TIRADO v. STATE OF NEW JERSEY EX REL et al, No. 3:2012cv04059 - Document 30 (D.N.J. 2013)
Court Description: OPINION filed. Signed by Judge Joel A. Pisano on 12/9/2013. (eaj)
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.I RECE~VED NOT FOR PUBLICATION DEC 11 2013 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY GRACIANO TIRADO AT 8:30 M WILLIAM T. WALSH CLERK I Civil Action No. 12-4059 (JAP) Petitioner, v. OPINION STATE OF NEW JERSEY, et al., Respondents. APPEARANCES: GRACIANO TIRADO, Petitioner pro se # 472386 New Jersey State Prison P.O. Box 861 Trenton, New Jersey 08625 JOIE M. PIDERIT, ESQ. MIDDLESEX COUNTY PROSECUTOR'S OFFICE Appellate Section 25 Kirkpatrick Street New Brunswick, New Jersey 08901 Counsel for Respondents PISANO, District Judge Petitioner Graciano Tirado (~Petitioner"), a convicted state prisoner presently confined at the New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2003 New Jersey state court judgment of conviction. stated herein, the substantive merit. Petition will be denied For the reasons for lack of I. A. BACKGROUND Procedural History On June 26, four count a Middlesex County Grand Jury returned a indictment Petitioner N.J. S .A. 2002, as follows: 2C: 11-3a ( 1), (Indictment (Count (2); One) No. 02-6-810) murder, (Count Two) in against violation of possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and (Counts Three and Four) aggravated assault with a violation of N.J.S.A. 2C:12-1b(4). (Petitioner's firearm, in Exhibit H, 1 June 26, 2002 Indictment No. 02-06-00810.) Petitioner Frederick P. 9, 2003. was DeVesa, (Ra8, tried before P.J.Cr., a jury and from March 7, State's Resp. the Honorable 2003 through March Brief on Direct Appeal at 1.) 2 The jury returned a verdict of guilty on the murder and weapons charges. One count of aggravated assault was dismissed for lack of evidence and the jury acquitted Petitioner on the other count of aggravated assault. Conviction. ) On Petitioner a to ( PE-I, December 30-year December 12, 12, term 2003, of Judge imprisonment 2 003 Judgment DeVesa for of sentenced the murder conviction and 10 years in prison for possession of a weapon for Petitioner submitted relevant portions of the state court record with his habeas petition, which are hereinafter designated as Petitioner's Exhibits (~PE") - A through T. (ECF No. 1-2 at pp. 1 through 140; ECF No. 1-3 at pp. 1 through 135.) 2 The State provided the relevant state court record with a list of exhibits, hereinafter denoted as ~Ra". (See ECF No. 15.) 2 an unlawful purpose, to be served concurrently. (Ra6, December 12, 2003 Sentencing Transcript at 15:15-16:3.) Petitioner filed Court of New Jersey, a notice of appeal before the 2004. (Ra8 In an unpublished opinion decided on February 6, at 1.) Appellate Division on May 20, Superior 2006, the Appellate Division affirmed the convictions and remanded the sentence for merger of the weapons count into the murder count. (PE-J, February Tirado, Court 6, 2006 Docket No. of Appellate A-5072-03T4 New Jersey denied Division Opinion, slip op. at certification State v. Tirado, 186 N.J. 607 (2006). 23.) State v. The Supreme on April 28, 2006. Petitioner did not file a writ of certiorari with the Supreme Court of the United States. A judgment of conviction on the remanded sentence was entered on September 9, 2011. On May 26, (Ra20.) 2006, conviction· relief Petitioner ( "PCR") in filed petition for court, state a alleging claims ineffective assistance of trial and appellate counsel. postof (PE-L. ) Oral argument was conducted before Judge DeVesa at a PCR hearing on March 9, Order denying the hearing. (PE-M.) Appellate Division State Tirado, v. On March 14, 2007. PCR 2007, application Judge DeVesa entered an without an evidentiary Petitioner appealed and on July 17, 2009, the affirmed 2009 WL the 2059727 3 denial (N.J. of the Super. PCR A.D. petition. Jul. 17, 2009). The Supreme Court of New Jersey denied certification on October 28, 2009. State v. Tirado, 200 N.J. 477 (2009). Thereafter, on July 6, 2010, Petitioner for a writ of habeas corpus under 28 U.S.C. § 2254. et al., Civil No. 10-3408 (JAP). New Jersey, filed a petition Tirado v. On March 28, 2011, this Court summarily dismissed the petition on the ground that Petitioner's claim for relief from the state court judgment of conviction failed to state constitutional violation. 