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Green v. D'Ilio

United States District Court, D. New Jersey

September 10, 2019

TYRIUS GREEN, Petitioner,
v.
STEVEN M. D'ILIO, et al, Respondents.

          OPINION

          PETER G. SHERIDAN, U.S.D.J.

         I. INTRODUCTION

          Petitioner Tyrius Green ("Petitioner"), a convicted criminal in the State of New Jersey, has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a conviction and sentence imposed by the State for murder, possession of a firearm for an unlawful purpose, and unlawful possession of a weapon. (ECF No. 3.) Respondents have filed a Response. (ECF No. 10.) Petitioner filed a Traverse. (ECF No. 14.) For the reasons set forth below, the Court will deny the Amended Petition on the merits.

         II. BACKGROUND

         The charges against Petitioner arose from an incident that occurred on August 14, 2003 in Trenton, New Jersey. The New Jersey Superior Court, Appellate Division set forth the facts, as adduced at a jury trial, as follows:

At trial, Kenute Brown testified that at about 10:00 p.m. that night, while Brown was purchasing crack-cocaine, he heard defendant shout out, "Dred, Dred," one of Brown's nicknames. However, when Brown started to approach defendant, defendant made it clear that he was referring to another person, Edgerton Munroe, who also went by the nickname, "Dred." Brown told Munroe that defendant wanted to speak to Munroe, and Munroe made his way over to defendant. Brown could not recall what defendant was wearing that night, but he "could see his face." Defendant and Munroe walked into an area known as "The Hole", a dark, wooded area where people "stopped to go get high, and [be] away from police." A few minutes later, Brown heard three to four gunshots coming from the area where defendant and Munroe had just entered. About ninety seconds from the time of the gunshots, Brown saw Munroe run from "The Hole" and fall to the ground.
Patrolman Brian Kowalczyk of the Trenton Police Department responded to the scene of the shooting. He observed Munroe, near a curb, lying on the ground with a gunshot wound to his chest area. Attempts to revive Munroe were unsuccessful; he was transported to a local hospital, but Munroe died as a result of excessive bleeding from a bullet wound.

(ECF No. 10-3, at 2-3 (alteration in original).)

         During its investigation, the Trenton Police Department interviewed and obtained statements from a number of individuals that had been near "The Hole" on the night of the incident, including Kenute Brown, Carol Guerra, Aviva Fowler, Linda Brown, and Willie Peters. (Id. at 3- 4.) Guerra told police she had been at The Hole on the night of the incident getting high. (Id. at 4.) According to her statement,

two males came into the area and chased another man who was wearing a light-colored shirt. She described one of the pursuers as between five-eight and five-nine; the other was shorter. Both men were dressed in black. The taller man had a black fedora type hat; the shorter one wore a black ski mask. The taller man held a "Dirty Harry [type of] gun." Guerra heard gunshots and saw the taller man following the male in the light-colored shirt, shooting at him. Although she did not see their faces, when the two men in black entered "The Hole", Guerra had thought the taller man was defendant, Tyrius Green, because of "his build and the way he walked. Tyrius has a very distinctive walk, especially when he thinks he is being macho." Guerra had known defendant for between ten and fourteen years.

(Id. (alterations in original).) At trial, however, Guerra testified that she did not pay a lot of attention to what the men in black were doing and was focused at the time on getting high. (Id. at 4-5.) She also testified that she was high both times she spoke to police. (Id.)

         Fowler was also present at The Hole on the night of the shooting "smoking 'coke.'" (Id.) Fowler knew the defendant and recognized his walk. (Id. at 4-5.) She gave the following account:

Tyrius told him [Dred Brown] to tell Dred [Munroel that there was a hundred dollar sell. [Munroe] came back a few minutes later, and when he came back, as soon as he came through the walkway, Tyrius reached out and tried to grab him from the back, but Dred dodged him and started to run .... That is when Tyrius pulled the gun out, aimed it at Dred and said Freeze. He said it again and then fired. That is when I heard Dred say ouch but he kept running. The second time that Tyrius fired the gun I saw Dred hop up off the ground a little bit. I don't think he was hit I think he was just saying ouch because somebody was firing at him. Tyrius shot three times back to back. Every time he shot the gun I saw sparks come out of it. Then Tyrius and the short guy chased after "Dred". Then I left to go find my boyfriend everyone else that was back there ran out in different directions.

