United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
petitioner, Darius Murphy, is a state prisoner currently
incarcerated at the East Jersey State Prison in Rahway, New
Jersey. He is proceeding pro se with a habeas petition
pursuant to 28 U.S.C. § 2254. Mr. Murphy was convicted
by a jury in 1997 of felony murder, robbery, aggravated
manslaughter, endangering the welfare of a child, and related
charges, and is currently serving an aggregate sentence of
thirty years with a thirty-year period of parole
ineligibility. His petition raises multiple claims ranging
from ineffective assistance of counsel to errors in the trial
court's jury instructions. For the following reasons, the
habeas petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
following factual background is taken from the decision of
Superior Court of New Jersey, Appellate Division, dated June
15, 1999, on Murphy's direct appeal from his
On September 7, 1995, Janice Gordon lived in an apartment at
69 University Place in Irvington with her two sons, two
nephews and her boyfriend, Corey Davis. The apartment was
located in a four family, two story building with two
apartments on each floor. One second floor apartment was
occupied by Gordon and Davis, the other by the Kornegay
Upon arriving home from shopping on the night of September 7,
1995, Gordon parked her car in front of the house, and
started to her building with her shopping bags. While doing
so, she was approached by a man wearing dark clothes. The man
asked her for a light. Gordon replied that she did not have
one and proceeded up the front porch stairs. At that time,
the man grabbed her by the neck and placed a gun to the back
of her neck. He told her not to scream.
Gordon testified that two other males then approached with
masks on their faces, one facial covering was white and the
other black. Gordon recalled that after one of the men was
unable to open the building door with her key, she was forced
to open the outer door and inner door to the apartment and
was then asked "[w]here's he at?" She pointed
to the bedroom where Davis was asleep and the man with the
black mask walked into bedroom. While holding a gun, the man
bent over Davis and yelled for him to get up.
Davis jumped up and began struggling with the man with the
black mask as Gordon screamed for Davis not to fight. The
second man then walked into the bedroom, a gunshot was fired,
and although Gordon could "not really" see what was
happening, she testified that she "heard somebody
fall." Next, the man with the black mask screamed at
Gordon "[w]here's the money at?" Gordon
testified that at this point Davis was lying on the floor and
the baby with whom he was sleeping awoke and sat up in the
bed. Stating "I'll get the money, " Gordon went
to the bedroom and gave "him" money from a drawer.
There were two people in the bedroom, the man with the black
mask and the man that had been holding her. Gordon testified
that the man entering the house, who was also the second man
to enter the bedroom, fled prior to her entering the room.
Believing there to be more money, Gordon testified "[h]e
took the gun and pointed it at my baby and he threatened to
shoot him if I didn't give him the money." Gordon
gave him the contents of her jewelry box and said there was
no more money. Gordon was placed in the bathroom and told
that she would be killed if she came out. The men then left
the apartment and upon hearing the door close, she called 911
two separate times. Later that night, Gordon told the police
that she did not believe that she could positively identify
At trial, Gordon stated that "money [was] normally kept
in the house, " and that she thought Davis was getting
it from drugs. Gordon also recalled that sometime in January
1996 the police showed her an array of photos and, although
she "wasn't for sure if that was him or not, "
she selected a photo of co-defendant Murphy. She identified
him in court as the individual from the photo.
On December 1, 1995, Parker was arrested on another matter in
West Orange for attempted murder, robbery and other offenses,
and believed that he faced a possible sentence of "life
without parole" for these crimes. In exchange for a
maximum term of fifteen years flat, Parker agreed to enter
into the cooperation agreement with the prosecutor. According
to Parker, he agreed that he "would cooperate truthfully
and give any information and testify as I am at this
trial." He further explained that if he did not, he
"would be prosecuted for those crimes from West Orange
as well as those [he] entered into on the agreement, "
that he could also be prosecuted for perjury and that he
"would receive the life sentence." Incident to the
agreement, Parker told Dennis Masucci, an investigator with
the Essex County Prosecutor's Office, that defendant and
the three other codefendants were his accomplices in the
Davis robbery-murder case.
Parker testified that Henderson and Koonce knew that Dayis
was a drug dealer. Koonce "set... up" the robbery,
and Henderson got Parker to participate. Henderson thought
Davis had between $30, 000 to S5O, OOO in the apartment and
"that it wouldn't be hard to get into his ...
home." Parker testified that "[a]ll four of us, Mr.
