United States District Court, D. New Jersey
L. Moon, No. 157230C New Jersey State Prison Petitioner pro
Patrick Daniel Isbill Camden County Prosecutor's Office
Counsel for Respondents
L. HILLMAN, U.S.D.J.
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.
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
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
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
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
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.
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
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.
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).
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
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
A. Trial and Appellate Counsel Failed To Pursue The
Erroneously Repeated Jury Charge Regarding
B. Trial Counsel “Invited Error” That The Jury
Review Defendant's Recorded Statement During Its
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).
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
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.
2017, Petitioner timely filed the instant habeas petition,
pro se. See ECF No. 1. His application raises the following
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
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.
STANDARD OF REVIEW
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).
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
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;
(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).
claim has been adjudicated on the merits in state court,
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)).
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)).
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).
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.
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.
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”).
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.
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.
Failure to Communicate with 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.
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
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 ...