Opinion
Civ. No. 99-2687 (DRD).
December 2, 1999
Mr. Ricky D. Newton, New Jersey State Prison, Trenton, New Jersey, Petitioner Pro Se.
Raymond W. Hoffman, Esq., Special Deputy Attorney General, Donald C. Campolo, Esq., Assistant Attorney General, Acting Essex County Prosecutor, Essex County Courts Building, Newark, New Jersey, Counsel for Respondents.
O P I N I O N
Pro se petitioner Ricky D. Williams brings this petition for a writ of habeas corpus challenging the fact of his confinement, pursuant to 28 U.S.C. § 2254. For the reasons set forth herein, Mr. Williams' petition will be denied.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
According to the evidence adduced at his criminal trial, petitioner was accused of stealing a car at gunpoint. At approximately 10 a.m. on June 1, 1993, Lynn Williams rode with her friend J.D. Moore to a grocery store in Irvington, New Jersey. Mr. Moore entered the store, leaving the keys in the ignition and Ms. Williams in the passenger seat of the car.
Petitioner appeared at the driver's side window of the car, pointed a BB gun at Ms. Williams, and told her "if you scream, I'll shoot you." Petitioner ordered Ms. Williams to exit the car, which he then drove away. He was later stopped by Irvington police, who found the BB gun hidden beneath a floor mat inside the car. Ms. Williams was still at Irvington Police Headquarters when petitioner was brought to the station for processing. Upon seeing petitioner, who was inadvertently led into the room where she was seated, Ms. Williams spontaneously identified petitioner as the man who had robbed her at gunpoint.
Petitioner was tried before a jury in the Superior Court of New Jersey for Essex County for the crimes of first degree robbery, see N.J.S.A. 2C:15-1, third degree possession of a weapon, see N.J.S.A. 2C:39-5b, and second degree possession of a weapon for an unlawful purpose, see N.J.S.A. 2C:3-4a. He was convicted and sentenced to 30 years in prison with a minimum of 15 years to be served without parole. Upon appeal to the Appellate Division of the New Jersey Superior Court, petitioner's conviction was affirmed. His petition for certification to the New Jersey Supreme Court was denied on January 29, 1996.
Having completed the appeals process, petitioner filed a petition for post-conviction relief with the Superior Court of New Jersey, alleging ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and a denial of his right to a fair trial. The petition was denied on December 19, 1996, and the denial was affirmed by the Appellate Division. Petitioner's petition for certification to the New Jersey Supreme Court was denied on June 3, 1998.
Having exhausted his state court remedies, petitioner applied for a writ of habeas corpus from this Court on June 10, 1999. As grounds for the writ, petitioner again alleges ineffective assistance of trial and appellate counsel, and a denial of his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. As to his trial counsel, petitioner alleges that counsel was ineffective in:
a) failing to make a motion to suppress the identification of petitioner;
b) failing to adequately investigate the case by using a fingerprint expert;
c) failing to file a motion to dismiss at the close of the State's case;
d) advising defendant not to testify at trial;
e) failing to file a motion to dismiss the indictment;
f) failing to request a jury charge regarding the presumption of innocence.
Petitioner contends that his appellate counsel was ineffective in failing to assert these alleged errors as grounds for a reversal of petitioner's conviction. Finally, petitioner argues that the admission of evidence of petitioner's prior criminal record into the grand jury proceedings deprived him of his right to a fair trial.
OPINION
Federal courts have the power to entertain habeas corpus applications by persons in state custody claiming that they are "in custody in violation of the Constitution or laws or treaties of the United States."McCandless v. Vaughan, 172 F.3d 255, 260 (3d Cir. 1999), quoting 28 U.S.C. § 2254(a). As a general rule, federal courts may review a habeas corpus application only where the petitioner has exhausted the remedies available to him or her in the state courts. Id. Review is limited, however, to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Kontakis v. Reyer, 19 F.3d 110, 114 (3d Cir. 1994).
The scope of this review has been further circumscribed by the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214, which amended the language of 28 U.S.C. § 2254(d). The habeas corpus statute does not permit federal courts to engage in a de novo review of the state courts' factual findings. As amended, § 2254(d) provides in part that:
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 the State court proceeding unless the adjudication of that 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.
Prior to the amendment, "federal habeas courts were not required to `pay any special heed to the underlying state court decision.'" Matteo v. Superintendent, 171 F.3d 877, 885 (3d Cir. 1999) (en banc), quoting O'Brien v. DuBois, 145 F.3d 16, 20 (1st Cir. 1998). As amended, "section 2254(d) firmly establishes the state court decision as the starting point in habeas review." Matteo at 885.
