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Venable v. Johnson

United States District Court, D. New Jersey

June 4, 2018

REGINALD VENABLE, Petitioner,
v.
STEVEN JOHNSON, Respondent.

          OPINION

          KEVIN MCNULTY, U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner Reginald Venable has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Am. Pet., ECF No. 7.) For the reasons stated herein, the petition shall be denied and no certificate of appealability shall issue.

         II. BACKGROUND

         The New Jersey Superior Court, Appellate Division, on direct appeal, summarized the facts underlying Petitioner's conviction as follows:[1]

According to the State's proofs, at about 11 a.m. on September 8, 2001, Maximiliano Carabantes cashed his payroll check in the amount of $307 at a check-cashing store at Clinton and West Front Streets in Plainfield and then walked to a nearby grocery store where he bought a chicken for $10. Unknown to Carabantes, [Petitioner] and Rashon Dixon had watched him cash his check and decided to rob him. When Carabantes walked out of the grocery store, Dixon stopped him, threatened him with a handgun and forced him face first into a wall. [Petitioner] then took $300 from Carabantes' left shirt pocket and $20 from his wallet. As the robbers walked away, Dixon waved the handgun to stop Carabantes from following. As they walked away, [Petitioner] divided the money, giving Dixon $140 and keeping the remainder.
Meanwhile, Carabantes found a friend who spoke English, and the two men flagged a Plainfield police car driven by Officer John Henderson. Carabantes' friend translated details of the robbery, relating Carabantes' description of two black men with muscular builds, one wearing a red shirt and black pants and the other wearing a black shirt with black pants. Henderson radioed this information to the police dispatcher and drove in the direction where Carabantes said the men had walked. Henderson saw [Petitioner] and Dixon walking together about 500 feet south of West Front Street on Clinton Avenue and noted that they fit the description of the robbers. He radioed the dispatcher that he had located two suspects and drove back to the corner of west Front Street and Clinton Avenue to pick up Carabantes to see if he could identify the suspects.
When Dixon and [Petitioner] saw Henderson's police car pass, they decided to get rid of the handgun. Dixon threw the gun in some weeds next to a fence bordering a driveway for a hot dog stand. [Petitioner], now accompanied by a woman named Crystal Collins, followed Dixon down the driveway, and the three walked back to Clinton Avenue. [Petitioner] and Collins crossed the street and continued walking south. Dixon remained on the opposite side of the street, walking in the same direction and slightly behind the other two.
It was at this time that Officer Henderson drove by with Carabantes and his friend in the car. As they approached [Petitioner] and Dixon, now on opposite sides of the street, Carabantes identified them as the two men who robbed him. Henderson radioed this information to headquarters and requested backup to make an arrest. Another patrol car arrived and stopped [Petitioner] and Collins while Henderson apprehended Dixon. Both men were arrested and searched. [Petitioner] was carrying $190 in cash and Dixon, $140. Within a few minutes Officer Edward Hafeken located a loaded and operational BB gun, which resembled a handgun and was identified by Carabantes.
Both [Petitioner] and Dixon were indicted for first-degree robbery and related weapons offenses. Prior to trial, Rashon Dixon entered a guilty plea to first-degree armed robbery in exchange for a plea recommendation of a second-degree sentence of seven years in State prison with five years, eleven months and fourteen days of parole ineligibility as mandated by the No. Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In accepting the plea bargain, Dixon agreed to testify for the State at [Petitioner's] trial.
At trial, Dixon testified he met [Petitioner] on the morning of September 8, 2001, and [Petitioner] asked him to help him get some money, showing him a black BB gun. They walked to a check-cashing place to scout a likely victim, and they saw Carabantes leave the cashier. Dixon said he took the gun from [Petitioner] and told the victim to "get against the wall." As he held the gun on Carabantes, [Petitioner] took the money. Dixon then related that he and [Petitioner] walked away and were joined by Crystal Collins. Dixon admitted he threw the gun into the weeds near the hotdog stand after seeing a police car.

State v. Venable, No. A-4618-02T5, slip op. at 2-5 ( N.J.Super.Ct.App.Div. Oct. 15, 2004) (available at ECF No. 14-5).

         On January 14, 2003, a jury found Petitioner guilty of: (i) first-degree armed robbery, N.J. Stat. Ann. § 2C:15-1; (ii) third-degree unlawful possession of a handgun, N.J. Stat. Ann. § 2C:39-5b; (iii) second-degree possession of a firearm for an unlawful purpose, N.J. Stat. Ann. § 2C:39-4a; and (iv) second-degree possession of a firearm by a previously convicted person, N.J. Stat. Ann. § 2C:39-7. (Id. at 1-2; see also Jan. 14, 2003 Trial Trs., ECF Nos. 14-41 and 14-42.) On March 28, 2003, the trial court sentenced Petitioner "to an aggregate term of fifty years imprisonment with a twenty year period of parole ineligibility and five years of parole supervision upon release[.]" (Id. at 2; see also Mar. 28, 2003 Sentencing Tr., ECF No. 14-43.) The Appellate Division affirmed Petitioner's conviction and sentence on October 15, 2004. (Id. at 8.) The New Jersey Supreme Court denied certification of Petitioner's direct appeal on May 23, 2005. (ECF No. 14-6.)

