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Jackson v. Nogan

United States District Court, D. New Jersey

November 27, 2017

PATRICK A. NOGAN, et al., Respondents.


          Hon. Susan D. Wigenton, United States District Judge.

         Presently before the Court is the petition for a writ of habeas corpus of Norman Jackson (“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner's state court conviction (ECF No. 1). Following this Court's Order to Answer, the State filed a response to the petition (ECF Nos. 5-7), to which Petitioner has replied (ECF No. 9). For the following reasons, this Court will deny the petition and deny Petitioner a certificate of appealability.

         I. BACKGROUND

         In its opinion affirming Petitioner's conviction and sentence, the New Jersey Supreme Court provided the following summary of the factual basis of this matter:

At about 8:30 p.m. on January 14, 2005, [Murul] Chowdhury was driving his taxi through Paterson to pick up a customer.[1] He stopped at a light on River Street, and noticed [Petitioner] walking near the taxi. Without warning, [Petitioner] entered the taxi through the right front door, sat in the passenger seat, and requested a ride to Broadway, one of Paterson's major roads, several blocks south of the taxi's location. Chowdhury, citing his customer waiting for him, offered to take [Petitioner] to Broadway after picking up his customer, but [Petitioner] demanded twice more that he be driven to Broadway immediately. After the two men briefly argued, [Petitioner] pulled out a gun, cautioning Chowdhury to “look at this mother f****r.” [Petitioner] pointed the gun at Chowdhury's chest, and the driver acceded to his passenger's demands and drove in the direction of Broadway:
PROSECUTOR: When did you start driving? Was it before he pulled the gun ou[t], or after he pulled the gun out?
PROSECUTOR: Why did you start to drive?
CHOWDHURY: Because he demanded we go to Broadway.
With his gun pointed at Chowdhury, [Petitioner] asked for money.[2] Chowdhury reached into his pocket and gave [Petitioner] sixty-five dollars, the fares he had collected that evening. [Petitioner] then demanded Chowdhury's wallet and Chowdhury complied:
I give it to him, my wallet. He took the money. He give me my wallet back. Then he ask for it again, the wallet. Then he look [at] everything, give it to me back. Then he say, oh, f*** it. This wallet, I have my fingerprint in there. So I - from my breath and I like, wipe. Then he said, okay, put it in your pocket. Then I put it in my pocket.

         Having taken the money, [Petitioner] then ordered Chowdhury to drive him through Paterson:

