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Gilliard v. Johnson

United States District Court, D. New Jersey

February 11, 2019

AZIZ GILLIARD, Petitioner,
v.
STEVEN JOHNSON, THE ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY, Respondents.

          Aziz Gilliard, Petitioner pro se.

          John J. Santoliquido, Counsel for Respondents.

          OPINION

          NOEL L. HILLMAN NOEL L. HILLMAN, U.S.D.J.

         Petitioner Aziz Gilliard (“Petitioner”), a prisoner presently incarcerated at New Jersey State Prison in Trenton, New Jersey, has filed a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). ECF No. 1. By order of the Court, ECF No. 2, Respondents Steven Johnson and the Attorney General for the State of New Jersey (“Respondents”)an answer to the Petition (the “Answer”), ECF No. 7. Petitioner filed a reply to the Answer (the “Reply”). ECF No.12. The Petition is ripe for disposition. For the reasons stated below, the Petition will be denied.

         I. BACKGROUND

         In an unreported opinion affirming Petitioner's conviction and sentence, the New Jersey Superior Court, Appellate Division, on direct appeal, provided the following summary of the factual background of Petitioner's case:

Evidence at trial disclosed that shortly before midnight on June 18, 2006, after a father's day barbecue, Kawan Hill was shot in the head at close range and killed in a courtyard of the Stanley Holmes Village housing complex in Atlantic City (Village). Uniformed officers Brian Hurley and Charles Heintz were on foot patrol that evening when they heard “several shots” and ran in the direction of the shots. Heintz testified that he heard roughly eight shots in total: a single shot followed by a volley of three or four additional shots, then a second such volley.
Once at the scene, the officers discovered a large gathering of people standing around a body, which lay in a pool of blood. One person at the scene said that he saw two men flee immediately after the shooting. Police recovered multiple shell casings and unfired bullets, including three .45 shell casings and two live .45 rounds, a .40 caliber shell casing, and a bullet fragment from a .38 caliber bullet.

         State v. Gilliard, Indictment No. 07-01-0239, 2011 WL 3364406, at *2 (N.J. Sup. Ct. App. Div. Aug. 5, 2011). Immediately following the shooting, officers apprehended two potential suspects who had fled the scene, but it was determined that neither had been the shooter. Id.

         During the course of the investigation, Delisha DeBerry was identified as an eyewitness to the shooting. Id. at *3.Detective Michael Mattioli interviewed DeBerry, “who was reluctant to talk about the events, expressing concern about being considered a snitch.” Id. She eventually, however, gave a recorded statement recounting the events that led to the shooting:

She said that, following an argument among several men playing dice, “Aziz” pulled out a gun and fired it into the air. Aziz then shot Hill in the head, with DeBerry standing less than three feet away. DeBerry told Detective Mattioli that she had known Aziz for roughly six months. She described him as having a missing front tooth and a tattoo with the initials D.O.M. on his right hand. DeBerry also told the detective that she knew Aziz's brother Fuquan and knew where Aziz lived. Finally, DeBerry told Mattioli that she also knew that Aziz had previously been in prison and that he had been released roughly eighteen months before this incident. She identified defendant's gun as an automatic, not a revolver.

Id.

         Once Detective Mattioli obtained DeBerry's statement, he prepared a photo array, containing photos of Petitioner and five other individuals, and arranged for an officer with no knowledge of the case to present the array to DeBerry. Id.

         Later that same day, [Sergeant Clark] Manley

met DeBerry at the prosecutor's office and showed her the six photographs, one at a time. After viewing all six of the photographs, DeBerry asked to see them a second time. The photos were re-numbered, randomly re-shuffled and individually shown to her again. After seeing the photos a second time, DeBerry identified two men: defendant and a person named Marcus Hunt, who was in jail at the time of the shooting. When Mattioli asked DeBerry why she now indicated that there were two shooters, he noticed that she appeared nervous and shook, and she told him that she was afraid and did not want to be a witness. DeBerry then pointed to defendant's photo and stated that he was the sole shooter. Prior to trial, the court conducted a Wade hearing and determined that DeBerry's identification of defendant was admissible.

Id.

         A warrant was issued for Petitioner's arrest in August 2006 based on DeBerry's statement. Id. at *6. In September 2006, law enforcement executed search warrants at the homes of Petitioner's mother and girlfriend that revealed that Petitioner “sometimes stayed at both locations.” Id. Petitioner was not at either residence when the warrants were executed. Id. Law enforcement circulated wanted posters with Petitioner's name and photograph and a local paper published an article stating that the prosecutor's office was searching for the defendant in connection with a homicide. Id.

         Petitioner was not apprehended until September 12, 2007 when he was arrested on a weapons charge using an alias in Baltimore, Maryland. Id. Baltimore police ran a fingerprint analysis that revealed Petitioner's identity and the outstanding New Jersey arrest warrant. Id. Petitioner was indicted on charges of (1) first-degree murder, N.J.S.A. § 2C:11-3a(1)(2); (2) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. § 2C:39-4a; (3) third-degree unlawful possession of a weapon, N.J.S.A. § 2C:39-5b; (4) fourth-degree aggravated assault, N.J.S.A. § 2C:12-1b(4); (5) third-degree endangering of an injured victim, N.J.S.A. § 2C:12-1.2; and (6) second-degree possession of a weapon by a convicted person, N.J.S.A. § 2C:39-7. ECF No. 7-18.