In Matteo, the Third Circuit, sitting en banc, reviewed the interpretations given to § 2254(d) by the other Circuit Courts of Appeals. The Third Circuit essentially adopted the approach taken by the First Circuit Court of Appeals in O'Brien, holding that:
the revised statute mandates a two-part inquiry: first, the federal court must inquire whether the state court decision was `contrary to' clearly established federal law, as determined by the Supreme Court if the United States; second, if it was not, the federal court must evaluate whether the state court judgment rests upon an objectively unreasonable application of clearly established Supreme Court jurisprudence.Matteo, 171 F.3d at 880; Hartey v. Vaughan, 186 F.3d 367, 371 (3d Cir. 1999).
ANALYSIS
All of the grounds asserted by petitioner in support of his application for habeas corpus were previously presented to the New Jersey state courts in his petition for post-conviction relief, triggering the standard of review provided by 28 U.S.C. § 2254(d). Petitioner's claims of ineffective counsel and denial of his right to a fair trial were rejected by the Superior Court, a determination which was affirmed upon review by the Appellate Division. His petition for certification to the New Jersey Supreme Court was denied.
A. Standard of Review: Ineffective Assistance of Counsel
The contours of the Sixth Amendment right to effective assistance of counsel fall easily within the description of "clearly established Federal law as determined by the Supreme Court." The Sixth Amendment guarantees that an accused shall "have the Assistance of Counsel for his defense." U.S. Const., Amend. VI. The meaning of this phrase has been discussed by the Supreme Court on numerous occasions. The Supreme Court has further recognized that "the right to counsel is the right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 685 (1984); quoting McMann v. Richardson, 397 U.S. 759, 771 (1970);McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993).
Every accused is entitled to be assisted by an attorney who plays the role necessary to ensure that the trial is fair. Strickland at 685. The right to effective counsel is not a guarantee of flawless counsel; instead, "the benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.
A convicted habeas petitioner's claim that counsel was so defective as to require reversal has two components. See Strickland at 687; United States v. Pungitore, 965 F. Supp. 666, 672 (E.D.Pa. 1997). First, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. See id.; McAleese at 166; Pungitore at 672. A conviction cannot be attacked as based on inadequate assistance of counsel unless the attorney's performance was "not within the range of competence demanded of attorneys in criminal cases." 466 U.S. at 687. In reviewing the attorney's performance, the court must give proper deference and avoid "the distorting effects of hindsight." Id. at 689;Pungitore at 672. So long as the attorney's conduct "falls within the wide range of reasonable professional assistance," the Court should refrain from second-guessing counsel's decisions regarding sound trial strategy. Id. There exists a strong presumption of adequate assistance and sound professional judgment. Strickland at 690; Pungitore at 672.
Second, the petitioner must show that the deficient performance prejudiced the defendant. Id.; McAlesse at 166; Pungitore at 672. In order to demonstrate prejudice, the petitioner must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." McAleese at 166, quoting Strickland at 694. In making this determination, the court must consider the totality of the evidence before the judge or jury. Strickland, 466 U.S. at 695.
B. The State Courts' Analysis of Counsel's Performance
Petitioner's allegations of ineffective assistance of counsel were rejected upon presentation to Judge Harold W. Fullilove of the Superior Court of New Jersey. Judge Fullilove's decision was affirmed without opinion by the Appellate Division and Williams' petition for certification was denied by the New Jersey Supreme Court. Accordingly, Judge Fullilove's decision must serve as "the starting point" in this habeas review. See Matteo v. Superintendent, 171 F.3d 877, 885 (3d Cir. 1999) (en banc).
Judge Fullilove's decision is set forth in a letter opinion dated December 19, 1996, which incorporates by reference the discussion which took place during the proceedings for petitioner's petition for post-conviction relief. Addressing each of petitioner's contentions in order, Judge Fullilove made the following determinations:
a) according to the trial transcript, the motion to suppress the identification of petitioner was made and denied (Transcript of Post-Conviction Petition Proceedings ("Tr.") at 9);
b) petitioner's trial counsel considered retaining a fingerprint expert to determine whether the fingerprints on the gun matched petitioner's, but decided that there was no point since the gun was found in petitioner's possession in the car; this decision was reasonable trial strategy and did not constitute ineffective assistance of counsel (Tr. at 12, 19-20);
c) according to the trial transcript, petitioner's trial counsel in fact made a motion to dismiss at the close of the State's case, and said motion was denied (Tr. at 9);
d) after reviewing the petitioner's proposed testimony trial in light of the trial transcript, counsel's decision to advise petitioner not to testify was a matter of reasonable trial strategy, based primarily on concerns about cross-examination concerning petitioner's prior criminal record (Letter Opinion of Justice Fullilove at 1; Tr. at 12);
e) trial counsel's failure to move to dismiss the indictment was reasonable and did not amount to ineffective assistance of counsel; the motion was very unlikely to be successful and would not have changed the outcome of the case because the fact that petitioner was arrested while driving the stolen car, with the gun inside the car, created sufficient probable cause for the Grand Jury to return an indictment (Tr. at 9-10);
f) upon review of the trial transcript, the jury was, in fact, charged as to the presumption of innocence (Tr. at 10).
