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Muniz v. Powell

United States District Court, D. New Jersey

February 6, 2015

MERVIN MUNIZ, Petitioner,
JOHN POWELL, et. al., Respondents.

MERVIN MUNIZ, Pro Se Petitioner, Rahway, New Jersey.

MEGHAN MARIE O'NEILL, ESQ., OCEAN COUNTY PROSECUTOR'S OFFICE, Toms River, New Jersey, Counsel for Respondents.


MICHAEL A. SHIPP, District Judge.

Petitioner Mervin Muniz ("Petitioner") challenges his 2003 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

In June 2001, Petitioner was indicted by an Ocean County Grand Jury, under Indictment No. 01-06-0880, on three counts of first degree attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); three counts of aggravated assault in the second degree in violation of N.J.S.A. 2C:12-1b(1); and three counts of possession of a weapon for an unlawful purpose in the third degree, in violation of N.J.S.A. 2C:39-4d, stemming from the October 16, 2000 attempted murder of Dion Jackson, Antoin Jackson, and Rascule T. Muldrow, in Lakewood, New Jersey. Petitioner also was indicted under a separate Indictment, No. 00-06-0781, for third degree possession of a controlled dangerous substance ("CDS"), in violation of N.J.S.A. 2C:35-10a(1). (ECF No. 19-4, RE-J[1] - Defendant's Brief on PCR Appeal at 2-3.)

Petitioner was tried before a jury, with the Honorable Edward J. Turnbach, J.S.C. presiding, from February 4, 2003, and continuing on February 5, 6, 11 and 13, 2003.[2] On February 13, 2003, the jury returned a verdict of guilty on the charges of attempted murder of Dion Jackson, aggravated assault of Antoin Jackson, and use of a firearm with respect to the crimes committed against Dion and Antoin Jackson. Petitioner was acquitted of the remaining charges. ( Id. at 3-4.) On March 10, 2003, Petitioner pled guilty on the possession of CDS charge, pursuant to a plea agreement in which the State recommended a three-year sentence to run concurrent to the sentence to be imposed on the attempted murder conviction. ( Id. at 4.)

A sentencing hearing was conducted on March 21, 2003 before Judge Turnbach. Judge Turnbach sentenced Petitioner to twenty years in prison with a ten-year parole disqualifier on the attempted murder charge (a Graves Act[3] offense). Judge Turnbach also imposed a consecutive term often years with five years parole ineligibility on the aggravated assault conviction (also a Graves Act offense). A concurrent three-year sentence on the separate possession of CDS conviction was imposed that same day. ( Id. at 4-5.)

On or about July 9, 2003, the Office of the Public Defender filed a notice of appeal on behalf of Petitioner from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. From December 1, 2003 to May 12, 2004, Petitioner's counsel requested several extensions of time to file a brief on direct appeal. The Appellate Division granted each request for an extension. However, on May 25, 2004, a Notice of Withdrawal of Appellant's Appeal was filed with the Appellate Division. On June 1, 2004, the Appellate Division dismissed the appeal accordingly. ( Id. at 5.)

More than two years later, on September 12, 2006, Petitioner filed a motion for a reduction of sentence and change of custody. ( Id. at 6.) That motion was denied on November 28, 2006. On September 18, 2007, Petitioner filed a petition for post-conviction relief ("PCR") in state court. (ECF No. 19-4 at RE-H.) On October 14, 2008, Petitioner filed a memorandum of law in support of his state PCR petition. He later submitted a pro se letter brief raising claims of trial court error. (ECF No. 19 - Answer at 3; RE-J.) The state PCR court held oral argument on the PCR petition on June 24, 2009. ( Id. ; RE-K.) The PCR court denied the PCR petition on July 14, 2009, and amended the judgment of conviction resentencing Petitioner. ( Id. ; RE-L.)

Petitioner then appealed from denial of his PCR petition, and on February 28, 2011, the Appellate Division affirmed the denial of the PCR petition in an unpublished opinion. State v. Muniz, 2011 WL 677224 (N.J.Super. A.D. Feb. 28, 2011). The New Jersey Supreme Court denied certification on January 13, 2012. (ECF No. 19 - Answer at 4; RE-Q.)

On or about January 10, 2013, Petitioner timely filed this habeas petition pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The State filed a response to the petition, together with the relevant record (excluding trial transcripts), on February 5, 2014. (ECF No. 19.) Petitioner filed a traverse or reply on February 28, 2014. (ECF No. 20.)

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 February 28, 2011 opinion of the New Jersey Appellate Division as to Petitioner's appeal from denial of his state PCR petition:

Defendant's conviction arose out of shooting incidents occurring on October 16, 2000 that caused life-threatening injuries to twin brothers, Dion and Antoin [footnote omitted] Jackson. [footnote omitted] The shootings followed an argument between defendant and Antoin concerning the latter's girlfriend. The argument started in a residence and then continued outside. Defendant retrieved a handgun from his vehicle and shot Dion in the chest and Antoin in the stomach. Both victims were treated for life-threatening injuries at the Jersey Shore Medical Center.

State v. Muniz, 2011 WL 677224 (N.J.Super. A.D. Feb. 28, 2011). ( See also ECF No. 19-5, RE-O - State v. Muniz, Docket No. A-0859-09T4, slip op. at 1-2.)


Petitioner raises the following claims for habeas relief:

Ground One: Petitioner was denied effective assistance of trial counsel.

Ground Two: The trial court erred in permitting non-expert opinion testimony.

Ground Three: The trial court erred in allowing the State to elicit inadmissible evidence from their witness testimony.

Ground Four: The trial court failed to give a " Clawans " charge to the jury, depriving Petitioner of his right to a fair trial.

Ground Five: "The State's request that defendant be resentenced to a NERA term must be denied as the prerequisites of a NERA term were not met at the time of sentence."

Ground Six: "If NERA were to apply, the defendant would have received ineffective assistance of counsel as he was unaware of possibility of NERA sentence on the counts he was convicted, when he elected to proceed to trial."

Ground Seven: Cumulative error.

(ECF No. 1 - Petition at 6-10.)

The State contends that Petitioner's claims for habeas relief should be denied for lack of 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. 19 - Respondents' Answer.)


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 ...

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