Henderson, Dip, as well as Kyemh and Michael, " surveyed
the building before deciding to commit the robbery.
On the night of the crime, Parker initially met Henderson and
Koonce about a block from Davis' residence. Defendant and
Murphy arrived later. The five men decided to use Ricks's
gray car as the getaway vehicle. Defendant parked it down the
street from Davis' apartment. The five men sat in
defendant's car and Henderson distributed weapons as they
all discussed how to perform the robbery. Parker had a .357
magnum, Murphy "a 322" and either Henderson or
Koonce had a black gun.
It was determined that Murphy would approach Gordon, whom
Koonce knew by sight, "and ask her for a light."
With defendant in the car parked down the block, the other
three men were to "move in, " and in fact did so.
Parker and Henderson had ski masks, Parker's was black,
and Koonce and Murphy had handkerchiefs around their necks
which were pulled up to mask their faces.
Parker stated that at the time the robbery commenced, they
had been outside for about one to one and one-half hours, and
up to thirty minutes of which was spent waiting for Gordon to
return home after she left the building. According to Parker,
Murphy approached her, asked "for a light, "
grabbed Gordon by the arm and placed his gun to her back of
neck. Parker, Murphy and Koonce then accompanied Gordon up
the stairs while Henderson "stayed downstairs" to
watch the outside door. However, "he would eventually
also come upstairs." When Gordon opened the door to the
apartment, Koonce "ran in" and "went right to
Mr. Corey Davis who was asleep at the time and drew his gun
Parker testified that he witnessed a "struggl[e]"
between Davis and Koonce. Thereafter, Parker took hold of
Gordon while Murphy went into the bedroom with Koonce and
Davis. According to Parker, Murphy "stumbled" over
the two men while his gun was drawn, and it "went off at
that time." Koonce then "jumped up and ran"
out of the house. Within a minute, Henderson came upstairs
and informed Parker that someone entered the building.
Michael Kornegay testified that upon entering the building he
saw "two masked men in the front doorway" and heard
what sounded like a female voice saying "no foo."
"Foo" was apparently Davis' nickname. Kornegay
went to his apartment and called 911 and then went to the
Davis apartment. There he saw Davis on the floor with his
baby "right near his head."
Either Parker or Henderson threatened to kill Gordon if she
did not give them the money which she gave to either Murphy
or Henderson along with her jewelry. Thereafter Gordon was
locked in the bathroom, and the men left. Further testimony
by Parker provided that all participants wore gloves and that
Gordon was "quite hysterical" and "upset"
that night while she begged them not to either kill her or
harm the children.
State v. Murphy, No. A-2262-97T4, slip op. at 3 (
N.J.Super. Ct. App.Div. June 15, 1999) (copy at ECF no.
12-23), incorporating by reference from State v.
Ricks, No. A-4116-96T4, Slip Op. at 5-9 ( N.J.Super. Ct.
App.Div. June 15, 1999) (copy at ECF no. 12-24).
Murphy appealed his judgment and conviction to the Superior
Court of New Jersey, Appellate Division. The Appellate
Division affirmed the conviction on June 15, 1999. (See
supra; decision at ECF no. 12-23). The New Jersey Supreme
Court denied certification on November 5, 1999. See State
v. Murphy, 744 A.2d 1208 (N.J. 1999).
in July 2000, Mr. Murphy filed a post-conviction relief
("PCR") petition in the Superior Court of New
Jersey, Law Division, Essex County. The Law Division denied
the PCR petition on August 30, 2004. On October 13, 2004, Mr.
Murphy appealed the denial of PCR to the Appellate Division.
On May 22, 2007, the Appellate Division remanded and ordered
that the trial court conduct an evidentiary hearing regarding
Mr. Murphy's ineffective assistance of counsel claims.
See State v. Murphy, No. A-0707-04T4, 2007 WL
1468592 ( N.J.Super.Ct.App.Div. May 22, 2007).
remand, the court held hearings on April 18, 2008, May 24,
2010, July 1, 2010, and September 28, 2010. On September 28,
2010, the PCR court denied the petition. Petitioner again
appealed on August 11, 2011, and on March 25, 2013, the
Appellate Division affirmed the PCR court's denial of the
petition. See State v. Michael Ricks and Darius Murphy,
No. A-5959-10T3, 2013 WL 11897862 ( N.J.Super. Ct.