Reviewing the state court's determinations, it cannot be said that they were either "contrary to clearly established Federal law" or that they resulted from "an unreasonable application of clearly established Supreme Court jurisprudence." Matteo, 171 F.3d at 880.
The state court found that the motion to suppress and the motion to dismiss at the close of the State's case were both made and denied. These factual findings are not to be disturbed unless "unreasonable", see 28 U.S.C. § 2254(d), and a review of the trial transcript confirms that they are in fact correct. The motion to suppress the identification appears at pages 12-14 in the trial transcript of May 17, 1994, and the motion to dismiss at the close of the State's case appears on pages 122-23 of the trial transcript of May 19, 1994. Petitioner cannot claim ineffective assistance of counsel on the basis of an alleged failure to make these motions. Similarly, the allegation that petitioner's counsel failed to request a jury charge as to the presumption of innocence cannot be asserted in light of the fact that the jury was so charged. See trial transcript of May 20, 1994 at pages 35-36, 50.
The failure to retain a fingerprint expert and counsel's advice that petitioner not testify at his trial are both matters of sound trial strategy. See Strickland, 466 U.S. at 689; McAleese at 167-68. While another defense attorney may have chosen different tactics, in light of the surrounding circumstances these decisions were well "within the wide range of reasonable professional assistance." Id. As to the decision not to testify, not only did the decision constitute sound strategy in light of petitioner's criminal record, petitioner clearly consented to this decision. See trial transcript of May 20, 1994 at 3. Where a criminal defendant voluntarily chooses not to testify after being fully advised of the possible benefits and risks by his attorney, there can be no claim of ineffective assistance of counsel. See Pungitore, 965 F. Supp. at 673-74. Moreover, given the considerable amount of evidence produced at trial pointing to petitioner's guilt, petitioner cannot show that "but for counsel's errors, the result of the proceeding would have been different." United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989).
Finally, counsel's failure to move to dismiss the indictment cannot constitute ineffective assistance of counsel. Effective representation does not require counsel to make every motion possible, no matter how frivolous. "The decision to file motions are within the area of decisions to be made by the attorney, and [a court] will not find ineffective assistance of counsel for failure to make motions destined to fail."Pungitore, 965 F. Supp. at 677. See also Nino, 878 F.2d at 104 (finding "no general duty on the part of counsel to file a. . . motion absent a showing that petitioner specifically requested counsel to do so or a showing. . . that would make it likely that the motion would be granted"); State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel"). Given the fact that petitioner was found in the stolen vehicle with the gun used in the crime stashed beneath the floor mat of the car, any motion to dismiss the indictment for lack of probable cause would have been extremely unlikely to succeed.
The same reasons discussed above support the state courts' dismissal of petitioner's claims of ineffective assistance of appellate counsel. There were no grounds for appealing the failure to make motions which were in fact made or the reasonable strategic decisions of trial counsel, and an appeal based on the failure to make a frivolous motion for dismissal of the indictment would have been as frivolous as the motion itself. As with motions, federal courts will not find ineffective assistance of counsel for failure to raise issues on appeal which are destined to fail. See Pungitore, 965 F. Supp. at 677.
In sum, the state courts' review of petitioner's claims of ineffective assistance of counsel are entirely consistent with, and not "contrary to," clearly established federal law concerning the right to counsel. Nor does the state court judgment rest upon an objectively unreasonable application of clearly established Supreme Court jurisprudence.
Petitioner's remaining claim, that he was denied a right to a fair trial as a result of the erroneous admission of other crimes, is without merit as there is nothing in the trial record to indicate that such evidence was in fact admitted.
CONCLUSION
For the reasons set forth above, petitioner's application for a writ of habeas corpus will be denied. An appropriate order shall be entered.