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Calhoun v. Bonds

United States District Court, D. New Jersey

March 19, 2019

JAMES CALHOUN, Petitioner,
WILLIAM BONDS, et al., Respondents


          Freda L. Wolfson, United States District Judge.


         Petitioner James Calhoun (“Petitioner”), is proceeding pro se in this habeas proceeding (the “Petition”) under 28 U.S.C. § 2254. (ECF No. 1.) Respondents William Bonds and the Attorney General of the State of New Jersey (collectively, “Respondents”), have filed an answer to the Petition. (ECF No. 8.) Petitioner filed a reply. (ECF No. 19.) Having considered the parties' submissions, and for the following reasons, the Petition is denied.


         The facts underlying Petitioner's conviction, as established at a jury trial, were set forth by the New Jersey Superior Court, Appellate Division, on Petitioner's direct appeal:

On October 3, 2004, between approximately 7:30 p.m. to 8:00 p.m., then twenty-one year old S.M. was visiting her boyfriend who was working at a Walgreens pharmacy in Lakewood. As she exited the store intending to go to her car, S.M. encountered defendant who stepped in front of her, grabbed her and held a kitchen knife to her neck. Defendant forced S.M. to surrender her car keys and get into the backseat of her vehicle where he bound her with clothing. He drove the car a short distance, pulled over on an unpaved portion of Vine Street and entered the backseat. While S.M. was bound, defendant removed her pants and placed his mouth on her vagina and rectum. S.M. was crying, but her pleas for defendant to stop were ignored. S.M. testified defendant proceeded to penetrate her with his penis, both anally and vaginally, each for approximately fifteen minutes. Defendant then lit a cigarette he shared with S.M., dressed her and returned to the front seat to continue driving. S.M. remained bound in the rear seat of her vehicle.
Defendant stated he needed money and S.M. gave him access to her bank account personal identification number from which he withdrew $100. Afterward, defendant threatened S.M. to not think about escaping, bound her mouth, locked the car and went to a store. Defendant returned and drove to Martin Luther King Boulevard to talk to others. He left the car, locking it from the inside and took the keys and S.M.'s cell phone. As defendant continued driving that evening, he stopped to purchase drugs and blunt cigars. He removed the tobacco, replaced it with marijuana, and then shared the blunt with S.M. When asked, S.M. stated she participated in smoking the marijuana because she wanted “to make [defendant] feel comfortable with me.”
Eventually, defendant untied S.M. and permitted her to sit in the front seat. The two continued to drive to various spots, again smoked marijuana, withdrew another $500 from S.M.'s bank account and picked up defendant's bicycle which he had left at the Walgreens. At that time, defendant asked S.M. to drop him off at Finchley Boulevard, which she did and drove away. S.M. called her boyfriend, who suggested she dial 911. Police responded, took S.M.'s statement and accompanied her to a hospital for a sexual assault examination.

(ECF No. 24-1, at 3-5 (alteration in original).)

         Petitioner was arrested October 14, 2004 by the United States Marshals Fugitive Task Force on a fugitive warrant from Virginia. (ECF No. 8-5, at 40.) Petitioner was arrested at his sister's residence, which police later searched with the consent of Petitioner's brother-in-law. (Id. at 39-40.) Upon arrest, Petitioner was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). (ECF No. 8-5, at 40.) Petitioner told officers that he could not read or write but advised that he did understand his rights. (Id.) Petitioner was taken to the Ocean County Sheriff's Identification Bureau, where he was informed by Investigator Kenneth Hess of the Ocean County Prosecutor's Office of the investigation into the assault of S.M. and the charges against Petitioner. (Id. at 41.) Investigator Hess asked if Petitioner was willing to respond to questions about the allegations. (Id.) Petitioner thereafter reviewed and signed a waiver of rights form and advised the investigator that “he could read the English language and write.” (Id. at 42.) Investigator Hess then proceeded to question Petitioner about the charges and Petitioner made several inculpatory oral statements. (Id. at 43.) Specifically, Petitioner allegedly described the incident in detail, including stating that he “used a knife because [he] didn't know how to get her into the car without her screaming.” (ECF No. 8-16, at 5.) Petitioner also stated

that he was scared that someone would see him while he was walking her to the car with the knife around her neck. He also acknowledged that he was nervous while attempting to open up her car door and that he fumbled with the keys. He admitted [to the officer] that he tied the victim up in the back seat . . . [but] he claimed that he didn't tie the knot very tight.”

