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Gardner v. The Attorney General of State

United States District Court, D. New Jersey

September 19, 2019





         Petitioner, Richard Gardner, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 2008 and is currently serving an eighteen-year sentence with an eighty-five percent period of parole ineligibility pursuant to New Jersey’s No. Early Release Act (“NERA”). N.J. Stat. Ann. § 2C:43-7.2. Petitioner raises several claims in his habeas petition. For the reasons set forth below, the petition will be denied and a certificate of appealability shall not issue.

         II. FACTS

         At trial, Bruce Hanson testified that on May 3, 2006, he visited the Eli family house in Franklin Township, New Jersey. See State v. Gardner, No. A-3034-08T2, 2011 WL 4808257, at *1 (N.J.Super.Ct.App.Div. Oct. 12, 2011). Hanson was visiting the home to retrieve a cell phone he had previously given to Marcella Eli in exchange for drugs. See Id. Hanson testified that he was present in the house for a few hours, during which Petitioner was “in and out” of the premises. See Id. Hanson stated that he had met Petitioner once or twice before and believed that Petitioner was a member of the Eli family. See id.

         Hanson left the Eli residence between 2:30 and 3:00 pm that day and began walking towards Route 47. See Id. As he was walking, a vehicle pulled alongside him and the driver, Cynthia Corsey, offered him a ride. See Id. Hanson testified that Omar Rhodes, who Hanson did not know, was seated in the front passenger seat and Petitioner was seated in the rear passenger seat. See Id. After Hanson entered the vehicle, Rhodes stated that he needed to urinate and asked Corsey to pull over. See Id. Corsey turned the vehicle into the parking lot of a local park which had a restroom. See Id. When Rhodes exited the vehicle, however, he went to the left rear passenger door and leaned against it, preventing Hanson from exiting the vehicle. See Id. Petitioner then stated to Hanson, “Do you know what time it is?” and proceeded to punch Hanson in the forehead, hold a knife against Hanson’s throat, and demand Hanson’s money. See Id. Hanson testified that Corsey also threatened him with a box cutter. See Id. Hanson stated that after stealing $280 from him, Petitioner and Corsey demanded he exit the vehicle. See Id. Hanson testified that as the car drove away, he memorized the license plate. See Id. Thereafter, Hanson saw a group of men fishing nearby, asked to use their cellphone, and called 9-1-1. See id.

         Hanson also testified that before trial began, Petitioner’s sister Marcella Eli had approached him and asked him to sign a letter recanting his identification of Petitioner as one of the individuals who had robbed him. See id. at *2. Although the letter bore a notary stamp, Hanson testified that he did not sign the letter in the presence of a notary. See id. Hanson explained that he signed the letter because he knew “what it’s like to have a drug problem.” See id. This statement was not objected to by defense counsel. See id. Hanson further stated that he had been reluctant to testify at trial because he had children that resided in “the same town” and he feared that his testifying could “create an issue for them.” See id. This statement was also not objected to by defense counsel. See id.

         At trial, the State called Cynthia Corsey as a witness. See id. Corsey testified that she was still a defendant in the case and was facing a separate trial arising from the same incident. See id. Corsey denied that the State had promised her anything in exchange for her testimony at Petitioner’s trial. See id. Corsey stated that she was “putting [herself] at risk of things out on the street” by testifying, and that her main concern was being labeled a “snitch.” See id. Corsey stated that on the day of the crime, she, Rhodes, and Petitioner went to Petitioner’s grandmother’s house in Franklin Township. See id. Corsey saw Hanson, who she did not know at the time, also at the home. See id. When Corsey, Rhodes, and Petitioner left the house about half an hour later, they saw Hanson walking on the street. See id. At Petitioner’s suggestion, Corsey offered Hanson a ride home. See id. When Rhodes asked to use the bathroom, she pulled into the local park, near the restroom. See id. Corsey testified that after Rhodes exited the vehicle, she heard a “tussle” in the backseat and Petitioner say, “Do you know what time it is?” See id. Corsey stated that she saw Petitioner holding something to Hanson’s neck and demanding Hanson’s money. See id. Corsey admitted she had a box cutter in her vehicle, but she denied using it during the crime. See id. She also denied that Rhodes was blocking Hanson from leaving the vehicle, stating that Rhodes had just been leaning against the door as he urinated. See id.

