LOCUST v. RICCI et al, No. 2:2008cv02713 - Document 31 (D.N.J. 2011)

Court Description: OPINION. Signed by Judge Stanley R. Chesler on 12/12/11. (dc, )

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UNITED ST ATES DIS TRICT COU DISTRICT RT OF NEW JE RSEY DONYELLE LOCUST, Civil Ac tion No. Petitione r, v. MICHELLE R. RICCI, : 08 2713 (SRC) OPINION et al., Responde nts . APPEARANC ES: DONYELLE LOCUST, P etitioner #41093 / pQ SBI# 67 New Jerse y State Prison P.O. Box 861 Trenton, New Jerse y 08625 CAREY JEAN NE HUFF, ESQ. MONMOUTH COUNTY PR OSECUTOR S Monmouth OFFICE County C ourthouse 71 Monum ent Park Freehold, New Jerse y 07728 Counsel fo r Respond ents CHESLER, District Judge This matt er is be fore the court pu rsuant to writ of h a petitio abeas corp n for a us under 28 U.S.C. § 2254, fi Donyelle led by p Locust, c etitioner hallengin g his 20 00 New Je convictio rsey state n. court For the reasons s tated belo w, this the habea Court wil s petitio l deny n for lac k of merit. I. ND Donyelle Locust ( Locust ), was indicted by a Monmouth County grand jury on August 23, 1999, on charges of first degree murder, first degree robbery, possession of a weapon for an unlawful purpose and third degree theft. Before trial in the Superior Court of New Jersey, Law Division Monmouth County, Locust s counsel brought a motion to suppress LOcust s statements The Honorable Patricia Del Bueno Cleary, J.S.C., heard argument and testimony on the motion on March 28, 29, 30 and April 11, 2000. The motion was denied Thereafter, trial was held on June 1, 6, 7, 8, 12, 13, 14, 15 and 16, 2000, before Judge Cleary and a jury. On June 16, 2000, the jury found Locust guilty of all charges in the indictment Petitioner, On August 8, 2000, a sentencing hearing was conducted before Judge Cleary. Judge Cleary merged counts three and four (Possession of a weapon and theft, respectively> into count three (first degree robbery> Judge Cleary also grantee the State s motion to sentence Locust under the No Early Release Act ( NERA ) and sentenced ocust tu a prison term of 75 years with a 63 year parole bar on count one (first degree murder> and a consecutive term of twenty years in prison with a 17 year paro. e bar on the robbery count, Accordingly Locust was sentenced to an aggregate term of 95 years in prison with an 85% parole disqualifj 2 On Septeer 20, 2000, Locust filed a direct appeal Superior Court with the of New Jersey, Appellate Division. by counsel, In his brief Locust alleged that the trial judge erred by admitting an inculpatory statement, refusing to permit from a defense testimony expert, and imposing an illega and excessive sentence. Locust also argues that his confession should been suppressed have on the following . 5 groun Cl) reque to that petitioners see his mother was an invocation of his silence, which right to should have been scruPulously he had not accompafl observed; (2) that the Officers to the Police voluntarily and station his arrest was without probable sentence unattenuated cause, making his as a result of the illegal his statement arrest; (3) was involuntary that because his will to the fact was overborne that he was due exhausted and hungry during 0 interroga an where the Police Officers lied to him. 2003, the On May 1, conviction was affirmed, but the sentence because NEM remanded did not apply to murders committed before The Supreme June 2001. Court of New Jersey denied certification on 2uj. (Petition at 11 July 21, 1 9). At the re_sentencing 85% parole hearing, the di5qualjf under NEM was deleted. In the sentence addition, on the robbery count was made to run the sentence concurrent with on the murder count. Locust then filed a petition S for Postconviction relief ( PCR ) before the Superior Court of New Jersey, Monmouth County. 3 Locust asserted a claim of ineffective assistance of follows. (1) counsel as trial counsel failed to object to the jury composition in particular to the fact that a former employee of the Prosecutor, Office was a member of the panel; (2) counsel failed trial to raise that Locust s confession was trial counsel coerced; (3) failed to raise that unkno DNA was found Clothing; (4) on his trial counsel failed to raise the setup by POSsibility of a Detective Seitz, a former POlice Officer Long Branch in the City where Locust of 5 mother had filed a lawsuit again City of Long 5 the Branch; and (5) trial counsel failed two witnesses, to investigate Brian Pisano and Barbara Latham c ¢lajmed that Locust also thecumulati effect of these counsel errors warranted a new trial StatevLO 2007 WL 2274949, *3 (N.J. App. Div. May 30, 2007) 195 N.j. (2008) 420 The state PCR petition was denied on November 18, 20o Locust appealed the decision to the Appellate Division brief on appeal, In the in addition to the argume 5 raised in the Petition, t1e PCR tOjiowing argumy 5 were rais concerning ineffective assistance of counsel: A. Trial counsel failed to white jury challenge and seated in a object to an all matter in whic.h Black male, was charged the appellant know±ng that with killing a. a white appellantrs victim l1t1ga a moth.er had racial harassment successfully Officer in claim against Monmouth County POlice 4 I, 1I B. Counsel was the Nirand ineffective for his failure to ra hearing that ise during confession, prior to the the detectives appellant s floor. kept him ba refoot on a cold C. Counsel was in jury s attent effective for his ion that fa there was DN ilure to bring the appellant s A fou clothes that him or Mr. could not ha nd on Amison. ve origina from D. Counsel was in show Possible effective for his failu mo frame appellant tive on the part of re to adequately the detectives because hi Previously su to ed the Long s mother, Gloria Lo racial disc cust, Branch Police rimination Departme and was su for ccessful. E. Trial counsel appellant when was ineffective for ign oring the he told him about seeing that the blood on his de it was not clothes and tectives lied until 5:00 to highlight inforied the p.m. that that Detective Se detectives, itz appellant, th who initially at he notic met with ed blood at 10:50 a.m. F. Trial counsel was ineffect investigate ive for hi Brian Pisano s made a plea timely since failure to deal with th he had counsel s e State pr investigator ior to spea already to meeting king with as well as with the Barbara Latha Prosecutor. m, prior G. Trial counsel was ineffe that the St ate falsified ctive for his failure typed statem to argue information in ents. his formal H. Trial counsel was ineffe motion to suppress the ctive for his failure request a ap probable cause pellant s clothes an to file a d to hearing. I. Counsel was in appellant with effective for his failure to arg his dimini believing th ue that at he would shed capacity was police his tricked into be released clothes. if he gave the J. Counsel was ineffective fo to why ap pellant s inve r his failure to 0 stigaj rights were inquire as an not videotaped , if so, d waiving of his to disclose a tape. 5 K. Counsel was Pictures of ineffective for his the appellant failure to Produce Condition as depicting his aPpearing high, gener L. Counsel was ineffective for independent areas his failure of investig to pursue 0 defense strategy any in developing his i, P5ychiatri and Substance ii. Scie Abuse Experts Experts CR3, Brief of Petitioner A 0511, at No, pp, 2336, dated April 28, 2006) signed and In a Certification dated April 24, 2006, Locust affirms counsels brief that he had and that read the allega 03 were true. SPecifically, he alleges in his Certification the raised in the same Points brief on PCR appeal, as well as adding claims: three more 6. Knowing that i Was a drug addict, Prolonged their they 0 investig false confession to force Purposely 10. out of me to give One of the a frustration and 5 juror and used to work the forewoman, desperatio 13. Mrs. Reynolds, My indictment in the prosecutor, Office. based on lies should have been dismissed and twisted jury. facts presented because t waS to the grand CR3, Locust Certification at fl 4,5, 79, 10, and lJ) 11, 12, 14lg and The StaLe fl 6, aoaressed al± of these briefly, in claims, aJLt 5 i response on PCR appeal CR4) The Appellate Division affirmed the denial peti of the Pcp on ugus 10, 2307 Substantjali stated ir for the Judge De reasons Bueno Cleary s 1 thougf oral Opinion and comprehensi of November 18, 2005 cust 2QQ7 WL . j ¢.:i I. Ii I 11 2274949 *7 (N,j, Super A.. Aug. io, 2007), a oetj Locust then for certificatio filed with the New Jersey Supreme On or about Court, April 8, 2008, the New Jersey Supreme certificati Court denied (Petition at ¶ lO-llj; 420 (2008), 195 N.J, Locust fil a moti for reconsiderat. May 30, 2008, and on the Supreme Court of New Jersey denied same. Thereafter on or about May 27, 2008, Locust filed habeas petition this under 28 U.S.C § 2254, His petition the following sets forth 5 groun for habeas relief: (I) The trial court erred in denying 5 petitioner, suppression of inculpatory Police did not statements both honor his regue because the 5 to counsel and to invoke his remain silent, right to statements were and because the the illegal arrest unattenuated,, product of an and involuntary circumstances, under the totality of A. The trial court erred in its evident of credibility B. determination The Police failed to scrupulously honor defendant,s invocation of the silent. his right to C. remain The defendant Was arrested and his Without probable inculpatory cause, statement Was result of the the unattenuated illegal arrest. D. The purported confession Was overbearing of the result the defendant,s of an accordingly must be suppressed will and (II) The trial court erred in refusing to add a to allow witness during his right to petitioner trial, resulting a fair trial in a denial and due of process of law, counsel was ineffective in Properly investjg5 that he failed to or adeguatey prepare for A. trial. Trial counsel failed to object jury. to an all_white I 7 I I .I I B. Trial coun sel was in effective fo object abou r failing t a juror to who once Prosecutor s worked for Office. the C, Trial counse l was in effective fo the Miranda r not rais hearing that ing at petitioner the detectiv barefooted es kept th on a cold e confession. floor prior D. to the Trial counse l was in effective fo petitioner r ignoring when he was the told by the the detectiv es are ly petitioner ing about that clothes seeing blood F. on his Trial counse l was in effective fo the possib r failing ility of a to argue setup by that the vi Detective S ctim s DNA eitz and could have the petition been planted er s clothe s by the on of the law detectives suit agains t the Long because the petition Branch poli er s mothe F. ce by r. Trial counse l was in effective fo that there r failing was DNA on to raise the petition which could er s clothe not have s originated petitioner from the or the vict im accordin by the Sta g to the te s own DN G. report A expert. Trial coun sel was in effective fo timely inve r failing stigate Bria to n Pisano Latham. and Barbara (IV) The ac cumulation of errors retried. demand that defendant be However, in a separate motion subm itted with Locust aske his petition d that this , Court stay the habeas he could proceedings exhaust eigh so that t claims in state court, which raised by were not petitioner s trial and appellate counsel in court proc his state eedings. These new claims furt her asserted of ineffect instances ive assist ance of counsel as follows: I. Trial coun sel was in effective fo motion to r failina suppress cl to file a othes which illegal sear were the ch and se 2. product of izure. Trial coun an sel to petitioner was ineffective for s clot his failure 3. hes being to object Trial coun admitted in sel was in to evidence effective a probable . for failing cause hearin to put in g. for * 8 4. Trial counsel w investigate w as ineffective for fail hy the inte ing to rr his rights w ere not vide ogation and the waiving 5. o-taped. Trial counsel of that as a ro was ineffective when he utine practi ce the police failed to argue signing pre typed statem trick people ents with included in into falsified wor the confession ds the signatory that falsely read the stat happened in ement, which indicates that petitioner s is what 6. Trial counsel case was ineffectiv . motion to have e for failin based on lies the indictment dismisse g to put a d and twisted jury. facts presente because it was d to the gr 7. Trial counsel and was ineffectiv expert witness e for his es to counte witnesses whe r the State failure to hire s expert re the State psychiatric an d scientific introduced their own 8. Trial counsel ex was ineffectiv pert. the jury in e for failin st g to object where the tr ructions the trial judg to e gave to th ial judge to e jury ld the jury vote unanimou they have to sly either guilty or no trial judge all t went on to vote 8 to 4 teu the jury guilty and the or th jurors can vo 7 to 5. That was inco at they can t te 8 to 4 or rrect, becaus disagreement e 7 to 5 and with other remain in they are bein jurors. But g told. If th given these jurors in ge at s not what lim neral were on hung-jury beca ited instructions ther e would neve ly use they are r be a not given th at option. (Petition, D ocket entry no . 