(Id. at 5-6.) Petitioner thereafter described the sexual assault in detail, stating that he performed oral sex on S.M. before performing vaginal and anal intercourse. (Id.) Petitioner “advised [the officer] that the victim asked him to stop on more than one occasion, repeatedly.” (Id.)

         Prior to trial, a hearing was held to determine the admissibility of Petitioner's custodial statement pursuant to Miranda. (ECF Nos. 8-2, 8-3, 8-4, 8-5.) Petitioner argued that his custodial statement was not admissible because his waiver of his Miranda rights was not knowing and voluntary. (ECF No. 8-5, at 10-11.) More specifically, Petitioner argued that he was not properly informed of the charges against him and that he lacks the reading comprehension skill “necessary to understand and knowingly, intelligently waive [his Miranda] rights and voluntarily waive the rights that were read to him.” (Id. at 32.) The court rejected Petitioner's argument and deemed that his custodial statements would be admissible at trial. (Id. at 44-46.) Indeed, the court found that not only can Petitioner read and write, but also that he “did and does know his rights, and has the intelligence capacity to understand and waive them.” (Id. at 45.)

         At trial, S.M. testified and, on her cross-examination, defense counsel highlighted “inconsistencies and exaggerations” in her testimony:

For example, she informed the 911 operator defendant had a gun and a knife, when she knew he did not possess a gun. Also, she did not tell the responding officer she was tied with socks but told another officer the socks that were used to bind her came from defendant's feet. S.M. was vigorously questioned on why she had not attempted to escape after defendant freed her hands and feet; why she did not run for help to a friend's nearby home located at one area where defendant stopped; whether she knew defendant; why she spoke to a male friend at 10:30 p.m. but did not reveal her circumstances; and asked to explain how defendant removed her clothing to perform the sexual acts if she was bound as she described.

(ECF No. 24-1, at 26.) The State also presented as witnesses at trial S.M.'s boyfriend, the 911 operator, the nurse who performed the sexual assault exam, and the investigating police and sheriff's officers and detectives; and additionally admitted as evidence records of the withdrawals from S.M.'s bank account, her cell phone records, video surveillance from Walgreens, S.M's hospital records, lab reports verifying the presence of Petitioner's fingerprints in S.M.'s car, and Petitioner's custodial statement. (Id. at 27.)

         Petitioner's defense at trial was that he and S.M. had a prior relationship and that the sexual encounter was fully consensual. Petitioner's case at trial included testimony from two Lakewood Police Department detectives, specifically Detective Sherry Ann Jones, who interviewed S.M. at the hospital immediately following incident, and Detective Stephen W. Wexler, who was involved in the interrogation of Petitioner and whom Petitioner alleged “roughed him up.” (ECF No. 24-1, at 7.) Petitioner did not testify on his own behalf.

         The jury ultimately found Petitioner guilty of the lesser-included offense of second-degree kidnapping, second-degree carjacking, second-degree burglary, the lesser included offense of second-degree robbery, aggravated sexual assault, and second-degree sexual assault. (Id.)[1] The State moved to impose an extended term sentence, which was granted. (Id. at 8.) Petitioner was ultimately sentenced to an aggregate thirty-year term of imprisonment subject to the No. Early Release Act. (Id.)

         Petitioner filed an appeal to the Superior Court of New Jersey, Appellate Division. (ECF No. 18-1.) In an unpublished opinion dated July 29, 2011, the Appellate Division affirmed his conviction and sentence. (ECF No. 24-1.) Petitioner filed a petition for certification to the New Jersey Supreme Court, which was denied on January 13, 2012. State v. Calhoun, 35 A.3d 680 (N.J. 2012).

         Petitioner thereafter filed a petition for post-conviction relief (“PCR”) on or about January 30, 2012. (ECF No. 18-5, at 143-44.) Following oral argument, Petitioner's PCR was denied without an evidentiary hearing. (ECF No. 8-21.) Petitioner filed an appeal to the Appellate Division, which, in an unpublished opinion, affirmed the decision of the PCR Court. (ECF No. 8-23.) The New Jersey Supreme Court denied certification on November 6, 2015. State v. Calhoun, 125 A.3d 391 (N.J. 2015).

