Miller v. Chetirkin

          OPINION

          HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE

         Before this Court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Petitioner, Adrian Miller, a state prisoner proceeding pro se. Petitioner was convicted in 2008 by a jury of first-degree armed robbery, second-degree possession of a weapon for an unlawful purpose, fourth-degree aggravated assault, third-degree unlawful possession of a weapon, and second-degree certain persons not to have weapons. He is currently serving a thirty-year sentence with an eighty-five percent period of parole ineligibility pursuant to New Jersey's No. Early Release Act (“NERA”). N.J. Stat. Ann. § 2C:43-7.2. Petitioner raises several claims in the instant Petition. Having reviewed the petition and the submissions filed in connection therewith, for the reasons set forth below and for good cause appearing, the Petition is denied and a certificate of appealability shall not issue.

         I. Background

         This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)^[1], will recount relevant portions of the New Jersey Superior Court, Appellate Division's recitation of facts:

Wonil Pak was the owner of the Super Discount Store located at 700 Main Street in Asbury Park. He was working behind the counter on the evening of August 15, 2006, when a man, later identified as defendant, walked in at approximately 6:00 p.m.

Defendant picked up a hand phone and gave Pak a ten dollar bill to pay for it. When Pak handed defendant his change, defendant pulled a gun out of his pocket and pointed it at Pak, demanding money. Pak handed some cash to defendant, who demanded more. Defendant then jumped onto the cashier counter and attempted to take money from the cash register. Pak hit defendant's hand, causing defendant's gun to fall to the floor. A struggle between Pak and defendant ensued. During this struggle, defendant grabbed Pak's neck, and Pak proceeded to bite defendant's hand. Both men fell to the floor in front of the counter and the gun went off “two or three times.” Following the discharge of the weapon, defendant fled. Pak then pressed a panic alarm button, alerting the police to the scene.

Officer Charles Grays of the Asbury Park Police Department responded to the alert, arriving on the scene within two to three minutes. Grays observed three shell casings on the floor of the store as well as a black baseball cap, a pair of sunglasses and a gray and white Nike sneaker. Pak indicated that these items were not in his store before defendant's arrival.

A witness, Whitney Valentin, walked into the store while the robbery was in progress. Although Valentin signed a statement indicating that he was present during the robbery and describing defendant, he later denied remembering any events of that night or signing any statement to that effect.

Pak was subsequently escorted to police headquarters, where he gave a videotaped statement. Pak described the man as “a little bit taller [than him], and a little bit skinny, as was black male.” In his statement, Pak identified the assailant as wearing a dark colored short-sleeved shirt. While testifying at trial, Pak corroborated his earlier description but indicated that defendant was wearing dark clothing and a cap.

While Pak was at police headquarters providing a formal statement to officers, Wanda Lopez, residing a short distance from Pak's store, heard a knocking at her door at 6:30 p.m. She called her husband, Raymond Lopez, who immediately returned home. Upon arriving home, Mr. Lopez observed a black male laying in his back yard, appearing hurt. He recognized the man as defendant, a friend of his son's.^[2] Mr. Lopez called 9-1-1.

Officer Tyrone McAllister of the Asbury Park Police Department responded to Mr. Lopez's call and arrived at the Lopez residence at approximately 6:51 p.m. Officer McAllister observed defendant, whom he described as a black male, in the back yard, wearing black sweatpants and white socks but no shoes and no shirt. A gray and white Nike sneaker was found on the ground five or six feet from defendant, and a black t-shirt was found at the bottom of the Lopez's pool. Officer McAllister observed defendant had a gunshot wound to his abdomen and called the paramedics.

Defendant was transported to the Jersey Shore Medical Center where he was treated for a gunshot wound and eventually identified himself as Adrian Miller, after having originally identified himself as Michael Smith.

The following day, August 16, 2006, Detective Arthur Wisliceny of the Monmouth County Prosecutor's Office reported to the Medical Center to take photographs of defendant's injuries. Detective Wisliceny took several photographs of defendant's body, including his left hand, which he observed had sustained “an injury of some type.”

At trial, the State proffered George Chin, a criminalistics expert with the New Jersey State Police, who had examined the sneaker retrieved from Pak's store and the sneaker found near defendant at the Lopez residence. Chin concluded “they basically comprised a pair.” Both shoes were a size 12, white Nike Air Max sneakers. The sneaker found at the store was a right shoe, while the sneaker found next to defendant was for the left foot. Mr. Chin stated that both sneakers displayed similar “wear and tear.”

Swabs of epithelial cells taken from the sweatband of the cap found in the store and the sleeve of the t-shirt found in the Lopez's pool yielded matching DNA, which was defendant's DNA. The probability of a random match for defendant's DNA profile among black males was estimated to be one in 114 quadrillion. No. fingerprints were obtained from the gun found at the store as the “type of surface is not conducive to . . . fingerprints. It is very textured.” Fingerprints from the sunglasses were also unobtainable. Officer James Ryan, a ballistics expert, was not able to conclusively show that that the fragmented cartridges were fired from the gun found at the scene. However, he stated that in his opinion three shell casings were fired from that gun.

