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Alivera v. Warren

United States District Court, D. New Jersey

November 25, 2014

JOHN R. ALIVERA, Petitioner,
CHARLES E. WARREN, et al., Respondents

JOHN R. ALIVERA, Petitioner, Pro se, TRENTON, NJ.



ROBERT B. KUGLER, United States District Judge.


Petitioner is a state prisoner currently incarcerated at the New Jersey State Prison in Trenton, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2003, petitioner pled guilty to one count of murder. He is currently serving a sentence of forty-two years and 322 days imprisonment with an eighty-five percent parole disqualifier. He raises ineffective assistance of counsel claims in his petition; specifically:

1. Failure of trial and appellate counsel to adequately advise him on his minimum mandatory parole disqualifier.
2. Failure of trial counsel to pursue an insanity/diminished capacity defense or have an expert evaluate him to determine if he was competent to enter a plea agreement.
3. Improper coaching by counsel towards petitioner as to how to respond to the questions from the court when entering his plea.
4. Failure of counsel to provide him with transcripts of hearings, motions and grand jury minutes so that he could determine the strength of the government's case.
5. Cumulative error.

For the following reasons, the habeas petition will be denied.


The victim was the mother of defendant's former girlfriend. The girlfriend had broken off their relationship. Angered about the break-up, defendant went to the mother's residence, placed her at gunpoint, bound her legs with duct tape, doused her with gasoline, lit a match, and departed in a waiting cab while the mother burned to death. Defendant was eventually tracked down in California and gave a confession on videotape.

(Dkt. No. 10-19 at p. 2.) On July 16, 2003, petitioner pled guilty to one count of murder. ( See Dkt. No. 10-23.) On August 29, 2003, petitioner received a sentence of forty-three years imprisonment with an eight-five percent parole disqualifier. ( See Dkt. No. 10-6.)

On September 9, 2003, petitioner moved to withdraw his guilty plea. ( See Dkt. No. 10-3.) Petitioner claimed that his attorney did not know of his mental illness. ( See id . at p. 4.) Ultimately, on January 9, 2004, the Superior Court of New Jersey, Law Division denied petitioner's motion to withdraw his guilty plea. ( See Dkt. No. 10-5.)

On January 11, 2005, petitioner filed a notice of appeal. ( See Dkt. No. 10-7.) However, petitioner subsequently sought to withdraw his appeal. ( See Dkt. No. 10-8.) The appeal was dismissed on October 3, 2005. ( See Dkt. No. 10-9.)

In March, 2008, the Law Division received petitioner's pro se PCR petition. ( See Dkt. No. 10-10.) In that pro se filing, petitioner claimed that trial counsel failed to pursue the possibility of an insanity/diminished capacity defense and convinced defendant to accept the plea. On November 24, 2008, a supplemental PCR petition was submitted on petitioner's behalf by counsel. Petitioner raised four issues in that counseled PCR brief, specifically:

1. The defendant was denied his right to the effective assistance of trial and appellate counsel, right to a fair trial and to due process of the law under the state and federal constitutions since trial counsel and the court failed to adequately advice the defendant of his minimum mandatory parole disqualifier and appellate counsel failed to argue as much.
2. The defendant was denied his right to effective assistance of trial counsel, right to a fair trial and to due process of the law under the state and federal constitutions since trial counsel failed to provide any meaningful defense.
3. The defendant's claims are not procedurally barred and, if so, the defendant received the ineffective assistance of appellate counsel.
4. The cumulative effect of the grounds for post-conviction relief identified by defendant warrant vacation of his convictions and sentences, and the grant of a new trial.

( See Dkt. No. 10-11.)

On June 12, 2009, the Law Division denied the PCR claims with one exception. The Law Division amended the judgment to reflect a 36.45-year period of parole ineligibility. That period was what petitioner pled to during the plea colloquy as opposed to 36.55 years (which was what he was facing as 36.55 is eighty-five percent of his forty-three year original sentence). ( See Dkt. No. 10-25 at p. 13; Dkt. No. 13.) On appeal, the Appellate Division affirmed, except that it remanded the matter so that the judgment could be modified to revise the custodial term to forty-two years and 322 days as petitioner's eight-five percent parole disqualifier had been reduced from 36.55 years to 36.45 years. The New Jersey Supreme Court denied certification on petitioner's PCR petition on November 18, 2011 without discussion. ( See Dkt. No. 10-22.) 3

In May, 2012, this Court received petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed an answer opposing the petition on the merits. Petitioner did not file a reply.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Mason v. Meyers, 208 F.3d 414, 415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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 state court. See 28 U.S.C. § 2254(d).

As a threshold matter, a court must " first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting 28 U.S.C. § 2254(d)(1)). " '[C]learly established federal law' under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision." Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court's application of clearly established federal law was " objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Thus, " a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.

The AEDPA standard under § 2254(d) is a " difficult" test to meet and is a " highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). The petitioner carries the burden of proof and with respect to review under § 2254(d)(1) and that review " is limited to the record that was before the state court that adjudicated the claim on the merits." Id.

In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore, " [w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Additionally, AEDPA deference is not excused when state courts issue summary rulings on claims as " [w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011) (citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)).


