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Smith v. Johnson

United States District Court, D. New Jersey

July 1, 2019

JAMA SMITH, Petitioner,
v.
STEVEN JOHNSON, et al., Respondents.

          OPINION

          MADELINE COX ARLEO, DISTRICT JUDGE UNITED STATES DISTRICT COURT.

         I. INTRODUCTION

         This matter has been opened to the Court by Petitioner's filing of a habeas petition pursuant to 28 U.S.C. § 2254, raising nine separate grounds for relief. As explained in this Opinion, the Court deems Ground Six withdrawn and will deny the petition as to Grounds One, Two, Three, Four, Five, and Eight. The Court will direct the parties to submit supplemental briefing on Grounds Seven and Nine, which assert a claim pursuant to Lafler v. Cooper, 566 U.S. 156 (2012) ("the Lafler Claim"), and will reserve judgment on the Lafler Claim and the issuance of a certificate of appealability until the briefing is complete.

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         a. Factual Background[1]

         On October 6, 2002, at approximately 1:00 a.m., Sergeant Stanley Rodriguez and Officer Felix Arroyo of the Paterson Police Department were on routine patrol on River Street driving in an unmarked police vehicle. A red bubble light on the dashboard was the only feature that could possibly identify it as a police vehicle. While driving, Rodriguez observed what he believed to be a narcotics transaction. He observed an unidentified male hand paper that Rodriguez believed was paper currency to another man, whom Rodriguez identified at trial as defendant. Rodriguez then saw defendant hand the man a small object.

         After observing that exchange, Rodriguez and Arroyo stopped their vehicle and exited. Rodriguez, dressed in plain clothes but wearing a police badge around his neck, ordered both men to stop. Neither obeyed. Defendant dropped a small plastic bag on the ground, and began walking down River Street toward Fifth Avenue; the other man began walking up Sixth Avenue. Rodriguez retrieved the plastic bag and found inside it what he believed was crack cocaine. After Rodriguez advised Arroyo that he had recovered drugs, Arroyo immediately ordered defendant to stop. Defendant fled.

         During the ensuing foot chase, Rodriguez saw defendant reach into his waistband and pull out a handgun. Rodriguez drew his service revolver, and while pointing it at defendant, he repeatedly told defendant to drop his weapon. Rodriguez was able to apprehend defendant and tackle him to the ground. Rodriguez testified that defendant struggled to avoid arrest by flailing his arms and legs.

         During that struggle, defendant's gun slid under a white van parked near by. Arroyo located and retrieved the gun, which was a .380 caliber semi-automatic weapon with one round in the chamber. The serial number had been scratched off the weapon. The State produced evidence demonstrating that at the time of arrest, defendant was within 1000 feet of a school.

         Defendant testified on his own behalf and denied all of the allegations against him, including having a gun or narcotics in his possession, threatening police officers with a gun, engaging in a hand-to-hand drug sale, and struggling with Rodriguez at the time of arrest. Defendant admitted that he fled upon seeing the police vehicle, but explained he did so only because he feared he would be arrested for warrants for unpaid parking tickets. Defendant testified that he was not tackled by police, but instead tripped onto the ground.

         During his testimony, defendant acknowledged that he had been convicted of a first-degree crime in 1995, for which he was sentenced to a fifteen-year term of imprisonment, with five years before parole eligibility. He also acknowledged that in 1995, he was also convicted of a third-degree crime for which he received a five-year sentence, with eighteen months of parole ineligibility.

         Defendant's cousin, Michael Brown, testified that he and defendant were walking on River Street when they saw a police car rapidly approach them and park. After one officer jumped out of the unmarked car, Brown saw his cousin run up the street. Brown testified he did not know why defendant ran, but believed it was because he was on parole. Brown watched as the officer chased defendant across the street, and he saw defendant turn around and run back toward Brown and Miguel Chappell. Brown did not see anything in defendant's hand and testified that defendant was not carrying a gun while running. According to Brown, the officer did not tackle defendant. Instead, defendant tripped and fell to the ground about seven feet from where Brown was standing. Before he hit the ground, defendant did not have a gun or any silver object in his hand.

         Brown also testified that at no time while he was with defendant in the two hours before the police vehicle approached, did defendant sell drugs. Brown stated that he, defendant and Chappell were merely standing in the general area of River Street near Sixth Avenue in the minutes before police approached. Brown testified that defendant did not drop a bag of cocaine. Chappell's testimony corroborated that of Brown.

