United States District Court, D. New Jersey
KELVIN WASHINGTON, Pro Se Petitioner, Tenton, New Jersey.
MONICA L. DO OUTEIRO, ESQ., MONMOUNT COUNTY PROSECUTOR'S OFFICE, Freehold, New Jersey 07728, Counsel for Respondents.
MICHAEL A. SHIPP, District Judge.
Petitioner Kelvin Washington ("Petitioner") challenges his 2005 New Jersey state court judgment of conviction in this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition will be denied for lack of merit.
A. Procedural History
On October 10, 2002, Petitioner was indicted by a Monmouth County Grand Jury, under a five count Indictment, No. 02-10-1997, on charges of first degree armed robbery, possession of a weapon for an unlawful purpose, unlawful possession of a weapon, resisting arrest, eluding, and a fourth degree offense of certain persons not to have a weapon. The last charge was severed for trial. (ECF No. 15-34, Ra31 - Defendant's Brief on PCR Appeal at 1.)
Before trial, Petitioner filed numerous motions for (a) production of grand jury voting, attendance and racial composition, (b) dismissal of the indictment, (c) to compel a physical line-up, (d) dismissal of counsel, (e) admission of defensive N.J.R.E. 404(b) evidence, (f) reconsideration, and (g) a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967). The pretrial motions were denied, except the motion to compel a physical line-up,  and the Wade hearing. (Ra31 at 2.)
The Wade hearing was conducted on October 26, 2004, before the Honorable Bette E. Uhrmacher, J.S.C. Judge Uhrmacher ruled that the robbery victim's identification of Petitioner could be admitted at trial. (Ra9 - Oct. 26, 2004 Trial Transcript ("9T") at 90:1-9.) A jury trial thereafter commenced on October 27, 2004, with Judge Uhrmacher presiding, and continuing on October 28, 2004 and November 3, 2004. On November 3, 2004, the jury returned a verdict of guilty on all five counts of the Indictment, and then returned a guilty verdict on Count Six of the Indictment, which was tried separately that same day. (Ra12 - Nov. 3, 2004 Trial Transcript ("12T") at 152:1-154:4 and 164:1-4.)
On February 9, 2005, Judge Uhrmacher denied Petitioner's motion for a new trial, and granted the State's motion for a mandatory extended term sentence. Judge Uhrmacher then sentenced Petitioner to an aggregate term of fifty years in prison, subject to N.J.S.A. 2C:43-7.1b of the No Early Release Act ("NERA"). (Ra13 - Feb. 9, 2005 Motion and Sentencing Transcript or "13T" at 43:1-44:9.)
On or about June 27, 2005, Petitioner filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed the conviction and sentence in a per curiam decision rendered on April 16, 2008. State v. Washington, 2008 WL 1733661 ( N.J.Super. A.D. Apr. 16, 2008). ( See also Ra19 - State v. Washington, Docket No. A-5669-04T4.) Petitioner filed a Notice of Petition for Certification, (Ra20), and on June 17, 2008, the Supreme Court of New Jersey remanded the matter to the sentencing court to provide a more specific statement of reasons for the imposition of an extended term sentence. (Ra24.) Petitioner was resentenced on June 24, 2008, in accordance with the New Jersey Supreme Court's instruction, and a judgment of conviction was entered that same date. (Ra23.) The New Jersey Supreme Court then denied certification on September 24, 2008. State v. Washington, 196 N.J. 467 (2008). (Ra24.)
Thereafter, on October 20, 2008, Petitioner filed a petition for post-conviction relief ("PCR") in state court asserting claims of ineffective assistance of counsel, which was later supplemented by counsel and pro se amendments. The Honorable Ronald Lee Reisner, J.S.C., held oral argument on August 28, 2009, and denied the PCR petition that same day. (Ra14 - Aug. 28, 2009 PCR Transcript ("14T") at 23:22-27:18; Ra29 - Aug. 28, 2009 Order.) Petitioner appealed from Judge Reisner's decision,  and the Appellate Division affirmed the ruling in an unpublished opinion filed on April 26, 2011. State v. Washington, 2011 WL 1543348 ( N.J.Super. A.D. Apr. 26, 2011). (Ra34.) The Supreme Court of New Jersey denied certification on November 4, 2011. State v. Washington, 208 N.J. 382 (2011). (Ra36.)
On February 17, 2012, Petitioner filed this habeas petition pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner supplemented his initial habeas petition on June 29, 2012 (ECF No. 5), July 2, 2012 (ECF No. 6), August 9, 2012 (ECF Nos. 9, 10), and August 13, 2012 (ECF No. 11).
On April 26, 2013, the State filed a response to the petition. (ECF No. 15.) The State provided the relevant state court record as its appendix, which is docketed at ECF Nos. 15-4 through 15-41. A list identifying the state court record is docketed at ECF No. 15-3. No traverse or reply brief was filed by Petitioner.
B. Statement of Facts
This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the recitation as set forth in the April 16, 2008 opinion of the New Jersey Appellate Division as to Petitioner's direct appeal:
On August 10, 2002, Septin Ayyildiz was working the nighttime shift at a gas station located at the intersection of Monmouth Road and Cedar Avenue, West Long Branch. At approximately 2:20 a.m., a gold-colored motor vehicle entered the gas station and pulled up near the attendant's booth in which Ayyildiz was sitting. The driver, later identified as defendant, exited the motor vehicle and approached the booth, requesting a pack of cigarettes from Ayyildiz. After Ayyildiz complied, defendant asked for a second pack. As Ayyildiz turned his head to retrieve the cigarettes, he felt an object pressed against the left side of his stomach. Ayyildiz observed that the object was a knife, approximately five to six-inches in length.
