However, Dugger allegedly was not concerned that Jenkins and Wilson would harm McDaniels because they did not know he was gay.
McDaniels invited the three into his house where they drank wine. The group then pooled their money and purchased more cocaine. At some point, Dugger and McDaniels went into the bedroom and began to engage in sexual activities. Jenkins and Wilson interrupted them and ordered Dugger to leave the bedroom. Dugger complied and sat with Sloan at the kitchen table. Dugger left the apartment when he heard McDaniels screaming for help.
Several days later, the police responded to a neighbor's complaint of foul odors emanating from McDaniels' house. The police discovered McDaniels' body bound with telephone wire at the wrist, neck, and ankles and gagged at the mouth with a towel. The cause of death was ligature strangulation.

(Ra5, May 25, 1995 A.D. Op. at 3-4.)

II. STATEMENT OF CLAIMS

Petitioner asserts the following claims in his petition for habeas relief:

Ground One: The State's failure to disclose exculpatory evidence to the defense before and during trial regarding the prosecution's key witness deprived Petitioner his rights under the Sixth and Fourteenth Amendments. Specifically, petitioner argues that the State failed to disclose information concerning witness Dugger's use of psychotropic medications at the time of his plea and testimony at trial, as well as Dugger's subsequent release from prison shortly after testifying for the State at Petitioner's trial. (ECF No. 1, Petition at ¶ 12.)

Ground Two: Petitioner was denied effective assistance of trial and appellate counsel in violation of his Sixth Amendment rights. In particular, Petitioner contends that trial counsel failed to properly investigate the extent of Dugger's plea agreement with the State and the extent of Dugger's psychiatric history, including Dugger's taking of psychotropic medications before and during Petitioner's trial. Petitioner also argues that appellate counsel "failed to properly investigate the prosecutorial misconduct that had occurred with regard to the failure of the ...


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