1-5 at pg . 3). On January 9, 2009, this Court issued an Ordek to directing Lo Show Cause cust to show cause why his habeas petiti stayed. Locu on should st replied to be the Order to Show Cause an Notice and O d the Mason 1 rder, on or about January 27, 2009. Locust s resp Upon review onse, on Aug of ust 11, 2009 , this Court the State re directed that spond to Loc ust s motion for a stay an his federal d abeyance habeas action of . (Docket entry no. 7). On September Mason v. Mey ers, 208 F.3d 414 (3d Cir. 2000). 9 28, 2009, the State filed a response tOgeth with a limited state court recc rd relevant to the issues asserted by in his motion petitioner for a stay and abeyance (Docket entry no, 16), Locust filed a reply on Noveer 6, 2009, (Docket entry no, On February 24, 17), 2010, Locust also submitted documents concerning his allegat 0 that the Police detectives falsified statements in particular, witness Brian Pisano s statement (Docket entry no, 19) * On April 13, 2010, this Court entered an Order denying Locust s motion for a stay and abeyance of his habeas Proceedings. The Order also dismissed Locust s supplemental claims #3 and #8, and directed the State to file an answer to the petition The State filed an answer to the petition, toget with the relevant state court record, on May 28, 2010. filed his reply Locust or traverse on November 4, 2010 I I. The facts of this case were recounted below and this Court, affording the state court s factual determinations the dppropriate Oeferenc, 28 U.S,, § 2254(e) (1), W1j simply reproduce the factual recitation as set forth in the unpublished opinion of the Su.perior Court of New Jersey Appellate Division, decided on May 1, 2003, with respect to Petitioners direct appeal from his judgment of conviction and sentence: The State charged that defendant robbed Joseph ison, in ison s seventytwo year Asbury Park old home, after striking 10 him several times in the head with a hamm er, shattering his skull. Amison died ab out an hour after the attack. Defendant was friend s with Amison who paid defendant for odd jobs and oral sex, ofte n loaned defendant ad ditional money and permitted defend ant to stay at his ho me. I. The Confession Shortly after Amison s body was discovered, investigation led to the police defendant as someone who had been in Amison s house before the murder. The Stat e s evidence revealed that at 10:3 0 a.m., on the morning of the murder, investigators locate d defendant and his gi rlfriend Bernice Tolbert outside Tolb ert s apartment build ing. While defendant was holding a bottle of beer, he did not appear to the officers to be un der the influence of ei ther drugs or alcohol. After initially giving a false name to the po agreed to speak to th lice, defendant e officers back at th e station regarding an unspecifi ed investigation. Up station, the officers on arrival at the placed defendant in training/conference a large roo Monmouth County Pros m and Detective Paul Seitz of the ecutor s Office read defendant his rights, obtained a w ritten waiver from de fendant, and then around 11:00 a.m. be gan questioning defend ant regarding his relationship with Am ison. He informed defendan t that someone had se riously injured Amison and noticed th at defendant did not exhibit any emotion nor ask abou t Amison s condition . Settz and another officer also noticed that defendant s pant s and sneakers were bloodstained. D ef two year old unemploye endant revealed that he was a thirtyd drug addict with a tenth grade education. During questioning ov er the next four hour defendant was given s, several breaks, as w ell as food and drink. Defendant insisted th at he had last seen Am before when he stopp ison the night ed by to borrow mone y for more drugs. He claimed to have sm oked some crack and drank some beer before leaving with tw o fifty dollar bills given to him by Amiso that had been n. Defendant further contended that, after buying more crac k and beer, he went to Tolbert s apartment, where he remained for the re st of the night, except for brief perio ds when he went ou t to buy more drugs. Despite defendant s re velation that he was had smoked crack coca a drug addict and ine and consumed alco hol the day 11 0 adjudicatj of the claim, either involved an unreasonable app. ication of clearly establis.hed federal law, or was based on unreasonable determination of the facts in ight of the evidence before the state court. .e 28 U.S.C. § 2254(d). . The unreasonableness standards of § 2 254(d) govern only claims that were adjudica on the merits in State Court Proceedings. 28 U.S.C. § 2 254(d), An adjudicati 0 on the merits has a well settled meaning: a decision finally resolving the parties claims, with res ata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground. 355 F.3d 233, 247 (3d Cir. 2004) (citations and internal quotation marks omitted), sed on Qs sub nom. Rompjl1avea 545 U.S. 374 (2005); see also 445 F.3d 671, 678 (3d Cir. 2006). A state court may render an adjudicatj 0 on the merits of a federal claim by rejecting the claim without any discussion whatsoever See rnlla, 355 F.3d at 247. See also Chadwick v. 312 F.3d 597, 605Q6 (3d Cir. 2002), cert. denied, 538 U.S. 1OUC (2003) (in ee ngeio, 528 U.S. 225, 237 (2000) (even a summary 0 adjudicat by the state court on the merits of a claim is entitled to § 2254 (d) deference>> On the other hand, fiji the petitioner s legal claims were presented but not add.ressed by the state courts, 28 U.S.C. § 2 254(d) does not apply. 445 F.3d at 678. See also ameeflv State of 212 .F.3d 226, 248 (3d Cir. 2000) (with re spent to claims 16 presented to, but unadjudica by, the state courts, however, a fedei.al court may exercise pre-AEDpA independer. judgment), ¢t, 532 U.S. 924 (2001); Purneljv, bndricics, 2000 WL 1523144, *6 n.4 (D,N.J, 2000). If the New Jersey courts adjudica the petitioner s claims on the merits, this Court may not grant relief unless either § 2 254(d) (1) or § 2254(d) (2) is satisfied See 28 U.S.C. § 2254 (d), Accordingly, this Court may not grant habeas relief to the petitioner unless the adjudica of a 0 federal claim by the New Jersey courts involved an unreasonable application of clearly established Supreme Court law, see 28 U.S.C. § 2 (1), or was 254(d) based on an unreasonable determination of the facts in light of the evidence presented in the State court Proceeding and Adamson is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 225 4(a), (d) (2) When the grounds raised in the petition are governed by 28 U.S.C. § 2254(d) (1), the court must begin its analysis by determining the relevant law clearly established by the Supreme Uourt. See X)uh v. Ivaracio, 541 U.S. 652, 660 (2004) Clearly established law refers to the holdings, as opposed to the dicta, of [the Supreme Court sj decisions as of the ti.me of the re.levant statecourt decision. 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 17 time the state court renders its decision 538 U.S.. 63, 71, 72 (2003), 5 Lockyerv A decision is contrary to a Supreme Court holding within 28 U .S,C, § 254(d)(1), 2 if the state court contradicts the governing law set for.th in [the Sup reme Court s) cases or if it confronts a set of facts that are materially from a decision of th[e Supreme) Court and nevertheless arrives at a [different) result, ims, 529 U.s. at 405 06, Under the unreasonable applications clause of § 2 (1), 254(d) a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from thEe Supreme) Court s decisions but unreasonbly applies that principle to the facts of the prisoner s case, at 413, Whether a state court s application of federal law is unreasonable!! must be judged objectively; an application may be incorrect but still not 2 unreasonable See id. at 409 b The unreasonable application test is an objective one-a federal court may not grant habeas relief merely because it concludes that the state court applied lederal ±aw erroneously or incorrectly,! ThomasvvaLner 428 F.3d 491, 497 (3d Cir. 2005) (quoting Jcobsv 395 F.3 92, 100 (3d Cir, 2005)), . 2 See MarshallvHendrj, Cir, 2002) 307 F,3d 36, 71 ( [Diecisions of federal n. 24 (3d courts below the United States Supreme level of the Court may be helpful ascertaining the to [a court) in reasonableness of state clearly established courts application United States of Supreme Court well as helpful precedent amplifications of that as internal quotation Precedent, > (citations marks Omitted), and 18 Finally, federal courts are require to apply a presumption of correctness to factual determinations made by the state court. Id,; see 28 U.S.C. § 4(e) 225 (1), The Thirc. Circuit has ru.le d that this presumption of correctness based upon state court factual findings can only be overcome by clear and convincing evidence See 256 F,3d at 196 (citing 28 U.S.C. § 22 (1)). S4(e) Consequently a habeas petitioner must clear a high hurdle before a federal court will set aside any of the state court s factual findings tracchjo 274 F,3d 590, 59798 (1st Cir. 2001). Iv. A. zxIS fitioner s co jq In his first claim for habeas relief, Locust asserts that the trial court erred in denying suppression of Locust s inculpatory statements on three grounds, First, Locust contends that the police did not honor his request to invoke his right to counsel and his right to remain silent. Second, the statements were the unattenuated! product of an illegal arrest without plobable case. Third, the statejneits were tie result of an overbearing of his will, and consequently, his confession was involuntary un der the totality of the circumstances. These claims were raised on direct appeal. 19 I. 1. Right to Counsel and Right to Silence Claim On direct appe al, the Appella te Division rejected Locust s claim that the police did not scrupulously hon or his right to counsel and his right to remain silent. Locust contends that his request to speak with his mother was an invocati on of these rights, The Appellate Division found: In general, the police must s crupulously honor suspect s right a to silence. SLate v. New Jer 117, 221 (1997) sey, 151 N.J. (quoting State v. Johnson, 120 N.J (1990)), cert. . 263, 282 denied, 528 U.S. 1085, 120 S.Ct. L.Ed.2d 683 (20 00) 811, 145 A request to member may be speak with a clo tantamount to se family an invocation silence under som of the right to e circumstances contends his req Id. at 222. uest to speak Defendant with his mother invocation of the was an right to silence the questioning and that by co ntinuing the police v iolated the bri of State v. Ha ght-line rule rtley, 103 N.J. 252, 267 (1986) statement must be , and his suppressed as compelled. unconstitutionally Stte v. Harvey, supra, 151 N.J. at 223. However, not eve ry request by a defendant or questioning is an break in invocation of the at 222. right to silence In order to inv . oke the brigh scrupulous adhere t-line rule and nce to defenda require nt s request family member, to speak with the request mu a st be made for obtaining advice the purpose of from a trusted family member. oks, 309 N.J. Super. 43, 56 57 te v. denied, 156 N.J. (App. Div.), ce rtif. 386 (1998). In other words, must be the eq the request uivalent of a direct statement does not wish that defendant to continue spe aking with the to obtaiii advice police or wishes from the family member before any interrogation co ntinues. at 56. the request must Stated another way be the equivale , nt of a reque questioning. st to halt the . . . . If the police are unsure wheth er defendant right to silence is asserting a , they must either stop the entirely or ask interrogation only questions narrowly directed determining wheth er defendant to was willing to continue. supra, 151 N.J. at 221, quoting Johnson, pra, 120 N.J. at 284 Statev. , 20 In assessing w hether the po lice scrupulo defendant s ri usly honored ght to silence a , a reviewing consider not m court must erely the words spoken by defe full context in ndant, but th which they wer e e spoken. 