         Petitioner was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C;35-5(a)(1) and 2C;35-5(b)(3) (count two); third-degree possession of CDS with the intent to distribute within 1, 000 feet of a school, N.J.S.A. 2C:35-7 (count three); third-degree resisting arrest, N.J.S.A. 2C;29-2(a) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine); second-degree possession of a weapon while committing a narcotics offense, N.J.S.A. 2C:39-4.1 (count ten); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count eleven); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7 (count twelve). The jury acquitted defendant on counts four, five and six, which charged fourth-degree aggravated assault by pointing a firearm, and two counts of third-degree assault on a police officer.

         At sentencing, the judge granted the State's motion to sentence defendant to a mandatory extended term as a prior Graves Act offender pursuant to N.J.S.A. 2C:43-6(c), and as a prior drug distribution offender pursuant to N.J.S.A. 2C:43-6(f), and the trial court orally imposed an aggregate sentence of 40 years with a 20-year parole disqualifier.[2]

         b. Procedural History

         Petitioner appealed his convictions and sentence, and the Appellate Division affirmed the convictions and mandatory consecutive term imposed on Count ten, but remanded for resentencing in light of State v. Natale (II), 878 A.2d 724 (N.J. 2005), and for the trial judge to explain his reasons for imposing a consecutive sentence on Count twelve. State v. Smith, 2007 WL 3005342, at *10 ( N.J.Super. App. Div. Oct. 17, 2007).

         Petitioner filed a petition for certification, and the New Jersey Supreme Court granted defendant's petition for certification in part, "limited solely to reviewing defendant's claim that, to convict under N.J.S.A. 2C:39-3(d), the State must prove a defendant's knowledge of possession of the weapon and knowledge of the weapon's defacement." State v. Smith, 197 N.J. 325, 330 (2009) (citing State v. Smith, 193 N.J. 584 (2008)). On January 27, 2009, the Supreme Court affirmed defendant's conviction. Id. at 339.

         In the meantime, pursuant to the Appellate Division's remand, Petitioner was resentenced on October 3, 2008, and the judge re-imposed the sentence from the previous judgment of conviction. (ECF No. 10-37, Exhibit 37) Petitioner appealed the October 3, 2008 resentencing, and while the appeal was pending, on April 2, 2009, the New Jersey State Parole Board sent a letter to the presiding judge of Passaic County requesting clarification of Petitioner's sentence, noting that it appeared that the sentence imposed was thirty years with a 10-year parole ineligibility term. (See ECF No. 17, at 141 (PA 41-42).) On May 14, 2010, the trial judge conducted a hearing and determined that the original judgment of conviction contained clerical errors, and that he had imposed a total aggregate sentence of 40 years with a 20-year parole ineligibility term. (ECF No. 10-38, Exhibit 38.) The trial judge amended the JOC to reflect the sentence he actually imposed. (ECF No. 17, PA 53-55, Amended JOC dated May 14, 2010).

         An amended notice of appeal was filed, and the Appellate Division affirmed the sentence in a per curiam opinion on July 28, 2011. (ECF No. 17 at PA56-69). The New Jersey Supreme Court denied certification on January 19, 2012. (ECF No. 17, PA 70.)

         Defendant filed a pro se PCR petition on or about March 17, 2010. (ECF No. 17, PA 120-125.) The PCR court denied the petition without a hearing as procedurally barred and without merit on July 24, 2014. (ECF No. 17, PA 79-98.) On February 23, 2016, the Appellate Division affirmed, State v. Smith, 2016 WL 698565, at *1 ( N.J.Super. App. Div. Feb. 23, 2016), and the Supreme Court denied certification on May 6, 2016. State v. Smith, 225 N.J. 340 (2016).

         The instant Petition was docketed on June 22, 2016, and is dated June 14, 2016. The Petition raises nine grounds for relief. (See ECF No. 1.) Respondents' answer was filed on September 28, 2018 (See ECF No. 8; see also ECF No. 10), and Petitioner, proceeding pro se, sought several extensions of time within which to file a traverse, which were granted by the Court. (ECF Nos. 9, 11-13.) On April 9, 2019, John Vincent Saykanic, Esquire, entered a notice of appearance on behalf of Petitioner, and, on May 29, 2019, he filed a traverse on Petitioner's behalf.

