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Moon v. Johnson

United States District Court, D. New Jersey

June 25, 2019

DAVID MOON, Petitioner,
v.
STEVEN JOHNSON, THE ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY, Respondents.

          David L. Moon, No. 157230C New Jersey State Prison Petitioner pro se

          Patrick Daniel Isbill Camden County Prosecutor's Office Counsel for Respondents

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner David L. Moon (“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. Respondents Steven Johnson and the Attorney General for the State of New Jersey (“Respondents”) filed an Answer to the Petition (the “Answer”). ECF No. 5. For the following reasons, the Court will deny the Petition and a certificate of appealability shall not issue.

         I. BACKGROUND

         In its opinion on direct appeal, the Superior Court of New Jersey, Appellate Division, provided the following summary of the factual background of Petitioner's case:

Defendant David L. Moon appeals from a final judgment of conviction and sentence. A jury found him guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1); endangering an injured victim, N.J.S.A. 2C:12-1.2; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and hindering his own apprehension, N.J.S.A. 2C:29-3b(1). He was acquitted of felony murder, robbery and one count of hindering apprehension, and the jury found that he did not act in the heat of passion resulting from reasonable provocation. We reverse defendant's conviction for endangering an injured victim but affirm all other convictions. The sentence imposed and our reasons for remanding for clarification of that sentence are discussed in section III of this opinion.
Corie Carter died as a consequence of a gunshot wound to his head. Within hours of the shooting, defendant was arrested. He admitted that he had fired the fatal shot and explained why. The following description of the events is based on defendant's statement and the trial testimony given by Willie Carter (Carter) and John Martinez (Martinez), who were with defendant and Corie. Defendant did not testify, but the jurors heard a recording of the statement he gave to the police.
Defendant, Corie, Carter and Martinez spent the evening and early-morning hours of February 22 and 23, 2003, in a fenced and gated lot in Camden where Martinez kept his trailer home. The men were reminiscing about a friend who had recently died, talking and “rapping.” Others joined them during the course of the night. Everyone was drinking, but Carter did not notice anyone who was drunk and was not aware of anyone smoking marijuana.
After the others left the lot and Martinez was in his trailer, defendant and Corie got into a debate about “God” and the “well-being of human beings.” The debating turned to quarreling, and they stood “face to face.” Carter stepped between them three times. On his third attempt to calm them down, he noticed a gun in Corie's hand and stepped away. Corie fired the gun three or four times. Defendant, who had turned away from Corie, felt the bullets “whiz past” him. Carter saw the “sparks” from Corie's gun and saw defendant check himself to see if he was shot. Defendant was not hit. Martinez had heard loud voices and a popping sound from inside the trailer. When he came outside, he saw Corie with a gun in his hand. Corie put the gun away, and Martinez went back inside.
To Carter, after Corie fired his gun, defendant appeared as if he were in shock but did not seem angry. Defendant stayed and talked for about ten or fifteen minutes after the shooting.
Defendant gave a detailed account of his conversation with Corie. They agreed that things were “straight” between them and shook hands. Then Corie handed defendant his gun and said, “shoot me.” Defendant was “shocked” by that statement and gave the gun back to Corie, who laughed and offered defendant something to eat. Defendant ate some rice but afterwards felt “freaked out” by what had happened. He left to take a walk. Martinez heard defendant say he would be back.
Defendant returned and spoke to Corie. Carter could not hear what they were saying but assumed everything was alright because they were talking in a friendly way. He thought defendant was trying to make Corie feel “comfortable.”
Defendant explained that he came back to “make sure that everything was okay” between him and Corie. He walked up to Corie, asked if they were “cool, ” and gave him a hug and kiss. Corie warned defendant that if he told anyone what had happened, he would kill him. Defendant described his reaction: “When [Corie] told me he was going to kill me, I just snapped, not really snapped, I just took out the, the gun I had that was in my pocket.... I ... pulled the trigger. The body dropped.”
Carter heard the shot and saw Corie fall to the ground. According to Carter, after defendant shot Corie, he said “don't nobody be shooting at me.” Defendant closed and locked the gate to the lot. Carter saw him drag and kick the body. Because defendant removed Corie's gun, Carter assumed defendant was looking for the gun when he kicked Corie. Martinez, who heard the shot and Carter yelling, came outside again. He saw defendant with two guns. Corie was in a “sitting position” near a truck on the lot. Martinez did not realize that Corie had been shot until defendant pushed him with his foot and Corie “slumped over” into the snow and did not move.
Corie's body was moved to the street. According to Martinez, he unlocked the gate but refused to help defendant. According to defendant, Martinez told him to move the body off his lot, gave him a hand truck and helped.
Carter, who left when Martinez unlocked the gate, went to his mother's home. She called a relative whose husband is a homicide detective. Carter took the police to the lot, and Carter and Martinez left with the police. As they traveled to headquarters, Carter spotted defendant. He was arrested and gave his statement.
When asked about the guns, defendant said he had sold Corie's gun and thrown his own gun away near a factory between Second and Third Streets. He explained his lack of certainty about where he threw his gun: “Everything was going crazy man, you know, I ain't going to lie. I was smoking a little wet, you know some PCP so ahh, my vision was like jumpy, and I was just like wow, wow, wow ... when I touched the gun....”
The investigating officers found Corie's body about seventy-five yards from the gate outside Martinez's lot. There was blood on the ground. Inside the lot, they found one “quart bottle of King Cobra Premium Malt, ” one twelve-ounce can of beer and what appeared to be a burned marijuana cigarette. They also found containers of Chinese food.
Although the police did not find the gun where defendant said he had discarded it, he subsequently admitted that he had hidden it under a couch in his uncle's home. The police recovered the gun from that spot.
An autopsy was performed within hours of Corie's death. The bullet entered his head just above and behind his right ear. It traveled across his head and through both halves of his brain. From the condition of Corie's clothing and the appearance of his wound, the medical examiner concluded that the gun was held to Corie's head when the shot was fired.
In the opinion of the medical examiner, the extensive damage to Corie's brain would have incapacitated him instantly, and he was dead or dying when his face hit the ground. Corie had an abrasion under his ear and a “substantial split” inside his mouth where his lip and cheek hit his teeth. Neither injury showed any of the swelling, bruising or bleeding that would be present if his blood were circulating at the time of the impact. In the medical examiner's words, these were “terminal collapse” injuries. While Corie's heart could have continued to beat “erratically” for a few minutes after he was shot and a pulse could have been detected for a short time, “[t]o all intents and purposes, he was dead” when shot. His heart could not continue to beat without his brain.
The doctor was not asked about and did not mention the blood on the ground under Corie's body.
Corie's blood had an alcohol content of .096. There were traces of marijuana and PCP in his urine, but not in his blood. In the opinion of the medical examiner, the trace evidence of the drugs was indicative of consumption up to two or three days before his death.