131 N.J. 176, State v. Mar 231 32 (1993) tini, ; State v, Bro N.J. Super. at oks, supra, 30 55. Circumstance 9 (1) whether de s to be consid fendant had ev ered include: er expressed unwillingness or exhibited to speak with any police; (2) w indicated or hether defend implied in so ant me way that he advice; and or she wanted (3) whether defe ndant had sign See Id. at 55 ed a waiver fo 56. rm. Here, the circ umstances ind icate that de fact, invoking fendant was no his right to si t, in lence. denied that he Defendant ex needed the as pressly sistance of co implied that unsel and ther his call to h eby is mother wou obtaining advi ld not be for ce but for som e other purp willingly agre ose. ed to postpone Defendant al so his call and bolster his cl appeared eage aim of innoce r to nce. officers, defe Indeed, accord ndant did no ing to the t exhibit any speak with po unwillingness lice at any ti to me during th Moreover, defe e interrogatio ndant signed n. several waive waiving the as r forms, expre sistance of an ssly attorney and silence. Consequently, his right to we reject th is argument. In addition, de fendant has ar gued here an contentions th d in other at the police testimony was belief that w so unworthy of e should reje ct the judge largely accept findings, whi ed the State s ch account. merely note th In response, at the judge we s findings w sufficient, cr ere based on edible eviden ce present in an appellate the record an court we are d as bound by thes Locurto, 157 e findings. N.J. 463, 472 State v. 74 (1999) (Re 29, May 1, 2003 Appellate Division Opini on at pp 8 10, . uocket entry no. l66) The Fifth Amen dment provides , in part, that no person s hall be compelled in any criminal case to be a witness agai nst himself. U.S. Const. am end. V. The Fourteent h Amendment incorporates the Fifth Am endment privil ege against self Re denotes Respondents reievant state Exhibits, whi court record ch encompass in this matte the r. 21 incrimination ndavAriz 378 U.5 384 U.S. 436 (1966), 1, 8 (1964) In the Court held without proper that 5 safeguar the process of incustody 0 interroga contains inherently Compelling work to Pressures which undermine the 5 individual, will to resist and him to speak to compel where he wou not otherwise do so freely U.S. at 467, 384 When Police ask questio 5 of a Suspect in without custody administering the required warnings, nda dictates that the answers received be presumed compelled and that they excluded from be evidence at trial in the State s case in chief. See 2JEl5td 470 U.S. 298, 317 (1985) Thus, a confessiontak during a custodial interroga 0 without the provision of nda warnings violates the Privilege again self_incriminati See 516 U.S. 99 To safegu (1995) the uncounseled 5 individual, Fifth Privilege against Amendment self_incrjmjnati the Miranda Court held, suspects interrog while in Police custody must be told that they have a right to remain silent, that anything they used again say may be them in court, and that they are entitled presence of an to the attorney, either retained or appointed at interrQgatio,, the IQson 516 U.S. at 107; Nnda, 384 U.S. at The jran Court outlined the procedures to be followed after the Police provide these warnings If the accused counsel 5 regues then interrog 0 must cease until an attorney present is 384 U.s, at 474. ... 22 The Supreme Court has not held that the request to speak to a parent or grandpare is tantamount to a request for counsel, so as to render statements made following such a request per se inadmissible under the Fifth and Fourteenth endments See 442 U.S. 707, 719 (1979) ( The per se aspect of anda based on the unique role the lawyer plays in the adversary system of criminal justice in the country. ); ribner, 384 Fed. Appx, 672, 2010 WL 2545679 ( th 9 Cir, June 21, 2010), cert, denied, 131 S.Ct. 526 (Nov. 1, 2010); United sexrelile 653 F.2d 1153, 1158-62 (7 Cir,) (per curiam) ( [WJe do not believe that [the minor suspect s] request for his father constituted an invocation either of his right to silence or of his right to counsel ), cert. 454 U.S. 1067 (1981). any was ... In his petition, Locust essentially argues that his version of the facts are correct and that the trial court erred in finding the Police testimony more credible He contends that he repeated asked to speak with his mother. He also vehemently maintains Lhat e did in fact make a reque for an (Petitioners Traverse at pg. 50). However as pointed out by respondents, and as demonstrated by the state court record, Locust s version of the facts were repeatedly tested against the State s evidence in the origin motions to at trial, direct appeal and on state collateral review. The trial court reject Locust s 5 argume In the suppression mot.ions, crediting attorney. suppress, on 23 the State s Witnesses Similarly, contentions the uy reject t 5 LOCu finding him guilty on all c.ounts On direct the Appellate appeal DIvision deferred to the factual findings of t.he trial cou and the jury, holding that they were Supported by sufficient credible evidence in the record (RE 29, May Appellate Division 1, 2003 Opinion at pg. 10). In the state Proceedings PCR the trial court again rejec Locust s version facts and the of Appellate Division affirmed based on its prior recitation of facts Thus, Locust s factual 5 n 0 allega in this regard supported by the are not record and must be reject As stated presumption of above, a correctness applies to the trial court s fact finding and a habeas petitioner has the burden of rebutting presumption by this clear and convincing evidence See 28 U.S.a, 2254 (e) (I). § Federsi courts must give deference to the findings and factual legal determination of the state trial and appellate courts L.Cllera 247 F.3d 450, 457 (3d Cir. 2001). oreover, 4 r the record clearly shows that Locust advised of his had been Miranda righ.ts and understood that he had right to counsel the He did not ask for an attorney. and that he wa.nted did not say to speak to his mother to ask her to Obtain counsel for him, Locust was not a minor at the time of 0 interrog his Under the facts of this case, and the circum5ances as totality of discussed more fully below, Locust s requE. sts to 24 call his mother did not Constitute an invocation of his right to remain silent or his right to counsel, Consequently after careful review of the record, this Court cannot conclude that the determination of the trial court in admitting petitioner s confession resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, or 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. Williams y. The state courts applied the correct law and facts in reaching its determination that there was no per se Miranda violation in this regard. Petitioner has failed to demonstrate that the state court Opinions, when evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified 171 F.3d at 891. Therefore, the Cout will deny federal habeas relief on this claim because the alleged violation of petitioner s Fifth and Fourteenth Amendment rights is substantively meritless 2. 0 Confess Was the Unattenuated Result of an Illegal Arrest Made Without Probable Cause Locust next contends that his confession was unlawfully obtained as a result of an illega.l arrest without probable cause, This claim was raised on direct appeal, and the appellate court ruled as follows: Defendant claimed that he only agreed to accompany the officers back to the station after they confirmed that the 25 matter would no t take too long . According to de once he agreed fendant, , one of the de tectives grabbe back of his pa d him by the nts and forced him into the ba police car, thou ck seat of the gh he was not handcuffed. that his forcef Defendant argu ul placement in es the police car unlawful arrest was an and that his in culpatory statem tainted by the ent was initial illegal arrest. Generally, evid ence obtained following a vi defendant s fe olation of deral or state constitutional excluded as pr rights will be oof against de fendant unless that it was ob it can be show tained in a suf n ficiently indepe to dissipate th ndent manner e taint of th e prior illega State v. Johnso l conduct. n, 118 N.J. 63 9, 651 53 (199 confession obta 0). [A} ined through cu stodial interrog illegal arrest ation after an should be exclud ed unless the causation betwee chain of n the illegal arrest and the sufficiently at confession is tenuated so th at the confessi sufficiently an on was act of free w ill to purge the taint. State primary v. Chippero, 16 4 N.J. 342, 35 State v. Worlock 3 (2000) (quoting , 117 N.J. 596, 621 (1990)). Here, the trial judge concluded that defendant in the police s apparance station was vo luntary. notwithstandin She also noted g the police po that sition that de to leave until fendant was fr he made his ad ee mission, it was that they would inconceivable have actually let him leave on his bloodstained ce they viewed clothes and lear ned of his lies Nonetheless, th . e judge opined that though th formally arrest e police did no defendant unti t l 8:30 p.m., de knowledge of th fendant s e victim, init ial denial of subsequent lies his involvemen and evasions, t, and bloodstained would have give clothes, n them suffic ient probable arrested him pr cause to have ior to his adm ission. concluded that Accordingly, th defendant was e judge properly in cu he made his incr stody at the tim iminating stat e ement. The judge furt her ruled that , even if defend at headquarters ant s presence could be constr ued as an unlaw his confession ful arrest, was ultimately an act of free taint purged will and any by intervening events. that the atmosph The lodge emph ere during the asized detention was onerous, defend not especially ant was not ha ndcuffed or othe physically rest rwise rained, and th e police did no conduct design t engage in an ed to frighten y or confuse defe Additionally, ndant. the judge note d that defend admissions af ant made his ter being confro nted with not inconsistencies only the in his statemen t but also the that there was supposed proof blood on his cl othes. Moreover, defe ndant s 26 statement came after he had been properly three Occasions Mir andized on We agree fully with the judge and reject this argument substantially for the reasons she articulated (RE 29, May 1, 2003 Appellate Division Opinion at pp. 10-12). Locust s claim essentially asserts a Fourth Amendment violation A Fourth Amendment claim must be assessed by reference to the Supreme Court s decision in Stonev Powell, 428 U.S. 465 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court. LW) here the State has provided an opportunity for full fair litigati of and a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief the ground that on evidence obtained in an unconstitutional search or seizure was introduced at his trial. context the contribution In this of the exclusionary to the effectuation rule, if any, of the Fourth Amendment is minimal the substantial and societal Costs of application of the rule persist with special force. Powell, 428 U.S. at 494-95 However, if the state does not provide any corrective process to redress alleged Fourth Amendment violations, or where the state does offer a corrective process and defendant is precluded from using it, federal habeas review may be warranted ates v. Hen rson 568 F.2d 830, 840 d dir. ±97), 434 U.S. 1038 (1978). Here, it would appear that Locust did raise this Fourth AmE.ndmepi claim on direct appeal in state court, The state court addressed t.he merits of petitioner s claim on direct rev ¢ ¢iew, but rejected it for the reasons set forth above. Thus, it is fair to say that petitioner s Fourth Amendment claim concerning the procurement of Locust s confession after an allegedly illegal 27 arrest was fully and fairly l±ti..gated at that stage ¢ of the app.eai Process, and habeas review now would be rec1uded under .onev However, even if this Court were to assume ndo that Locust s Fourth Amendment claim is not precluded from habeas review under v Powell because it was never litigated, this Court also finds that the claim lacks merit. 