         III. STANDARD OF REVIEW

         Section 2254(a) permits a court to entertain only claims 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). Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by AEDPA (28 U.S.C. § 2244), federal courts in habeas corpus cases must give considerable deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).

         Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:

(d) 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).

         Where a state court adjudicated a petitioner's federal claim on the merits, [3] a federal court "has no authority to issue the writ of habeas corpus unless the [state c]ourt'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, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).

         "[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of t[he Supreme Court's] decisions," as of the time of the relevant state-court decision. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 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 th[e 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 th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record. 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 the AEDPA necessarily apply. First, the 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." 29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, the 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).

         In addition to the above requirements, 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). To do so, a petitioner must '"fairly present' all federal claims to the highest state court before bringing them in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This requirement ensures that state courts "have 'an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'" Id. (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).

         Even when a petitioner properly exhausts a claim, a federal court may not grant habeas relief if the state court's decision rests on a violation of a state procedural rule. Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is "independent of the federal question [presented] and adequate to support the judgment." Leyva, 504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). If a federal court determines that a claim has been defaulted, it may excuse the default only upon a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Leyva, 504 F.3d at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).

         To the extent that a petitioner's constitutional claims are unexhausted and/or procedurally defaulted, a court can nevertheless deny them as meritless under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) ("Here, because we will deny all of [petitioner's] claims on the merits, we need not address exhaustion"); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (considering procedurally defaulted claim, and stating that "[u]nder 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and we take that approach here").

         IV. ANALYSIS

         The instant Petition raises nine grounds for relief. In his traverse, Petitioner's counsel acknowledges that Ground Six of the Petition (lack of fingerprint testing on the gun) is unexhausted (See ECF No. 17, Traverse at 88), and elects to withdraw Ground Six in order to prevent the dismissal of the entire Petition as a mixed petition. (See id.) As such, the Court deems Ground Six withdrawn, and the Court addresses the remaining claims for relief below.

         a. Prosecutor's Use of Post-Arrest Silence on Cross Examination (Ground One)

         In Ground One, Petitioner asserts that the prosecutor structured his cross-examination of defendant to tell the jury that defendant did not make a statement to police at the time of his arrest, and tiiat this line of questioning violated his due process rights to a fair trial. The following exchange took place at trial during the State's cross-examination of Petitioner:

Q: What were you being charged with? You're being charged with drugs, possessing them with the intent to sell them and possession of a handgun?
A: Yes.
Q: Did you at any time say to them, hey, man, what are you talking about-
[DEFENSE COUNSEL]: Objection.
THE COURT: I'll sustain the objection. Ladies and gentlemen, you'll disregard that question. Please step into the jury room....

         After the jury stepped into the jury room, there was a discussion on the matter. (ECF No. 10-32, 4T194-25 to 200-22). The prosecutor explained that he had only intended to ask defendant why he ran, since he had not done anything, and if he knew what he would be charged with. (Id. at 4T197-20 to 198-12). The judge then noted that nothing in the case indicated that defendant had been questioned or Mirandized, and that no questioning in the area of defendant's pre-arrest silence would be permitted. (Id. at 4T198-13 to 25). Defense counsel asked, "What about some type of limited instruction to the jury to try to ameliorate the damage that I think the question's already done?" (Id. at 4T199-1 to 3). The judge pointed out that he had given an immediate instruction to disregard the question, and that the answer to the question had not been actually elicited. (Id. at 4T199-4 to 7). The judge also ordered that the audiotape of the pertinent part of the proceedings be played back. (Id. at 4T199-4 to 23). After hearing the tape, the judge determined that there was no need for further instruction. (Id. at 4T199-24 to 200-22).

         Petitioner raised Ground One on direct appeal, and the Appellate Division rejected the claim as follows:

We need not decide whether the prosecutor's cross-examination ran afoul of State v. Muhammad, 182 N.J. 551, 567 (2005), in which the Court held that the State may not cross-examine a defendant about his failure to have made an exculpatory statement to police. Here, we are satisfied that the Court promptly instructed the jury to disregard the question. If a trial judge orders the jury to disregard a question, we assume that the jury followed the judge's instruction and that any prejudice that may have been caused by the comment has been eliminated. State v. Farrell, 61 N.J. 99, 107 (1972).
In addition to instructing the jury to disregard the question, the judge also explained in his final charge that "[a]ny testimony that I may have had the occasion to strike is not evidence and should not enter into your deliberations. It must be disregarded by you." Under these circumstances, we are confident that the judge's immediate and forceful response negated any prejudice that might otherwise have arisen. For these reasons, we reject defendant's contentions in Point I.

