Simmons v. D'Ilio

          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 The Appellate Division affirmed his convictions and sentence in an unpublished opinion.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 ...