State v. Moon, 933 A.2d 11, 12-14 ( N.J.Super. Ct. App.Div. 2007).

         Following Petitioner's conviction at trial, he filed an appeal with the Superior Court of New Jersey, Appellate Division. See Id. Petitioner raised the following claims:

I. THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE IN DENYING A REQUESTED CHARGE AS TO VOLUNTARY INTOXICATION.
II. THE TRIAL COURT ERRED IN DECLINING TO GRANT A MISTRIAL FOLLOWING THREE HIGHLY PREJUDICIAL IMPROPRIETIES.
A. The Prosecutor Expressed Personal Opinion Of Guilt In Her Opening.
B. The State Twice Elicited Highly Prejudicial Evidence As To A “Mugshot” Of The Defendant, And The Trial Court's Response Was Grossly Inadequate.
III. THE CONVICTION OF ENDANGERING AN INJURED VICTIM WAS UNSUPPORTED BY COMPETENT FACTS IN THE RECORD.
IV. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE.
A. The Quantum Of The Sentence Is Excessive.
B. The Court Erred In Imposing Consecutive Sentences.

Id. at 14.

         The Appellate Division reversed and dismissed Petitioner's conviction for endangering an injured victim but affirmed his other convictions. See Id. at 16; see also ECF No. 8-9 at 19. The New Jersey Supreme Court denied Petitioner's request for certification. See State v. Moon, 940 A.2d 1219 (N.J. Jan. 18, 2008).

         Petitioner thereafter submitted his first petition for Post-Conviction Relief (“PCR”). See ECF No. 8-19. On November 15, 2013, a hearing on the petition was held before the Honorable Lee A. Solomon, J.S.C. See ECF No. 8-54. Following oral argument from the State and defense counsel, Judge Solomon denied the petition, issuing a decision from the bench. See Id. at 13-30. Following the PCR court's denial, Petitioner appealed to the New Jersey Appellate Division. See ECF No. 8-22. In his submission, he raised the following claims:

DEFENDANT'S MURDER CONVICTION MUST BE REVERSED BECAUSE OF COUNSELS' INEFFECTIVENESS, AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
A. Trial and Appellate Counsel Failed To Pursue The Erroneously Repeated Jury Charge Regarding Passion/Provocation Manslaughter.
B. Trial Counsel “Invited Error” That The Jury Review Defendant's Recorded Statement During Its Deliberations.
C. Trial Counsel Misadvised Defendant To Reject The State's Plea Offer.
D. Trial Counsel Failed To Consult Adequately With Defendant.