App.Div. March 25, 2013). The New Jersey Supreme Court denied
certification on April 3, 2014. See State v. Murphy,
88 A.3d 191 (N.J. 2014).
2014, this Court received Mr. Murphy's federal petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. The petition raises thirteen grounds:
1. The Court's instruction on identification was
erroneous since it bolstered the state's identification
case without referring to any of the evidence supporting
petitioner's misidentification defense.
2. Petitioner's right to a fair trial was gravely
prejudiced when Lieutenant Masucci testified that, in his
opinion, Victor Parker had provided truthful information
about the crime, and when the prosecutor claimed in her
summation that Park's story had been corroborated by
3. Petitioner's right to confront the witness against him
was violated when the trial court precluded counsel from
asking about the circumstances of Victor Parker's arrest
because that testimony could have provided crucial
information about Parker's motive to falsely incriminate
4. Petitioner's Fifth Amendment rights were violated by
the prosecutor's suggestion in summation that by failing
to testify or "offer a defense, " petitioner was
attempting to hide from the collective evidence against him.
5. The court's charge was prejudicially defective because
it failed to provide any guidance to the jury on how it
should assess the issue of Victor Parker's credibility
with the fundamental evidential item - the "cooperative
agreement" between Parker and the state.
6. Trial counsel was ineffective for not investigating
7. Trial counsel was ineffective for not moving for a
8. Petitioner was denied due process because the trial judge
did not instruct the jury that petitioner was not involved in
the other crimes committed by Victor Parker.
9. The prosecutor violated petitioner's right to due
process by failing to disclose to the defense statements made
by Keith Henderson, as part of his pitch to enter into a plea
agreement, that he and Victor Parker were involved in the
charged crimes and that petitioner and the other defendants
on trial were not involved.
10. Petitioner was denied the effective assistance of
11. Trial counsel was ineffective for failing to exercise one
of his remaining peremptory challenges to excuse Juror B.D.
12. Petitioner was denied the right to fair trial and was
prejudiced as a result of irregular influences during jury
13. Petitioner has been prejudiced by the incomplete verbatim
record of the jury voir dire and the state court erred in
failing to try and reconstruct the lost record.
has filed an answer to the habeas petition stating that Mr.
Murphy has failed to raise viable grounds for relief. Mr.
Fitzgerald has filed a traverse and an additional supplement
to his traverse. The matter is thus fully briefed and ripe
HABEAS CORPUS LEGAL STANDARD
application for writ of habeas corpus by a person in custody
under judgment of a state court can be granted only for
violations of the Constitution, 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 414, 415
n.1 (3d Cir. 2000) (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).
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.
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. Pinhohter, 563 U.S.
170, 181 (2011). The petitioner has the burden of proof and
with respect to § 2254(d)(I), review "is limited to
the record that was before the state court that adjudicated
the claim on the merits." Id.
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,
the court will assume that, "[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, 62 U.S. 86,
99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265
Ground One; Identification Instruction
Ground One, Mr. Murphy argues that the trial court's
instruction on identification was unfairly slanted. He
contends that the instruction included specific references to
the State's trial evidence on the issue of
identification, but did not refer to his defense as to
identification. According to Mr. Murphy, this rendered the
instruction fatally defective.
last decision on this claim was from the Appellate Division
during Mr. Murphy's direct appeal. That court addressed
the claim as follows:
The trial judge's charge on identification referred to
the attorney's "conflicting contentions of the State
and their respective clients in their summations." Here
the defense presented no affirmative evidence on
identification, and the judge did not refer to the
State's evidence without referring to defendant's
contentions. Cf. State v. Edmunds, 293 N.J.Super.
113 (App.Div. 1996), certif. denied, 148 N.J. 459 (1997). The
charge does not warrant reversal.
(Dkt. No. 12-24 at p. 6.)
question here is not whether the jury instruction was
consistent with state law as such, but whether it resulted in
a violation of due process standards:
The only question for us is "whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process." It is well
established that the instruction "may not be judged in
artificial isolation, " but must be considered in the
context of the instructions as a whole and the trial record.
In addition, in reviewing an ambiguous instruction ..., we
inquire "whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a
way" that violates the Constitution.... "Beyond the
specific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation."
Estelle, 502 U.S. at 72-73 (citations omitted). Most
pertinently here, the Due Process Clause would be violated if
an erroneous instruction rendered the trial as a whole unfair
or "operated to lift the burden of proof on an essential
element of an offense as defined by state law."