Defendant demanded that Ayyildiz give him the money from the cash register in the booth. After Ayyildiz complied, defendant returned to his vehicle and drove out of the gas station with the tires of the car screeching. As the vehicle left the gas station, it was observed by Sergeant Lawrence Mihlon of the West Long Branch Police Department. Mihlon intended to stop the vehicle and issue a summons for careless driving, but first drove slowly past the gas station to ascertain whether the attendant was all right. Ayyildiz informed Mihlon that he had just been robbed by the driver of the gold vehicle.
Mihlon proceeded to follow defendant's vehicle onto Cedar Avenue, activating his patrol vehicle's overhead lights and siren. Defendant did not stop, and a high-speed chase ensued eastbound onto Ocean Boulevard. After Mihlon turned onto Ocean Boulevard, he observed that defendant had crashed his vehicle and had fled the scene. Paper money was strewn about the street near the crash site.
*2 After other officers responded to the area, the police searched the crash site attempting to locate defendant. Responding to a pedestrian's tip, the officers proceeded to the beach, where they observed defendant treading water approximately fifty feet offshore. After defendant came back near the shoreline, the police placed him under arrest and took him to Monmouth Medical Center.
In the interim, Ayyildiz and the manager of the gas station had responded to the West Long Branch Police Department to formally report the robbery. Ayyildiz informed Detective Paul Habermann, that he had been robbed by a black male. At Habermann's request, Ayyildiz accompanied him to the Monmouth Medical Center, where Ayyildiz identified defendant as the person who had robbed him. After Ayyildiz identified defendant, Ayyildiz was driven by Habermann to the accident site, where he also identified defendant's vehicle.
At trial, defendant testified that he did not commit the robbery, stating that he had loaned his automobile to an acquaintance known as "Rasheem." While defendant was waiting for Rasheem to return for him on Ocean Boulevard, he heard sirens and saw his car crash into some bushes. Believing that he would get in trouble because his license was suspended, defendant ran and hid among jetty rocks on the beach. After he was discovered, he ran into the ocean, but was later placed under arrest. Concerning Ayyildiz's identification, defendant stated that Rasheem looked like him and that could have accounted for the misidentification.
State v. Washington, 2008 WL 1733661 ( N.J.Super. A.D. Apr. 16, 2008). ( See also ECF No. 15-22, Ra19 - State v. Washington, Docket No. A-5669-04T4, slip op. at 3-5.)
II. STATEMENT OF CLAIMS
Petitioner raises the following claims for habeas relief:
Ground One: "The admission into evidence of the testimony concerning the inherently unreliable out-of-court identification, obtained pursuant to a showup, deprived Defendant of his rights under the state and federal constitutions."
Ground Two: "The trial judge erred in denying the defense request to admit evidence of a similar robbery committed while the Defendant was in jail. Such evidence was admissible on the theory of third-party guilt."
Ground Three: "Defendant received ineffective assistance of trial counsel, when his attorney failed to introduce into evidence a photograph of "Rasheem" to show the jury the numerous physical similarities that existed between the two men."
Ground Four: "Defendant received ineffective assistance of trial counsel, when his attorney failed to fully investigate the evidence of the car that was recovered at the scene and in preventing the State in returning the evidence [the car] to the dealership."
Ground Five: "The trial court's charge to the jury was inadequate and misleading in several respects, " such as failure to provide an instruction on identification, failure to instruct the jury on evaluating police testimony, and failure to mold the jury instructions to the facts of the case and include an instruction on cross-racial identification.
Ground Six: "Petitioner received ineffective assistance of appellate counsel when the issue of the verdict being against the weight of the evidence was not raised on direct appeal."
Ground Seven: "Trial counsel failed to make reasonable investigations."
Ground Eight: "Petitioner's sentence was manifestly excessive and the imposition of an extended term [pursuant to N.J.S.A. 2C:43-7.1b and The No Early Release Act] was unjustly harsh and illegal."
(ECF No. 1 - Petition at 5-16; ECF No. 6 - Amended Petition at 5-16.)
In supplements to his initial habeas petition, Petitioner generally argues that there was a "cumulative violation of [his] basic rights, " (ECF No. 5), and that he was "forced" to go to trial because the plea offer of life without parole was excessive. (ECF No. 9.)
The State contends that Petitioner's claims for habeas relief should be denied for lack substantive merit, or because they do not state a claim of a constitutional violation necessary to provide a basis for grant of federal habeas relief. (ECF No. 15-2 - Respondents' Answer.)
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, this Court has jurisdiction to entertain a petition for federal habeas relief as follows:
[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
As to any claim adjudicated on the merits in state court proceedings, the writ shall not issue unless the 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 the State court proceeding.
28 U.S.C. § 2254(d); see also Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012).
"Clearly established Federal law" is determined as of the date of the relevant state court decision and is limited to the record that was before the state court that adjudicated the claim on the merits. Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011); Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). A state-court decision is "contrary to" clearly established federal law if the state court (1) contradicts the governing law set forth in Supreme Court cases or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Jamison v. Klem, 544 F.3d 266, 274 (3d Cir. 2008). The state court judgment must contradict clearly established decisions of the Supreme Court, not merely law articulated by any federal court, Williams, 529 U.S. at 405, although district and appellate federal court decisions evaluating Supreme Court precedent may amplify such precedent, Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir. 2004) (citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999)). "[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. ...