3 a cognizable Tirado v. of a federal The Court also determined that the petition must be dismissed for remedies. claim failure to exhaust state court State of New Jersey, et al., Civil No. 10- 3408 (JAP), 2011 WL 1256624, *4-5 (D.N.J. Mar. 28, 2011). about June 17, 2011, Petitioner reconsideration with the Supreme Court, filed a On or motion for raising the same claims he had asserted in his first federal habeas petition. (PE-R.) By of Order filed September 9, 2 011, 3 the Supreme Court New Petitioner had alleged that he is a sovereign, not subject to New Jersey law; that he is a "man" and not a "person" subject to in personam jurisdiction; and that he is a "man" immune and exempt from state jurisdiction. He further asserted that he is a "vessel" or "straw man", and that the State of New Jersey, and its courts, prosecutors and correctional department had no authority or jurisdiction over Petitioner. This Court found that the Petitioner's claims were "nothing more than a delusory contrivance by Petitioner in an attempt to void his state judgment of conviction." Tirado v. State of New Jersey, et al., c i vi 1 No . 1 0- 3 4 0 8 (J AP) , 2 0 11 WL 12 56 6 2 4 , * 4 ( D . N . J . Mar . 2 8 , 2 011) . 4 Jersey granted Petitioner's motion for leave to file his motion for reconsideration as within motion for reconsideration. On June 20, 2012, 2012, 4.) default October 4, Petitioner 2012, October filed the instant (ECF No. 1.) 4 2254. § On September 17, judgment 2012, against habeas On August 4, 2012, the Petitioner filed a motion State. (ECF No. 8.) On this Court issued an Order directing the State to answer the petition. 24, the Petitioner filed a motion for an Order to Show Cause. (ECF No. for and summarily denied (Ra19; PE-S.) petition pursuant to 28 U.S.C. 8, time, (ECF No. 9.) Thereafter, on October Petitioner filed a motion for relief from the Court's 2012 Order. (ECF No. 14.) The State filed its answer to the petition with a copy of the relevant state court record on November 14 and 15, 2012. and 20.) Petitioner filed a fourth motion On December 7, 2012, (ECF Nos. seeking default judgment against the State, to Answer for Relief Due to Lack of Jurisdiction, 18, 19 Court denied all four of Petitioner's motions. Failure to (ECF No. 21.) Memorandum Opinion and Order filed on March 25, 4 17, labeled as a "Reply Counter Claim and Failure to State a Claim." a 16, 2013, In this (ECF No. 23.) "ECF" refers to the docket entry or "electronic case filing" number for documents filed in this action, Civil No. 12-4059 (JAP) . 5 On May 2, 2013, the response to the petition. On May 3, 2 013, State Petitioner filed a motion essentially seeks a supplemental letter ( ECF No . 2 5 . ) of this Court's March 25, "motion for rehearing" 2013 decision. ( ECF No. reconsideration of of Petitioner's earlier motions. 2013, filed ( Id.) Petitioner filed a motion for 2 6. ) This the- Court's denial Finally, on October 2, judgment on the pleadings. (ECF No. 29.) B. Factual Background The facts of this case were recounted below and this Court, affording appropriate the state deference, court's factual see u.s.c. 28 determinations § 2254 (e) (1), the will reproduce the recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on February 6, 2006, with respect to Petitioner's direct appeal: The victim of the charged homicide was Zoila Mena, defendant's ex-girlfriend. Mena lived at 107 Baldwin Street, New Brunswick with her two adult sons, Aaron and Augustine. On February 9, 2002, shortly after 3:00 p.m. , Mena returned home from running some errands. Defendant was on the porch. As she walked past him toward the front door, defendant shot her twice, in the back and in her left temple. Hearing the shots, Aaron came outside to find his mother in a pool of blood. As he knelt by his mother to render assistance, he claimed that defendant put a gun to his head and ordered him inside. Aaron went inside and called the police. However, a witness testified that both Aaron and Augustine came outside and defendant merely motioned for them to go back into the house, which 6 they did. The witness did not see defendant put a gun to Aaron's head, although he did have a gun in his hand. 5 After shooting Mena, defendant left the porch and walked down the block. He returned almost immediately and waited on the porch until the police arrived. The first responding officer found the gun on the porch, next to defendant. Mena was taken by ambulance to the hospital where she died. Defendant was taken to