Then he say, okay, start driving. Still driving, then he said, okay, take me to Broadway. And I driving in Straight Street and make a left in like Broadway Street and Straight Street. Then when I cross the like, [] Street, then he says, okay, pull up the car. Then I pull up. Then he say, okay. Don't drive, just park.
Chowdhury pulled the car over, and [Petitioner] left the car, instructing Chowdhury to drive away slowly. Based on the start and end locations testified to by Chowdhury, the total distance driven by Chowdhury with [Petitioner] in his taxi was .8 miles, representing approximately fifteen city blocks.
Almost immediately, Chowdhury flagged down a police officer, who requested backup. Chowdhury and the officer followed [Petitioner] into a park, where they were met by Officer Bizarro and other police officers, and the group found [Petitioner]. After a brief struggle, the officers handcuffed and arrested [Petitioner]. They conducted a pat-down search which revealed the money taken from Chowdhury, but no gun. The officers searched the park for the weapon, turning up nothing. At the scene of the arrest, Chowdhury identified [Petitioner] as the individual who had threatened and robbed him at gunpoint.
The officers then transported [Petitioner] to Paterson police headquarters, and Officer Bizzaro and another officer brought him to an interview room. Officer Bizzaro commenced a more thorough search of [Petitioner]. When the officer searched [Petitioner]'s groin area, [Petitioner] resisted the search, and the two punched on another and wrestled. Officer Bizzaro hit [Petitioner] with a metal police baton, and when a second officer entered the room, she assisted Officer Bizzaro in subduing [Petitioner]. With [Petitioner] handcuffed, the officers searched him and found in his underwear a “small caliber silver semi-automatic handgun” that was missing the slide that delivers bullets into the gun's chamber.[3] Following the search, [Petitioner] was transported to a hospital, where he received stitches for a cut above his left eye that he had sustained during his altercation with Officer Bizzaro.
Later that night, Officer Bizzaro prepared and filed a report of the incident that contained a material misstatement of the evening's events: it falsely stated that the officers found [Petitioner]'s weapon at the scene of his arrest. He later testified that he realized that his “negligence” in conducting an incomplete search at the scene of [Petitioner]'s arrest could have endangered officer's lives, and had resulted in the police transportation of a suspect carrying a gun, albeit a disabled gun. Noting that “there's no excuse, ” Officer Bizzaro testified that he “typed up the - the report stating that I found the weapon on the scene [of the arrest] when, in fact, I did not.”
According to Officer Bizzaro, after he typed his false report, he noted that he had put his partner's “name on the bottom of a report that wasn't true.” He testified that he prepared a second report later that night that made clear that [Petitioner]'s weapon was not recovered until after he and [Petitioner] had scuffled at police headquarters. According to his testimony, he left the first, false report on the desk in the Detective Bureau, and gave the second, correct report to his supervisor. He did not alert his superiors to the discrepancy between his two reports, but later testified that he assumed that his initial, false report regarding the recovery of [Petitioner]'s weapon had been destroyed because he “never turned it in.” In fact, both reports remained on file as the State's case against [Petitioner] proceeded.
In April 2005, the Passaic County Prosecutor's Office presented the State's case to a grand jury. Called to testify before the grand jury, Officer Bizzaro was questioned by an assistant prosecutor who, he soon realized, had framed her questions based upon his first report containing false information. She asked Officer Bizzaro what he had recovered in his initial search of [Petitioner] in [the] Paterson park. Notwithstanding the fact that his initial search of [Petitioner] at the park had revealed only money, Officer Bizzaro testified falsely before the grand jury that he had found a weapon on [Petitioner] at the scene of his arrest in the park. Although he “realized [that the prosecutor] was asking me questions off the wrong report, ” Officer Bizzaro “made a bad judgment call and didn't correct it.
The grand jury returned an indictment, charging [Petitioner] with multiple offenses including first-degree robbery, [in violation of N.J. Stat. Ann. §] 2C:15-1, and second-degree kidnapping, [in violation of N.J. Stat. Ann. §] 2C:13-1(b)(1). However, the Passaic County Prosecutor's Office subsequently learned of Officer Bizzaro's initial fraudulent report and false grand jury testimony, and dismissed the indictment against [Petitioner]. The trial court ordered that all internal affairs reports and investigations be turned over to defense counsel. The Paterson Police Department administratively disciplined Officer Bizzaro for his conduct with a five-day suspension. [Petitioner] filed a civil suit against Officer Bizzaro for damages alleged to have been caused by the officer's altercation with [Petitioner] and his false testimony before the grand jury.
On January 2, 2007, a second grand jury returned a new indictment, including the same charges as the original indictment. In this second grand jury proceeding, Officer Bizzaro testified as to the events recounted in his second, accurate report. [Petitioner] moved to dismiss the indictment, citing Officer Bizzaro's prior official misconduct and false grand jury testimony. He also sought the recusal of the Passaic County Prosecutor's Office, and moved to suppress the slide that had been a component of the gun found on [Petitioner] during the officer's second search. The trial judge denied [Petitioner]'s motions, but severed some of the charges set forth in the second indictment that did not relate to [Petitioner]'s encounter with Chowdhury.
. . . .
In August 2007, [Petitioner] was tried before a jury on seven counts of the second indictment: first-degree robbery, [in violation of N.J. Stat. Ann. §] 2C:15-1; fourth-degree aggravated assault with a firearm, [in violation of N.J. Stat. Ann. §] 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, [in violation of N.J. Stat. Ann. §] 2C:39-4(a); third-degree unlawful possession of a weapon, [in violation of N.J. Stat. Ann. §] 2C:39-5(b); second-degree kidnapping, [in violation of N.J. Stat. Ann. §] 2C:13-1(b)(1) or (2); third-degree aggravated assault, [in violation of N.J. Stat. Ann. §] 2C:12-1(b)(5)(a); and third-degree resisting arrest, [in violation of N.J. Stat. Ann. §] 2C:29-2(a)(3).
During the five-day trial, the prosecution presented the testimony of Chowdhury, Officer Bizzaro and other current and former Paterson police officers. During the testimony of the State's witnesses, there were several references to extraneous proceedings - litigation filed by [Petitioner] and administrative discipline pertaining to [Petitioner]'s altercations with the officers and Officer Bizzaro's false grand jury testimony. The prosecutor alluded to those referenced during his summation, and [Petitioner] moved for a mistrial. The trial court denied the motion for a mistrial, but instructed the jury regarding the referenced in the testimony to extraneous legal proceedings. [Petitioner] declined to testify, and the defense rested without calling witnesses. [Petitioner] did not, at any time during the course of the trial, move for a judgment of acquittal.
On August 9, 2007, the jury convicted [Petitioner] of first-degree robbery, fourth-degree aggravated assault with a firearm, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, second-degree kidnapping, third-degree aggravated assault of a law enforcement officer with no finding that the officer suffered bodily injury, and third-degree resisting arrest. The trial court then instructed the jury on the offense of second-degree certain persons not to have weapons, [in violation of N.J. Stat. Ann. §] 2C:39-7, and the jury convicted [Petitioner] of that crime.
[Petitioner] moved for a new trial. After denying the motion, the trial court sentenced [Petitioner] to an extended term of thirty years' incarceration for the first-degree robbery charge with a period of eighty-five percent parole ineligibility and a five-year term of parole supervision under the No Early Release Act, [N.J. Stat. Ann. § 2C:43-7.2]. For the second-degree kidnapping charge, the trial court sentenced [Petitioner] to ten years in prison with an eighty-five percent period of parole ineligibility pursuant to NERA, with the sentence for the kidnapping offense to be served concurrently with [Petitioner]'s other prison terms. After merging the appropriate offenses into the first-degree robbery charge, the trial court sentenced [Petitioner] on the remaining counts to terms of incarceration to run concurrently with the thirty-year term imposed for the armed robbery.
[Petitioner] appealed his conviction, raising six claims of error by the trial court. An Appellate Division panel reversed [Petitioner]'s conviction on the kidnapping count, but otherwise affirmed his conviction.