ECF No. 8-23 at 2; see also State v. Moon, No. A-2957-13T1, 2015 WL 6394433, at *3 ( N.J.Super.Ct.App.Div. Oct. 23, 2015).

         The Appellate Division issued an opinion remanding the matter back to the PCR court for an evidentiary hearing on “what exactly trial counsel had advised about the chance of success on the provocation issue when the State's plea offer was still on the table.” See State v. Moon, 2015 WL 6394433, at *5-6. The Appellate Division held however, that the remainder of Petitioner's claims were without merit. See Id. at *3-6. Petitioner appealed to the New Jersey Supreme Court. See State v. Moon, 129 A.2d 331 (N.J. 2016). Certification was denied on February 5, 2016. See id.

         On remand to the PCR court, the Honorable Samuel D. Natal, J.S.C. held an evidentiary hearing during which both trial counsel and Petitioner testified. See ECF No. 8-55. In a written opinion, Judge Natal denied Petitioner's claim that trial counsel had been ineffective in advising Petitioner about the State's plea offer. See ECF No. 8-26 at 10. Petitioner again appealed the PCR court's decision to the Appellate Division. See ECF No. 8-32. On November 23, 2016, the Appellate Division affirmed the PCR court's decision. See State v. Moon, No. A-2957-13T1, 2016 WL 6900736 ( N.J.Super.Ct.App.Div. Nov. 23, 2016). Petitioner appealed to the New Jersey Supreme Court. See State v. Moon, 158 A.3d 1179 (N.J. 2017). Certification was denied on January 26, 2017. See id.

         In May 2017, Petitioner timely filed the instant habeas petition, pro se. See ECF No. 1. His application raises the following claims:

GROUND ONE: COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT AS REQUIRED BY THE RULES OF PROFESSIONAL RESPONSIBILITY OF THE STATE OF NEW JERSEY
GROUND TWO: TRIAL COUNSEL MIDADVISED DEFENDANT TO REJECT THE STATE'S PLEA OFFER
GROUND THREE: THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE IN DENYING A REQUESTED CHARGE AS TO VOLUNTARY
INTOXICATION
GROUND FOUR: THE TRIAL COURT MISSTATED THE LAW AS TO THE PASSION/PROVOCATION MANSLAUGHTER CHARGE
GROUND FIVE: TRIAL COURT JUDGE'S FAILURE TO PROVIDE A PROPER CORROBORATION CHARGE VIOLATED DAVID L. MOON'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I PARA I AND ALSO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
GROUND SIX: TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO OBJECT AND [SIC] TRIAL OR TO RAISE APPELLATE ISSUE REGARDING TAPED STATEMENTS BEING BROUGHT INTO THE JURY ROOM
GROUND SEVEN: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ERRONEOUSLY CHARGED THE JURY ON THE UNANIMITY OF A VERDICT SUCH AN ERROR DEPRIVED DEFENDANT OF HIS FUNDAMENTAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL
GROUND EIGHT: THE TRIAL COURT ERRED IN DECLINING TO GRANT A MISTRIAL FOLLOWING THREE HIGHLY PREJUDICIAL IMPROPRIETIES

ECF No. 1.

         II. STANDARD OF REVIEW

         A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the fact or duration of his confinement where the petitioner claims his custody is in violation of the Constitution or the laws of the United States. See 28 U.S.C. § 2254(a); Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Preiser v. Rodriquez, 411 U.S. 475, 498-99 (1973). A habeas petitioner bears the burden of establishing his entitlement to relief for each claim presented in the petition. See Harrington v. Richter, 562 U.S. 86, 98 (2011).

         The standard used in reviewing habeas claims under § 2254 depends on whether those claims have been adjudicated on the merits by the state court. If they have not been adjudicated on the merits, the Court reviews de novo both legal questions and mixed factual and legal questions. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). If the state court adjudicated the claim on the merits, then 2254(d) limits the review of the state court's decision as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 the State court proceeding . . . .

28 U.S.C. § 2254(d).

         If a claim has been adjudicated on the merits in state court, [1] this Court has “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)).