(Id. (alterations in original).) At trial, Fowler indicated that she did not recall being in The Hole at the time of the shooting but remembered being brought to the police station to sign papers and testified that while she spoke with the detective she was "cracked out." (Id. at 6.)

         Two other witnesses testified at trial. Linda Brown was also in The Hole at the time of the shooting and testified that she saw two men, one of whom was noticeably taller, enter the area. (Id.) Both were dressed in black with scarves around their faces. (Id.) She testified that "[t]he taller man shouted 'Don't move' to a person who entered. He then proceeded to fire four shots." (Id. at 6-7.) Brown also testified that she knew Petitioner "her entire life" and at first believed him to be the shooter. (Id. at 7.) "However, she could not positively identify him." (Id.) Willie Peters also testified that he was in The Hole that evening, but he did not see the shooting and only heard three gunshots. (Id.) Peters also knew Petitioner since he was a child and "thought that he saw [Petitioner] running from The Hole." (Id.)

         Petitioner was charged via indictment on May 26, 2004 with first-degree murder, N.J. Stat. Ann. § 2C:11-3(a)(1); first-degree felony murder, N.J. Stat. Ann. § 2C:11-3(a)(3); first-degree robbery, N.J. Stat. Ann. § 2C: 15-1; second-degree possession of a weapon for an unlawful purpose, N.J. Stat. Ann. § 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J. Stat. An.. § 2C:39-5(b). (Id. at 8.) The case proceeded to jury trial in May 2005. (Id.) At the close of evidence, defense counsel moved for judgment of acquittal on all counts. (Id.) The trial court granted the motion in part and dismissed the felony murder and robbery counts. (Id.) The jury found Petitioner guilty of the remaining charges. (Id.) Petitioner was sentenced to a life term of imprisonment with a 30-year period of parole ineligibility on the murder charge. (ECF No. 10-2.) The weapons offenses were merged and Petitioner was sentenced to a ten-year prison term to run consecutive to the life sentence on the murder charge. (Id.; see also ECF No. 10-3, at 2 & n. 1.) Petitioner appealed his conviction and sentence, and the Appellate Division affirmed his conviction, but remanded for resentencing on June 17, 2008 due to a discrepancy between the Court's oral pronouncement of Petitioner's sentence and the judgment of conviction. (ECF No. 10-3.) The New Jersey Supreme Court denied certification on October 6, 2008. (ECF No. 10-6.) Petitioner then filed a petition for post-conviction relief (the "PCR Petition") in the Superior Court of New Jersey, Law Division on January 20, 2011. (ECF Nos. 10-7, 10-8.) The PCR Petition was denied by the Superior Court of New Jersey, Law Division in a written opinion issued on April 26, 2012. (ECF No. 17-4, at 218-48.) The PCR Court determined that Petitioner's claims were procedurally barred by New Jersey Court Rule 3:22-4 because the substantive issues underlying his ineffective assistance of counsel claims had been previously adjudicated on appeal. (Id. at 228-30.) Despite finding Petitioner's claims to be procedurally barred, the PCR Court additionally denied each claim on the merits. (Id. at 230-48) Petitioner appealed that decision, and on April 30, 2014, the Appellate Division affirmed the denial of his PCR petition. (ECF No. 10-14.) The Appellate Division agreed with the PCR Court's determination that Petitioner's claims were not only procedurally barred, but also that his claims lacked substantial merit. (Id.) Petitioner filed a petition for certification to the New Jersey Supreme Court, which was denied on October 24, 2014. State v. Green, 220 N.J. 42 (2014). Petitioner filed the instant habeas petition with this Court on March 6, 2015. (ECF No. 1.) On March 27, 2015, this Court administratively terminated his petition for failure to use a proper habeas form. (ECF No. 2.) Petitioner executed an amended petition on April 22, 2015 (the "Amended Petition"). (ECF No. 3.) Respondents filed a timely answer to the Amended Petition. (ECF No. 10.)