         During Petitioner’s case-in-chief, he called Detective Kenneth Cresitelli as a defense witness. See id. Detective Cresitelli was an investigator on the case and had taken a recorded statement from Hanson the day of the crime. See id. Since the defense had failed to confront Hanson with the recorded statement during his testimony, the trial court prohibited defense counsel from directly questioning Detective Cresitelli about any inconsistencies between the tape and Hanson’s trial testimony. See id. The prosecutor was also not permitted to question Detective Cresitelli about any statements made on the tape. See id. The prosecutor was, however, allowed to question Detective Cresitelli regarding other aspects of his investigation. See id. at *3. On cross-examination, the prosecutor elicited testimony from Detective Cresitelli that demonstrated what Hanson had told police on May 3, 2006 was consistent with the findings of the investigation. See id. Part of this testimony included Detective Cresitelli’s statement that the tire tracks found at the scene of the crime appeared to match the tire treads on Corsey’s vehicle. See id.

         During closing remarks, the prosecutor clarified that Detective Cresitelli was not an expert in tire treads and had only been testifying as to his personal observations. See id. The prosecutor also commented during summation that “it was reasonable for Hanson to be afraid to come to court to confront the people who attacked him and to be afraid because his children live near the Eli house.” Id.

         After the jury returned their guilty verdict as to the robbery and related charges, the trial court immediately commenced with Petitioner’s trial for the certain persons offense. See id. The State introduced evidence of Petitioner’s prior felony conviction and then rested. See id. The trial court then instructed the jury as to the certain persons charge. See id. After deliberations, the jury returned with a guilty verdict. See id. Petitioner was sentenced to eighteen years imprisonment subject to NERA. See id. at *1.


         Petitioner appealed his conviction and sentence to the New Jersey Superior Court, Appellate Division. (ECF No. 8-3 at 28.) On October 12, 2011, the Appellate Division affirmed Petitioner’s conviction and affirmed the sentence he received for the robbery and certain persons charges. See Gardner, 2011 WL 4808257, at *6-7. The Appellate Division remanded the matter back to the trial court, however, to reflect a merger of the remainder of Petitioner’s offenses into his sentence for the robbery conviction. See id. at *7. On May 3, 2012, the New Jersey Supreme Court granted Petitioner’s request for a writ of certiorari. See State v. Gardner, 42 A.3d 889 (N.J. 2012). However, on April 17, 2013, the court issued an order stating that it had “improvidently granted” Petitioner’s application and dismissed the appeal. See State v. Gardner, 64 A.3d 514 (N.J. 2013).

         On April 30, 2013, Petitioner submitted a petition for Post-Conviction Relief (“PCR”) to the New Jersey Superior Court, Law Division. See State v. Gardner, No. A-1375-14T1, 2016 WL 2596394, at *1 (N.J.Super.Ct.App.Div. May 6, 2016). Following oral argument, the court denied the Petitioner’s request for PCR. (ECF No. 8-7 at 99.) The Appellate Division affirmed the PCR court’s decision. See Gardner, 2016 WL 2596394, at *3. The New Jersey Supreme Court denied Petitioner’s writ of certiorari. See State v. Gardner, 156 A.3d 166 (N.J. 2016).

         In May 2017, Petitioner filed the instant § 2254 Petition. (ECF No. 1.) On July 14, 2017, Respondents filed an Answer in opposition. (ECF No. 8.) Petitioner filed a reply brief shortly thereafter. (ECF No. 9.)


         An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414, 415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104–132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C. § 2254(d).

         As a threshold matter, a court must “first decide what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’ under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision.” Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “[Federal courts] may not characterize [] state-court factual determinations as unreasonable ‘merely because [they] would have reached a different conclusion in the first instance.’ [. . .] If ‘[r]easonable minds reviewing the record might disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the trial court’s … determination.’” Brumfeld v. Cain, 135 S.Ct. 2269, 2277 (2015) (alterations in original) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).

         The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner carries the burden of proof and with respect to review under ยง 2254(d)(1), that review ...

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