         A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law “refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court,' [and] therefore cannot form the basis for habeas relief under AEDPA.” Parker, 567 U.S. at 48-49 (quoting 28 U.S.C. § 2254(d)(1)).

         A decision is “contrary to” a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that “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 [different result.]” Williams, 529 U.S. at 405-06. Under the “‘unreasonable application' clause of § 2254(d)(1), 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.” Williams, 529 U.S. at 413. “[A]n unreasonable application of federal law, ” however, “is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).

         III. DISCUSSION

         A. Ineffective Assistance of Counsel In his § 2254 action, Petitioner raises several ineffective assistance of counsel claims against his trial attorney. See ECF No. 1 at 9-19, 28-29. Specifically, Petitioner argues that his trial counsel failed to adequately communicate with him; misadvised him to reject the State's plea offer; and failed to object to the jury's access during deliberations to Petitioner's formal statement to police. See Id. Petitioner also alleges that his appellate counsel was ineffective for not raising the issue of the jury's access during jury deliberations to his pretrial statement. See Id. at 28.

         The Sixth Amendment of the United States Constitution provides: “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The Supreme Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). A showing of ineffective assistance of counsel requires two components to succeed. See Id. at 687. The two requisite proofs are as follows: (1) a defendant must show that counsel's performance was deficient; and (2) the defendant must show prejudice. See id.

         When a convicted defendant complains of deficient performance, the defendant's burden of proof is to show that the conduct of counsel fell below an objective standard of reasonableness. See Id. at 688. Hence, “[j]udicial scrutiny of counsel's performance must be highly deferential.” See Id. at 689. To combat the natural tendency for a reviewing court to speculate whether a different strategy at trial may have been more effective, the Supreme Court has “adopted the rule of contemporary assessment of counsel's conduct.” See Maryland v. Kulbicki, 136 S.Ct. 2, 4 (2015) (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). Thus, when reviewing for an ineffective assistance of counsel, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Woods v. Donald, 135 S.Ct. 1372, 1375 (2015) (quoting Strickland, 466 U.S. at 689); cf. United States v. Chronic, 466 U.S. 648, 659 (1984) (holding that courts may presume deficient performance and resulting prejudice if a defendant “is denied counsel at a critical stage of his trial”).

         Because Petitioner's ineffective assistance of counsel claim is raised through a § 2254 petition, federal “review must be ‘doubly deferential' in order to afford ‘both the state court and the defense attorney the benefit of the doubt.'” See Woods, 135 S.Ct. at 1376 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)); see also Cullen, 563 U.S. at 190 (“[R]eview of the [State] Supreme Court's decision is thus doubly deferential.”); see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“[D]oubly deferential judicial review applies to a Strickland claim evaluated under the § 2254(d)(1) standard . . . .”); see also Yarborough, 541 U.S. at 6 (“Judicial review of a defense attorney ... is therefore highly deferential--and doubly deferential when it is conducted through the lens of federal habeas.”). Indeed, “[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” See Harrington, 562 U.S. at 105.

         As to proving prejudice under Strickland, “actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland, 466 U.S. at 693. To succeed on this proof, a defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Hinton v. Alabama, 571 U.S. 263, 272 (2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). A reasonable probability is a probability which sufficiently undermines confidence in the outcome of the trial. Strickland, 466 U.S. at 694.

         i. Failure to Communicate with Petitioner

         Petitioner first claims that his trial counsel was ineffective for only visiting with Petitioner in the holding cell at the courthouse and not independently visiting Petitioner at the county jail. See ECF No. 1 at 10. Petitioner asserts that this “lack” of interaction between himself and his lawyer impacted his “ultimate actions and sentence.” See Id. Petitioner alleges this conduct is even more egregious because it also resulted in the inadequate investigation of viable defenses such as self-defense, passion provocation, or voluntary intoxication. See Id.

         Petitioner first raised this claim during his PCR proceedings. The PCR court held, in relevant part:

In the present matter, petitioner alleges that trial counsel was deficient because he never -- he did not visit the jail and only saw petitioner in the holding cell on Court days, resulting in an inadequate investigation of viable defenses, specific -- specifically, passion provocation and intoxication.
The Supreme Court has concluded and held in State v. Savage that it is not the frequency of consultation that reveals whether a defendant has been effectively denied legal assistance. Rather, the proper inquiry is whether as a result of that consultation counsel was able to properly investigate the case and develop a reasonable defense. 120 N.J. at 617.
When a petitioner claims that counsel inadequately investigated his case he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant -- affiant or person making the ...

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