State v. Smith, 2007 WL 3005342, at *3-4 ( N.J.Super. App. Div. 2007).

         It is well-established that a state prosecutor may not seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. The Supreme Court has held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Doyle v. Ohio, 426 U.S. 610, 619 (1976). In Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), the Supreme Court specifically addressed a Doyle error and held that the Kotteakos[4] harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type.

         Furthermore, as relevant here, the Supreme Court has held that there can be no Doyle violation where the reference to post-arrest silence occurs in a single question and the trial court sustains an objection to the improper question and provides a curative instruction to the jury, thereby barring the prosecutor from using the silence for impeachment. See Greer v. Miller, 483 U.S. 756, 764-66 (1987) (finding that "[t]he sequence of events in this case-a single question, an immediate objection, and two curative instructions-clearly indicates that the prosecutor's improper question did not violate [petitioner's] due process rights").

         In Greer v. Miller, Respondent Miller took the stand on direct examination he testified that he had taken no part in the crime, but that the other two alleged participants, Armstrong and Williams, had come to the trailer home after the murder was committed seeking Miller's advice. Miller testified that Armstrong confessed that he and Williams had beaten and robbed Gorsuch, and that they had killed him to avoid being identified as the perpetrators.

         The prosecutor began his cross-examination of Miller as follows

"Q: Mr. Miller, how old are you?
"A: 23.
"Q: Why didn't you tell this story to anybody when you got arrested?"

         Defense counsel immediately objected. Out of the hearing of the jury, Miller's lawyer requested a mistrial on the ground that the prosecutor's question violated Miller's right to remain silent after arrest. The trial judge denied the motion, but immediately sustained the objection and instructed the jury to "ignore [the] question, for the time being." The prosecutor did not pursue the issue further, nor did he mention it during his closing argument. At the conclusion of the presentation of evidence, defense counsel did not renew his objection or request an instruction concerning the prosecutor's question. Moreover, the judge specifically instructed the jury to "disregard questions ... to which objections were sustained." Miller was convicted of murder, aggravated kidnapping, and robbery, and sentenced to 80 years in prison. See Greer, 483 U.S. at 758-59.

         In finding no Doyle violation under these facts, the Supreme Court stated as follows:

.. .the trial court in this case did not permit the inquiry that Doyle forbids. Instead, the court explicitly sustained an objection to the only question that touched upon Miller's postarrest silence. No. further questioning or argument with respect to Miller's silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained. Unlike the prosecutor in Doyle, the prosecutor in this case was not "allowed to undertake impeachment on," or "permitted]... to call attention to," Miller's silence. 426 U.S., at 619, and n. 10, 96 S.Ct., at 2245, and n. 10. The fact of Miller's postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case.

Greer, 483 U.S. at 764-65.

         The facts of this case are similar to what occurred in Greer. Petitioner's counsel objected to the prosecutor's single question regarding his post-arrest silence, the objection was sustained, and the judge later instructed the jury to disregard any evidence where he had sustained an objection. Although Petitioner's counsel sought a more detailed limiting instruction at the time the objection was sustained and the trial court declined to give it, this fact alone does not warrant departure from the Supreme Court's analysis in Greer. As noted by the Appellate Division, the judge gave a general instruction that the jury should disregard evidence if the judge had sustained an objection. For these reasons, the Appellate Division did not unreasonably apply clearly established federal law when it denied Petitioner's claim regarding cross-examination about his post-arrest silence, and habeas relief is not warranted on Ground One.[5]

         b. Failure to Grant Mistrial after Other Crimes Evidence Heard by Jury

         In Ground Two, Petitioner argues that the trial court erred when it denied his motion for a mistrial after a defense witness commented during cross-examination that defendant was on parole at the time of the instant offense. The following testimony was elicited during cross-examination of defense witness Michael Brown:

Q: But either way when the police officers came up on the scene your first cousin took off running; correct, that's what you told us?
A: Yes, sir, that's what I told you.
Q: Yes, okay. And you told us that you don't ...

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