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Stone v. Author

United States District Court, D. New Jersey

November 21, 2017

LUCRETIA STONE, Petitioner,
v.
VALERIE AUTHOR, et al, Respondents.

          OPINION

          MADELINE COX ARLEO, District Judge:

         I. INTRODUCTION

         This matter has been opened to the Court by petitioner Lucretia Stone's ("Petitioner") filing of a pro se Petition (ECF No. 3) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking an evidentiary hearing and a writ of habeas corpus. For the reasons explained in this Opinion, the Court will deny the Petition and will also deny a certificate of appealability.

         II. FACTUAL BACKGROUND & PROCEDURAL HISTORY[1]

A. Factual Background

         Petitioner was indicted on charges growing out of a fire at a Jersey City multi-family dwelling in the early morning hours of May 30, 1997. She lived in the building's illegal basement apartment and had a contentious relationship with the resident landlords, Krishna and Arawattie Ramnanana. Although most apartment residents escaped the May 30 apartment blaze, three children who also lived in the building died in the fire. Investigators determined that the fire was set with the use of the accelerant gasoline, and there was testimony at trial that Petitioner purchased a small amount of gasoline in the early morning hours of May 30, 1997.

         Following a jury trial, Petitioner was found guilty of three counts of second-degree reckless manslaughter, three counts of first-degree felony murder, and one count of arson and was acquitted on the charge of aggravated arson. The sentencing judge merged the reckless-manslaughter and arson convictions into the felony-murder convictions. After finding aggravating factors one and nine and mitigating factor seven, the judge sentenced her to three consecutive life terms in prison with a ninety-year period of parole ineligibility. (See ECF No. 18-45 at 1-2.)

         B. Procedural History

         Petitioner appealed her conviction and sentence. The Appellate Division affirmed the conviction, but modified the sentence to three concurrent terms of life imprisonment with a thirty-year parole disqualifier. See State v. Lucretia Stone, No. A-3307-99 (App. Div. Aug. 4, 2003). (ECF No. 18-20.) The Supreme Court denied Stone's petition for certification. State v. Stone, 178 N.J. 36 (2003). (ECF No. 18-21.)

         In 2004, Stone filed a petition for post-conviction relief ("PCR"). (ECF No. 18-22.) The trial court denied the petition in April 2006. (ECF Nos. 18-30, 18-31.) The Appellate Division affirmed the trial court on February 29, 2008. State v. Lucretia Stone, No. A-5317-05 (App. Div. Feb. 29, 2008). (ECF No. 18-39.) The Supreme Court denied Stone's petition for certification. State v. Stone, 195 N.J. 524 (2008). (ECF No. 18-41.)

         On or about November 10, 2007, while her PCR appeal was still pending, Stone filed a pro se motion for a new trial based on newly discovered evidence ("New Trial Motion").[2] The trial court denied the motion on April 29, 2011 and the Appellate Division affirmed the trial court's decision on May 22, 2013. (ECFNos. 18-42-18-45; 18-97; 18-47.)

         Petitioner, currently incarcerated at Edna Mahan Correctional Facility, submitted her habeas petition to prison officials for filing on June 3, 2014. (ECF No. 1, Pet. at 16.) The matter was assigned to the Honorable Faith S. Hochberg. The Court administratively terminated the proceeding on July 14, 2014 for Petitioner's failure to comply with L. Civ. R. 81.2(a). (ECF No. 2.) Petitioner thereafter submitted an amended habeas petition to prison officials on August 5, 2014 on the correct form ("Amended Petition"). (ECF No. 3, Pet. at 22.) The Amended Petition with 44 pages and 2 addenda sets forth nine separate grounds for habeas relief. (ECF No. 3.)

         The Court screened the Amended Petition and issued an Order to Show Cause on September 18, 2014, requiring Petitioner to explain why her Amended Petition should not be dismissed as time-barred under the one-year statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"). (ECF No. 4.) On October 23, 2014, Petitioner filed a Response to the Order to Show Cause, addressing the issue of the Amended Petition's timeliness. (ECF No. 5.)

