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Milbourne v. Hastings

United States District Court, D. New Jersey

July 27, 2017

LAMAR MILBOURNE, Petitioner,
v.
BEVERLY HASTINGS, et al., Respondents.

          Lamar Milbourne, Petitioner pro se

          Matthew M. Bingham, Esq. Cumberland County Prosecutor's Office Attorney for Respondent Beverly Hastings

          OPINION

          JEROME B. SIMANDLE U.S. District Judge

         I. INTRODUCTION

         Lamar Milbourne has submitted an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Amended Petition, Docket Entry 6. Respondent Beverly Hastings opposes the petition. Answer, Docket Entry 13. For the reasons stated herein, the petition shall be denied and no certificate of appealability shall issue.

         II. BACKGROUND

         The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the recitation of the facts as set forth by the New Jersey Superior Court Appellate Division in its opinion denying Petitioner's post-conviction relief (“PCR”) appeal:

Defendant and his three co-defendants, Milledge, Nichols and Hinson, embarked on the night of September 19, 2002, to “rob some Mexicans.” At approximately 9:15 p.m., they encountered two teenagers, C.P. and K.M., parked near a boat ramp at Elmer Lake in Bridgeton. Claiming to be police officers, defendant and the other young men pulled the teenagers from the car. Defendant brought K.M. to the rear of the vehicle where he “pressed [her] up against [the] side of the car, ” patted her down, and ordered her to spread her legs. When K.M. resisted, defendant punched her repeatedly in her ribs. Defendant took K.M.'s keys and wallet, which contained eighty-five dollars. Next, defendant lifted K.M.'s shirt, removed her bra, unbuttoned her pants, and inserted his finger into her vagina. One of the other men then approached her, pulled her shirt over her head so that she could not see, after which she felt fingers inserted into her vagina at least ten times. Defendant removed K.M.'s shirt and placed his fingers inside her rectum. When she screamed for help, defendant slammed her head into the trunk. She cried, “God, help me, ” and heard one of the men say, “God couldn't help [you].” The others yelled, “Shut up, ” and, “We'll kill you.”
Next, all four defendants began participating in the sexual assault, punching and threatening to kill K.M. if she did not comply with their demands. They dragged her into a wooded area and continued the sexual assault over a half-hour period. They repeatedly punched C.P., while forcing him to watch the assault on K .M. C.P. was struck with a baseball bat, kicked and stomped. The men shouted words of encouragement to one another during these vicious attacks.
Once the defendants left, the victims managed to drive themselves to a hospital where they were treated for serious injuries. The savage attack was reported to the police. Suspects were quickly developed because C.P. recognized some of the young men from school.
When co-defendant Hinson was arrested later that night, he inculpated defendant. Shortly thereafter, police arrested defendant at his home. In the police vehicle, on the way to headquarters, defendant received his Miranda[1] rights. He also signed a Miranda rights card at the police station before questioning. Defendant was initially reluctant to discuss the incident. However, after being informed that Hinson implicated him, defendant admitted to police that he and the other men “were looking to screw up a prom in the projects and then they decided to go out and rob a Mexican.” He then disclosed that when the men first arrived at the park, they unsuccessfully attempted to rob another individual. He explained that after driving slightly further, they came upon C.P. and K.M.
At that point, defendant agreed to provide a taped statement and was advised of his Miranda rights again. In his statement defendant gave his version of the incident.[2] Defendant maintained that he did not have intercourse with K.M.

