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Harris v. Nogan

United States District Court, D. New Jersey

November 10, 2017

PATRICK NOGAN, et al., Respondent.


          ROBERT B. KUGLER United States District Judge.


         Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on multiple counts including conspiracy to commit robbery, first-degree robbery, aggravated assault, and a number of weapons charges. He is currently serving twenty years with an eighty-five percent period of parole ineligibility for armed robbery and a consecutive ten year term of imprisonment with five years of parole ineligibility on a weapons offense. Petitioner raises several claims in his habeas petition. For the following reasons, the habeas petition will be denied.


On the evening of August 5, 2005, Tair Jumaniyaazoe[Fn1] was working alone at a Citgo Gas Station in Pleasantville, New Jersey at 10:30 p.m. As he was pumping gas, two men approached him and asked to buy cigarettes. Tair stepped inside the booth while the two men waited outside. As Tair was retrieving the cigarettes, the men stepped inside the booth. When Tair turned around, he observed one of the men pointing a gun at his lower back while the other man emptied the drawers looking for money. Tair indicated that both men were black males and both were approximately six feet tall. The gunman was wearing a white shirt, blue jeans, boots and a black hat with the letter “P” on it. The gunman had a thick beard and neck-length braids. The other man was wearing a white t-shirt and stone-washed blue jeans. He had a “fresh haircut” with a “thin” beard. Tair described the gun as “brown stock, ” old fashioned with a “long barrel” and a “classic.”
[Fn. 1] For ease of reference, we refer to this witness by his first name.
The gunman took the cash from Tair while the second man took rolled change from the drawers and put them inside a Designer Shoe Warehouse (DSW) bag that had previously contained Tair's dinner. Tair estimated that about $116 to $130 in cash was taken. The men then cut the fax line and walked away from the gas station. The whole incident lasted approximately three minutes. After the two men left, Tair used his cellular phone to call the police. Immediately thereafter, at about 10:30 p.m., Pleasantville police officers arrived at the scene. Tair told the officers that he had been robbed, described the robbers and told them how the robbery had occurred.
Approximately twenty-minutes later, at about 10:50 p.m., Atlantic City K-9 Patrolman Salvatore Rando observed a red vehicle traveling in the opposite direction from the gas station. Patrolman Rando radioed for back-up and followed the car. The car eventually pulled over to the side of the road, and two passengers exited the vehicle. Defendant exited out of the driver's side, and an individual named Blair Williams exited out of the passenger side. Patrolman Rando approached defendant and Williams and spoke to them while awaiting back-up. Within seconds several officers arrived and “secured” defendant and Williams.
Patrolman Rando inspected the vehicle with a flashlight and “immediately” saw “a long barreled handgun” underneath the seat cushion on the passenger's side. Patrolman Rando also found a DSW bag between the two front seats with rolls of coins inside. At a later time, Pleasantville police officer Richard Henderson observed a black hat embossed with a “P” and a scarf in the back seat of the vehicle.
The Pleasantville police received notification that the Atlantic City police had located some suspects. Tair and another witness, Mr. Ernesto Santos, were driven to Atlantic City to view the suspects; they did not speak to each other while traveling. Once the two witnesses arrived in Atlantic City, defendant and Williams were taken out of the police vehicle. They stood in the street in full frontal view with their hands cuffed behind their backs and spotlights used for illumination. While sitting in the back seat of the patrol car, Tair and the witness identified defendant and Williams as the robbers. At the time, neither defendant nor Williams had neck length braids. Defendant and Williams were initially processed in Atlantic City.
The next day the two men were transferred to the Pleasantville Police Department to be processed. Defendant had $125, a “pair of jean shorts, a pair of olive Timberland boots, black doo rag, shoelaces, black belt, black wrist band, [and a] Timberland leather key chain.” Williams had $25.
Defendant was tried separately and during the trial, Christopher Hallett, an investigator for the Atlantic County Prosecutor's Office, discussed all of the efforts he made in procuring the second witness, Santos. Investigator Hallett testified that he was assigned to the case and interviewed Santos on January 31, 2007. However, when Investigator Hallet made several attempts to contact Santos in preparation for trial, he was unable to do so.
Defendant testified at trial. Defendant stated that Blair Williams was a childhood friend that he had not seen in a while. He met Williams in Camden; and Williams invited defendant to his apartment to “catch up on old times.” Once they were in the apartment, Williams stated that he wanted to go to a liquor store and pick up some cigars so they can “get reacquainted.” Defendant had no idea where the liquor store or the Citgo gas station was in relation to Williams' apartment. Five to ten minutes later, Williams returned with nothing in his hands. Williams told defendant that they were going to drive to Atlantic City to pick up his girlfriend at work. Williams stated that he was late picking up his girlfriend “Pinky” and that he wanted defendant to drive so that they could use defendant's unfamiliarity with the area as an excuse for the lateness. Williams directed defendant, telling him exactly where to drive. Once they arrived in Atlantic City, Williams told defendant to make a right turn and to pull over. Defendant then assumed that they had arrived at their destination and exited the vehicle. At this point, they were stopped by K-9 Patrolman Rando. Defendant denied that he was at the gas station at the time of the robbery and claimed that he never saw the gun that was found in the car.