police headquarters where he was interrogated by two officers, with another officer acting as their interpreter. Beginning at 6:00p.m., a fourteen-minute taped statement was taken from defendant in which he admitted shooting Mena. He claimed that he had asked Mena where she had been that morning and she replied that it was none of his business. According to his statement, Mena cursed at him and said she was going to get her sons to attack him. Fearful that he would be killed, defendant grabbed a gun which was hidden in a pipe and shot twice. He said that he lost his mind and was confused. Defendant claimed that he had purchased the gun from Aaron, a claim which Aaron denied. At trial, defendant presented the testimony of Dr. Elias Fernandez, a forensic psychologist, that defendant was intoxicated at the time of the offense and, as a result, he lacked the ability to act knowingly or purposely. Dr. Fernandez testified that defendant was functionally illiterate, and that he believed him to be in the borderline range of cognitive functioning. Dr. Fernandez opined that defendant's limited intellectual functioning, in conjunction with his ingestion of alcohol, impaired his reasoning to the extent that he acted recklessly. Defendant had informed Dr. Fernandez, in an interview, that prior to the shooting, he consumed several beers each day, and on the weekend he drank even more. Defendant tended to minimize the extent of his drinking; he did not perceive it to be a problem. On the day of the shooting, defendant claimed to have 5 Defendant was acquitted of aggravated assault on Aaron. 7 consumed a 24-ounce beer, a pint of blackberry brandy, and a upocket-sized" bottle of alcohol. Dr. Fernandez testified that, according to what he learned from defendant, when Mena returned from a visit to the Dominican Republic, her romantic relationship with him became contentious. Defendant became distraught and dysphoric upon learning that Mena was still married to a man in the Dominican Republic and that she had lied to him about their relationship. Defendant became enraged, and his emotional anger, coupled with the alcohol and his poor reasoning, led to the shooting. Dr. Fernandez had listened to the tape of defendant's statement to the police. In that statement, defendant was clear and oriented. Dr. Fernandez concluded, however, that based on the shock produced by the shooting and the police involvement, Tirado became uhyperaroused," which rendered him both coherent and alert. Dr. Antonio Almoquera Abad, a forensic psychiatrist, testified in rebuttal as the State's psychiatric expert. Dr. Abad opined that defendant udid not meet any diagnosis for major mental disorder at the time [of the shooting] nor mental retardation. In regard to the effect of alcohol, there is no evidence that I have access to, no evidence documenting a state of alcohol intoxication." Dr. Abad diagnosed defendant as suffering from alcohol abuse, rather than alcohol intoxication. Tirado had indicated to Dr. Abad that he consumed alcohol prior to the shooting, but Dr. Abad could not see any behavioral manifestation substantiating defendant's intoxication. He concluded, however, that defendant had a chronic problem with alcohol. Dr. Abad disagreed with Dr. Fernandez's conclusion that Tirado had a borderline mental capacity. He also stated that while a shocking event might have a momentary impact on a person's state of intoxication, such stress is hardly ever followed by the disappearance of the state of alcohol intoxication. 8 (PE-J, February 6, 2006 Appellate Division Opinion, State . v. Tirado, Docket No. A-5072-03T4 slip op. at 2-6.) II. A. STATEMENT OF CLAIMS Petitioner's Claim for Habeas Relief Petitioner asserts ~he following claims for relief in his habeas petition: Ground One: Petitioner's evidence of intoxication merits an evidentiary hearing on an insanity and diminished capacity defense. Ground Two: The conviction based on aggravating factors must be vacated for lack of proof of aggravating circumstances. Ground Three: raised in his ineffective Petitioner adopts by reference his arguments state PCR proceedings, for failing to call namely, witnesses to that counsel was substantiate or expand upon his intoxication defense. Ground Four: Petitioner adopts by reference his arguments submitted in his motion for reconsideration before the Supreme Court of New Jersey, namely, that the assistant prosecutor does not have the authority to act on behalf of the Attorney of the State of New Jersey, Gen~ral and the State of New Jersey, its courts and prosecutor have no jurisdiction over Petitioner. Ground Five: Cumulative trial errors and ineffective assistance of trial counsel deprived Petitioner of a fair trial. 