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Salomon v. Nogan

United States District Court, D. New Jersey

January 29, 2018

PATRICK 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 Furn-Lee Salomon (“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner's state court conviction (ECF No. 1). The State filed a response to the petition (ECF No. 14), to which Petitioner has replied. (ECF No. 17). 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, the Superior Court of New Jersey - Appellate Division provided the following summary of the factual basis of this matter:

Tried by a jury, [Petitioner] was found guilty of the murder of Fletcher Brown [in violation of N.J. Stat. Ann. § 2C:11-3(a)(1)] and (2), and third-degree possession of a weapon for an unlawful purpose [in violation of N.J. Stat. Ann. § 2C:39-4(d)]. On the murder charge, [Petitioner] was sentenced to a forty-year term with a thirty-year parole ineligibility period, and to a concurrent five-year term on the weapons conviction. . . .
This criminal episode involves the brutal beating of Fletcher Brown by a gang of about ten people including [Petitioner]. According to the State's proofs, in the afternoon of September 4, 1996, Kanika Taylor met up with her uncle, Fletcher Brown, and his girlfriend Yvonne, both of whom had been drinking. En route to Brown's home, the three walked together, stopping at a liquor store where Brown bought a six pack of beer. They then proceeded to the Jefferson Park area of Elizabeth where they encountered [Petitioner] and Andre Vilkings, [1] who had been sitting on the front porch or standing in front of a gray house on the same street conversing with each other. [Petitioner] had bandages on his face incurred in an earlier altercation. In the immediate area were a group of juveniles smoking marijuana and sitting on milk crates in the middle of the street that had been blocked off by wooden barricades. Some of the juveniles were selling cocaine.
When Yvonne approached, [Petitioner] asked if she would like to buy drugs, but she did not respond. Brown, however, told [Petitioner] “[y]ou have nothing to say to my girlfriend.” Immediately, an argument ensued among [Petitioner], Vilkings[, ] and Brown. Vilkings swung at Brown, hitting Brown in the face with his fist, causing him to move backwards and bump into [Petitioner], knocking off [Petitioner]'s bandage.
The scene then became chaotic. [Petitioner] and Vilkings rushed at Brown, kicking and punching him, forcing him into the street. The juveniles who were in the street joined [Petitioner] and Vilkings and began kicking, punching[, ] and beating Brown all over his body. Brown was stomped repeatedly and fell to the ground.
The assault on Brown escalated, and his attackers began using pieces of the wooden barricades to beat him while lying on the pavement. These wooden planks measure ten to twelve feet in length and weighed approximately thirty pounds. Vilkings pushed a barricade onto Brown, which broke into pieces. [Petitioner] picked up a piece of the broken barricade and hit Brown in the arms, shoulders, neck[, ] and head. Vilkings picked up a bicycle and slammed it down, while [Petitioner] did the same with another bike, striking the back of Brown's head, near his neck.
Throughout the beating, which lasted about five minutes, Brown remained on the ground, trying to protect himself. One of the assailants decided Brown was beaten enough and tried to drag him to the curb. After the beating, Brown managed to stand up before collapsing and going into convulsions on the ground. Vilkings and [Petitioner] left the scene, riding the same bicycles they used to assault Brown, while the juveniles fled on foot.
Shortly thereafter, emergency medical services (EMS) arrived at the scene and found Brown lying on his back amidst the shattered barricades. Brown gave no physical response upon initial examination. He had no pulse, no blood pressure[, ] and took only four breaths per minute, leading EMS to consider Brown clinically dead. After lifesaving measures failed, Brown was pronounced dead at the hospital at 4:49 p.m.
An autopsy revealed that Brown had multiple defensive wounds and two pattern areas of contuse abrasions on his chest. The enlarged lymph nodes around his liver were consistent with long-term drug use. In fact, two vials of cocaine were found in Brown's pocket. He showed no signs of hypertension. On Brown's scalp, above his ear, was a small area of hemorrhage, consistent with blunt force trauma to the victim's head. His brain was swollen.
Both prosecution and defense experts agreed that Brown's death was caused by brain swelling, which, in turn, was caused by a hemorrhage from a small tear in a blood vessel in his brain. This tear or rupture occurred in a pre-existing weakening, delicate “out pouching” or bubble of the blood-vessel wall known as a berry aneurysm.
Berry aneurysms are not uncommon. They can rupture from an episode of increased blood pressure, which can be caused by cocaine use, by lifting a heavy object, or by a fight. Head or neck trauma can cause [a] rupture, as can a sudden hyperextension of the neck resulting from either a punch to the face or a blow to the neck. One punch to the face could suffice to cause [a] rupture. Aneurysms can also rupture spontaneously, usually preceded by symptoms such as stomachaches, headaches, or vision problems. On the other hand, individuals with berry aneurysms can live their entire life without [a] rupture.
The experts disagreed as to the cause of the rupture of Brown's aneurysm. The State's expert, Dr. Graciela Linares, who performed the autopsy on Brown, concluded that the rupture was caused by trauma. Evidence of a serious blunt trauma became visible during the autopsy. Near the spine, Brown sustained trauma deep in the skeletal muscles of his neck. This discovery lead Dr. Linares to conclude that the neck trauma, as well as some head trauma, caused the tear and rupture of the berry aneurysm. Dr.
Linares further explained “a blow to the neck in that area shakes the head” in a manner “similar to what we call shaken baby syndrome.” The defense expert, Dr. Daniel Perl, disagreed, concluding that neck trauma would not cause the aneurysm to rupture, absent either a skull fracture or detectible brain contusion. Rather, he opined that Brown's aneurysm ruptured from increased blood pressure resulting from either the stress of the attack or possible cocaine use earlier that day.
[Petitioner] admitted that he was present, but denied taking part in the beating. Instead he [testified that] he tried to help Brown and to prevent Vilkings from hurting Brown. According to [Petitioner], Vilkings pushed him, telling him “to get the F out of the way.” [Petitioner testified that he] complied. After his bandage fell off, [Petitioner] went inside to fix the dressing.
The jury credited the State's account and convicted [Petitioner] of Brown's murder and the related weapons offenses.

(Document 4 attached to ECF No. 14 at 1-6).

         Following his conviction and sentence, Petitioner appealed. (Id.). On appeal, the Appellate Division affirmed his conviction, but remanded for the entrance of an amended sentencing judgment as the Appellate Division determined that the weapons offense should have merged for sentencing purposes, leaving only Petitioner's 40 year murder sentence in place. (Id. at 25-27). Petitioner then filed a petition for certification, which the New Jersey Supreme Court denied in July 2006. (Document 7 attached to ECF No. 14).

         On or about August 30, 2006, Petitioner filed a petition for post-conviction relief (PCR) in the state trial court. (ECF No. 1 at 4). Following the appointment of counsel, briefing, and multiple hearing dates, the state trial court denied Petitioner's PCR petition by way of an opinion and order entered on July 23, 2013. (Document 17 attached to ECF No. 14). Petitioner appealed, and the Appellate Division affirmed the denial of PCR relief in all respects on April 7, 2016. (Document 25 attached to ECF No. 14). Petitioner then filed a petition for certification, which the New Jersey Supreme Court denied on December 12, 2016. See State v. Salomon, 228 N.J. 443 (2016). Petitioner's current habeas petition followed.


         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, 567 U.S. 37, 40-41 (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 ...

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