United States District Court, D. New Jersey
OPINION
Freda
L. Wolfson, U.S.D.J.
I.
INTRODUCTION
This
matter has been opened to the Court by Petitioner Duquie
Simmon's filing of a pro se petition
for a writ of habeas corpus challenging his state court
conviction pursuant to 28 U.S.C. § 2254. For the reasons
explained in this Opinion, the Court will deny the petition
and will also deny a certificate of appealability.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
a.
State Court Proceedings
Petitioner
was convicted by a jury of first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1); third-degree unlawful
possession of a shotgun, N.J.S.A. 2C:39-5(c); and
second-degree possession of a shotgun for an unlawful
purpose, N.J.S.A. 2C:39-4(a) in connection with the shooting
death of Harvey Garvin in Newark, New Jersey. At sentencing,
the court merged the conviction for possession of a shotgun
for an unlawful purpose into the aggravated manslaughter
conviction. Petitioner was sentenced to twenty-two years on
the aggravated manslaughter conviction, subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a
concurrent term of four years for unlawful possession of the
shotgun.
Petitioner
filed a notice of appeal and argued that his convictions were
against the weight of the credible evidence and that his
sentence was excessive. The Appellate Division affirmed his
convictions and sentence in an unpublished opinion. The
Supreme Court denied Petitioner's petition for
certification, 200 N.J. 371 (2009).
Petitioner
filed a PCR petition on February 17, 2010, in which he argued
that (1) he was denied the effective assistance of trial
counsel because his attorney: failed to object to the
prosecutor's reference in summation to a “Stop
Snitching” campaign; (2) failed to file a notice of
alibi and investigate his alibi defense; and (3) failed to
obtain records relating to the release of a witness for the
prosecution. He also argued that he was denied the effective
assistance of appellate counsel because these issues were not
raised in the direct appeal. (See ECF No. 7-15,
Petitioner's Pro Se Supplemental Letter Brief on PCR.) A
brief and amended petition were submitted on behalf of
Petitioner by designated counsel who argued that Petitioner
had presented prima facie evidence of ineffective assistance
of counsel, warranting an evidentiary hearing. (See
ECF No. 7-15, Letter Brief in Support of PCR at 99-112;
see also State v. Simmons, No. A-4423-10T2, 2013 WL
949526, at *1 (N.J.Super.Ct.App.Div. Mar. 13, 2013.) The
facts related to his grounds for relief on PCR are recounted
below.
1.
Facts related to Prosecutor's Mention of “Stop
Snitching” Campaign in Summation
On the
afternoon of January 17, 2006, Eddie Chavis and Harvey Garvin
were selling marijuana on 13th Street in Newark. While there,
Chavis witnessed Petitioner shoot Garvin in the leg with a
shotgun at close range. At the time of the shooting Chavis
had known Petitioner for approximately seven or eight years.
Upon being shot, Garvin said to Chavis: “Shit I
don't believe he just-I don't believe this mother
fucker just shot me.” As Garvin limped away, he said
additionally: “I don't believe Duquee just shot
me.” Shahada Smith, a resident of a nearby apartment
who knew Petitioner, Garvin, and Chavis, heard the shot but
did not witness the shooting. She testified at trial that she
heard Garvin say “call the ambulance, Duquee just shot
me.” Smith called 911 and was instructed by the
operator to attempt to staunch the flow of blood, which she
sought to do by applying pressure with the use of towels.
However, Garvin soon lapsed into unconsciousness and later
died of blood loss from a severed femoral
artery.[1]
In
their initial statements to the police, Chavis and Smith
failed to implicate Petitioner as Garvin's shooter, and
Smith failed to mention that Chavis was present. The
discrepancies in their respective statements are succinctly
summarized by the New Jersey Appellate Division in its
opinion denying Petitioner's direct appeal:
On February 1, 2006, the police came to Chavis's house,
and Chavis gave a statement to them. In that statement,
Chavis mentioned that a red Jeep had pulled up next to
Garvin. However, he stated that he did not know who was in
the Jeep, and he did not mention that he had witnessed the
shooting, stating only that he heard the shot. Chavis did not
speak to the police or prosecutors further until he was
jailed for failure to pay child support, in or around June 8,
2007. At that time, Chavis admitted to having seen the
shooting and he identified defendant as the shooter. However,
he declined to give a statement and he declined to sign the
back of a photograph of defendant that was shown to him by
the prosecutor. It was only after Chavis fulfilled his
support obligations and was released from jail that he
admitted to the prosecutor, on June 11, 2007, that he had
seen Duquee initially point his shotgun at the upper part of
Garvin's body, lower it to his thigh area, and then
shoot. Additionally, at that time, he identified a photograph
of Duquee as the shooter.