Smith v. Horn, 120 F.3d 400, 416 (1997). See also
In re Winship, 397 U.S. 358, 364 (1970) ("the
Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt...");
Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (jury
instructions that suggest a jury may convict without proving
each element of a crime beyond a reasonable doubt violate the
Murphy is not entitled to federal habeas relief on this
claim. As the Appellate Division stated, Mr. Murphy did not
present evidence in support of an identification defense;
there was no defense evidence for the instruction to refer
to. The court's instruction did state that the
defendants, as part of their general denial of guilt,
contended that the State had not presented enough reliable
evidence to prove beyond a reasonable doubt that they were
the perpetrators of the crime. (Dkt. No. 19 at p. 2.) The
court also instructed the jury that the State bore the burden
of proof as to identification and that defendants had no
burden to show that the crime was committed by someone else.
(Id.) The instruction fairly presented the issue to
the jury, did not undermine the burden of proof, and did not
render Mr. Murphy's trial unfair. Based on the record, I
conclude that the Appellate Division's denial of this
claim was not contrary to, or an unreasonable application of,
clearly established federal law. Accordingly, Ground One will
Ground Two: Masucci's Testimony and Prosecutor's
Ground Two, Mr. Murphy asserts that his right to a fair trial
was prejudiced by Lt. Masucci's testimony that Victor
Parker provided truthful information and by the
prosecutor's summation, which stated that Parker's
testimony had been corroborated by the investigation. 1 will
address those claims separately.
Murphy argues that Mr. Masucci's testimony improperly
bolstered Parker's credibility. In particular, he points
to Massuci's statements that he "knew what [Parker]
was telling [him] was true" and that he found that
Parker was telling the truth. (Dkt. No. 1 at p. 14)
last decision on this claim was from the Appellate Division,
which discussed it in Mr. Ricks's appeal and incorporated
that discussion into its simultaneous opinion on Mr.
Murphy's appeal. (See ml, supra:) The Appellate Division
addressed the claim as follows:
In essence, it is clear that the defense did not object to
testimony about, and even developed and emphasized the nature
of, Parker's agreement with the State, the terms of which
made clear, independent of any testimony of Investigator
Masucci, that the State by prosecuting this matter and
calling Parker obviously accepted Parker's testimony as
truthful. As a result, independent of any lack of objection,
we conclude that any inappropriate references by Masucci to
Parker's veracity could not have affected the result.
Defendant claims that Investigator Masucci
improperly vouched for the credibility of Parker and
improperly testified as to his truthfulness. Masucci was the
lieutenant in charge of the Organized Crime Section in the
Essex County Prosecutor's Office who, as a homicide
investigator at the time, had been in charge of the Davis
In December 1995, Masucci was contacted by the West Orange
Police Department to interview Parker who was in their
custody. Parker claimed to have "information about a
homicide that happened in Essex County." Masucci met
with Parker and realized that the homicide he referred
involved the death of Corey Davis. After receiving
preliminary information from Parker, Masucci checked his
In answering questions regarding the investigation process,
the following colloquy took place during Masucci's direct
Q: Once you received the preliminary information from Mr.
Parker, what did you do?
A: Once I received the preliminary, being the case agent, I
knew that what he was telling me was true in that he had to
be somewhat knowledgeable about it or be there for him to
tell me what he was telling me because you had to be there
because I knew the facts of what was going on in the case. At
that time I went back, I evaluated my case, I went to my
superior and explained to him the situation.
Masucci further testified that Parker entered the cooperation
Agreement with the prosecutor and "limited" his
prison exposure "to the 15 year term of
imprisonment." In exchange Parker "had obligations
that he had to be truthful at all times and if [Masucci]
found him in violation of any of the agreement and anything
[Masucci] found him not telling the truth in, in any of the
crimes, that he would violate this agreement." Defendant
acknowledges that no objection was made to this testimony.
Subsequently, still during Masucci's direct testimony,
the following occurred:
Q. Did Mr. Parker indicate that there were other individuals
involved with him?
A. Yes. He indicated that there were four other individuals.
MR. JEREJIAN [Murphy's counsel]: Your Honor, I'm
going to object to what he indicated. I don't think it is
MS. GRAN [the Prosecutor]: the counsel know[s], Mr. Parker
will be here.
THE COURT: Mr. Parker is going to testify. Do you want to be
MR. JEREJIAN: Yes.
THE COURT: All right. Side ...