         Petitioner thereafter filed two separate post-conviction relief ("PCR") applications in state court. Petitioner filed his first PCR petition on or about July 19, 2005. (See, e.g., ECF No. 14-27 at 1.) The PCR court held a hearing on Petitioner's first PCR application on April 3, 2007. (PCR Hr'g Tr., ECF No, 9-44.) On that date, the PCR court issued an order denying Petitioner's first PCR petition "for the reasons stated on the record on April 3, 2017." (ECF No. 14-15.) The Appellate Division affirmed the denial of Petitioner's first PCR petition on May 4, 2010. State v. Venable, No. A-6315-06T4, slip op. at 7 ( N.J.Super.Ct.App.Div. May 4, 2010) (available at ECF No. 14-20). The New Jersey Supreme Court denied certification of Petitioner's first PCR appeal on September 10, 2010. (ECF No. 14-23.)

         Petitioner filed his second PCR petition on or about March 8, 2011. (See, e.g., ECF No. 14-27 at 2.) The PCR court held a hearing regarding these claims on February 15, 2013. (PCR Hr'g Tr., ECF No. 14-45.) The PCR court issued an order and accompanying written decision denying Petitioner's second PCR petition on June 4, 2013. (ECF No. 14-27.) The Appellate Division affirmed the denial of Petitioner's second PCR petition on July 13, 2015. State v. Venable, No. A-0999-13T3, slip op. at 11 ( N.J.Super.Ct.App.Div. July 13, 2015) (available at ECF No. 14-31). The New Jersey Supreme Court denied certification of Petitioner's second PCR appeal on October 6, 2015. (ECF No. 14-34.)

         Petitioner filed his original § 2254 petition on September 2, 2011. (ECF No. 1.) At that time, this matter was assigned to District Judge Dennis M. Cavanaugh. On August 1, 2012, Judge Cavanaugh stayed this matter in light of Petitioner's then-pending second PCR petition. (ECF No. 3.) On November 23, 2015, the Court received a letter from Petitioner stating that the New Jersey Supreme Court had denied certification with respect to Petitioner's second PCR petition, and requesting that the Court lift its stay of this matter. (ECF No. 6.) On that date, Petitioner also filed a motion to amend his habeas petition to assert certain additional claims. (ECF No. 7.) Judge Cavanaugh having retired from the bench, on December 1, 2015, the matter was reassigned to me. (ECF No. 5.)

         On January 19, 2016, 1 issued a Memorandum and Order which, inter alia: (1) lifted the stay of this matter; (2) granted Petitioner's motion to amend; (3) performed a substantive analysis with respect to "[P]etitioner's claim in his amended habeas petition that PCR counsel was ineffective"; (4) denied habeas relief and declined to issue a certificate of appealability on that claim; and (5) ordered Respondent to "file a full and complete answer to [the balance of the claims asserted in] the amended habeas petition." (ECF No. 8.) Respondent filed an answer on April 22, 2016. (ECF No. 14.) Petitioner acknowledged receipt of Respondent's answer by way of a letter dated May 5, 2016 (see ECF No. 15), but did not file any reply.

         III. STANDARD OF REVIEW

         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 die 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. Pinholster, 563 U.S. 170, 181 (2011). The petitioner has the burden of proof and, with respect to § 2254(d)(1), 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); see also Wilson v. Sellers, 138 S.Ct. 1188, 1194 (2018). Additionally, AEDPA deference is not excused when state courts issue summary rulings. For example, "[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)).

         IV. ANALYSIS

         Petitioner raises the following points for this Court's review:

Ground One: Petitioner was denied his [Sixth] Amendment right to effective assistance of counsel because trial counsel failed to advi[se] Petitioner that he faced an extended term of incarceration if he was convicted at trial...
Ground Two: Petitioner was denied his [Sixth] Amendment right to confrontation [because the unidentified individual who translated Mr. Carabantes' account of the robbery to police did not testify at trial].
Ground Three: Petitioner was deprived of his [Fourteenth] Amendment right to due process and a fair trial [because]:
(A) [Petitioner's] co-defendant [Rashon Dixon] was allowed to testify in prison garb while in shackles;
(B) [the] trial court failed to give the proper jury instructions limiting the use of [Rashon Dixon's] guilty plea [by failing to expressly note] that [the jury] cannot [use a] co-defendant's guilty plea[] as substantive evidence of petitioner's guilt; and
(C) [the] trial court erred in charging the jury regarding accomplice liability.
Ground Four:
(A) [Petitioner's second] PCR petition should not have been procedural[ly] barred;
(B) [Petitioner] established a prima facie case of counsel's ineffectiveness, in that trial counsel failed to inform him properly regarding his sentencing exposure and PCR counsel failed to pursue this claim in the first petition...; and
(C)[i] trial counsel failed to effectively cross-examine [Rashon] Dixon[;] and [ii] [the trial court improperly denied] a [request] that was posed by the jury at the time of deliberation [to review a copy of Rashon Dixon's] statement [to police]

         (Am. Pet., ECF No. 7 (capitalization in original omitted).)

         A. Ineffective Assistance of Trial Counsel

         Petitioner claims that he is entitled to habeas relief because his counsel rendered ineffective assistance at trial. More specifically, Petitioner asserts that his trial counsel, Howard G. Golden, Esq., failed to (1) "advi[se] Petitioner that he faced an extended term of incarceration if he was convicted at trial" (see Am. Pet. at Ground One); and (2) "effectively cross-examine [Rashon] Dixon" (id. at Ground Four, sub-point C). These claims are governed by the two-prong test set forth in the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668 (1984).

         Under Strickland, a habeas petitioner first "must show that counsel's performance was deficient. This requires [the petitioner to show] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687; see also United States v. Shedrick,493 F.3d 292, 299 (3d Cir. 2007). With respect to evaluating whether counsel's performance was deficient under Strickland, the "proper standard ... is that of 'reasonably effective assistance.'" Jacobs v. Horn,395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting ineffective assistance must therefore show that counsel's representation "fell below an objective standard of reasonableness" based on the particular facts of a petitioner's case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing counsel's performance, ...


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