With respect to Smith, defendant notes that in her first
statement on January 17, 2006, the day of the crime, she did
not mention Chavis, whom she had known for three to four
years as a relative of her son's father; she did not
disclose the circumstances surrounding Garvin's shooting;
and she did not reveal the fact that Garvin claimed to have
been shot by Duquee. She did so only in a second statement
given two months later on March 16, 2006. At that time, she
mentioned Garvin's statement incriminating Duquee, and
she identified photographs of both Duquee and Chavis.
However, on cross-examination she admitted that she had
contacted the police only after learning that they were
looking for her. Further, at trial, Smith was reluctant to
state whether Chavis was selling drugs with Garvin, stating
that she really did not know whether Chavis was doing so.
Simmons, 2009 WL 1586509, at *2. Petitioner also
claimed that there was a contradiction between Chavis'
testimony that he did not discuss the incident with Smith and
Smith's testimony that she had spoken to Chavis in the
days following the shooting; Smith, however, did not specify
the nature of their conversation.[2] Id.
At
trial, both Smith and Chavis offered explanations for why
they failed to implicate Petitioner in their initial
statements to police. Smith testified that she did not
implicate Petitioner, stating that “at that time I was
afraid.” (ECF No. 7-3, Exhibit 3, Trial Tr. dated Jun.
25, 2007 at 55:13.) She further stated: “I just afraid
of anything. Like, just knowing what happened, what Harvey
told me and being as though I know Duquee, or whatever, I
really didn't want to believe that he did that to
Harvey.” (Id. at 55:23-56:1.) Chavis testified
that when the police arrived on the scene, they told him to
remain there to provide details of the shooting (ECF No 7-4,
Exhibit, 4, Trial Tr. dated Jun. 26, 2007 at 35:12-19).
Instead, Chavis got into his car and left because he was
“scared” (Id. at 35:21-25). When the
police later came to him on February 1, 2006, he still failed
to acknowledge that he saw the shooting. He told the police
that the victim said that Duquee shot him, but did not admit
actually seeing the shooting. He said, “(c)ause I
ain't want to get involved” (Id. at 38:3.)
Chavis also testified that on the day of the shooting,
January 17, 2006, he had been out on the street selling drugs
with Garvin. (Id. at 10:4-8, 11:6-25.)
As
expected, defense counsel thoroughly cross examined both
witnesses on their inconsistent statements. In summation,
defense counsel focused almost exclusively on the credibility
of Chavis and Smith, arguing that they were not credible
witnesses and should not be believed by the jury:
The reason I'm going into this is because my basic
argument is that you cannot reliably believe anything that
either of those two witnesses say other than how it's
corroborated.
(ECF No. 7-5, Exhibit 5, Jun. 27, 2017 Tr. at 56-20 to 23.)
So, [Smith] says she sees him, I guess, coming from the car
outside. She went to the window. He was coming up the stairs.
He said to call an ambulance.
Now, that's all she says . . . .
(Id. at 60-17 to 20.)
Now, let's look at her second statement. Because for one
thing, there's absolutely no question when you look at
the sum and totality of Ms. Shahadah Smith, she was
untruthful. She lies. What did she lie about? I'm going
to talk about what she lied about, and ultimately I'm not
sure if we're ever going to know how much was the lie and
how much was the truth
(Id. at 62-63-6.)
What transpires between March 16, 2006 when the police are
looking for her and she eventually goes down that and
acknowledges, well, I left something out. What did you leave
out? Oh, well, Mr. Gavin not only said call an ambulance, he
said Duquee shot me. So that's one big thing.
(Id. at 64-12 to 15.)
Now, [Chavis] gives his first statement what does he say? In
short, he says, well, I was out there but I really didn't
see anything
(Id. at 65-24 to 66-1.)
[Chavis'] second statement 15 months later. Let's
stick with the first one, because the first one bears
relationship to his lies, because he is a liar, he is
untruthful. The first and second statement couldn't have
existed the same way at the same time as being truthful, nor
could Shahada Smith's first [] and second statement
(Id. at 67:20-68:2.)
Just on truthfulness alone, you know that [Smith], her
testimony here in Court and her inconsistent statements, she
is lying and I submit to you the only statement that has any
corroboration is her first statement where she mentions none
of this. This has been cooked up between [them], I submit,
between them and others in the family.
(Id. at 68:17-23.)