         On or about July 7, 2016, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The Petition sets forth the following grounds for relief:

Ground One: The coercive effect of the colloquy between the court and the jury foreperson after an Allen-type instruction, violated defendant's [rights under the] Sixth and Fourteenth Amendments.
Ground Two: Defendant's waiver of Miranda rights was not voluntary, knowing and intelligent, and was rather an ambiguous invocation of his right to silence, violating defendant's [rights under the] Fifth and Fourteenth Amendments.
Ground Three: Defendant was denied the effective assistance of counsel, violating [his rights under the] Sixth and Fourteenth Amendments.
Ground Four: Defendant was denied the effective assistance of appellate counsel, violating [his rights under the] Sixth and Fourteenth Amendments.
Ground Five: Defendant was denied the right to due process and a fair trial due to the accumulation of errors in this case.

(ECF No. 2-1, at 22-25.) In Ground Three, Petitioner alleges eight claims of ineffective assistance of counsel. (Id.) Respondents argue that Petitioner's claims all lack merit and that Petitioner has failed to show a denial of any federal right. (ECF No. 8.)

         Following Respondents' filing of their Answer, Petitioner filed a motion to compel Respondents to provide Petitioner with a copy of the transcript from the grand jury proceeding, which he argued was essential to the resolution of the claims raised in the Petition. (ECF No. 17.) Petitioner also sought to compel Respondents to provide copies of all briefing from the state court proceedings, which was omitted from their Answer. (Id.) Respondents complied with Petitioner's request for the state court briefing, but objected to Petitioner's request for the grand jury transcript.

         (ECF No. 18.) This Court denied the motion to compel, finding that the grand jury transcripts were not essential to resolving his claim that his counsel was ineffective for failing to move to dismiss the indictment. (ECF No. 22).


         Under 28 U.S.C. § 2254(a), a court may consider a claim alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A habeas petitioner has the burden of establishing each claim in such a petition. See Eley v. Erickson, 712 F.3d 837, 846-47 (3d Cir. 2013). Generally, 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).

         Under § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244, (“AEDPA”), federal courts must give considerable deference to determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772 (2010). Where a state court adjudicated a petitioner's federal claim on the merits, a federal court

ha[s] no authority to issue the writ of habeas corpus unless the [state court's] decision “was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States, ” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Parker v. Matthews, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)). As an unreasonable application of federal law is distinguishable from a merely incorrect application of federal law, “‘a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'” Renico, 559 U.S. at 773 (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). The Supreme Court has noted that the habeas standard creates a “‘substantially higher threshold' for obtaining relief than de novo review.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

         “For the purposes of Section 2254(d), a claim has been adjudicated on the merits in State court proceedings when a state court has made a decision that 1) finally resolves the claim, and 2) resolves that claim on the basis of its substance, rather than on a procedural, or other, ground.” Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (internal quotation marks and brackets omitted). “[C]learly established law' for purposes of § 2254(d)(1) includes only ‘the holdings, as opposed to the dicta, of [the Supreme Court's] decisions, ” as of the time of the relevant state-court decision. White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). A decision is “contrary to” a Supreme Court holding for the purposes of § 2254(d)(1) if the state court “contradicts the governing law set forth in [the Supreme Court's] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405-06. “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. In conducting a review under § 2254(d)(1), a court must confine its examination to evidence in the record. See Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

         Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an erroneous factual determination of the state court, two provisions of AEDPA necessarily apply. First, AEDPA provides that “a determination of a factual issue made by a State court shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, AEDPA precludes habeas relief unless the adjudication of the claim “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)(2).


         Before reaching the merits of the Petition, the Court notes that several of the claims appear to have not been raised at all levels of state court review and are, thus, unexhausted. See 28 U.S.C. § 2254(b)(1)(A) (requiring a petitioner to exhaust “the remedies available in the courts of the State” before seeking relief in federal court); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”). Respondents did not raise exhaustion in their Answer as an affirmative defense. While the Court may raise the issue of exhaustion sua sponte, see United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (Nygaard, J., concurring), it declines to do so here and will instead deny the Petition on the merits pursuant to 28 U.S.C. § 2254(b)(2), see Mahoney v. Bostel, 366 Fed.Appx. 368, 371 (3d Cir. 2010).

         A. Ground One - Right to an Impartial Jury

         In Ground One of the Petition, Petitioner asserts that his right to an impartial jury under the Sixth and Fourteenth Amendments was violated by the trial court's Allen[2]instruction to the jury. It appears that after two days of deliberation, the jury advised the trial court that it was at an impasse and did not believe it could not come to unanimous decision. (ECF No. 8-19, at 5.) Following a discussion with counsel, the trial court gave the following supplemental instruction to the jury:

The verdict must represent the considered judgment of each juror. In order to return a verdict it is necessary that each juror agree thereto. Your verdict must [be] unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans, you are judges, ...

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