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Murphy v. Nogam

United States District Court, D. New Jersey

January 3, 2018

DARIUS MURPHY, Petitioner,
PATRICK NOGAM, et al., Respondents.




         The 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.


         The 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 conviction.[1]

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 family.
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 the perpetrators.
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 on him."
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).

         Mr. 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).

         Thereafter, 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).

         On 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).

         In July 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 their investigation.
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 petitioner.
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 petitioner's alibi.
7. Trial counsel was ineffective for not moving for a severance.
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 appellate counsel.
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 selection.
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.

         Respondent 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 for decision.


         An 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).

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

         The AEDPA standard under § 2254(d) is a "difficult" test to meet and is a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. 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.

         In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore, 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 (1989)).


         A. Ground One; Identification Instruction

         In 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.

         The 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.)

         The 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 Constitution).

         Mr. 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 be denied.

         B. Ground Two: Masucci's Testimony and Prosecutor's Summation

         In 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.

         I. Masucci's Testimony

         Mr. 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)

         The 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[2] 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 case investigation.
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 criminal history.
In answering questions regarding the investigation process, the following colloquy took place during Masucci's direct testimony:
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 proper.
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 heard?
THE COURT: All right. Side ...

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