         Petitioner was transferred from Maryland to New Jersey for trial pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. § 2A:159A-1 to -15. Gilliard, 2011 WL 3364406, at *6. A bifurcated trial was held in September 2009. Id.

         Shortly before trial, Petitioner sought a continuance to procure two witnesses. Id. at *8. Once of those witnesses was Maurice Pettway, who gave a statement to law enforcement, nearly two years after the shooting, in which he stated that Petitioner did not shoot Hill and only shot into the air three times. Id. Pettway identified Hassan Irizarry as the shooter. Id. Nevertheless, “Pettway refused to appear to testify despite acknowledging that he had been subpoenaed to do so.” Id.

         At trial, the State called several eyewitnesses to the shooting, many of whom recanted the statements they had given to police. DeBerry was one of the witnesses who recanted, testifying “that she ‘blanked out' right after the shooting and, after passing out, was taken to the hospital.” Id. at *3.DeBerry additionally testified that she lied about Petitioner being the shooter. Id. DeBerry's recorded statement was admitted at trial as a prior inconsistent statement. Id. at *4.

         Sharif Whitlock also testified at trial, but he did not recant his statement. Id. at *5. Sharif testified that

he did not actually see defendant shoot Hill, but that he turned immediately after hearing a shot and saw defendant standing next to Hill with his arm extended and what he believed to be an automatic handgun in his hand. He testified that he saw Hill grab his head after being shot. Whitlock also testified that various other people then started shooting, but only after defendant shot Hill. He admitted that he had fired at defendant following the shooting of Hill, and that defendant and another man, Hassan Irizarry, fired their guns as they fled the scene. Whitlock testified that he was drunk and high at the time of the events. Like other witnesses, he also acknowledged that he did not want to testify and was present only because he had been subpoenaed.

Id.

         The jury acquitted Petitioner of the charge of murder but convicted him of the lesser-included offense of aggravated manslaughter. ECF No. 7-19. The jury also convicted Petitioner on the charges of fourth-degree aggravated assault, second-degree possession of a weapon for an unlawful purpose; fourth degree aggravated assault; and second-degree certain persons not to have any weapons. Id.[1] Petitioner was sentenced to a thirty-year term of imprisonment, subject to the No. Early Release Act, N.J.S.A. § 2C:43-7, for aggravated manslaughter[2] and a consecutive ten-year term on the certain persons not to have a weapon offense. Id.

         Petitioner filed an appeal of his conviction and sentence in the New Jersey Superior Court, Appellate Division. ECF No. 7-20. The Appellate Division affirmed his conviction on August 5, 2011, Gilliard, 2011 WL 3364406, and the New Jersey Supreme Court denied certification on March 14, 2012, ECF No. 7-22.

         Petitioner thereafter filed a petition for post-conviction relief (the “PCR Petition”), which was denied on the record on May 9, 2013. ECF Nos., 7-17, 7-26. Petitioner appealed the denial of his PCR Petition to the Appellate Division, who affirmed the Superior Court's decision on July 17, 2015. State v. Gilliard, A-0476-13T4, 2014 WL 10100161 (N.J. Sup. Ct. App. Div. July 17, 2015). Petitioner filed a petition for certification to the New Jersey Supreme Court, which was denied on November 16, 2015. ECF No. 7-32.

         Petitioner filed the instant § 2254 petition on April 10, 2016. ECF No. 1. Petitioner raises the following grounds for relief:

1. Petitioner is entitled to issuance of a writ of habeas corpus vacating his conviction because the state court failed to grant a new trial when the trial court gave a flight instruction thereby interjecting highly prejudicial facts that denied him a fair trial in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
2. Petitioner is entitled to issuance of a writ of habeas corpus vacating his conviction because the state court failed to grant a new trial when the trial court failed to grant a continuance to allow the defense an opportunity to produce a key witness.
3. Petitioner is entitled to issuance of a writ of habeas corpus vacating his conviction because the state court failed to grant a new trial when the trial court admitted the out-of-court identification of the defendant by a witness in a highly suggestive environment.
4. Petitioner is entitled to issuance of a writ of habeas corpus vacating his conviction because the state court failed to hold an evidentiary hearing to determine whether trial counsel provided ineffective assistance when he failed to call Zack Duncan, who was an eyewitness to the crime and would have exonerated Petitioner, to testify.
5. Petitioner is entitled to issuance of a writ of habeas corpus vacating his conviction because the state court failed to hold an evidentiary hearing to determine whether trial counsel provided ineffective assistance when he failed to present a witness who would have affirmatively supported a third-party guilt defense.
6. Petitioner is entitled to issuance of a writ of habeas corpus vacating his conviction because the state court failed to hold an evidentiary hearing to determine whether trial counsel provided ineffective assistance when he failed to discuss the ramifications associated with the decision whether or not Petitioner should have testified on his own behalf.

ECF No. 1, at 6-14.

         Respondents filed an answer to the Petition arguing that Petitioner's ...


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