4 The Fourth Amendment is applicable to the States through the Fourteenth Amendment A seizure of a person within the meaning of the Fourth Amendment Occurs when, taking into account all of the circumstances surrounding the encounter, the Police conduct would have communated to a reasonable person that he was not at liberty to ignore the Police presence and go about his business Texas, 538 U.S. 626, 629 (2003) (quoting vBostick 501 U.S. 429, 437 (1991) and chiganv esternut 486 U.S. 567, 569 (1988)). The Supreme Court has articulated several examples of circumstances that might indicate a seizure under the Fourth Amendment, even where the person did not attempt to leave, including the threatening preseno ot several officers, the display of a weapon by an officer, some physicai touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the In determining the merit, there evidentiary hearing is no need to on the matter conduct an because the state contains the facts court record ne... cessary in making a determination purported Fourth on any Amendment violation. 28 officer s request might 1.e compelled (quoting ted5tateSvMedh u 538 U.S. at 630 446 U.s, 554 (l98O). the Supreme Court observed that while certain seizures may be jU5tifie on something less than probable cause as enunciated in 0 ,Oj 392 U.s. 1 (1968), we have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigaj purposes absent probable cause or judicia authorization.,,, (quoting 470 U.s. 811, 815 (1985)) Thus, involuntary transport to a Police station for questioning is sufficiently like arresit) to invoke the traditional rule that arrests may constitutionally be made only on probable cause. (quoting Jjy, 470 U.s. at 816) In ... . In Illinois 422 U.s. 590 (1975), the Supreme Court held that a confession obtained through custodial interroga 0 after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is sufficiertj an act of free will to purge the Primary taint of the illegal arrest, 422 U.S. at 602. The Court observed that: [ijf Miranda warnings, by themselves, the taint of an were held to attenuate unconstitutional arrest, wanton and purposeful 55 regardl of how the Fourth Amendment effect of the violation, the exclusionary rule would be substantially diluted See 3ippj, 394 U.s. 89 5,Ct, 1394, 721, 726-727, 1397, 22 L.Ed.2d 676 (1969) without warrant or Arrests made without probable cause, for questioning . 29 or investigation, would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedi ent of giving Miranda warnings. Any incentive to avo id Fourth Amendment violations would be eviscerated by making the warnings, in effect, a cure-all, and the constitutiona l guarantee against unlawful sea rches and seizures could be said to be reduced to a form of words. See Map v. Ohio, 367 [643] at 648, 81 S.C U;S. t. [1684] at 1687. Brown, 422 U.S. at 602 03. The Court further hel d that the giving of Miranda warnings, although an important factor, is not the only factor to be considered in determini ng whether the con fession was obtained by exploitation of an illegal arrest. The voluntariness of the statement is a threshold requirement, but the court must consider the temporal proxim ity of the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the off icial misconduct. Brown, 422 U.S. at 603 04. Similarly, 442 U.S. 200 the Supreme Court held in Dunaway v. (1979): New York, [T]o argue that the Fourth Amendment doe s not apply to the investigatory stage is fundamentally to misconceive the purposes of th Fourt h Amendment. investigatory seizures would subject unlim ited numbers of inn ocent persons to the harassment and ignominy incident to involunta ry detention. Nothing is more cle ar than the Fourth Amendment was meant prevent wnoesaie int to rusions upon the personal security of our citizenry, whether these intrusions be termed arrests or investigatory detentions. [Oavis v. Mississippi, 394 u.S. 721, 726 27 (19 69)]. Brown v. Illinois, [422 rJ5 590 (1975)], similar disapproved arrests ly made for investigato ry purposes on less than probable cause. Although Brown s arr est had more 30 of the trappin gs of a tech nical formal petitioner s, arrest than such difference s in form m over substanc ust not be ex e. Once in the alted police station, to an interrog ation room, Brown was take and his experie n indistinguishable nce was from petition er s. the police co Our condemnatio nduct in Brown n of fits equally in this case: the police co nduct The improprie ty of the ar rest was obviou fact was virtua s; awareness lly conceded of the by the two de repeatedly ac tectives when knowledged, in they their testimon purpose of thei y, that the r action was for investigat questioning. ion or for The arrest, bo execution, was th in design investigatory. and in this expeditio The detectives n for evidence embarked upon in the hope might turn up that something . [Brown v. Illinois, 422 u.s. at 605] These passages from Davis an d Brown reflec that detention t the conclusi for custodial on interrogation its label intrudes so se regardless of verely on inte the Fourth Am rests protecte endment as ne d by cessarily to traditional sa trigger the feguards agains t illegal ar rest. Dunaway v. New York, 442 u.s. 200, 215 16 (1 979). In yet anothe r case, Taylor v. Alabama, 45 7 u.s. 687 (1 982), the Supreme Co urt held that a confession obtained throug h a custodial inte rrogation of the petitioner after he had been illegally arre sted without a warrant or probable cause should have been su ppressed. The Court foun d that the in tervening events did not break the caus al connection between the arrest and the confession . Specifically, the Court reje cted the Stat e s argument that petitioner had been given M iranda warnings three times, based on its rulings i Brown and unaa . The Court also found that the six hours be tween petition er s arrest and confession and his visit with his girlfriend and male com panion for five to te n minutes ou tside the inte rrogation room was not . .. - 31 sufficient to constitute an i.ntervening event r.hat would have contributed to petitioner s ability to Objectively consider his options and exercise his free will in giving a confession Further, the fact that an arrest warrant was filed, based on a comparison of fingerprn 5 did not remove the taint because the initial fingerpri 05 were themselves the fruit of the illegal arrest and were used to extract the confession Finally, the Court found that the lack of flagrant or purposeful Police conduct did not cure the illegality of the initial arrest. The Supreme Court expressly declined to adopt a good faith exception to the exclusionary rule. Ir, 457 U.S. at 691-93. In this case, the trial court ruled that Locust s custodial interrogation did not constitute a seizure Without probable cause. The trial court found that while the police did not formally arrest petitioner until 8:30 p.m., Locust s knowledge of the victim, his initial denial of his involvement, his subsequent lies and evasions, and the bloodstained clothes would have given the police probable cause to have arrested Locust before his 00tession 0 Morever, the trial court concluded that, even if Locust s presence at pol.ice headquar 5 could be construed as. an unlawful arrest, Locust. s confession was ultimately an act of free will and any taint purged by intervening events. (P629), The trial judge had observed that petitioner was not handcuffed or otherwise Physically restrained The Police d...id not engage in 32 any unlawful or reprehensible ccnduct in their interroga 0 of Locust, IndeEd, Locust made his admission not after being confronted with the inconsistencie between his statements and his girlfrie 5 or the Supposed proof of blood on his Clothes, but after the police detective stated that the he knew Locust did it and Wanted to know why because Locust and the victim were friendly and the victim should not have died the way he did. CR529 at pg. 6) Finally this Court finds Locust s claim fails on attenuation groun 5 In this regard, the relevant constitutional question becomes whether the connection between the lawless conduct of the Police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. 435 U.S. 268, 273-74 (1978). As set forth above, the Supreme Court delineated four factors relevant to an attenuation analysis: (1) the administration of nda warnings; (2) {tjhe temporal Proximity of th arrest and the confession; (3) the presence of intervening circumstances!,; and (4) Particularly, the purpose and flagrancy of the official misconducts! 422 U.S. at 603 Q4, Here, the Police administered iranda warnings three times. There also is no evidence that the police conducted the 0 interrogaj in an unconstitutional manner The Police did not Physically abuse or mistreat petitioner Locust was given several breaks, and was offered food and drinks during the 33 0 interroga process. There was a signif. gap of more than 8 hours from when Locust arrived at the police station and when he ultimately gave his confession at about 8:30 p.m. Locust was given dinner before he was arrested and gave his formal Statement In contrast, Locust argues that he was kept barefoot and he was tricked by officiallooking scientific evidence. The record and testimony confirms, however, that Locust was without his shoes for less than an hour. Such a short period of time without other onerous conditions does not constitute an unreasonable form of physjca coercion capable of overcoming petitionerls free will. Moreover, a trick or misrepresentation by the Police will not, on its own, invalidate an otherwise voluntary confession See erjCu 394 U.S. 731 (1969) (confession held admissible where the Police falsely informed the defendant that the co-defendant had confessed>; Millerv Fenton 796 F.2d 598, 609 (3d Cir. 1986) (a Police misrepresentation of fact does not oer se render a confession involuntary), 479 U.s. 989 (I96); . 578 F,2d 194 (7th Cir.), cert denied, (1978) af..firming district court s conclusion that the effects on defendant of misstatements by Police did not render his confession involuntary); 2005 L 3406434 *8 (D,N,j Dec. 13, 5);nv,3eer 200 1988 WL 52249 (D..j May 5, 1988). 439 U.S. 959 34 Therefore this Court finds that any taint from the seizure of petitioner for questioning was sufficiently purged based on the factors as discussed above. without merit and will be denied 3. The Fourth Amendment claim is PetjtjonerFs Wi]J Was Not Overborne Locust also argues that his confession should have been suppressed because his free will was overborne and his statement was not given Voluntarily, in Violation of the Fifth Amendment Locust raised this argument on direct appeal, insisting that the record shows that he was exhausted hungry, impaired and frighten at the time he made his admissions Furthermore, he claims that Captain George s misrepresentation about blood being found on petitioner! 