         On December 5, 3014, the matter was transferred to the undersigned. (ECF No. 6.) This Court reviewed Petitioner's October 23 submission and, on May 4, 2016, ordered the State to provide a full answer; the Court reserved decision on the issue of the Amended Petition's timeliness. (ECF No. 9.) On June 7, 2016, Respondents filed a motion to dismiss the Amended Petition on timeliness grounds, arguing that the Petition was untimely because Petitioner was not entitled to statutory tolling for her New Trial Motion. (ECF No. 11.) On September 12, 2016, Petitioner filed a Reply Memorandum in Support of Petition for Writ of Habeas Corpus. (ECF No. 13.) On January 27, 2017 the Court denied Respondents' June 8, 2016 motion to dismiss finding that Respondents had not met their burden to show that the Petition is untimely, and ordered Respondent to provide a full and complete answer to the Petition. (ECF Nos. 14 and 15.) Respondents filed their full Answer on March 24, 2017.[3] (ECF No. 18.) The matter is fully briefed and ready for disposition.

         III. TIMELINESS

         As noted above, on January 27, 2017, the Court denied Respondents' motion to dismiss, finding that Respondents had not met their burden to show that the Petition is untimely, and ordered Respondent to provide a full and complete answer to the Amended Petition. The Court's Memorandum Opinion set forth the Court's reasons for denying the motion to dismiss, which need not be recounted here. The Memorandum Opinion permitted Respondents to renew their timeliness arguments with proper supporting authority in their full Answer. In their full Answer, Respondents have not provided any additional analysis of the relevant issues. For that reason, the Court declines to find the Amended Petition untimely, and will proceed to the merits.

         IV. STANDARD OF REVIEW

         Section 2254(a) permits a court to entertain only claims alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by AEDPA (28 U.S.C. § 2244), federal courts in habeas corpus cases must give considerable deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).

         Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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).

         Where a state court adjudicated a petitioner's federal claim on the merits, [4] a federal court "has no authority to issue the writ of habeas corpus unless the [state c]ourt's decision 'was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States, ' or 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Parker v. Matthews, 567 U.S. 37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).

         "[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of t[he Supreme Court's] decisions, " as of the time of the relevant state-court decision. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d) (1) if the state court "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result." Williams, 529 U.S. at 405-06. Under the '"unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

         Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an erroneous factual determination of the state court, two provisions of the AEDPA necessarily apply. First, the AEDPA provides that "a determination of a factual issue made by a State court shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of the claim "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)(2).

         In addition to the above requirements, a federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must '"fairly present' all federal claims to the highest state court before bringing them in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This requirement ensures that state courts "have 'an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'" Id. (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).

         Even when a petitioner properly exhausts a claim, a federal court may not grant habeas relief if the state court's decision rests on a violation of a state procedural rule. Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is "independent of the federal question [presented] and adequate to support the judgment." Leyva, 504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). If a federal court determines that a claim has been defaulted, it may excuse the default only upon a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Leyva, 504 F.3d at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).

         To the extent that a petitioner's constitutional claims are unexhausted and/or procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) ("Here, because we will deny all of [petitioner's] claims on the merits, we need not address exhaustion"); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (considering procedurally defaulted claim, and stating that "[u]nder 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and we take that approach here").

         V. ANALYSIS

         The Amended Petition raises nine separate grounds for relief, which the Court addresses in order. For the reasons explained in this section, the Court finds that Petitioner's claims do not warrant federal habeas relief.

         A. Ground One: Printout as Newly Discovered Evidence

         Ground One of the Amended Petition alleges that Petitioner was deprived of her Due Process rights to a fair trial when the state court denied her motion for a new trial based on newly discovered evidence of a computer printout ("Printout") detailing the purchases of gasoline. (ECF No. 3 at 35) ("Newly Discovered Evidence Claim"). Petitioner also states in connection with this claim that she is asserting an "actual innocence" claim. (Id. at 37.)