Now, let's look at Mr. Chavis. He says some remarkable
things. In his first statement he says what I told you, that
he is in the back of the building. He hears actually what he
says is this, the red Jeep. He sees the red Jeep pull up. He
is going in the back of the building. He is not interested in
the red Jeep. He is in the back of the building. He hears
voices. One of them is Harvey's voice, another voice he
hears is not loud, not arguing, brief conversation. He hears
a shot, comes around. The Jeep had tinted windows. He
didn't see anyone in the Jeep because of the tinted
windows, and, of course, he was in the back. If any of the
windows opened up, he didn't see that and he sees Harvey
and Harvey says, “I don't believe that mother
fucker just shot me, ” and then he says “Duquee
shot me.” That's where I suggest to you where
[Smith's] second statement comes from. That's why
they are both putting Duquee in it.
Actually Mr. Chavis is the kind of guy who is not only a
liar, he is 42 years old, convicted felon, and one of the
things you have to evaluate with regard to his convictions .
. . . it's not that he's a bad person. It's that
a person who violates the law may be entitled, and it's
up to you, to less credibility than others.
(Id. at 69:7-70:9.)
In his
summation, the prosecutor emphasized that both witnesses were
afraid to come forward, as they stated in their respective
testimony, and also stated the following regarding the
“stigma . . . in the community” associated with
being a witness in a homicide case:
They are telling you the truth as to who did this. She
doesn't tell everything, and I told you in my opening Mr.
Chavis didn't tell everything either, but think about how
hard it is to be a witness in a homicide case. There's
always a stigma attached to it in the community.
We just took a class and it was interesting and in some city
of Pittsburgh, for example, there's a whole thing going
on where they have T shirts that say “Stop
Snitching” on them with a big red stop sign on it.
That's the culture. So people, besides the fact that they
are scared to death because they just witnessed a violent act
by someone they know from the area, but there's also a
stigma attached when you come to court. You have to have
courage to come to court. And I submit to you, ultimately
both those witnesses got up the gumption to come to this
Court and tell you what actually happened.
(Id. at 89:12-23.) Petitioner's counsel did not
object to the prosecutor's comments regarding the
“Stop Snitching” campaign.
Petitioner
sought relief on PCR, alleging that his defense counsel was
ineffective for failing to object to the prosecutor's
comments regarding the “Stop Snitching” campaign
and that his appellate counsel was deficient for failing to
raise the issue on direct appeal. The PCR court rejected
Petitioner's claim as follows:
[W]ith regard to the T-shirts that say stop snitchin',
the prosecutor made a fleeting reference to T-shirts that
said stop snitchin'. This was not a reference to the
facts outside the reference - record, rather, but rather, a
general reference to something, a climate that existed in big
cities. And counsel for the state cites State v.
Byrd, B-Y-R-D, at 198 N.J. 319, 2009, that notes that in
- there's a nationwide pandemic in - in - in terms of
witnesses coming forward in criminal cases who are afraid to
testify.
So the court finds that in the context of the closing
statement made by [the prosecutor] to explain the difference
between the statements made by [Smith] and - and - and
[Chavez], that it was not impermissible for [the prosecutor]
to make that inference in his closing argument. Counsel for
the state is entitled to make a vigorous closing statement
and he did so in connection with this case. The court finds
that the reference to stop snitchin', which was a
fleeting reference in the summation, is not error. But even
if it were error, it clearly would not be error that would
entitled the defendant to post-conviction relief. That is
just not capable of producing an unjust result.
(See ECF No. 7-9, Exhibit 9, PCR Transcript dated
November 9, 2010, at 24:2-25:1.)
The
Appellate Division applied a procedural bar to this claim
pursuant to N.J. Ct. R. 3:22-4: “Defendant's
allegation that his trial counsel was ineffective in failing
to object to the prosecutor's summation is thus
procedurally barred by Rule 3:22-4(a) unless: this argument
could not reasonably have been raised in the direct appeal;
enforcement of the procedural bar would result in a
fundamental injustice; or denial of relief would be contrary
to a new rule of constitutional law. We are satisfied that
none of these exceptions to the procedural bar apply.”
Simmons, 2013 WL 949526, at *2.
2.
Facts Related to Petitioner's Alibi Defense
On PCR,
Petitioner alleged that on the day of the homicide, he was
with his then girlfriend, Veronica Johnson, who would have
testified that he was with her for the entire day and was not
responsible for the shooting. (See ECF No. 7-15,
Petitioner's Brief on Appeal of Denial of PCR at 20-21;
Petitioner's Pro Se Supplemental Brief on PCR at 8-9.) On
PCR, Petitioner contended that his ...