5 clothes was flagrantly decepti conduct that had the capacity to Overbear his will. The Appellate Division rejectee Locust s claim. The court found: A suspect s waiver of his [or her] silence is valid Fifth Amenent only if made right to voluntarily, knowingly intelligently,,! and 127 N.j. 438, (1992) (quoting 447 da [1) To determine courL must ass 55 tile voluntariness totality of the a surrounding the giving circumstances of the statement 146 N.j. 208, 227, v.Roach, cert, 519 U.s. 1021 (1996) The fact that the p01 ice lie to a Suspect itself, render a. does not, by confession involuntary!! llowa , 133 N.j. ev. 631, 655 (1993) WIse of a technique during inherently coercivef;] questioning is not [tjhe real issue person s decision is whether the to confess results rather than from from a change of an overbearing mind of the suspect s at 654-55 in order to render will. a confessIon involuntary, the . ¢,. , 35 suspect must have been subjected to very substantial psychological pressu re. at 656. That is not what happened here. De fendant, who had intelligence, had normal prior experience wit h comprehended his sit uation, as evidenced the police and fully lies. Additionally, by his initial there was testimony judge was fully en on which the trial titled to rely, ind was provided with icating that defend food, drink, and ant cigarettes while at station, that he appeared alert, tha the t he was Mirandized least three times, and that he was not at way. The lie by mistreated in any Captain George did not have the capacit overbear defendant s y to It seems more lik defendant simply rea will. ely that with the crime and lized that he was not going to get away we see no basis to decided to unburden himself. There fore, suppress defendant s statement. inculpatory . (RE29 at pp. 12 13). Pursuant to the Fifth Amendment right ag ainst selfincrimination and the Due Process Clause of the Fourteenth Amendment, a confes sion must be vol untary to be admitte d into evidence. See Dicker son v. United State s, 530 U.s. 428, 433 (2000). Miranda provides that the accused may waive his rights, but must do so v oluntarily, knowingly and intelligently . Miranda, 384 U.S. at 475. To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way to questioning, the and is subjected incrimination is jeo privilege against selfpardized. Proced ural must be employed to protect the privileg safeguards other fully effectiv e means are adopte e and unless d to notify the person of his right of silence and to exercise of the rig ht will be scrupu assure that the lously honored, following measures the are required. He prior to any questio must be warned ning that he has remain silent, that the anything he says can right to against him in a be used court of law, that the presence of an he has the right to afford an attorney attorney, and that if he cannot one will be appoin ted for him prior to any questioning if he so desires. Opportunity to 36 . .. r. ... h. a:..a t 1- S.. . exercise these rights must be afforded to him throughout the interrogat 0 After such warnings been given, and have such OPPortunity afforded him, the individual may knowingly and intelligently rights and agree to waive these answer questions or statement make a But unless waiver are demonstrated and until such warnings and by the prosecution evidence obtained as at a result of interrogat trial, no 0 used against him, can be 384 U.S. at 478 79, constitutional requireme The anda warnings are a csn 530 U.s. at 444, The requirem that nda warnings be given does not, of course, dispense with the voluntariness inquiry. But {cjases in which a defendant can make a colorable argument that a selfincriminating statement was compelled despite the fact that the law enforcement authorities adhered to the dictates of randa are rare, ç 530 U.S. at 444, [TJhe ultimate issue of voluntariness, is a legal question requiring independent federal determination,i, and is thus not subject to the § 254(d) 2 presumption of correctness erv 474 U.S. 104, l09-1i (1985) . . The Supreme Court has made clear that a statement involuntary when the is suspectts twill such a way as to was overborne in render his confession coercionn the product of zonavjt 499 U.S. 279, 288, 111 S,ct, 1246, 113 L.Ed,2d 302 (1991), In determining whether a statement is voluntary, Supreme Court precedent requires all the surrounding consideration of the totality of circumstancesboth the characteristics of the accused and the 0 interrogatj details.. of the cersonnitdS 428, 434, 120 530 U.S. S.Ct. 2326, 147 L.Ed,2d 405 (2000) (quoting ck1othvB e, 412 U.S. 218, 93 S.Ct, 2041, 36 L.Ed,2d 854 226, (1973)) surrounding circumstances These Include not only element of police the crucial coercion, U.S. 157, 167, doConnell 107 S.Ct. 515, 93 479 L.Ed,2d 473 (1986), 37 but may also include the length of the interrogation, its location, its continuity, the defendants maturity, education physical condition, and mental health.1 orowWilljams 507 U.S. 680, 693, 113 S,ct. 1745, 123 L.Ed,2d 407 (1993) (some internal citations omitted) Lam. v. Kelchner 304 F.3d 256, 264 (3d Cir, 2002). [Siubsidiary such as the length and circumstances of the interrogation the defendant s prior experience with the legal process, and familiarity with the nda warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state court findings on such matters are conclusive on the habeas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable. ! 474 U.S. at 117. In determining whether there has been a valid waiver of nda rights, a court must conduct a two part inquiry under a totality of the circumstances standard. oranv. rbin, 475 U.S. 412, 421 (1986) First, the court looks to the voluntariness of the statement, and whether the waiver was freely and deliberately given as opposed to being obtained by coercion, intimidation, or deception. Id. Second, the court must consider whether the waiver was knowingly and intelligentlyii made, that is, whether the ccused wa s fully aware both of the nature of the right being abandoned and the consequences of the decision to abandon it. Id, questions, . . The totality of the circumstanced! approach is the clearly established federal standard applied to determine whether there 38 has been a Voluntary waiver of iranda rights A court must take into account both the characteristi of the accused and the details of the ogat4on,, interr 5 eckioth 412 u.s. 218, 226 (1973) This approach includes the evaluation of the subect s age, education, experience, backgrofl and intel1ig and whether he has the capacity to understand the gs given him, warnin the nature of his Fifth enent rights, and the consequ of 5 ving those rights, wai the length of n detentio the repeated and prolonged nature of questioning and the Use of physic ishment such as the Pun deprivation of food or sleep. ; see also Id. revichal 442 u.s. 707, 725 (1979); 15 F.3d 286, 289 (3d Cir. 1994) It looks to the person s familiarity with the criminal Ustjce system, the timing of the da warnings and the statement given, and the length and nature of the interrogaj 0 and the accompanying detention lJd5taevv 885 F.2d 1076, 1086 (3d Cir. 9), cert 198 denied 494 u.s. 1017 (1990); 889 F. so XorQubVA 1 2151 Supp. 541 171, 177 (M.D.pa 1995). U.s. 652, 124 S.Ct. 2140, 04) (the (20 characteristics of the defendant can include the In determining the voluntariness of the Jersey state courts have confession New traditionally assessed the the circumstances totality of surrounding the arrest and 0 interrogj including such factors as the accusedls age, tellig in education and advice as to constitutional rights, length detention of whether the Uestionjng was repeated and nature and whether prolonged in l punishment physica of mental exhaustion Involved was tev Mill 76 N.J. 392, 402 (1978); see also 163 N.j. 304, 313 (2000) 39 defendant s age, prior experienc ¬. education, and intelligence, as well as his with law enforcement), Further, coercive police activity is a recessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth endment doConne1l U.S. 157, 167 (1986); see also Arizona minante, U.s. 279, 288 (1991) (a statement is involuntary when the suspect s will was overborne in such a way as to render his confession the product of coercion ); Lam, 304 F,3d at 264. Absent Police overreaching, which is causally related to the confession, there is simply no basis for concluding that a state actor has deprived a criminal defendant of due process of law. 479 U.S. at 164. Thus, beyond the necessary and crucial element of Police coercion, courts look to both the characteristics of the accused and the circumstances of the interrogatj 0 in considering whether a confession is voluntary, See, e.g., owvWi11i 507 U.S. 680, 693-94 (1993) (concluding that the voluntariness of the confession depends upon the Lotality ot circumstances including police coercion, length and Place of interrogatj 0 the accus..d s matu.rity, education, physicai condj.ion intelligence and mental health, as wel.l as the failure of the Police to advise the defendant of his rights to remain silent and to have counsel present during the custodial interrogatjofl). Schneckloth 412 U.S. at 226 (the voluntariness of a statement nay ofte ¢n depend on 40 _______ whether the. accused s will as 1 overhoxne, a question that logically turns on the characteristics of the accu.. sed). The governme need prove waiver only by a preponderance of the evidence, connll, 479 at 168. This Court has carefully reviewed the record and fir. ds that the totality of the circumstances in this case clearly weigh in favor of voluntariness as determined by the state courts, First, there is no evidence of coercive conduct on the part of the police. Second, as fully discussed by the Appellate Division on direct appeal, as set forth above, the trial court determined that petitioner s confession was knowingly, intelligently and voluntarily made, Having reviewed the relevant state court record, in particular the testimony and evidence adduced at the hearing, this Court finds that petitioner s statement was voluntarily and intelligently given. Locust was given iarida warnings on three occasions and stated he understood them and waived them accordingly before he confessed, His statement was given after he had eaten dinner. There was no evidence that Petitioner was deprived of food, sleep, or other physical needs that wou.ld otherwise serve to overbear a person s will. Nor is there any evidence in the recor.d to show that the police used unnecessary or overbearing psychological tactics to extract a confession from petitioner, 41 There also were no factors concerning petitioner s age and educaticn, which wou]d suggest that he did not understand his nda rights or the consequE.nces of waiving those rights. Locust allEges that he was impaired but the police testimony shows that he was alert and responsive Further, this Court agrees with the state court that there was no overreaching or objectively coercive police conduct that would have overborne Petitioners will under the circumstances here to make petitionerfs confession involuntary. As stated above, there were no Physical punishments inflicted on petitioner he was not deprived of sleep and food and he was not Physically threatened or harmed. Nnda warnings were given and petitioner waived those rights voluntarily and knowingly. Consequently after careful review of the record, this Court cannot conclude that the determination of the trial court in admitting petitioners confession resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, or 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, lor, The state courts applied the correct law and facts in reaching its determination that, there was no iranda violation and that the statement was voluntarily, knowingly and intelligently given. Petitioner has failed to demonstrate that the state court opinion, when evaluated objectively and on the 42 me. rits, resulted in an outcome that cannot be reasonably justified 171 F.3d at 891, Therefore the Court will deny federal habeas relief on this claim because the alleged violation of petitioner s Fifth and Fourteenth Amencjmen rights is substantively meritless B TaiCourtErredjflD. at pa Locust next argues that the trial court erred in denying petitioner to add an exoert witness to the witness list on the fourth day of trial. Locust claims that the expert would have testified that Locust was under the influence of cocaine during his custodial interrogation to contest the police testimony that Locust appeared to be normal at the time his statements were made. Generally, issues as to the admissibi1it of evidence are questions of state law and not subject for federal habeas review. See le.McGuire, 502 U.S. 62, 68 (1991); ohnson y. eer 117 F.3d 104, 112-15 (3d Cir. 1997) See also Ikins, 251 F.3d 408, 416 n.2 (3d Cir.), cert. denied, 534 U.S. 973 (2001) Federa± courts must afrord the states deference in its determinations regarding evidence and procedure See Crane v,entuck. 476 U,5, 683, 690 (1986) It is well_establishd that a state court s misapplication of its own law does not generally raise a constitutional claim. The federal courts have no supervisory authority over state judicial Proceedings and may intervene only to correct wrongs of . . . 43 constitutional Cir, dirnension Ih v. 1997) (citations omitted) (1998). However, rt. Horn 120 n.ed, F.3d 400, 522 U,s, 414 (3d 1109 evidentiary rulings may violate due process when the petitioner was denied fundamental fairness at trial. hinsHundle, 1991 WL 167036 at *4 (jj Aug 22, 1991) (Wolin, J,) (citations omitted); see also 9ntakisvBeyer 19 F,3d 110, 120 (3d Cir. 1994), cert, denied, 513 U.s, 881 (1994); Liseflav lif 314 U.s. 219, 228, 236 (1941> (holding that state court s evidentiary rulings may form the basis for habeas relief when they so infused the trial with unfairness as to deny due process of law ) The appropriate inquiry is whether the claimed error of law is a fundamental defect which inherently results in a complete miscarriage of justice or in an omission inconsistent with the rudimentary demands of fair procedure hins, 1991 WL 167036 at *4 (citing d5tte5vDL 889 F.2d 503, 506 (3d Cir. 1989), 496 U.s. 939 (1990>> (other citations omitted) The Supreme Court has further stated that an otherwise valid conviction should not be set aside if the reviewina court may or.fi..d.eny say on the whole record that the constjtut.icnal error was harmless beyond a reasonable doubt. 