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Gibbs v. Bartkowski

United States District Court, D. New Jersey

April 30, 2018

CARNELL GIBBS, Petitioner,
v.
GREG BARTKOWSKI, et al., Respondents.

          Carnell Gibbs, #407538 / 399805 Petitioner, pro se

          John J. Santoliquido, Esq. James F. Smith, Esq. Atlantic County Prosecutor's Office Counsel for Respondents

          OPINION

          NOEL L. HILLMAN, United States District Judge

         Before this Court is the Amended Petition for a writ of habeas corpus of Petitioner Carnell Gibbs (“Petitioner”), brought pursuant to 28 U.S.C. § 2254. ECF No. 15. For the following reasons, the Court denies the Petition and declines to issue a certificate of appealability.

         I. BACKGROUND

         In its opinion affirming the denial of post-conviction relief (“PCR”), the Superior Court of New Jersey, Appellate Division, provided the following summary of the factual background of Petitioner's case:

During the early morning hours of October 22, 1998, in the parking lot of a bar, defendant shot John Byrd and Alex Crawford. Crawford died and Byrd survived. On the evidence presented[, ] the jury could have found the following additional facts. Defendant and Byrd had had a contentious relationship for some period of time. Byrd was the bigger man, and on prior occasions had taunted and struck defendant. Byrd had previously pulled a gun on defendant and while defense witnesses testified that Byrd had a gun on October 22, 1998, those witnesses did not report such information to the police and no gun was found on Byrd after defendant shot him. The jury certainly could have concluded that Byrd was unarmed when he was shot.
Earlier in the evening of October 21, Byrd allegedly gave defendant threatening looks and called defendant names when they were both inside the bar. Byrd also boasted that he owned “big dogs and big guns.” Defendant left the bar and walked back to his sister's apartment. He retrieved his own dog and a nine millimeter handgun. Defendant's cousin, Thomas Allen, took the gun from defendant before returning to the bar. When the two men returned to the bar's parking area, defendant confronted Byrd and challenged him to a fight. Defendant pulled up his shirt to show Byrd he was unarmed. Byrd testified that he took off his jacket in anticipation of a fight, but the fight was preempted by the shooting. Defendant testified he thought he saw a chrome gun in Byrd's waistband. Allen handed defendant the gun he was holding for defendant, and defendant proceeded to shoot Byrd three times. Byrd fell to the ground and defendant stood over him, firing multiple shots at him. Alex Crawford, essentially an innocent bystander, approached defendant with his hands raised, perhaps in an effort to stop defendant [from] shooting Byrd. Defendant then shot Crawford twice and walked away. Crawford died from his wounds. Byrd was shot so many times that paramedics ran out of dressings for his wounds, but he lived. The evidence was that defendant had fired seventeen shots, the maximum capacity of his nine millimeter handgun.

ECF No. 51-33 at 3-4.

A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(1)(2); attempted murder, N.J.S.A. 2C:5-1; conspiracy, N.J.S.A. 2C:5-2; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court sentenced defendant to an aggregate term of seventy years in prison, fifty years for murder and a consecutive twenty years for attempted murder, subject to the parole ineligibility provisions of the No Early Release Act (“NERA”), N.J.S.A. 2C:43-7.2. Defendant appealed his convictions and sentence, and we affirmed his convictions. The trial court, however, had attached NERA's parole disqualification provisions to the sentence for murder, as well as to the sentence for attempted murder, and in light of State v. Manzie, 335 N.J.Super. 267 (App. Div. 2000), aff'd. by equally divided Court, 168 N.J. 113 (2001), we remanded the matter to the trial court for re-sentencing. State v. Gibbs, No. A-860-00 (App. Div. May 24, 2002). At that re-sentencing, the trial court again imposed an aggregate sentence of seventy years in prison, fifty years for murder, with a thirty-year period of parole ineligibility, and a consecutive twenty years in prison for attempted murder, subject to NERA. Defendant appealed his sentence as excessive, and his appeal was heard on an Excessive Sentence Oral Argument calendar, Rule 2:9-11; we affirmed his sentence. State v. Gibbs, No. A-0758-02 (App. Div. June 9, 2003). The Supreme Court denied defendant's petition for certification. 174 N.J. 547 (2002).