(Dkt. No. 7-8 at p. 2-6.)

         After petitioner was convicted and sentenced, he appealed to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed. See State v. Harris, No. A-1652-07T4, 2009 WL 735757 ( N.J.Super.Ct.App.Div. Mar. 23, 2009). The New Jersey Supreme Court denied certification on May 8, 2009. State v. Harris, 973 A.2d 384 (N.J. 2009).

         Petitioner subsequently filed a petition for post-conviction relief (“PCR”) in the Superior Court of New Jersey, Atlantic County, in March, 2010. That court denied the PCR petition on December 3, 2010. (See Dkt. No. 7-14.) The Appellate Division affirmed that denial on July 15, 2013. (See Dkt. No. 7-17.) The New Jersey Supreme Court denied certification on the PCR petition on February 21, 2014. (See Dkt. No. 7-18.)

         Petitioner then initiated this federal proceeding by filing a petition for writ of habeas corpus in August, 2014. The respondent filed his response on October 28, 2014.


         An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d at 415 n.1 (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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 state court. See 28 U.S.C. § 2254(d).

         As a threshold matter, a court must “first decide what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United States.'” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law' under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision.” Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1398 (2011). The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Id.

         In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Additionally, AEDPA deference is not excused when state courts issue summary rulings on claims as “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).


         Petitioner raises multiple claims in his habeas petition; specifically:

1. State court's ruling that the police officer's repeated references to the presence of a non-testifying eye witness at the show-up where Petitioner was identified as a robber was not a denial of Petitioner's right to due process, a fair trial, and witness confrontation was contrary to clearly established federal law, and an unreasonable application thereof.
2. State court's ruling that Petitioner was not deprived of his due process right to a fair trial as a result of the prosecutorial misconduct was contrary to clearly established federal law, and an unreasonable application thereof.
3. State court's ruling that Petitioner was not deprived of his Sixth Amendment constitutional right to the effective assistance of counsel where the “show-up” procedure used by the police was impermissibly suggestive and defense counsel failed to request a Wade hearing was contrary to clearly established federal law, and an unreasonable application thereof.
4. State court's ruling that Petitioner was not denied the effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution by (A) counsel's failure to object to the prosecution's opening statement where the jury was advised they would hear from petitioner's co-defendant, who was never called, and (B) counsel's refusal to permit the trial court to include second degree robbery on the verdict sheet, though the court had charged the offense to the jury, was contrary to clearly established federal law, and an unreasonable application thereof.

         These Claims will be considered in turn.