475 U.s. 673, 681 (1986), An error is not harmless if it aborts the basic trial process or denies it . 44 altogetn Hutchi, 1991 IlL 167036 at *5 (citing Roaey C1a, 478 u.s. 570, 578 n.6 (1986)). Here, the trial Court denied petitionerts request to add an expert in the middle of trial because Locust had Coifliflitted a discovery violation In particular, Locust had failed to comply with jj,y. :l3-3(d) 3 (5), which allows a prosecutor to apply to have a defense expert barred from testimony where the expert s report is not provided to the State within thirty days of trial. This Court finds that the trial court s Procedural ruling did not unfairly prejudice Locust. Moreover, it is plain that the issue of petitioners alleged impaie during the custodial 0 interrog was not a new contention, aná Petitioner had ample time before trial to procure an expert witness in this regard accornce with in state court discovery rules. Consequent y the trial court s evidentiary ruling did not amount to an error of constitutional dimension. Nor has Locust shown that the trial process was fundamentally unfair. Locust has not Further, demonstrated, as requir under 28 U.S.C. § 254(d), 2 thdt the actions of the state court in this regard resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision based on an unreasonable determination of the facts. 45 C. fectiveA Finally, Locust asserts numerous claims of ineffective assistance of Counsel in violao of his Sixth Amendment rights. The clearly established Federal law, as determined by the Supreme Court of the United States, 28 U.S.C. § 54(d)(l), 22 is the standard for ineffective assistance of counsel as enunciated in 466 U.S. 668 (1984) Under ckland a petitioner seeking to prove a Sixth Amendment violation must demonstrate that his counsel s performance fell below an objectiVe standard of reasonableness assessing the facts of the case at the time of counsel s conduct See id. at 68889; cobs Horn 395 F.3d 92, 102 (3d Cir. 2005); 251 F.3d 408, 418 (3d Cir.), 534 U.S. 973 (2001) To meet this first prong of deficient performance, a convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment Id. at 690. The court must then determine whether, in light of all the crcurnstajices at the time, the identified errors were so serious that they were outside the wide range of Professionally competent 5istaflce d. . , . If able to demonstrate deficient performance by counsel, then the Petitioner must show prejudice, there is a reasonable Probability that but for counsel s unprofessional errors, the result of the Proceed.ing would have been different ., 46 Id, at 694, As the Strickland Court explained, [aittorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudjciaii Id. at 693, Thus, the Court held that prejudice is shown if there is a reasonabie Probability that, but for Counsel s unprofessional errors, the result of the Proceeding would have been different A reasonable Probability is a Probability sufficient to undermine Confidence in the outcome at 694. The reviewing court must evaluate the effect of any errors in light of the totality of the evidence See at 69596. Thus, the petitioner must establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim, See id, at 697; see also 395 F.3d at 102; ller, 251 F,3d at 418, However, the Supreme Court further instructed that a district court need not address both components of an ineffective assistance claim if the defendant makes an insufficient showing on one. kland, 466 U.S. at 697. If it is easier to dispose of an neifeceiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed, Id, . . Locust raised his ineffective assistance of counsel claims in his state PCR Proceedings, The state PCR court found that many of the claims were Procedurally barred as Previously 47 a <a (a I- I- 0 D ¢ 00 n nD Ii I-.. i-v <0 a I-. on (a ao am Ii o ao pi D 4 0 i- o x z o ii ton 1_a i-iia. II (a - <000 i-(a (a no CD I- 0 l-t nD tO 0 0(aZC ataOz ODO nD 0 C T 00 mnz(a l.kOmn (a (aD. (*000 C 0 5d. fl rtnfl 0 P t :xz 0 (a pa.fl 0Cm frIl. 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Also the defendan t argues that it was never brou jury that there ght to the was DNA which co uld not have or him or the victim iginat found on his clot police must have hes and therefor ed from e the planted it there. raised and litigat However, again, ed before trial. this was without any merit So the argument and should have is both appeal. There wa been addressed s cross examinat on direct ion of Jackie H it shows that th iggins. So is argument is not probative. And I find that the defendant is not entitled to because his motio n a which have previo is procedurally barred for rais hearing ing issues usly been raised and on appeal. The defendant ag and litigated at the trial ain talks about assistance of co unsel, which is ineffective really the same It s constantly the same argument argument. discussions. here. He uses the same For a claim of ineffective assi stan has adopted the standard of review ce of counsel, our Court Washington, 466 outlined in Stric U.s. 668 (1984). kland v. ineffective assi In order for a stance of counse claim of l to succeed th must satisfy a tw e o prong test. First, he must sh defendant attorney s perfo rmance did not meet an objective ow that the reasonable probab ility that but fo standard of errors, the resu lt of the procee r counsel s unprofessional ding would have different. been So in this case I both of these pr find that the defendant has failed to meet ongs. The defend of strategic de ant s mere seco cisions made durin nd g the suppressio guessing and the trial, that appellate n hearing coun worthy of notice during direct ap sel did not consider pronq. peal, does not satisfy this It is clear from re notes of the tria view of the facts and a review l and my review of my trial that the of the transcrip ts of the defense counsel really had a st mapped out defens ra e. The defend ant participated tegically It s obvious. Th in this. e defense counse He called witnes l presented a ses. presentation. He cross examined rigorously as to shed a negative many facts that light on the St could ate s witnesses. during the case in chief counsel Again he out on cross and tried to establis brought those facts back h another pe he did what he had to do. This rpetrator. So was a sound and strategy, especi ally in light of reas the overwhelming onable evidence. 49 Besides the conf ession, there w as overwhelming the defendant w as guilty in th evidence that is. I ll just note a few things. Counsel cross ex Veronica Smothe amined rs. She was the sister of Micha (phonetic) and he el Cordiman elicited facts defendant both had drug problem that Mr. Cordiman and the s, that they cons together. And that, I think, umed drugs co about the fact that Cordinian m uld have raised suspicions ay have been the in this event. per He elicited the frequented Mr. fact that Cordim petrator Amison s reside nce and obtained an him, as well as money from the defendant. He cross examin ed Det. Ferguson evidence. He m about the finger in print anticipation of imized the blood spatter evid ence in the defendant s examined Sgt. D testimony. He onovan and Det. also cross Cassidy. He cross examined for his cross ex other witnesses, which set a foundation amination of B ri really nothing before me to sh an Pisano. And there is ow that he didn .nvestigate an ything here.. Ju t st because Brian vigorously ultizaatóly deci ded to testify Pisano fo that defense co unsel did anythi r the State doesn t mean ng wrong. So I that argument is think that specious. Also the defend ant s counsel br ought out allege practices that m d police rejected them an ay have been abusive or coerci ve. And I d they were brou the jury rejected ght out again at trial and out. When he cr them. So all those things w ere brought oss examined B rian Pisano he at credibility. H e attempted to tacked his portray him as defense counse the killer. So l did exactly w hat he had to do in this case. Also the fact th at when he pres en called various witnesses and th ted his case in chief he ey were called establish the fa to try to ct that Pisano crime. The jury might have com mitted the witnesses and th rejected that defense. They heard those e jury rejected that. Also the defend an what he did, wha t testified himself. He test if t he said. He testified in fr ied as to testified in fr ont of me. He ont of the jury . He told his occasions. story on two There s also th e issue of the fact that tria that counsel fa l co iled to provide effective assist unsel claims counsel because an a member of the of the prosecut jury was a form ce of or s office. T er employee here was a voir that. That ju ror was question dire as to ed. She said th at she had a 50 worked for the pro secutor s office 22 think it was only for years before that. a short period of time. She sent out subpoenas . I think that was the she sent out subpoe issue, that nas for the prosec utor s office. She worked there approxima tely 22 years bef ore I asked her whether that would impair her this trial. And and impartial in thi ability to be fai s case and she sai d, no, she could be r fair and impartial. There was no reason jury. to keep her off the Also counsel did use his challenges. He jurors. They were challenged. They wer challenged numerous e taken from the jury. So he did not rely on the first were impaneled. fourteen people that As far as the claim that counsel allowed maybe that is the an all white jury, case. Maybe there was an all white jur but there s nothing y, we can t go any plac There was no showing e from there. that because there jury it made any difference in the dec was an all white ision of the jury. S o I find besides being procedurally barred, if I were to consider all the fac ts in this case and that counsel was all the argument ineffective, i find that he was not ineffective. i also fin certainly did not cree d that the accumulation of errors p accumulation of errors into this case, that there was no . - (RE38, November 18, 2005 PCR Transcript, 17:5 23:24). Locust appealed from the denial of his PCR petition. Appellate Division held: The We have considered each record, the applicable of these issues in light of the law and the arguments we are satisfied non of counsel, and e of them is of sufficient merit to warrant discussion in a written opinion. We affirm therefore . :l1 3(e)(2). 2 Judge Del Bueno Cle substantially for the reasons stated ary s thoughtful in and comprehensive opinion of November oral 18, 2005. We add only the following comments. Apart from lacking substantive merit, are procedurally bar def red as already adju endant s arguments dicated, Rule and to the extent 3:2 not heretofore dec ided, as capable of 2 5, being raised and therefore now preclud ed from review, 3:22 4. Ru 51 J$%S Ae.t . Defendant does not raise any issue based on principle esta a constitution blished by ou al r courts after subject to retr his conviction oactive applic and ation. N.J. 464, 474 75 State v. Nash, (1974) 64 He does not mak testimony outs e claims base ide of the tria d on l record that been raised on could not ha direct appeal . Super. 605, 61 S State v. Sloan, 22 ve 2 (App. Div.), 6 N.J. certif. denied (1988) Additionally, , 113 N.J. 647 he does not ch proceedings them allenge the ap selves. pellate State v. Morri Super. 540, 54 son, 215 N. J. 4-45 (App. Div .), certif. deni (1987) ed, 107 N.J. 64 2 . . Although defend ant asserts a claim of const dimension, Rul itutional e 3:22 4(c), in order to come exception, defe within this ndant must show that his con rights were se stitutional riously infringe d during the co proceedings. nviction State v. Mitch ell, 126 N.J. at Defendant may 585 86 (1992( not evade the . procedural ba by [c]loaking rs of Rule 3:22 the claim in co 4 nstitutional la at 586. A court must cl nguage[.] osely scrutini jcj. to discover if ze defendant a constitution s issues al right is tru Ibid. Under such scru ly implicated tiny, defendan . constitution t fails to impl al right. icate any Ibid. Finally, the en forcement of th e procedural ba 4 will not resu r of Rule 3:22 lt in fundamen tal injustice. There is no fu j. at 587. ndamental inju stice where th provided a fair e court has proceeding lea ding to a just Ibid. Defendant has outcome. failed to asse the definition rt any facts th of fundamenta at meet l injustice. defendant had Because more than ampl e opportunity to assert all on direct appe of the claims he al now raises, we that Judge Del are satisfied Bueno Cleary co rrectly determ claims as proc ined defendan edurally barre t s d. Although Judg e Del Bueno Cle ary correctly deteridant s 2C found that R peLition was procedurally nevertheless ad barred, she dressed defend ant s allegation ineffective as s of sistance of tr ial counsel on Before doing the merits. so, she relect ed defendant s was entitled to contention th an evidenciar at y hearing. that defendant The judge foun failed to esta d blish a prima ineffective as facie case of sistance of co unsel, a cond entitlement to ition preceden an evidentiary t to hearing. 