9 {Petition and Memorandum of Law, ECF No. 1 at ~ 12; ECF No. 1-1 at 6-23.} B. The State's Response and Affirmative Defenses The State argues that the petition lacks substantive merit. The State also asserts the following affirmative defenses: u.s.c. the petition is time-barred under 28 § 2244{d}; {I} {II} the petition fails to state a claim for which habeas relief may be granted; {III} Petitioner failed to exhaust his state court remedies with respect to Grounds One, Two and Five; and {IV} Ground One, Two and Five are deemed exhausted, to procedural default. A. if they are subject {Answer, ECF No. 15 at 8-28.} Timeliness Issue This barred. Court finds Petitioner that had the filed habeas a petition motion for is not time- reconsideration before the Supreme Court of New Jersey promptly after this Court had dismissed prejudice, Petitioner for first non-exhaustion of habeas state application, court without remedies. The Supreme Court of New Jersey granted Petitioner's application for leave to file the motion for reconsideration as within time, and then summarily September 9, denied 2011. the {Ra19; motion PE-S.} for An reconsideration amended conviction was then entered on September 9, 2011. 10 on judgment {Ra2 0.} of This habeas application was filed on June 20, year statute of limitations under 28 U.S.C. B. 2012, within the one§ 2244(d) . 6 Exhaustion and Procedural Bar To the exten~ that any of the claims asserted by Petitioner are unexhausted, as argued by the State, such claims on the merits, this Court may deny notwithstanding Petitioner's failure to exhaust his state court remedies, because they are facially meritless and warrant denial of habeas relief under 28 U.S.C. 2254 (b) (2). See Mahoney v. Bostel, 366 F. App'x 368, 371 § (3d 6 The timeliness of a § 2254 habeas petition is governed by 28 U.S.C. § 2244(d), which states in relevant part: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court. The limitation period shall run from the latest of(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. Therefore, pursuant to the applicable statute of limitations provision, evaluating the timeliness of the instant petition first requires a determination of when petitioner's state court judgment became final. The judgment is determined to be final by the conclusion of direct review, or the expiration of time for seeking such review, including the ninety-day period for filing a petition for writ of certiorari in the United States Supreme Court. See Gonzalez v. Thaler, U.S. ----, 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012). 11 Cir. 2010). Cir. 2005) See also Bronshtein v. Horn, 404 F.3d 700, 728 (3d ("We would permit Bronshtein to attempt on remand to establish a reason to excuse his procedural default, but we find it unnecessary to do so because it is apparent that the claims in question lack merit. Under 2 8 U. S . C. § 2 2 54 (b) ( 2) , we may reject claims on the merits even though they were not properly exhausted, and we take that approach here"). Finally, the Court finds no clear-cut procedural default in this case. The Supreme Court recently discussed the issue of procedural default in Martinez v. Ryan. Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review . of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. 12 u.s. (2012) U.S. 132 S.Ct. (citations omitted). 722, 750 ( 1991) 1309, 1316, 182 See also Coleman v. L.Ed.2d 272 Thompson, 501 ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, review of the claims demonstrate· cause for is the barred default unless and federal habeas the actual prisoner prejudice result of the alleged violation of federal law, can as a or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.") Here, there is no indication that the state courts declined to hear any of Petitioner's claims based on Petitioner's failure to abide by a state procedural rule. Indeed, of New Jersey allowed Petitioner's motion the Supreme Court for reconsideration (in which Petitioner superficially and unskillfully asserted his various claims denying relief. merits of a for relief) Cir. federal habeas 2008). petition, pro tunc before summarily state