State v. Milbourne, No. A-3313-10, 2012 WL 6195813, at *1-2 ( N.J.Super.Ct.App.Div. Dec. 13, 2012) (alterations in original); Ra18.[3]

         Prior to trial Petitioner moved to exclude his statements to police and K.M.'s and C.P.'s identification of him. See generally 2T.[4] Detectives Patitucci and Zanni testified on behalf of the State during the Miranda hearing; Petitioner did not present any witnesses. The trial court found Petitioner knowingly and voluntarily waived his rights after receiving proper Miranda warnings and deemed the taped statement to be admissible. 2T80:20-22. During the Wade[5]hearing, Petitioner argued the photographic show-up procedure was impermissibly suggestive because police officers showed K.M. and C.P. photographs of Petitioner and his co-defendants and asked them to state who did what during the crime. 2T81:11-19. No other photographs were shown to the victims. After hearing testimony from K.M., the trial court indicated it had “misgivings about the validity of the procedure utilized . . . . It was not utilized to identify the actor as being a participant, but the actor as participating in a certain aspects . . . I'm not clearly convinced that there wasn't some problem with the procedure.” 2T111:1-9. It therefore held that K.M. would not be permitted to testify that she identified Petitioner from his photograph. She would be able to identify Petitioner in court, however, as the trial court concluded that her identification was based on her observations from the night in question, not the photographs. 2T110:14 to 111:14. C.P. did not testify during the Wade hearing, but the trial court noted the same restrictions would be placed on his trial testimony. 2T114:1-3.

         The State indicated that it would oppose the introduction of a DNA sample found on K.M. pursuant to New Jersey's Rape Shield Law, N.J. Stat. Ann. § 2C:14-7 (limiting circumstances under which evidence of victim's previous sexual conduct may be admitted). “Defense counsel responded, ‘We have no objection to that, Judge.' There was no further discussion on the issue.” State v. Milbourne, No. A-3068-04, 2007 WL 4355495, at *5 ( N.J.Super.Ct.App.Div. Dec. 14, 2007). The parties agreed to introduce the following stipulation to the jury:

“Specimens from the sexual assault evidence collection kit . . . of [K.M.] and specimens from Lamar Milbourne were sent to the New Jersey State Police Lab for analysis. No DNA of Lamar Milbourne was detected in the specimens from the sexual assault evidence collection kit of [K.M.].”

3T93:1-7. The parties also stipulated that none of the fingerprints or palm prints recovered from the scene containing sufficient characteristics for testing belonged to Petitioner. 3T93:8-14.

         Petitioner was tried separately from his three co-defendants. The State presented seven witnesses, including K.M. and C.P. Both victims identified Petitioner in court as one of the people who had attacked them and sexually assaulted K.M. Petitioner presented two character witnesses and testified on his own behalf. He testified that he had no involvement in the events at the park. He stated the other defendants came to his house late that night and told him they had “‘wowed out on this couple, '” which Petitioner understood to mean they beat the couple up. 8T36:3, 25. Petitioner told them to leave his house, and the police arrived a few hours later. 8T37:20-25. He further claimed that he only gave the statement to the police after they called him derogatory racial names and told him they had already beaten up Michael Hinson, who named Petitioner as being involved. 8T32:1-16, 34:2 to 35:3. Petitioner stated the police provided him with the details of the crime so that he would be able to give a statement implicating his co-defendants in exchange for being released. 8T44:14 to 14. He further indicated he admitted to being present because Detective Zanni told him “‘[b]eing there is not a crime, '” and to lend authenticity to his statement against his co-defendants. 8T47:15 to 48:18.

         The jury found Petitioner guilty of first-degree aggravated sexual assault of K.M., N.J. Stat. Ann. § 2C:14-2(a); first-degree kidnapping, N.J. Stat. Ann. § 2C:13-1(b); third-degree aggravated assault, N.J. Stat. Ann. § 2C:12-16; third-degree criminal restraint, N.J. Stat. Ann. § 2C:13-2(a); possession of a baseball bat for an unlawful purpose, N.J. Stat. Ann. § 2C:39-4(d); second-degree robbery N.J. Stat. Ann. § 2C:15-1(a); second-degree conspiracy to commit robbery, N.J. Stat. Ann. § 2C:15-1(a)(1); and disorderly persons simple assault, N.J. Stat. Ann. § 2C:12-1(a). He was acquitted of second-degree aggravated assault of K.M. and C.P., N.J. Stat. Ann. § 2C:12-1(b)(1), and third-degree terroristic threats against both K.M. and C.P., N.J. Stat. Ann. § 2C:12-3(b).