         On January 23, 2019, this Court entered an Order and Opinion finding that the Amended Petition constituted a "mixed petition" as it contained a mix of exhausted and unexhausted claims. (ECF Nos. 19, 20.) Accordingly, the Court declined to rule on the merits of the Amended Petition and provided Petitioner with the opportunity to either (1) move for a stay and abeyance so he may return to state court to exhaust his unexhausted claim or (2) request that this Court delete the unexhausted claim and proceed only on his exhausted claim.[1] (ECF No. 19, at 9.) This Court advised that if Petitioner did not file any response, it would take his inaction as his assent to proceed on his only exhausted claim-that the trial court's erroneous jury instruction on identification violated his due process rights under the Fifth and Fourteenth Amendments. (See Id. at 1, 9.) Petitioner did not file a timely response.

         III. LEGAL STANDARD

         Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

         "[Section] 2254 sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner." Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). 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." Cullen, 563 U.S. at 181 (quoting § 2254(a)).

         A federal court's authority to grant habeas relief is further limited when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). If a claim has been adjudicated on the merits in state court proceedings, 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, 40-41 (2012) (quoting § 2254(d)). However, when "the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by the AEDPA ... do not apply." Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)).

         When a claim has been adjudicated on the merits in state court proceedings, the writ shall not issue 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); see also Parker, 567 U.S. at 40-41. A state-court decision involves an "unreasonable application" of clearly established federal law if the state court (1) identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case; or (2) unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams v. Taylor, 529 U.S. 362, 407 (2000). Federal courts must follow a highly deferential standard when evaluating, and thus give the benefit of the doubt to state court decisions. See Felkner v. Jackson, 562 U.S. 594, 598 (2011); Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). A state court decision is based on an unreasonable determination of the facts only if the state court's factual findings are objectively unreasonable in light of the evidence presented in the state-court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Moreover, a federal court must accord a presumption of correctness to a state court's factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e); see Rice v. Collins, 546 U.S. 333, 339 (2006) (petitioner bears the burden of rebutting presumption by clear and convincing evidence); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) (factual determinations of state trial and appellate courts are presumed to be correct).

         IV. DISCUSSION

         Since the Court issued its Opinion finding that the Amended Petition constituted a mixed petition, it requested from Respondents additional filings from the New Jersey Supreme Court out of an abundance of caution and to confirm that Petitioner's ineffective assistance of counsel claims were, in fact, unexhausted. (See ECF No. 21.) Respondents filed copies of Petitioner's petitions for certification to the New Jersey Supreme Court on direct and post-conviction review, which revealed that certain other of Petitioner's claims were, in fact, exhausted. (See ECF Nos. 22, 22- 1.) Accordingly, for the sake of completeness, the Court will now deny the Amended Petition in its entirety on the merits pursuant to § 2254(b)(2). See § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.''); see also Mahoney v. Bostel, 366 Fed.Appx. 368, 371 (3dCir. 2010).

         A. Substantive Claims

         1. Trial Court Erred in Denying Motion for Judgment of Acquittal (Ground Eleven)

         Petitioner contends that the trial court's partial denial of his motion for judgment of acquittal violated his federal due process right because the witness testimony elicited at trial did not prove, beyond a reasonable doubt, that Petitioner was the shooter. Petitioner raised this issue to the Appellate Division on direct appeal, which was "satisfied that sufficient evidence was developed by the State to justify submitting to the jury the issue of defendant's guilt on the charges of murder, possession of a firearm for an unlawful purpose and unlawful possession of a firearm." (ECF No. 10-3, at 10.) The Appellate Division further explained that:

The State presented several witnesses who knew defendant and who indicated defendant was present at the time of the shooting. At least two of the witnesses gave statements that were admitted into evidence in which they identified defendant as the shooter. Another, who said that defendant was not wearing a mask at all, placed defendant in the company of the victim immediately before the shooting began. Accepting this evidence as true and drawing reasonable inferences therefrom, a reasonable jury could and did find him guilty of the crimes charged.

(Id. at 11.)

         A motion for judgment of acquittal is a motion to challenge the sufficiency of the evidence presented at trial. See Jackson v. Virginia, 443 U.S. 307, 317 n. 10 (1979). In Jackson, the Supreme Court instructed that where a petitioner claims that his conviction was against the weight of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. "Stated differently, a court reviewing the sufficiency of the evidence may overturn a conviction only 'if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013) (quoting Jackson, 443 U.S. at 324). This inquiry requires "federal courts to look to state law for 'the substantive elements of the criminal offense,' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman v. Johnson, 566 U.S. 650, 655 (2012) (citation omitted).