129 N.J. 451, State v. Preci 462 64 (1992) ose, Thus, the judg reviewed each e thoroughly of defendant s allegations against the le of ineffectiven gal requiremen ess ts to prove an claim and dete ineffectivenes rmined that de s fendant had no counsel perfor t shown that hi med below the s objective stan reasonablene dard of ss set forth in Strickland, su pra, and State v. . 52 [ fritz, 105 N.J. 42 (1987), The judge correctly that defencant failed to establish concluded either that the performance of his counsel was deficient prejudic as a or that he was result of errors in his trial and counsel s perforrnance appellate (RE44, August io, 2007 Appellate Division Opinion, at pp. 6-7) Locust asserts first that trial counsel was ineffective in that he failed to properly investigate or adequately prepare for trial, Namely, he Contends that: (1) Trial counsel failed to object to an all-white jury; (2) Trial counsel was ineffective for failing to object about a juror who once worked for the Prosecutors Office; (3) Trial counsel was ineffective for not raising at the hearing that the detectives kept the petitioner barefooted on a cold floor prior to the confession; (4) Trial counsel was ineffective for ignoring the petitioner when he was told by the petitioner that the detectives are lying about seeing blood on his Clothes; (5) Trial counsel was ineffective for failing to argue the POssibility of a setup by Detective Seitz and that the victim s DNA could have been planted on the petitionerls Clothes by the detectives because o he lawsuit against the Long Branch Police by the petitioners mother; (6) Trial Counsel was ineffective for failing to .raisg that there was DNA on the petitionerfs clothes which could not have origina from the petitioner or the victim according to the report by the State s own DNA expert; and (7) Trial counsel was ineffective for failing to timely investigate Brian Pisano and Barbara Latham In his amended petition, Locust Here, 53 I also asserts that (8) Trial Counsel was ineffective for failing to file a motion to suppress Clothes which were the product of illegal search and an seizure; (9) Trial Counsel was ineffective for his failure to object to Petitioneris clothes being admitted into evidence; (10) Trial counsel was ineffective for failing to investigate why the 0 interroga and the waiving of his rights were not video_taped; (11) Trial counsel was ineffective when he failed to argue that as a routine practice the Police trick people into signing pre typed statements with falsified words included in the confession that falsely indicates that the signatory read the statement, which is what happened in petitioner? case; (12) Trial counsel was ineffective for failing to put a motion to have the indictpjent dismissed because it was based on lies and twisted facts presented to the grand jury; and (13) Trial counsel was ineffective for his failure to hire expert witnesses to counter the State s expert witnesses where the State introduced their own Psychiatric and scientific expert. As set forth above, all of these claim were raised by Locust in his state PCR Proceedings. More imPortantly eacj claim was examined and rejected by the state courts. This Court has carefully reviewed the state court record and finds no error in the state court rulings. In particular, addressing each individually, the claim Court finds as follows: 54 1. Faiiu to 0bjec to an )i1 White Jury The state PCR court rejected this clai..m, essentially finding that Locust failed to show prejudice The court found: There was no showing that because there was an all white jury it made a difference in the decision of the jury. (RE38, November 18, 2005 PCR Transcrjpt at 23:12-17) The State further argues that the composition of the jury is not what constitutes error. A defendant has no right to a petit jury composed in whole or in part of persons of his own race. i.Kentuck, 476 U.S. 79, 85 (1986). Only purposeful racial discrimination in jury selection Violates a defendant s right to equal protection 476 U.S. at 86 89. Here, the state court record Plainly shows that prosecutor did not use any Peremptory challenges to intentionally exclude non-white jurors. Consequently, this Court finds that Locust has failed to prove a on claim, and this claim will be denied for lack of merit. 2. Failure to Object to Juror Who Worked for Prosecutor Locust also asserts that his trial counsel was ineffective for failing to object to a juror who had worked for the prosecutor s office. He raised this claim in his state 2CR Proceeding.. and the 2CR court rejected it. The 2CR court Observed that a vo±r dire as to the juror s former employment with the prosecutor s office was conducted. The juror stated that she merely sent out subpoenas and that she had worked there for a short period of t.ime 22 years before the commencement of 55 trial, The trial court asked the juror if her former emploent would impair her abi1it y to be fair and impartial and she responded no, Therefore the court found no reason to dismiss the juror. It is clear from the state cour t record that trial counsel used his Peremptory challenges more strategically to strike other jurors who he deemed more likely to influence a negative outcome than the former employee of the prosecutor s office who had sent out subpoenas more than 22 years prior to trial. Locust fails to provide any evidence or argument that but for striking that juror, he would not have been convicted Accordingly, 3, this Court finds no merit to this claim. Barefoot Claim Locust next asserts that his counsel was ineffective for not raising at the dnda hearing that the detectives kept petitioner barefoot on a cold floor before his confession This claim was raised on direct appeal and was rejected as having no merit on the ground that the short period of time that Locust was barefooL did no affect he voluntariness of his confession Therefore, because Locust can not show prejudice, this claim will be denied for lack of merit, 4. Blood on Clothes and DNA Claims Locust also raises several claims that his trial counsel was ineffective in failing to argue that the detectives allegedly were lying about seeing blood on his clothes, that the DNA could 56 have been planted on Locust s clothes because of an earlier lawsuit against the Long Branch police by Locust s mother, and that the DNA could not have originates from petitioner or the victim according to the State s own forensic report. The state PCR court rejected these claims as without merit and because they were raised and litigated at trial and on direct appeal. The court found that even if the police did lie to petitioner to trick a confess ion from him, that did not render the confession involuntary. The issue was raised and litigated during the trial Proceedings, and the confession was found to be voluntary. Moreover, trial counsel did conduct a thorough and vigorous cross examination of mahy of the State witneües, b including Detectives Coleman and Seitz. At the Miranda hearing, and again on cross examination at trial, defense counsel questioned Seitz about his knowledge and familiarity with the lawsuit by Icust s mother against Long Branch police. Counsel also question Ferguson, George, Coleman, Seitz and others at the Miranda hearing and at trial about the seizure of petitioner s clothing and shoes, and whether blood was seen on petitioner s clothing. The State s witness, Jackie Higgins, a DNA analyst, was thoroughly cross-examined by defense counsel on the issue of the origin of the DNA samples found on Locust s clothing articles. None of these cross-exanatjons produced any probative evidence to support Locust s claims of bias, that DNA evidence was planted, or that the outcoma of the trial would have 57 been different. In short, Locust has failed to prove both error (because his allegations of counsel s deficiencies are contradicted by the record) or resulting prejudice on these claims. Therefore, these claims will be denied for lack of merit. 5. Failure to Timely Investigate Pisano and Lathe,,, Locust next alleges that trial counsel was ineffective for failing to timely investigate Brian Pisano and Barbara Latham. As to Latham, Locust fails to show how Latham s testimony would have been sufficiently favorable so as to change the outcome at trial. In fact, Latham had no personal knowledge of exculpatory information Locust merely told her he did not commit the murder. Further, Locust did not show that Latham would have testified at trial, consequently, Locust has failed to show any resulting prejudice. As to Pisano, the record shows that he testified at trial and that defense counsel thoroughly question him on cross examination Locust does not show how investigating Pisano at an earlier Lime would have made the cross_exnation effective to prove petitioner?s innocence. In fact, the trial record shows that defense counsel vigorously attacked Pisano s credibility on cross and that defense counsel attempted to Portray Pisano as the killer. Indeed, the PCR court found that defense counsel s thorough cross_exnations of other witnesses laid a foundation for Pisano s cross_examination, and that there was nothing in the 58 trial record to show that defense counsel didn t vigorously investigate Pisano, The PCR court further ruled that [jjust because Brian Pisano ultimately decided to testify for the State doesn t mean that defense counsel did anything wrong, (RE38, November is, 2005 PCR Transcript, 2i:i9_22:8 Therefore, Locust again fails to show error or prejudice on this claim and it must be denied for lack of merit. Moreover, witness selection is entrusted to counsel s sound judgment, inmentrgjn slans V. Weath wax 77 F.3d 1425, 1431 (3d Cir.), cert. 519 U.s. 1020 (1996). Attorneys are not required to call every witness suggest to them; their expertise leads them to choose only the witnesses likely to assist the case. Indeed, this is Precisely the type of strategic decision which the Court in jland held to be protected from second_guessig ited States cjancaglj 945 F. Supp. 813, 823 (E.D.pa. 1996) Petiticner s speculation at best regarding the testimony of Latham and Pisano does not state a cognizabl claim under t ick1and. . . 6. Failure to File Motion to Suppress Clothing In his supplemental claims i and 2 of the amended habeas petition, i.ocust alleges ¢ ¢ t.hat trial counsel was ineffective for failing to file a motion to suppress his seized clothing or to object to the clothes being admitted into evidence at trial. Essentially, Locust asserts an ineffective assistance of counsel claim based on the failure to have evidence suppressed under the 59 Fourth Amendment To prevail on such a claim, petitioner must prove that his Fourth Amendment claim is meritorious and that there is a reasonable Probability that the outcome of the trial would have been different if the evidence had been excluded mmelmanvMori 77 U.s. 365, 375 (1996). Generally, evidence gained through a Fourth Amendment violation may not be used against a defendant at trial, See v.oj 367 U.S. 643, 654 55 (1961). This exclusionary rule is a remedy to safeguard Fourth Amendment rights by deterring police conduct that violates those rights. ¶cwefl, 428 U.S. at 486. In , the Supreme Court examined the nature of the exclusionary rule, which it characterized as a iudic±ally created means of effectuating the rights secured by the Fourth Amendment and balanced its utility as a deterrent against the risk of excluding trustworthy evidence and thus deflect fing) the truthfindjng process, Id. at 482, 490. Finding that, as to collateral review, the costs of the exclusionary rule outweighed the benefits of its application, the court concluded that, where the State has provided an oPPortunity for full and fair litigatjQ of a Fourth Ame.ndme nt claim, a state prisoner may not be granted federal habeas ¢ ¢ corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Id. at 494. 