Id. at 2-3.

         As noted in the opinion above, Petitioner appealed his conviction and sentence. The Appellate Division affirmed his conviction on May 24, 2002, but remanded on the matter of sentencing. ECF No. 51-17. The New Jersey Supreme Court denied certification on October 22, 2002. ECF No. 51-20. Petitioner was resentenced by the trial court on June 21, 2002, to the same aggregate sentence of seventy years in prison, but with a thirty-year period of parole ineligibility on the murder count. ECF No. 51-18; ECF No. 51-10 at 33-34. The Appellate Division affirmed that sentence on June 12, 2003, ECF No. 51-22, and Petitioner does not appear to have filed a petition for certification on the matter of his re-sentencing. Petitioner filed a PCR petition, which was denied in a letter opinion by the Superior Court of New Jersey, Law Division, on August 22, 2007. ECF No. 51-28. Petitioner appealed, and on May 21, 2010, the Appellate Division affirmed the denial of PCR. ECF No. 51-33. The Supreme Court of New Jersey denied certification on October 7, 2010. ECF No. 51-35. Petitioner then filed a habeas petition with this Court executed on February 9, 2011. ECF No. 1. The Court administratively terminated the petition and Petitioner filed an Amended Petition executed on February 7, 2012. ECF No. 15. Petitioner raises fourteen grounds for habeas relief:

1. Petitioner was denied the effective assistance of trial and appellate counsel right [to a] fair trial and to Due Process of the law under the state and federal constitutions since trial counsel failed to: (1) ask the court to interview the juror in order to determine juror taint: and (2) move to disqualify jurors whom were unfit and [] appellate counsel was ineffective in fail[ing] to ask the court to interview jurors: and [(3)] a new trial should have been granted due to such failure.
2. Petitioner was denied the effective assistance of appellate counsel, right to a fair trial and to due process of the law under the state and federal constitutions since appellate counsel failed to argue that a new trial was warranted as the state failed to provide the Petitioner with a complete report of its ballistics expert. The error was contrary to clearly established federal law and was an unreasonable determination of the facts in light of the evidence presented therefore the writ should issue.
3. Petitioner was denied the effective assistance of trial counsel right to a fair trial and to Due Process of the law under the state and federal constitutions since trial counsel failed to have Nakia Allen and Omar Davis testify on his behalf to establish[] a self-defense[, ] was contrary to clearly established federal law and was an unreasonable determination of the facts in light of the evidence presented therefore the w[r]it should issue.
4. Petitioner was denied the effective assistance of trial counsel under the state and federal constitutions since trial counsel failed to pursue an intoxication defense which was contrary to clearly established federal law and was an unreasonable determination of the fact[s] in light of the evidence presented therefore the writ should issue.
5. Petitioner was denied the effective assistance of trial and appellate counsel, right to a fair trial and to due process [] under the state and federal constitutions since the verdict sheet failed to indicate that self-defense was a defense which was [a] contrary determination of the fact in light of the evidence presented therefore the writ should issue[].
6. Petitioner was denied the effective assistance of trial counsel, right to a fair trial and to due process of the law under the state and federal constitution[s] since trial counsel failed to call Ebony Mays as a witness which, was contrary to clearly established federal law and was an unreasonable determination of the fact in light of the evidence presented[, ] therefore the w[r]it should issue.
7. Petitioner was denied the effective assistance of trial counsel, right to a fair trial and to due process of the law under the state and federal constitutions since a tape conversation with trial counsel revealed that his performance was objectively unreasonable, which was contrary to clearly established federal law and was an unreasonable determination of the fact in light of the evidence presented therefore the w[r]it should issue.
8. Petitioner was denied the effective assistance of trial counsel, right to a fair trial and to due process of the law under the state and federal constitutions since trial counsel failed to call Kevin Dorsey to testify, which was contrary to clearly established federal law and was an unreasonable determination of the fact in light of the evidence presented therefore the w[r]it should issue.
9. Petitioner was denied the effective assistance of trial counsel, right to a fair trial and due process of the law under the state and federal constitutions since trial counsel advise[d] the Petitioner to lie about the number of shell casings contained in the weapon, which was contrary to clearly established federal law and was an unreasonable determination of the fact in light of the evidence presented[, ] therefore the writ should issue.
10. Petitioner was denied his constitutional right to due process of the law and right to a fair trial as no objection was made to the jury charge since the charge failed to distinguish the factual predicates for the conviction for murder from that of aggravated and reckless manslaughter and the conviction was not based on an invalid predicate. [This w]as contrary to clearly established federal law, and an unreasonable application of federal [law], therefore, the writ should issue.
11. Petitioner was denied the effective assistance of trial and appellate counsel, right to a fair trial and to due process [of] the law under the federal constitution[] since the jury charge was confusing and no objection was made thereto, which was contrary to clearly established federal law, and an unreasonable application of federal law, therefore, the writ should issue.
12. The cumulative effect of trial counsel's many deficiencies deprived the Petitioner of effective assistance of counsel. U.S. Const., Amends. VI; N.J. Const. (19470, Art I, Para. 10 and the writ should issue.
13. Petitioner received an illegal sentence under Blakely v. Washington.
14. The trial court erred in denying the defense Petition[] for post conviction relief or, in the alternative, in not affording the Petitioner an[] evidentiary hearing to fully address his contention that he failed to receive adequate legal representation at the trial and appellate levels.