         During pendency of Petitioner's appeal from the March 30, 2006 PCR court decision (ECF Nos. 18-30 and 18-31) denying her PCR petition, Petitioner filed a November 2007 Motion for a New Trial Based on Newly Discovered Evidence.[5] (ECF No. 18-42.) The purported newly discovered evidence giving rise to her Motion consisted of an Exxon gas station computer printout reflecting certain gasoline sales made at an Exxon station on the night of May 29, 1997 and into the early morning of May 30, 1997, during the time Stone was alleged to have purchased the gasoline used in connection with the arson.[6] Petitioner argued that a new trial was required because the Printout did not reflect the purchase of the small amount of gasoline she was alleged to have bought and, consequently, could have been used to impeach the witnesses who testified that she was the person who made the purchase. More specifically, Petitioner alleges that the only $0.25 purchase documented in the Printout was a non-fuel purchase, a fact Petitioner believes exonerates her from guilt for the fire. (ECF No. 3 at 37.)

         Although the Printout had been produced by the State prior to trial, it was not used at trial. According to Stone, it had been "misplaced." (ECF No. 18-45 at 3.) The motion judge heard oral argument on April 29, 2011, and then placed an oral decision on the record. The trial court denied the motion, finding that the Printout was not "newly discovered, " that Stone's motion for a new trial was time barred, and that, even if the court put the procedural bars aside, the evidence, had it been used at trial, would not have changed the result.[7] The PCR judge explained his reasons as follows:

Even if the Court were to put the procedural bars aside the result would be the same. This petition is clearly without merit. The significance the defendant attaches to the computer printout here is grossly overstated. One need only review the statement of facts set forth in the appellate opinion denying the defendant's direct appeal to see the evidence ... of the defendant's guilt was overwhelming.
The defendant's argument here is that had the computer printout, which did not note the cash purchase often to 15 cents worth of gasoline [, ] been introduced at trial it would somehow prove, "the innocence of the defendant and the impossibility of her being the purchaser of gasoline." There is no evidence either in the trial record or in support of this motion which would establish that the printout relied upon reported anything other than purchases made using either credit or debit cards for bulk purchases. Insofar as the evidence at trial established the defendant purchased the gasoline using cash, its absence on a credit/debit card printout would be at best marginally relevant.
Additionally, the evidence produced at trial establishing the defendant as the purchaser of the gasoline was extraordinarily reliable and credible. The defendant was identified by both gas station employees as the purchaser of the gasoline. Mohammad [Zafar], who knew the defendant as a regular customer, testified that she came to the station on the evening in question wearing a tuxedo, bought a pack of cigarettes and left the convenience store area. She then entered the pump area and spoke to the other attendant, one Gregorio Bara who was attending the gas pumps.
Bara identified the defendant as the woman dressed in a tuxedo to whom he sold ten to 15 cents worth of gasoline that evening.
Further testimony established that the defendant had attended a formal affair dressed in a tuxedo just prior to visiting the gas station. To suggest that a marginally relevant printout would, in light of the overwhelming evidence establishing the defendant as the purchaser of the gasoline, have [a]ffected the outcome of the trial is completely without merit.

ECF No. 18-97 at 9-11.)

         The Appellate Division affirmed the denial of the new trial motion. Although the Appellate Court was silent on the issue of timeliness, it agreed that the evidence was not newly discovered, and that the use of the printout at trial would not have changed the result. See State v. Stone, No. A-4837-10T2, 2013 WL 2217493, at *3 ( N.J.Super.Ct.App.Div. May 22, 2013). As the Appellate Division observed:

The motion judge found that the Printout [was] made available to the defense prior to trial and that use of the [P]rintout at trial would not have changed the results. The former is conceded. We agree with the judge's conclusion as to the latter. The evidence against Stone at trial was overwhelming and the testimony concerning her purchase of gasoline would not have been undercut by the documents at issue.