60 Thus, whi.. e the federai Courts are not. deprived c.f 0 jurisdicti to hear the claim, they are for prudential reasons restricted in their application of the exclusionary rule, See at 494 n. 37; see also Marshal1vHendk 307 F,3d 36, 81-82 (3d Cir, 2002), cer, 538 U.S. 911 (2003), Whether the petitioner actually took advantage of the OPPortunity is irrelevant; so long as the OPPortunity was available the bar against raising the Fourth Amendment claims on collateral review applies JacksonvOiGlil 2006 U.S. Dist. LEXIS 24516, at *6, 2006 WL 1147517 (E.D.pa 2006) (citing 2004 U.S. Dist. LEX 13904 (E.D.pa 2004)) Moreover fain erroneous or summary resolution by a state court of a Fourth Amendment claim does not overcome the bar. more 799 F.2d 51, 57 (3d Cir. 1986), cert. 479 U.S. 1041 (1987) . The. Court of Appeals for the Third Circuit has recogn that there may be instances in Which a full and fair OPPortunity to litigate was denied in state court. See, , G±lmore 799 .2d aL 57 (observing that a state s failure to give at least colorable application of the Fourth Amendment constitutional standard might anount to a der..jal of the oPPortunity for full and fair litigation); dvintz 631 F.2d 247, 250 (3d Cir. 1980) (assuming without deciding, that the term oPportunity simply means Providing procedures by Which one can litigate a Fourth Amendment claim, and noting that vpoWell does not 61 preclude federal habeas relief when the defendant is precluded from Utilizing it by reason of an unconscionable breakdown in that process ) (quoting jHenderso 568 F.2d 830, 840 (2d Cir, 1977), cert, ed,434 U.S. 1038 (1978))) Here, Locust has not shown that he was denied a full and fair oPPortunity to litigate this claim in state court, The record shows that Locust consented to the seizure of his Clothing in writing, Moreover defense counsel had argued that the consent was not lawfully obtained because it was conditioned upon his release. The state courts rejec the claim. Thus, it would appear that Locust can not show error or prejudice with regard to this claim to satisfy ckland 7. Failure to Investigate Why Interroga 0 Not Video_Taped Locust further argues that his counsel was ineffective in failing to investigate why his interroga 0 and the waiving of his rights was not video_taped, The State argues that there is no constitutional require that such interviews be recorded. Moreover, at the time Locust was interroga there was no New Jersey SLate law requirefflfl in effect hat directed video recordings be made during the custodial 05 interrog of murder Suspects, This Court agrees, Accordingly, where LOcuSt has failed to demonstrate attorney error, and has not shown that he would not have been convicted but for counsel s failure to conduct an investigaj 0 concerning 62 the Video_taping of his interrog 0 for lack of merit, this claim will be denied 8. Failure to Argue Police Tricked Locust into Confsi 0 Next, Locust contends that his trial counsel for failing to argue that as a was ineffective routine practice the Police trick people into signing pre-typed statements with falsified words included in the Confession that falsely indicates that the signatory read the statement Locust presents no evidence to support his contention that this alleged Police practice is routinely conducted or that it was applied in his case. Indeed, the issue of the knowing and voluntary nature of petitioners confssion has been fully litigated at the nda hearing, at trial and on direct appeal, Furthermore, throughout trial, defense counsel cross_examined the Police and detective witnesses on the alleged trickery. And, as stated Previously, the Appellate Division held that the fact that Police lie to a suspect does not, by itself, render a confession involuntary (RE29, pg. 12) * Therefore, because this issue as to police trickery WCS fully litigated, as set forth above, this Court finds no deficiency of performance by defense counsel, and petitioner has shown no prejudice on this c.laim to merit habeas relief, 9. Failure to File Motion to Dismiss Indictment Locust also argues that his trial counsel was ineffective for failing to file a motion to dismiss the indictment because it 63 was based on lies and twisted facts presented to the grand jury. Generally deficiencies in state grand jury proceedings are not grounds for relief under § 2254, See Rile 865 F.2d 30, 32 (2d Cir, 1989), This conclusion flows from ed 5iMechanik 475 U.S. 66 (1986), in which the Supreme Court held that a violation of 6(d) (which governs who may be present while the grand jury is in session, deliberating, or voting), discovered only at trial, did not justify relief after the petit jury had rendered its verdict, [Tlhe petit jury s subsequent guilty only that there verdict means not was probable cause to believe that defendants were guilty the as charged, but are in fact guilty also that they as charged beyond doubt, a reasonable Measured by the petit jury s verdict, error in the grand then, any jury Proceedings charging decision connected with the was harmless beyond a reasonable doubt. nik, 475 U.S. at 70 (footnote Omitted); see also United Console, 13 F.3d 641, 671 72 (3d Cir. 1993) (with the exception of a claim of racial discrimination in the selection of grand jurors, a petit jury s guilty erdict renders harmless any prosecutorial misconduct before the indicting grand jury) (citing Yzv,Hiller 474 U.S. 254 (1986)) Thus, to the extent there were any deficiencies in the grand jury Proceedings, they must be considered harmless Moreover, Locust has not shown that false information was presented to the grand jury, and has completely failed to establish any basis for his claim, Therefore, petitioner is not 64 entitled to re.ief on this claim because it is wholly lacking in merit. 10, Failure to Hire Expert Witnesses Finally Locust argues that his counsel was ineffective because he failed to hire an expert witness to counter the State s Psychiatric and scientific expert witnesses First, Locust argues that counsel should have called an expert to testify as to Locust s mental condition and the effect of cocaine on petitioner for a diminished capacity or insanity defense on the issue of petitionerls incompetency to confess to the murder. Locust states that defense counsel had attempted to call an expert witness, Thomas Kelly, a substance abuse expert, on the fourth day of trial but was barred on procedural 3 groun (namely, a discovery violation) ( this Opinion, at pp. 43_45) However, Locust fails to show any actual expert opinion that would have supported a diminished capacity or insanity defense. Moreover, defense counsel exhaustively and repetitively cross_examined the State witnesses on the issue of 5 defendart menLal State and his being under the influence of cocaine and/or otherwise intoxicated during the custodial 0 interrogt so as to discredit the c.onfess4on Second, Locust argues that a scientific expert should have been called with respect to the DNA evidence. He also suggests that a scientific expert should have been called on the issue or manner of the victim s death, Namely, Locust... challenges what he 65 alleges to be Conflicting testirnony of the autopsy expert, Dr. Peacock, Concerning the findings of defensive wounds on the victim who was killed during his sleep. Again, Locust fails to show that an expert Opinion on these issues could have been presented at trial, and that such opinions would have discredited the State s DNA expert or the autopsy doctor so as to change the outcome of the jury verdict In additi 0 the trial transcript shows that defense counsel thoroughly and vigorously cross examined the State DNA expert on the issue of the third DNA contributor found on petitioners Clothing and shoes, It would appear that it was a tactical decision not to call an expert witness on these issues. Accordingly, this claim fails for lack of merit. Therefore, with regard to all of Locust s ineffective assistance of trial counsel claims, as set forth above, this Court concludes that the determination of the state PCR court and appellate court in finding no constitutionally ineffectiveness of counsel, resulted in a decision that was neither contrary to, nor involved an ± 50 un1son application of clearly Cstabljshed federal law under ckland, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court Proceeding. suora. Locust has failed to demonstrate the state court that opinions when evaluated objectively and on the meri.ts, resulted in an outcome that cannot be reasonably 66 justified tteo, 171 F.3d at 891. Therefore the Court will deny federal habeas relief on these claims because they are substantively meritless tive Errors Lastly, LOcUSt argues that the accumulation of errors demands a reversal of his conviction and a retrial The applicable test for a cumulative error habeas claim is whether the overall deficiencies 50 infected the trial with unfairness as to make the resulting conviction a denial of due process, See 601 F.3d 897, 917 (9th Cir. 2010> (relying on 416 U.S. 637, 643 (1974), cert. 131 .Ct, 2093 (Apr. 18 2011); IuMulli 422 F.3d 1113, 1137 (10th Cir. 2005) (similarly relying on see EHorLi, 516 F.3d 169, 205 (3d Cir, 2008) (cumulative errors are not harmless if they had a substantial and injurio 5 effect or influence in determining the jury s verdict; a habeas petitioner is not entitled to relief based on cumulative errors unless he can establish actual prejudicen) (citing htraham 507 U.s. 619, 637 (1993)), Simply put, only where the combined effect of errors rendE.rs a criminal defense far less persuasive than it might [otherwIse) h.ve been will the resuitin conviction violate due process, mber5vMissi. 410 U.S. 284, 302 03 (1973). Thus, a habeas petitioner is not entitled to relief based on cumulative errors unless (s)he demonstrates actual 0 prejudj 67 See NjL, Carrier 47 U.S. 478, 49 (1986); ahy, 516 (explaining that actual prejudici must be established by the Petitioners showing that the errors during the trial created more than a hypothetical poss of prejudice) F.3d at 205 Here, Locust contends that the alleged cumulative errors trial counsel of prejudic him. However, as set forth above, Locust has failed to demonstrate actual prejudi with respect any of his to ineffective assistance of counsel claims, After carefully examining the underlying record, this Court cannot any aspect of find petitioners trial suggesting Singularly or cumulatively anything more than a hypothe 01 POSsibility of prejudi at best, More significantly Locust has not shown that his trial counsel s performance was deficient; nor has he satisfied burden of Proving his that the state court decisions regarding counsel s performance was unreasonable. As the PCR court found: defense counsel really had a strategicay out defense, mapped [Defense counsel) examined rigorously that could shed as to many Lacts a negat light on the Again during State s witnesses the case in chief counsel facts back out ti brought those on cross and tried to establish perpetrator So he did what another and reasonable he had This was a strategy, especially to do. sound overwhelming evidence in light of the Besides the Overwhelming evidence confession, there that the defendant was was guilty in (RE38, November this. 18, 2005 PCR Transcript, 20:15_21.3) Accordingly, this Court finds that Locust s claim of cumulative errors does not merit habeas relief because he has not 68 demonstrated cumulative prejudice, and because he has failed to make a substantial showing of the denial of a constitutional right, V. AL This Court next must determine whether a certificate of appealability should issue, See Rule 22.2. Third Circuit Local Appellate The Court may issue a certificate of appealability only if the petitioner has made a substantiai showing of the denial of a constitutional right, 28 U.S.C. § 3(c) 225 (2). For the reasons discussed above, this Court s review of the claims advanced by petitioner demonstrates that he has failed to make a substantial showing of the denial of a constitutional right necessgf a certificate of appealability to issue. Thus, this Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 225 (2), 3(c) US ION For the above reasons, this Court finds that the § 2254 habeas petition must be denied, and a certificate of appealability will not issue. An appropriate Order follows. DATED: United States District 69 Judge

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