         Petitioner filed an appeal with the Appellate Division challenging the exclusion of the DNA results, the sufficiency of the evidence on the charge of kidnapping K.M., the kidnapping jury instructions, admission of other bad acts evidence, lack of a Wade hearing for C.P., the excessive sentence and fees, and the admission of his statement. See Pet. App. Brief, Ra15. After a limited remand to the trial court for consideration of a claim not raised in Petitioner's opening brief regarding the warrantless arrest, the Appellate Division affirmed the convictions but remanded to the trial court for resentencing. State v. Milbourne, No. A-3068-04, 2007 WL 4355495 ( N.J.Super.Ct.App.Div. Dec. 14, 2007). The trial court resentenced Petitioner to forty years with 85% parole ineligibility. The New Jersey Supreme Court denied certification. State v. Milbourne, 945 A.2d 1287 (N.J. 2008).

         Petitioner thereafter filed a PCR petition raising several challenges to his trial and appellate counsels' performances. He particularly challenged trial counsel's decision to enter into the stipulation regarding the DNA evidence as well as counsel's performance during the Miranda hearing. See Pet. PCR Brief, Ra39. The PCR court heard oral argument on May 14, 2010, 13T, and denied the petition without an evidentiary hearing on July 30, 2010, 14T. The Appellate Division affirmed the decision of the PCR court. State v. Milbourne, No. A-3313-10, 2012 WL 6195813, at *2 ( N.J.Super.Ct.App.Div. Dec. 13, 2012), certif. denied, 67 A.3d 1192 (N.J. 2013).

         Petitioner filed a § 2254 petition on August 7, 2013. Petition, Docket Entry 1. By Order dated August 15, 2013, this Court informed Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), and ordered him to advise the Court as to how he wished to proceed. Mason Order, Docket Entry 2. Petitioner elected to submit an amended petition on September 16, 2013. Respondent filed its answer on November 27, 2013, and Petitioner submitted a traverse on February 24, 2014. On July II, 2016, Petitioner submitted a supplement to his traverse raising an actual innocence claim. July 11, 2016 Letter, Docket Entry 17.

         III. STANDARD OF REVIEW

         Title 28 U.S.C. § 2254 permits a federal court to entertain a petition for writ of habeas custody on behalf of a person in state 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).

         With respect to any claim adjudicated on the merits by a state court, 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). A state court decision is “contrary to” Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “[A] state-court decision is an unreasonable application of clearly established [Supreme Court] precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 134 S.Ct. 1697, 1706, reh'g denied, 134 S.Ct. 2835 (2014). The Court must presume that the state court's factual findings are correct unless Petitioner has rebutted the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         IV. ANALYSIS

         Petitioner raises the following points for this Court's review:

I. The exclusion of exculpatory evidence that an unknown person's DNA was present in the material collected from the female victim denied Petitioner of his constitutional right to present a defense.
II. The crime of kidnapping of the female victim was unsupported by sufficient evidence because the confinement was incidental to the other crimes[.] Additionally, the jury instructions for both kidnappings were deficient denying Petitioner's constitutional right to a fair trial and to due process.
III. Repeated references to highly inflammatory evidence that the Petitioner had planned to “beat up and rob some Mexicans” and had attempted to rob someone just before the incident, denied the Petitioner his constitutional right to due process of law and of a fair trial.
IV. The impermissibly suggestive show-up of Petitioner's photograph to C.P. tainted his in-court identification depriving Petitioner of his constitutional rights to due process and to a fair trial.
V. Petitioner has been denied effective assistance of trial and appellate counsel pursuant to the U.S. Constitution, Amendment VI and XIV.
VI. Trial Counsel was ineffective in preparing and arguing Petitioner's motion to suppress his statement before the trial court pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) (U.S. Cont. Amend. XIV).
VII. Trial Counsel was ineffective in failing to object and even eliciting prejudicial inadmissible hearsay evidence in violation of Petitioner's Sixth Amendment right.
VIII. Trial counsel was ineffective by stipulating to withhold from the jury that an unknown person's DNA was present in the evidence collected from the female victim denying Petitioner of his constitutional right to a fair trial including the right to effectively pursue a defense involving “third party guilt.” IX. The Defendant failed to receive adequate legal representation from trial counsel arising out of the Miranda hearing.
X. The Petitioner failed to receive adequate legal representation from trial counsel as a result of counsel entering into a stipulation regarding DNA evidence rather than introducing the DNA test results to affirmatively support a third party guilt defense.