         On habeas review, the factual findings of the state court are presumed to be correct, absent clear and convincing evidence to the contrary. See § 2254(e)(1).[2] As the trial court and Appellate Division determined, there was ample evidence presented at trial on which the jury could rely to find that Petitioner was the shooter. Nevertheless, Petitioner argues that the trial court should not have submitted these charges to the jury because the evidence did "sufficiently establish beyond a reasonable doubt that [he] [w]as the masked man who shot Munroe." (ECF No. 1-2, at 34.) In support of his argument, Petitioner identifies the inconsistencies between the witness testimony and their alleged lack of credibility as indicative of the lack of evidence to support the charges. However, such issues are clearly for the jury to resolve. Jackson, 443 U.S. at 319 (observing that it is "the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts"). The role of the court in determining whether there is sufficient evidence to support a charge is only to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 318-19. Based on the evidence in the record, it is apparent that the determination of whether Petitioner was the shooter required weighing the credibility of witnesses who testified at trial and resolving the many inconsistencies in their testimony. Viewing that testimony in the light most favorable to the prosecution, this Court is not convinced that no trier of fact could have found Petitioner guilty beyond a reasonable doubt. As such, relief on this claim is denied.

         2. Error in Jury Instruction on Identification (Ground Twelve)[3]

         Petitioner next argues that the trial court's charge to the jury on identification was "unacceptably vague and contained gross misstatements of fact," making it "capable of leading the jury to a verdict it otherwise would not have reached." (ECF No. 3, at 31.)[4] The alleged "gross misstatement of fact" referred to by Petitioner is the trial court's statement that certain witnesses at trial "identified the defendant in court as the person who committed the offenses charged." (Id.) No in-court identification was made at trial. Petitioner contends that this error, when viewed in light of the entire trial record, violated his right to due process under the Fifth and Fourteenth Amendments. (Id.)

         With respect to identification, the trial court gave the following detailed instruction to the jury:

Now, the defendant as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of a person who committed the crime is, of course, upon the State. For you to find the defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. And as I told you before, the defendant has no burden to produce evidence or that he is not the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime that was committed was committed by someone else, or to prove the identity of that other person.
You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also, whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it.
Now, the State, in trying to meet that burden, presented the testimony of several witnesses who identified the defendant. You will recall that these witnesses identified the defendant in court as the person who committed the offenses charged. The State also presented testimony that on a prior occasion before this trial witnesses made such an identification-identified the defendant as the person who was, you may conclude circumstantially or directly or however you conclude, that the defendant was-the identification of the defendant was based upon the observations and perceptions they made of the perpetrator at the time the offense was being committed. It is your function to determine whether the witness's identification of the defendant is reliable and believable, or whether it is based on mistake, or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged.
In evaluating these identifications, you should consider the observations and perceptions on which the identifications were based, and the witness's ability to make those observations and perceptions. If you determine that the out-of-court identification is not reliable, you must still consider the witness's in-court identification of the defendant, if you find it to be reliable.
Unless the in-court identification resulted from the witness's observation or perceptions of the perpetrator during the commission of the offense, rather than being the product of an impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate issues of the trustworthiness of the in court and out-of-court identifications are for you to decide.
Fundamentally, there are, as you see, three levels of identification: Identification of the alleged perpetrator at the observation of the witnesses; the subsequent prior identifications through looking through the photo array or identifying photograph; and thirdly, the in-court. So, you make the determinations as I've just instructed you. If you have any questions, look at this. If you have any further questions, you'll let me know and I'll try to explain it further.
To decide whether identification testimony is sufficiently reliable upon which to conclude that this defendant is the person who committed the offenses charged, you should evaluate the testimony of the witness in light of the factors for considering credibility that I've already explained to you. In addition, you may consider the following factors: The witness's opportunity to view the person who committed the offense at the time of the offense; the witness's degree of attention on the perpetrator when he or she observed the crime being committed; the accuracy of any description the witness gave prior to the identification of the perpetrator; the degree of certainty expressed by the witness in making the identification; the length of time between the witness's observation and the offense at the first identification; discrepancies or inconsistencies between identifications; the circumstances under which the out-of-court identification was made; here, the single and multiple photograph arrays presented to the witness by the police; or any other factor on the evidence which-or lack of evidence in this case which you consider relevant to your determination whether identifications were reliable.
If, after all of the considerations of the evidence, you determine the State has not proven beyond a reasonable doubt that the defendant was the person who committed these crimes, then you must find the defendant not guilty. On the other hand, after consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant was correctly identified, then you will consider whether the State has proven each and every element of the offenses charged beyond a reasonable doubt.

