United States District Court, D. New Jersey
MADELINE COX ARLEO, District Judge:
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.
FACTUAL BACKGROUND & PROCEDURAL
A. Factual Background
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.
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.)
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.)
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.)
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"). 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;
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.)
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.)
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. (ECF No. 18.) The matter is fully briefed
and ready for disposition.
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.
STANDARD OF REVIEW
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,
2254(d) sets the standard for granting or denying a writ of
(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;
(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).
state court adjudicated a petitioner's federal claim on
the merits,  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)).
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).
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).
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)).
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)).
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").
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.
Ground One: Printout as Newly Discovered
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.)
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. (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. 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
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. 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
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
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
ECF No. 18-97 at 9-11.)
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.)
Amended Petition, Petitioner appears to assert a claim of
actual innocence based on newly discovered
evidence. Currently, the Supreme Court treats actual
innocence as a gateway for consideration of procedurally
defaulted claims. 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).
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).
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.
Ground Two: Ineffective Assistance Of Counsel in Connection
with the Printout
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.
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).
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).
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.)
addition to rejecting the new trial motion, the motion judge
determined that the claim also failed as a second PCR under
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.)
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.)
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
Ground Three: Admission Of Evidence Concerning
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.)
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.
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.)
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.)
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.
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).
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.
Court will therefore deny habeas relief as to Ground Three.
Ground Four: Prosecutorial Misconduct
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 (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.)
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