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Bass v. The Attorney General of State of New Jersey

United States District Court, D. New Jersey

May 7, 2018

SHARIF BASS, Petitioner,
v.
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.

          OPINION

          HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.

         Before this Court is the petition for a writ of habeas corpus of Sharif Bass (“Petitioner”) brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Following an order to answer, Respondents filed a response to the petition. (ECF No. 6.) Petitioner did not file a reply. For the reasons set forth below, Petitioner's habeas petition is DENIED, and Petitioner is DENIED a certificate of appealability.

         I. Background

         In its opinion affirming Petitioner's conviction and sentence, the Superior Court of New Jersey, Appellate Division provided the following summary of the facts underlying this matter:

Pursuant to a plea arrangement, [Petitioner, Sharif Bass, ] pled guilty to first-degree aggravated manslaughter[1] in violation of N.J. Stat. Ann. § 2C:11-4(a)(1)] and to second-degree conspiracy to commit armed robbery [in violation of N.J. Stat. Ann. §§ 2C:5-2 and 15-1]. The State recommended an aggregate sentence of twenty-eight years incarceration, subject to an eighty-five percent period of parole ineligibility pursuant to the No. Early Release Act (NERA), [N.J. Stat. Ann. §] 2C:43-7.2. The sentencing court imposed [the sentence which] the State recommended.
In the indictment that is the subject of this appeal, Bass-along with three other individuals-was accused of planning and committing several crimes in Asbury Park, the most serious of which resulted in the homicide of Phonarith Chhieng, who was a victim of the co-defendants' premeditated robbery. Chhieng had been lured from a local bar to the vicinity of 316 Asbury Avenue where he was violently set upon, robbed, and ultimately killed by Bass's cohorts.
[The Appellate Division thereafter summarized the basis for and denial of a suppression motion not relevant to this petition.]
More than a year after [Petitioner's] suppression motion was denied, Bass entered a plea of guilty to aggravated manslaughter. At the time Bass entered his plea of guilty, his co[-]defendants all had either entered pleas of guilty or been found guilty of the charges in the indictment. The judge who oversaw Bass's plea allocution and accepted the guilty plea was familiar with the circumstances of the crimes and what had happened to the three codefendants.[]
The plea allocution reveals the following exchanges between the court and Bass:[2]
[Court]: All right. Now do you understand that . . . you agree[d] to commit a robbery, all right, [that's] what you did in this case?
[Petitioner]: Yes.
[Court]: All right. And do you understand further that you were aware that [an individual] had got[ten] hurt [during a robbery] three days before?
[Petitioner]: Yes.
[Court]: All right. So to be liable for murder in this case for a lesser included offense of aggravated manslaughter, all right, there's a-what's called a conspiracy theory of liability. Do you understand that?
[Petitioner]: Yeah, I know.
[Court]: And basically the State's position would have been, in this case, that knowing of the prior robbery and what happened [to the previously injured individual], that when you entered that conspiracy to rob in this particular case, and were in fact an accomplice to the robbery, because you had a purpose to rob that particular individual.
[Petitioner]: That's correct.
[Court]: All right. That it could be reasonably foreseeable, and it would be a jury question, it would have been reasonably foreseeable that someone could have been seriously injured or in fact killed.
[Petitioner]: That's correct.
[Court]: Do you understand?
[Petitioner]: Yes.
[Court]: And that could have been the - the murder conviction in this particular case. And, again, you've agreed that, certainly, as a result of you agreeing to be involved in the robbery and being an accomplice to the robbery, someone did die, there's no question about that.
[Petitioner]: That's correct.
[Court]: All right. Because your co[-]defendant killed him. So aggravated manslaughter is a manslaughter involved, you know, reckless indifference to human life. So even though individually you did not kill this particular person, you're pleading to that on the theory either that as a conspiracy, it's a lesser included offense; or, you know, you would have been guilty of felony murder and it's a lesser included offense for that, the State's giving you the benefit of the doubt. Is that true?
[Petitioner]: That's true.
[Court]: All right. Do you understand that?
[Petitioner]: I understand.
[Court]: All right. And the murder theory that we also talked about. You had an agreement to rob somebody. It is reasonably foreseeable that someone would get killed or seriously hurt as a result of that type of activity. Do you understand that?
[Petitioner]: Yes.
Based upon the totality of the circumstances, the court accepted the plea as providing a sufficient factual basis to support the crime of aggravated manslaughter.

(ECF No. 6-5 at 3-8.)

         Following his conviction and sentence, Petitioner appealed. During his direct appeal, Petitioner raised one claim which is relevant to his current habeas petition - that he had not given a sufficient factual basis to support his guilty plea to aggravated manslaughter insomuch as he had never admitted to killing the victim or engaging in actions which manifested extreme indifference to human life. (Id. at 11.) The Appellate Division rejected that argument, finding that Petitioner had given an adequate factual recitation in support of his guilty plea based on the colloquy summarized above. (Id. at 11-14.) In so finding, the Appellate Division noted that Petitioner had pled guilty to aggravated manslaughter based on New Jersey's principles regarding vicarious liability for co-conspirators and accomplices, which holds co-conspirators and accomplices responsible for the foreseeable actions of the others whom they aided or with whom ...


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