All of petitioner's claims argue that he is entitled to federal habeas relief due to ineffective assistance of counsel. The legal standard in analyzing an ineffective assistance of counsel claim was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the petitioner must show that considering all of the circumstances, counsel's performance fell below an objective standard of reasonableness. See id .; see also Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). Petitioner must identify acts or omissions that are alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. " The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.

Second, a petitioner must affirmatively show prejudice, which is found where " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." See id . at 694; see also McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012). The reasonable probability standard does not require certainty or even a preponderance of the evidence. See Boyd v. Waymart, 579 F.3d 330, 354 (3d Cir. 2009). " In the context of pleas a [petitioner] must show the outcome of the plea process would have been different with competent advice." Lafler v. Cooper, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) (citations omitted). " [W]hen evaluating the petitioner's claim that ineffective assistance led to the improvident acceptance of a guilty plea, [the petitioner is required] to show that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." Id. at 1384-85 (citations omitted).

In assessing the resolution of an ineffective assistance of counsel claim by the state courts under AEDPA, there is an additional consideration:

[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland 's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2244(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Harrington, 131 S.Ct. at 785 (internal quotation marks and citation omitted) (emphasis in original).

A. Claim I -- Failure to Advise on Minimum Parole Disqualifier

In Claim I, petitioner argues that trial and appellate counsel were ineffective by failing to properly advise him on the applicable minimum parole disqualifier that he was facing. Petitioner asserts that trial counsel indicated to him that he was facing a minimum mandatory period of parole ineligibility of thirty years. The Appellate Division found that all of petitioner's ineffective assistance of counsel claims lacked sufficient merit to warrant discussion in a written opinion. Therefore, the last reasoned decision on this Claim was from the Law Division which denied petitioner's PCR arguments from the bench. That court stated as follows:

I am struck by the extent to which Judge Baxter engaged the defendant in the lengthy discussion at the time of sentencing, and despite the heinousness of the crime, the Court's analysis whether to grant post-conviction relief must rely on the facts of the argument for post-conviction relief, because regardless of that to which a defendant has pled or that about which a defendant has been convicted by a jury the process must be fair. The process must be correct, and the process must be exemplary. And when I say the process I mean the sentencing process, the plea colloquy, the information available to the Court, the information available to the defendant.
So in arriving at my conclusion I am giving no heightened or lessened scrutiny to the matter because of the nature of the crime. The first argument about ineffective assistance of counsel, and we know that -- Strickland is the case that tells us what ineffective assistance of counsel is, and applying the Strickland standards a defendant has show [sic] not only that he fell below an objective standard, but that he was prejudiced. But for counsel's unprofessional error, the results would have been different. The Appellate Division tells us what a prima facie case is in State v. Cummings 321 N.J.Super. 154, 728 A.2d 307 and cautions us that a bald assertion is not sufficient.
I will accept counsel Kraft representation that the certification signed by his client should be applied to the facts contained within the brief as being a certification necessary to be submitted with a PCR. And the three elements -- the three factors that counsel raises are; one, a discrepancy between -- a calculation error, the failure to pursue an insanity defense, mental health issues, and trial counsel coaching.
Let me first deal with the issue of the years. While it is true that in the plea agreement there is a reference to 30 years an 85 percent of a 43-year sentence. It is also true that at another point in the plea agreement it tells us that it could be between 30 years and 63.9 years.
Given that discrepancy, the Court then looks to what was spoken at the plea colloquy. What is it that Mr. Alivera, Jr. was told and how did he respond too it?
Now, the information that I just received about -- well, we'll get to the mental health issues in a moment. At the time of the plea colloquy the defendant was advised that D-3 to 4 and D-7 line 2 to line 13, that he would have to serve " approximately 36 1/2 years with 36.45 years." There is a one tenth of a percent difference, one tenth of a year, 36 days.
In the context of a 43-year sentence and in the context of the potential exposure to 63.9 years the Court does not find that a 36-day discrepancy rises to the level of one that warrants conducting a hearing to explain that discrepancy, rather, the Court is going to enter a modified Judgment of Conviction changing it from 36.55 years to 36.45 years, because that is the sentence to which Mr. Alivera pled.
And while I find it de minimus with regard to whether it warrants conducting a hearing, I do find that that's what the transcript says, and so I'm going to exercise my -- such equitable powers that I might have that the Appellate Division will either agree or disagree that I have. I'm going to reduce the sentence by that 36 days, because that's what it says.
The calculation error, the reference to 30 days in the plea agreement I find is overridden by what was clearly spoken at the plea colloquy. It could have been retracted then. It could have been withdrawn then but it wasn't. I'm going to find that it was a calculation error at the time the plea agreement was entered, and I've received nothing that says I would have rejected the plea and gone to trial if it was 36.55 rather than 36.45.
I guess what I'm saying is to me that is -- that to me does not -- even giving the defendant the benefit of the doubt -- and the Court said approximately 36.45. The Court didn't say exactly, but that the number Mr. Alivera heard and that's the number he's subject to.
Now, I trust that he understands that doesn't mean when he's going to be paroled. It's just his first available date for parole eligibility. It's a mandatory minimum. It's how much he has ...

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