(ECF No. 18-45 at 6.)

         In her Amended Petition, Petitioner appears to assert a claim of actual innocence based on newly discovered evidence.[8] Currently, the Supreme Court treats actual innocence as a gateway for consideration of procedurally defaulted claims.[9] See McQuiggin v. Perkins, ___U.S.___, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013); Schlup v. Delo, 513 U.S. 298, 327-29 (1995) (requiring a showing "that it is more likely than not that no reasonable juror would have convicted [the petitioner] in the light of the new evidence"). The Supreme Court has not yet recognized the existence of a freestanding claim of actual innocence. See McQuiggin, 133 S.Ct. at 1931; cf In re Davis, 557 U.S. 952 (2009); see also Wright v. Superintendent Somerset SCI, 601 Fed.Appx. 115, 119 (3d Cir.), cert, denied sub nom. Wright v. Wingard, 136 S.Ct. 241, 193 L.Ed.2d 180 (2015), reh'g denied, 136 S.Ct. 580, 193 L.Ed.2d 462 (2015).

         In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court explained that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id. at 400. The petitioner in Herrera was not entitled to habeas relief because he did not seek excusal of his procedural default; rather, he argued that newly discovered evidence showed that his conviction was factually incorrect. Id. at 404-05. However, the Herrera Court left open the possibility of a freestanding claim of actual innocence - at least in the capital context. See Id. at 417 (O'Connor, J., concurring) (assuming "that in a capital case a truly persuasive demonstration of'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim" and finding that the threshold for such a claim would "be extraordinarily high). Subsequently, in House v. Bell, 547 U.S. 518, 555 (2006) the Supreme Court held that the Petitioner, who presented newly discovered forensic evidence, narrowly satisfied the gateway standard set forth in Schlup and could therefore proceed on remand with procedurally defaulted constitutional claims but did not satisfy the extremely high threshold for freestanding actual innocence claim. See also Han TakLee v. Glunt, 667 F.3d 397 (3d Cir. 2012) and Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007) (addressing actual innocence claims in context of expert testimony).

         Here, even assuming a freestanding claim of actual innocence is cognizable under § 2254, the evidence provided by Petitioner does not meet the "extraordinarily high" standard of proof required for such a claim. Indeed, Petitioner does not even meet the standard for a gateway claim under Schlup, 513 U.S. at 327-29, which requires a showing "that it is more likely than not that no reasonable juror would have convicted [the petitioner] in the light of the new evidence[.]" Having reviewed the relevant record, the Court finds that the Appellate Division did not err in determining that (1) the printouts were not new evidence and that (2) the admission of the printouts, which showed bulk credit purchases, would were only marginally relevant in light of the testimony identifying Petitioner as the purchaser of the gasoline. For these reasons, the Court will deny habeas relief on Ground One.

         B. Ground Two: Ineffective Assistance Of Counsel in Connection with the Printout

         Ground Two claims that Petitioner's Sixth Amendment rights were violated "by counsel's failure to investigate, obtain and analyze the [P]rintout of sales at the gas station which was evidence of Petitioner's innocence." (ECF No. 3 at 43.) Such claims are governed by the two-prong test set forth in the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668 (1984). To make out such a claim under Strickland, a petitioner must first show that "counsel's performance was deficient. This requires [the petitioner to show] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective assistance claim, a petitioner must also show that counsel's allegedly deficient performance prejudiced his defense such that the petitioner was "deprive[d] of a fair trial... whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299. In evaluating whether counsel was deficient, the "proper standard for attorney performance is that of'reasonably effective assistance.'" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting ineffective assistance must therefore show that counsel's representation "fell below an objective standard of reasonableness" under the circumstances. Id. The reasonableness of counsel's representation must be determined based on the particular facts of a petitioner's case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing counsel's performance, courts "must be highly deferential... a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

         Even where a petitioner is able to show that counsel's representation was deficient, the petitioner must still affirmatively demonstrate that counsel's deficient performance prejudiced the petitioner's defense. Id. at 692-93. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The petitioner must demonstrate that "there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Shedrick, 493 F.3d at 299. "Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98], " courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002); Judge v. United States, 119 F.Supp.3d 270, 280-81 (D.N.J. 2015).