State v. Miller, Docket No. A-0543-08T4, 2010 WL 114387, at *1-2 ( N.J.Super.Ct.App.Div. Jan. 14, 2010).

         On the second day of trial, February 27, 2008, the State called Raymond Lopez to testify. After his testimony, Mr. Lopez informed defense counsel, for the first time, that on the night of the crime Petitioner had told Mr. Lopez, “they shot me, ” and “they was fighting and they shot me.” (ECF No. 10-6 at 58.) When defense counsel relayed this newly obtained information to the court, the trial judge determined that a hearing would need to be held out of the presence of the jury, to determine the admissibility of the alleged statements. (See ECF No. 10-6 at 59.) However, after a brief recess defense counsel ultimately declined to pursue an admissibility hearing and Mr. Lopez was never asked about the alleged statements by Petitioner. (See ECF No. 10-6 at 60.)

         On March 5, 2008, following the five-day trial, Petitioner was found guilty of first-degree armed robbery, N.J. Stat. Ann. § 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J. Stat. Ann. § 2c:39-4a; fourth-degree aggravated assault N.J. Stat. Ann. § 2C:12-1b(4); and third-degree unlawful possession of a weapon, N.J. Stat. Ann. § 2C:39-5b. (See ECF No. 10-7 at 102-07.) The same jury found also found Petitioner guilty of the certain persons not to have a weapon charge, N.J. Stat. Ann. § 2C:39-7b(1) at a bifurcated trial held later that same day. (See Id. at 134-36.)

         On May 16, 2008, the trial court granted the State's motion for a mandatory extended term sentence on the count of the first-degree armed robbery. (See ECF No. 10-8 at 3-7.) Petitioner was sentenced to an aggregate custodial term of thirty years with a mandatory period of parole ineligibility equal to eighty-five percent of the maximum term imposed, pursuant to New Jersey's No. Early Release Act (“NERA”). N.J. Stat. Ann. § 2C:43-7.2.

         On September 24, 2008, Petitioner appealed to the Superior Court of New Jersey, Appellate Division. (See ECF No. 10-9 at 26.) The Appellate Division affirmed both his conviction and sentence in an unpublished opinion issued on January 14, 2010. (See State v. Miller, Docket No. A-0543-08T4, 2010 WL 114387 ( N.J.Super.Ct.App.Div. Jan. 14, 2010)). Petitioner appealed to the New Jersey Supreme Court but was denied certification. See State v. Miller, 12 A.3d 211 (N.J. 2011).

         In 2011, Petitioner filed a timely petition for Post-Conviction Relief (“PCR”) in the Superior Court of New Jersey, Law Division (Criminal), Monmouth County. (See ECF No. 10-20 at 18-21.) On January 27, 2012, Petitioner appeared before the Honorable Anthony J. Mellaci, Jr., J.S.C., and requested that his PCR petition be withdrawn without prejudice, as Petitioner felt that he was not prepared to go forward at that time. (See id.) Judge Mellaci granted Petitioner's motion to withdraw his petition for PCR without prejudice. (See ECF No. 10-16.)

         On March 28, 2012, Petitioner filed a second petition for post-conviction relief in the Superior Court of New Jersey, Law Division (Criminal), Monmouth County, (See ECF No. 10-17), and an amended PCR petition on November 29, 2012. (See ECF No. 10-18.) The Superior Court denied the PCR petition on August 30, 2012. (See ECF No. 10-23; ECF No. 10-24.) Petitioner appealed, and on July 8, 2015, the Appellate Division affirmed the denial of the PCR petition. See State v. Miller, Docket No. A-3048-13T2, 2015 WL 4094448 ( N.J.Super.Ct.App.Div. July 8, 2015). Petitioner appealed to the New Jersey Supreme Court, but on October 29, 2015, the court denied his petition for certification. See State v. Miller, 124 A.3d 240 (N.J. 2015). Petitioner subsequently filed the instant habeas petition with this Court, which was signed on November 23, 2015. (See ECF No. 1 at 17.)

         The petition raises six claims:

1. The prosecutor violated Petitioner's Fifth Amendment right to remain silent when the prosecutor, during closing arguments, alluded to Petitioner's failure to take the stand at trial;

2. Appellate counsel was ineffective for failing to raise the claim on direct appeal that the State prosecutor, during summation, repeatedly violated Petitioner's Fifth Amendment right not to testify;

3. PCR counsel was ineffective for telling the PCR judge that Petitioner was not arguing an issue Petitioner had listed in his pro se petition;

4. PCR appellate counsel was ineffective for failing to raise on appeal the ineffectiveness of PCR trial counsel;

5. Trial counsel was ineffective for failing to elicit exculpatory testimony from ...