ECF No. 15 at 13-24.

         The Court dismissed the Amended Petition as time-barred under 28 U.S.C. § 2244(d) on August 17, 2012. ECF No. 19. Petitioner filed a motion for reconsideration, which the Court denied, and the case was again dismissed on March 18, 2013. ECF No. 24. Petitioner appealed to the Third Circuit Court of Appeals, and on April 17, 2015, the Third Circuit vacated this Court's March 18, 2013 judgment, finding the petition was not time-barred, and remanded this matter for further proceedings. ECF No. 40. On June 8, 2015, this Court issued an Order reinstating the action in accordance with the Mandate of the Third Circuit, ECF No. 46, and Respondents were required to file an Answer. ECF No. 42. In their Answer, Respondents argue that Petitioner's claims are meritless.[1] ECF No. 51 at 18-40. The Court agrees that the claims lack merit.

         II. LEGAL STANDRD

         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 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, 135 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).

         In 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)).

         To the extent that a petitioner's constitutional claims are unexhausted, 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); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).

         III. DISCUSSION

         A. Grounds One through Nine, Eleven & Twelve: Ineffective Assistance of Counsel

          The majority of Petitioner's claims relate to the alleged ineffective assistance of his trial and appellate counsel. The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. The right to counsel is the right to the effective assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel's assistance was so defective as to require reversal of a conviction has two components, both of which must be satisfied. Id. at 687. First, the defendant must “show that counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. To meet this prong, a “convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. The court must then determine whether, in light of all the circumstances at the time, the identified errors fell “below an objective standard of reasonableness.” Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014).

         Second, a petitioner must establish that counsel's “deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 669. To establish prejudice, the defendant must show that “there is a reasonable probability that the result of trial would have been different absent the deficient act or omission.” Id. at 1083. On habeas review, it is not enough that a federal judge would have found counsel ineffective. The judge must find that the state court's resolution of the issue was unreasonable, a higher standard. Harrington v. Richter, 562 U.S. 86, 101 (2011).

         1. Ground One: ...


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