court may render adjudication on the A claim by rejecting the claim without any discussion whatsoever. (3d nunc See Fahy v. Thus, if none raised of Horn, 516 F. 3d 169, Petitioner's before the claims state 202-03 in courts, this were dismissed by the state courts with either an express or implicit statement indicating refusal to 13 review that claim on merits. Consequently, misplaced. the State's procedural While some claims of bar argument Petitioner's is facially claims may not have been raised before the state courts, these claims cannot be deemed procedurally barred; rather, being left unexhausted, are subject to review under the Court's § they 2254(b) (2) mandate as discussed above. Accordingly, the Court now turns to the merits of Petitioner's claims for habeas relief. III. STANDARD OF REVIEW A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. 429 U.S. (1972). must See 97, 106 (1976); Haines v. Kerner, v. 404 U.S. Gamble, 519, 520 A pro se habeas petition and any supporting submissions be construed liberally and with a Campbell Royce v. Estelle v. Hahn, Burris, 515 F.3d 172, measure 185-86 of tolerance. (3d Cir. 151 F.3d 116, 118 (3d Cir. 1998). 2008); Thus, because Petitioner is proceeding as a pro se litigant in this matter, the Court wi 11 accord his habeas petition the liberal construction intended for prose petitioners. Under the Antiterrorism and Effective Death Penalty Act of 1996 (~AEDPA"), 28 U.S.C. § 2254, this Court has jurisdiction to entertain a petition for federal habeas relief as follows: 14 district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. [A] 28 U.S.C. 2254(a). § Section provides the state court 2254(d) standard criminal of of the federal review for determinations habeas federal corpus court and provides, statute review of in relevant part, as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim( 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. 28 U.S.C. § 2254(d}; see also Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012}. "Clearly established Federal law" should be determined as of the date of the relevant state court decision and is limited to the record that was before the state court that adjudicated the claim on the merits . Greene v. 15 Fisher, ---u.s. 132 S.Ct. 38, 181 L.Ed.2d 336 (2011); Cullen v. Pinholster, 563 U.S. 131 S.Ct. 1388, court decision is 1398, ~contrary if the state court (1) 179 L.Ed.2d 557 (2011). A state- to" clearly established federal law contradicts the governing law set forth in Supreme Court cases or (2) confronts a set of facts that are materially from indistinguishable a decision of the Court and nevertheless arrives at a different result. v. 529 U.S. Taylor, F.3d 266, 274 362, 405-06 (3d Cir.2008). (2000); The Jamison state court Supreme Williams v. 544 Klem, judgment must contradict clearly established decisions of the Supreme Court, not merely law articulated by any federal court, U.S. at 405, decisions although district and appellate Williams, federal 529 court evaluating Supreme Court precedent may amplify such precedent, Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir. 2004) (citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, ~[c]ircuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme 890 (3d Cir. Court,' 1999)). [and] therefore cannot form the basis for habeas relief under AEDPA." not required 132 S. Ct. Parker, to cite or Supreme Court precedent the result Packer, of [its] 537 U.S. 3, at 2155. even have The state court is an awareness of governing "so long as neither the reasoning nor decision contradicts 8 (2002); Jamison, 16 them." Early 544 F.3d at 274-75. v. Few state court decisions will be "contrary to" Supreme Court precedent. The federal habeas court more often must determine whether the state court adjudication was an "unreasonable application" of Supreme Court precedent. unreasonable application' the state court (1) A state-court decision 'involves an of clearly established federal law if identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case; or (2) unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or. unreasonably refuses to extend that principle to a new context where it should apply. U.S. at 407. Lockyer v. showing A of 538 U.S. Andrade, clear 63, error 75-76 is Williams, not (2003). 52 9 sufficient. Nor is habeas relief available merely because the state court applied federal law erroneously or incorrectly. u.s. 131 (Under§ 2254(d) (1), is different from S.Ct. See Harrington v. Richter, 770, 785 I 178 L . Ed . 