         A. Challenges to Kidnapping Conviction

          In Ground II, Petitioner adopts his appellate counsel's arguments in challenging the first-degree kidnapping convictions. First, Petitioner argues the evidence at trial was insufficient to convict him of kidnapping K.M. because “the ‘confinement' of K.M. was inherent in the other crimes committed against her.” Pet. App. Brief at 20.

         He further asserts the jury instructions on kidnapping were deficient for three reasons. He argues the trial court instructed the jurors that “‘in determining whether the confinement was substantial, ' they ‘may consider'” the factors enumerated in La France.[6] Pet. App. Brief at 21 (quoting 8T112:21 to 113:3) (emphasis in original). “First, there is nothing discretionary or optional about La France. The jury must consider those factors. . . . Without requiring the jury to consider the La France factors, the judge gave the jury the option to ignore them, a critical error on a charge as serious as kidnapping.” Id. (emphasis in original). He also argues “nothing in the instructions informs the jurors that failure of the State's proofs on any of the La France factors should result in an acquittal.” Id. at 21-22 (emphasis in original). Finally, he argues the trial court failed “to charge accomplice liability on the kidnapping charge respecting C.P. because the evidence concerning defendant's actions in confining C.P. was insufficient . . . .” State v. Milbourne, No. A-3068-04, 2007 WL 4355495, at *10 ( N.J.Super.Ct.App.Div. Dec. 14, 2007).

         1. Whether there was sufficient evidence to convict Petitioner of kidnapping K.M.

         “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).

         New Jersey “defines kidnapping, in relevant part, as unlawfully confining another for a substantial period, to either (1) ‘facilitate commission of any crime or flight thereafter;' or (2) ‘inflict bodily injury on or to terrorize the victim or another.' To support a conviction for kidnapping, the confinement must be ‘criminally significant in the sense of being more than merely incidental to the underlying crime.'” Milbourne, 2007 WL 4355495, at *9 (quoting State v. La France, 569 A.2d 1308, 1313 (N.J. 1990)). “[O]ne is confined for a substantial period if that confinement ‘is criminally significant in the sense of being more than merely incidental to the underlying crime, ' and that determination is made with reference not only to the duration of the confinement, but also to the ‘enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial.'” La France, 569 A.2d at 1313 (quoting State v. Masino, 466 A.2d 955, 961 (1983)) (first alteration added).

         Here, K.M. testified Petitioner took her cellphone, 5T9:14-19; dragged her from her car, 5T9:3-12; held her against the trunk, 5T10:2-7, hit K.M. in her side, 5T11:3-9; stole her car keys and wallet, 5T11:18-25; removed her clothing, 5T12:5-19; and proceeded to digitally penetrate her vagina and anus, 5T13:1-3, 13:20 to 14:1. A reasonable jury could conclude that dragging K.M. out of her car “constitute[d] a separate danger that substantially increase[d] the risk of harm . . . .” State v. Brent, 644 A.2d 583, 592 (N.J. 1994)(finding elements of first-degree kidnapping present where defendant attacked victim, dragged her into wooded lot, and sexually assaulted her). A jury could also reasonably conclude that Petitioner ...


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