(Document 24 attached to ECF No. 5 at 5-13).

         Petitioner thereafter petitioned for certification with the New Jersey Supreme Court, and the state cross-petitioned on the kidnapping issue. (Id. at 15). The New Jersey Supreme Court granted certification on two issues - whether Petitioner was properly convicted of kidnapping under New Jersey Law, and whether the trial court erred in denying Petitioner's motion for a mistrial based on alleged prosecutorial misconduct during summation. (Id.). On August 13, 2012, the New Jersey Supreme Court affirmed Petitioner's conviction in its entirety, and reinstated Petitioner's conviction for kidnapping as the record more than supported the conclusion that Petitioner had either subjected Chowdhury to “substantial confinement” and forced him to move Petitioner a “substantial distance” as required by the alternative prongs of the kidnapping statute. (Id.).

         Petitioner thereafter filed a petition for post-conviction relief (PCR) in September 2012 asserting various claims of ineffective assistance of trial and appellate counsel. (See Document 26 attached to ECF No. 5). Following an evidentiary hearing solely addressing Petitioner's claim that counsel failed to convey his plea counteroffer to the State during plea negotiations, the PCR court denied that petition on March 14, 2014. (Document 22 attached to ECF No. 5). Petitioner appealed, and the Appellate Division affirmed the denial of post-conviction relief by way of a written opinion issued on June 6, 2016. (Document 25 attached to ECF No. 5). Petitioner petitioned for certification, but his petition was denied by the New Jersey Supreme Court on February 13, 2017. (Document 31 attached to ECF No. 5). Petitioner thereafter filed his current habeas petition. (ECF No. 1).


         A. Legal Standard

         Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, ___U.S. ___, ___, 132 S.Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73 (2010).

         Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication

(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)(1)-(2). Federal law is clearly established for these purposes where it is clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States Supreme Court. See Woods v. Donald, ___ U.S. ___, ___, 125 S.Ct. 1372, 1376 (2015). “When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual determination of the state courts, “a determination of a factual issue made by a State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         B. Analysis

         1. Petitioner's ...

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