         A. Claim I - References to Non-Testifying Witness at the “Show Up” Identification

         Petitioner makes two arguments with respect to his claim that references at trial to the presence of a non-testifying witness at the “show up” in which Petitioner was identified as a robber violated his constitutional rights.[2] First, he claims that testifying police officers' references to Mr. Santos' presence at the “show up” implied that Mr. Santos identified Petitioner as a robber and therefore amounted to improper third-party hearsay and bolstering of the evidence in violation of State v. Bankston, [3] thereby violating his right to a fair trial. Second, he claims that the introduction of the implied hearsay violates the Confrontation Clause. The last reasoned decision from the state courts on this Claim was from the Appellate Division on direct appeal. That court analyzed these issues as follows:

Clearly, there were various references to more than one witness at the show-up. At various times during the trial, Tair and Santos were referred to in the plural, and at least one point, an officer identified Santos as being present. Defense counsel did raise an objection to the references to Santos, the unavailable witness. During side-bar, the following discussion took place:
[DEFENSE COUNSEL]: To avoid a situation that is coming up here, I see-they are-he is using this phrase: They ... they ... they ... I don't believe the prosecutor has indicated he intends to put Mr. Santos on the stand. I want to make sure that if he's not going to try to elicit from this officer how the identifications went and what words this guy said Santos said this hearsay as well even for Tair that this officer will say that Tair-
THE COURT: Is Santos testifying?
[PROSECUTOR]: First of all, I was not going to go there. We can't find Santos. He certainly can testify to a prior identification Tair-
THE COURT: If-who made it?
[DEFENSE COUNSEL]: Testified that this other person who is not testifying.
[PROSECUTOR]: No, he is going to testify that Tair made the identification, that's it. I am not going to get into Santos.
[DEFENSE COUNSEL] Okay. I heard, they ... they; I wanted to make sure.
Critically, the record is devoid of any reference to Santos making a positive or negative identification of the defendant. The only testimony referring to Santos, thereafter, addressed the State's inability to locate Santos for trial.
Defendant argues that “[t]he logical reasoning is: If Santos and Tair were seated in the same patrol car, and taken to the same place, for the same purpose, then they must have made the same identification.” Consequently, the repeated references to Santos at the show-up “impliedly corroborated” Tair's positive identification of defendant. Defendant claims that this inference is analogous to impermissible hearsay that arises when a testifying witness repeats statements made by a non-testifying witness, which is a violation of Bankston. We reject this as pure conjecture.
In Bankston, defendant was convicted for possession of heroin. Bankston, supra, 63 N.J. at 266, 307 A.2d 65. During the opening statement the prosecution stated that the defendant was under “investigation.” During trial, a detective testified that they had entered the bar and arrested defendant based on a tip from an informant. The detective stated, “we were looking for a certain individual. We had a description of his clothing. He was inside the tavern.... We were looking for an individual that had narcotics in his possession.” Ibid. The Supreme Court noted that a police officer can explain “the reason he approached a suspect or went to the scene of the crime by stating that he did so ‘upon information received[ ]' “ to “show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.” Id. at 268, 307 A.2d 65. However, “when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused[, ] the testimony violates the hearsay rule ... [and his] Sixth Amendment right to be confronted by witnesses against him.” Id. at 268-69, 307 A.2d 65. The Court noted that “[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay.” Id. at 271, 307 A.2d 65. The Court found that the “inescapable inference from [the detective's] testimony was that the informer had given information that defendant would have narcotics in his possession” and reversed the conviction. Ibid.
The Court further explained Bankston and subsequent cases by stating that “‘[t]he common thread that runs through [the Bankston cases] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.'” State v. Kemp, 195 N.J. 136, 155, 948 A.2d 636 (2008)(quoting State v. Branch, 182 N.J. 338, 351, 865 A.2d 673 (2005)). Therefore, a police officer is allowed to use the phrase “based on information received” to explain his actions “only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person.” Branch, supra, 182 N.J. at 352, 865 A.2d 673.
Here, defendant argues that the officers' references to Santos created the implication that Santos had positively identified defendant as one of the robbers. In other words, the officers “possesse[d] superior knowledge, outside the record, that incriminate[d] defendant.” Kemp, supra, 195 N.J. at 155, 948 A.2d 636. This implication was bolstered by the fact that the State offered ...

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