(ECF No. 10-3, at 14-17 (emphasis in original to identify the allegedly objectionable portion)).

         On direct appeal, the Appellate Division determined that "[w]hen viewed as a whole, this jury instruction was adequate." (Id. at 17.) Although the Appellate Division acknowledged that the trial court was mistaken in how it described the identifications, it held that the mistake did not have "the capacity to prejudice defendant so much as to offend all notions of justice." (Id.) In so holding, the Appellate Division explained that "the misstatement was fleeting and it did not concern an element of an offense or some other legal issues. Rather, it related to the judge's recollection or recounting of events that occurred in open court and in the presence of the jury." (Id. at 18-19.) Accordingly, the Appellate Division observed, the effect of the factual error was limited by the trial court's later instruction that "regardless of what I may have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as sole judges of the facts." (Id. at 19.)

         "[H]abeas review of jury instructions is limited to those instances where the instructions violated a defendant's due process rights. Echols v. Ricci, 492 Fed.Appx. 301, 312 (3d Cir. 2012) (citing Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (holding that "[t]he only question for us is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process")); see also Middleton v. McNeil, 541 U.S. 433, 437 (2004). A petitioner's due process rights are violated where the instruction "operated to lift the burden of proof on an essential element of an offense as defined by state law." Echols, 492 Fed.Appx. at 312 (quoting Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997)).

         An error in the jury instructions is not grounds for habeas relief if the error is harmless. Pagliaccetti v. Kerestes, 581 Fed.Appx. 134, 136 (3d Cir. 2014) (citing Yohn v. Love, 76 F.3d 508, 522 (3d Cir. 1996)). An error is harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Edwards v. New Jersey, No. 13-6523, 2015 WL 5007824, at *5 (D.N.J. Aug. 20, 2005) ("In determining whether there is harmless error, the court examines the impact of the error on the trial as a whole."). The effect of an allegedly erroneous jury instruction "must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 147 (1973). Thus, the relevant question "is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 148.

         The Appellate Division's determination that the trial court's error in the jury instruction on identification was harmless was not contrary to federal precedent nor was it an unreasonable application of that law. Looking to the charge as a whole, and in consideration the fact that "a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge," Cupp, 414 U.S. at 147, the trial court's apparent error in the jury instructions was unlikely to have an effect on the outcome of the trial. The trial court clearly instructed the jury that it was to weigh the evidence presented by the State on identification to determine if Petitioner committed the crimes at issue and further explained that it was the jury's "recollection of the evidence that should guide [it] as sole judges of the facts." (See ECF No. 10-3, at 18.)[5] Any error in those instructions did not act to lift the State's burden of establishing beyond a reasonable doubt that Petitioner was the shooter. Relief on this claim is denied.

         3. Trial Court Erred in Instructing Jury It Could Not Consider Evidence of Premeditation (Ground Thirteen)

         Petitioner next argues that the trial court erred in instructing the jury that it could not consider evidence of premeditation (or the lack thereof) in response to a question from the jury regarding its deliberation on the charge of knowing of purposeful murder and that the trial court's error violated his due process rights. It appears that during its deliberation, the jury submitted to the trial court the following question: "Is premeditation a factor in considering question 1A." (ECF No. 1-2, at 31.) Question 1A referred to Petitioner's charge for knowing and purposeful murder. (See id.) The Court responded that "[t]he simple answer is no" and that premeditation is "not a factor." (Id.) Petitioner raised this claim to the Appellate Division on his direct appeal. The Appellate Division rejected his claim, holding that the trial court's response was "essentially correct." (ECF No. 10-3, at 20-21.) The Appellate Division explained:

Premeditation was not a statutory element of murder under the circumstances of this case. One may be convicted for first degree murder without motive or malice aforethought. Indeed, N.J.S.A. 2C: 11-3 instructs that a defendant must have committed the offense knowingly or purposefully. The trial court had carefully outlined the applicable states of mind in its jury charge. Again, there was no objection to [the] charge at trial, and we have no ...

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