United States District Court, D. New Jersey
Milbourne, Petitioner pro se
Matthew M. Bingham, Esq. Cumberland County Prosecutor's
Office Attorney for Respondent Beverly Hastings
B. SIMANDLE U.S. District Judge
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.
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
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 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. 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.
to trial Petitioner moved to exclude his statements to police
and K.M.'s and C.P.'s identification of him.
See generally 2T. 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 Wadehearing,
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.
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
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.
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. §
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).
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).
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
STANDARD OF REVIEW
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).
respect to any claim adjudicated on the merits by a state
court, the writ shall not issue unless the adjudication of
(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;
(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).
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
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.
Challenges to Kidnapping Conviction
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.
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. 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).
Whether there was sufficient evidence to convict Petitioner
of kidnapping K.M.
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)).
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).
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