         Finally, when a federal habeas petition under § 2254 is based upon an ineffective assistance of counsel claim, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable, " which "is different from asking whether defense counsel's performance fell below Strickland's standard." Grant v, Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Id. (internal quotation marks omitted) (emphases in original). "A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself." Id. Federal habeas review of ineffective assistance of counsel claims is thus "doubly deferential." Id. (quoting Cullen v. Pinholster, 131 S.Ct. at 1403). Federal habeas courts must "take a highly deferential look at counsel's performance" under Strickland, "through the deferential lens of § 2254(d)." Id. (internal quotation marks and citations omitted).

         Here, Petitioner asserts ineffective assistance of counsel in connection with the failure to use the Printout to dismiss the indictment and/or at trial. By way of background, Petitioner asserts that her original public defender ("Walsh") planned to use the Printout to support a motion to dismiss the indictment (ECF No. 3 at 35); after his removal as Petitioner's counsel, Mr. Walsh gave a copy of the Printout to Petitioner's subsequent counsel, as part of a complete copy of her original discovery in this case. (ECF No. 11-10 at 11; ECF No. 3 at 36.) Petitioner, not realizing that the Printout was crucial to her case, mailed the Printout to her mother for unspecified reasons sometime between the removal of Mr. Walsh as her first attorney and the appointment of her second counsel ("Desmond" and "DeJulio"). (ECF No. 11-10 at 10-13.) When Petitioner told her new counsel that the Printout was essential to her case, they told her that the Printout did not exist and that they would not investigate the issue further. (ECF No. 3 at 35-37; ECF No. 11-10 at 11.) Thereafter, Petitioner's counsel on direct appeal ("Smith") advised Petitioner via letter in August 2003 that his search in the file for the Printout had been unsuccessful. (ECF No. 3 at 36.) During preparation for her PCR petition, Petitioner requested that her mother check her correspondence records, and the Printout was located among her mother's files. (ECF No. 3 at 37.) Petitioner's PCR counsel declined to use the Printout in PCR briefings and urged Petitioner to request that her trial counsel file a motion for new trial. (ECF No. 3 at 37; ECF No. 11-10 at 12.)

         In addition to rejecting the new trial motion, the motion judge determined that the claim also failed as a second PCR under Strickland, explaining:

The defendant received at all levels here involved adequate assistance from counsel, none can be faulted for failing to raise a meritless argument. Even if counsel's performance could be considered as ineffective, she was not prejudiced thereby. Therefore, she satisfies neither prong of the Strickland test and the petition would be and is denied.

(ECF No. 18-97, Tr. Motion Hearing at 11.)

         On appeal, Petitioner argued that "prior counsel were ineffective in failing to obtain and analyze the Printout which was evidence of Defendant's innocence." (ECF No. 18-45 at 5.) The Appellate Division found that it "would reach the same result on the merits even if [the court] were to treat the motion as a second PCR petition based upon ineffective assistance of counsel in failing to use the documents at trial... Even assuming that trial counsel should have used the printouts during cross-examination, [the court is] convinced that the result would not have changed for the reasons already stated. Consequently, Stone cannot satisfy the second prong of the Strickland test. The trial judge correctly denied her petition for PCR." (Id. at 6-7.)

         Here, the Court agrees that even assuming that one or more of her attorneys were ineffective for failing to investigate or use the printouts, Petitioner cannot show that she was prejudiced in light of the marginal value of the printouts. As such, Petitioner cannot meet Strickland's prejudice prong. The Court will therefore deny habeas relief on Ground Two.

         C. Ground Three: Admission Of Evidence Concerning Petitioner's Silence

         In Ground Three, Petitioner alleges deprivation of her "Due Process right to a fair trial by the trial court permitting the prosecutor to present evidence that after being placed in custody, [she] failed to ask the police about conditions at the fire scene and [permitting the prosecutor] to argue in summations that this silence was the evidence that convicts her." (ECF No. 3 at 39.)

         On direct appeal, Petitioner argued that her right to remain silent was violated when the trial judge permitted the prosecution to ask Officer Fortunato, who encountered Petitioner shortly after the fire, whether she inquired about the conditions of her apartment after the fire and comment on it in summation.

         The assistant prosecutor concluded his direct examination of Officer Fortunato at trial by asking if petitioner had inquired about the condition of the apartment or the fire scene when speaking with the officer. (20T:55-16 to 22; 20T:57-15 to 20.) The questions elicited an objection from defense counsel, who asserted that the inquiry was intended to improperly elicit an adverse inference from petitioner's silence. (20T:56-3 to 11.) The assistant prosecutor countered that because petitioner was not in custody for Miranda purposes during her discussion with the officer, he was therefore entitled to ask the questions. (20T:56-12 to 57 -5.) In response, Judge O'Halloran initially stated that petitioner was in custody at the time, but overruled the objection after the assistant prosecutor argued that the officers were "treating [petitioner ] as a victim." (20T:57- 6 to 9.) During the brief questioning that followed, Officer Fortunato testified that petitioner did not ask about her apartment or the condition of the premises. (20T:57-15 to 20.) Fortunato's testimony was the subject of the following comment by the prosecutor in summation:

[Stone] ran right out of [the slipper] and left the scene . .. [T]he pocketbook is what this woman is worried about in the middle of the night, not did anybody get injured in that fire scene? Did my apartment burn down? What's going on back at that fire scene? No, she doesn't ask that question that a reasonable person would ask.

(ECF No. 18-17 at 2, 50 - 58; ECF No. 18-90 at 8-10.) The State argued that the evidence did not violate Petitioner's right to remain silent because she was not under arrest at the time in question. (ECF No. 18-17 at 52.)

         The Appellate Division found no error in permitting the evidence or the comment on it:

Even assuming that defendant was under arrest at the time, we conclude that there was no error in permitting the testimony or the comment. We note that Jersey City Detective Randy Sandifer testified that, while in custody, defendant 'continually blurted out that she did not set any fires and that she was in the basement apartment when it started' . . . Thus, the jury heard testimony that defendant was cooperative and willing to speak about the fire. The prosecutor's comment was not about defendant's silence. In fact, the witness was talking about the events. There was no post-arrest 'silence' under circumstances where an innocent person would be expected to speak. A prosecutorial comment on silence under those circumstances would have been improper. Here, the comment was not on silence, but on defendant's choice of topics. Defendant has a right to remain silent, and no adverse inference can be drawn from the exercise of such right. She, however, does not enjoy a right to have her remarks exempt from scrutiny.

(ECF No. 18-20 at 19-20.)

         Here, the Appellate Division did not unreasonably apply Miranda v. Arizona, 384 U.S.436 (1966) and its progeny in ruling that prosecutorial comments were not about Petitioner's silence. (ECF No. 18-20 at 20.) "Miranda warnings carry the Government's 'implicit assurance' that an arrestee's invocation of the Fifth Amendment right to remain silent will not later be used against him." Gov't of the V.I. v. Martinez, 620 F.3d 321, 335 (3d Cir. 2010) (quoting Gov't of the V.I. v. Davis, 561 F.3d 159, 163-64 (3d Cir. 2009)). It is a violation of the Fifth Amendment and the Due Process Clause "for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant's post-arrest silence" after a defendant is Mirandized. Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998)). In Doyle v. Ohio, 426 U.S. 610, 617-18, (1976), the United States Supreme Court held that "every post-arrest silence is insolubly ambiguous" because it "may be nothing more than the arrestee's exercise of [her] Miranda right." Doyle errors of prosecutorial comment on a defendant's post-arrest silence can be harmless if the Government "prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Davis, 561 F.3d at 165 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). This analysis requires an examination of "the totality of the circumstances." Martinez, 620 F.3d at 337-38. The question becomes whether the "constitutional trial error was harmless beyond a reasonable doubt." Davis, 61 F.3d at 165.

         Furthermore, not every reference to a defendant's silence results in a Doyle violation. There is no due process violation when a prosecutor comments on a defendant's pre-arrest silence or failure to come forward because there has been no "implicit promise that his choice of the option of silence would not be used against him." Portuondo v. Agard, 52 9 U.S. 61, 75 (2000) (emphasis in original). In Fletcher v. Weir, 455 U.S. 603, 606 (1982), the United States Supreme Court held where there has been no governmental action to induce the defendant to remain silent, the Miranda-based rationale does not apply. A prosecutor may impeach a defendant's testimony using pre-arrest silence, Jenkins v. Anderson, 4 4 7 U.S. 231, 240 (1908), post-arrest, pre-Miranda warning silence, Fletcher, 455 U.S. at 605-606, and any voluntary post-Miranda warning statements. See Anderson v. Charles, 447 U.S. 404, 408-409 (1980).

         The Court has reviewed the relevant record, including Officer Fortunato's trial testimony and the Prosecutor's summation, and agrees with the Appellate Division reasoning that "[t]he prosecutor's comment was not about defendant's silence. In fact, the witness was talking about events. There was no post-arrest 'silence' under circumstances where an innocent person would be expected to speak. A prosecutorial comment on silence under those circumstances would have been improper. Here, the comment was not on silence, but on defendant's choice of topics." (ECF No. 18-20 at 20) (emphasis added). As the Panel noted, consistent with clearly established Supreme Court precedent: "[Petitioner] has a right to remain silent... She, however, does not enjoy a right to have her remarks exempt from scrutiny." Id. In short, Petitioner's claim fails because she has not, and cannot, point to any federal precedent giving her a constitutionally protected Due Process right that prohibited evidentiary use of her comments on voluntarily-offered comments. Furthermore, the prosecutor's comments as to Petitioner's lack of inquiry about fire victims or damage occurred after she had disappeared from the fire scene and then intentionally returned to voluntarily report disappearance of her pocketbook and hubcaps to Officer Fortunate (ECF No. 18-90 at 9.) No Miranda post-arrest right to silence had yet arisen at this point because no custodial situation existed.

         The Court will therefore deny habeas relief as to Ground Three.

         D. Ground Four: Prosecutorial Misconduct

         Ground Four of the Amended Petition alleges prosecutorial misconduct and claims "violation of [Petitioner's] constitutional rights to due process and a fair trial by the prosecutor's (a) undermining the right to confront witnesses against [Petitioner] [by] ... a demonstration for the jury during summation[10] (hereinafter referred to as Petitioner's "Summation Demonstration Claim"), (b) the prosecutor['s] argu[ment] to the jurors ... they would be violating their oaths if they ... believed Petitioner purchased the container of gasoline [but] found her not guilty (hereinafter referred to as Petitioner's "Oath Claim"), and (c) improper suggestion to the jury that the defense's expert had colored his testimony because he was being compensated for his services" (hereinafter referred to as Petitioner's "Expert Fee Claim") (the Petitioner's Demonstration Claim, Oath Claim, and Expert Fee Claim hereinafter collectively referred to as Petitioner's "Prosecutorial Misconduct Claims"). (ECF No. 3 at 40.)

         Petitioner's Amended Petition bases her Demonstration Claim upon the prosecutor's demonstrative use of a 16-ounce bottle of Snapple to show jurors the quantity of gasoline (roughly nine to seventeen ounces) that Petitioner purchased and possessed just prior to the fire.The assistant prosecutor opened the Snapple ...


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