2 d 62 4 497 Cir. 2005). merit (3d Cir. ( 2 0 11 ) "an unreasonable application of federal law an incorrect application of federal (quoting Williams at 410)); see also Thomas v. Varner, 491, 562 2005); Jacobs v. Horn, 395 F.3d 92, law." 428 F.3d 100 (3d "A state court's determination that a claim lacks precludes federal habeas relief 17 so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." 131 S.Ct. at 786 Harrington, 541 Alvarado, U.S. 652, 664 condition for obtaining habeas (quoting Yarborough v. Accordingly, (2004)). corpus from a federal ~[a]s a court, a state prisoner must show that the state court's ruling on the claim being presented justification that in there federal was an court was error well so lacking understood comprehended in existing law beyond any possibility for minded disagreement." in and fair- Harrington, 131 S.Ct. at 786-87. The Supreme Court repeatedly has reiterated the deference that the federal See Felkner v. L.Ed.2d 374 courts must accord to state court decisions. Jackson, (2011) ---u.s. ----, (~AEDPA 131 s.ct. 1305, 1307, 179 imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be Pinholster, 845 given the benefit of 131 S.Ct. at 1398; Eley v. 2013), denied, the (3d Cir. (U.S. Oct. 7, 2013). cert. doubt."); Erickson, Lamas v. See also Harrington, Eley, Cullen v. 712 F.3d 837, 134 S.Ct. 131 S.Ct. at 786 254 (~we must use habeas corpus as a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal."); Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) ("whether the trial judge was right or wrong is not the pertinent question 18 under AEDPA") ; Schriro u.s. 550 Landrigan, v. 465, 473 (2007) ("The question under AEDPA is not whether a federal court believes the whether state that court's determination determination was was incorrect unreasonable-a but substantially higher threshold."); Lockyer, 538 U.S. at 75 that a in its independent review of the federal habeas court, legal question, is left with a "the state petitioner's analyzed court federal 'firm conviction' claims on and the rejected merits indication of how it reached its decision.'" 709 F.3d 22.4, 230 that the state Further, AEDPA's standard applies even court was erroneous . " ) . where ("it is not enough (3d Cir. a but habeas gave Grant v. 'no Lockett, 2013) (quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012)). A state court determination of decision the facts" is based on "an unreasonable only if the state court's factual findings are "'objectively unreasonable in light of the evidence presented Cockrell, § in the state-court proceeding.'" Miller-El v. 537 U.S. 322, 340 (2003) (citing, inter alia, 28 U.S.C. 2254(d) (2)). Moreover, a federal court must accord a presumption of correctness to a state court's factual findings, which a evidence. U.S. 333, petitioner 28 U.S.C. 339 (2006) can rebut only § 2254(e); by clear and see also Rice v. convincing Collins, 546 (petitioner bears the burden of "rebutting 19 the presumption by 'clear and convincing evidence.'" U.S.C. Cir. 2254 (e) (1)); § Duncan v. (quoting 28 256 F.3d 189, Morton, 196 (3d 2001) (factual determinations of state trial and appellate courts are presumed to be correct) . Where factual findings are not made explicit, a state court's a federal court's uduty is to begin with the [state] court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it." 280, 289 (3d Cir. 2000). Campbell v. 2 09 F. 3d Vaughn, In determining what implicit factual findings a state court made in reaching a conclusion, a federal court must correctly. infer Id. that the state court applied federal law (citing Marshall v. Lonberger, 459 U.S. 422, 433 (1982)). Even if the petitioner is entitled to habeas relief under AEDPA, the court may grant the writ only if the error was not harmless. Under the harmless error uassess the prejudicial impact of [the] state-court criminal trial." 121 (2007). led to verdict." [the] the court must constitutional error in Fry v. Pliler, 551 U.S. 112,. The court should hold the error harmless unless it uactual prejudice," injurious standard, effect or Brecht in the influence v. form of a in Abrahamson, "substantial determining 507 u.s. the jury's 619, (1993) (quotation omitted); Eley v. Erickson, 712 F.3d at 847. 20 and 637 IV. A. DISCUSSION Ineffective Assistance of Counsel The Court denied his first Sixth addresses Amendment Petitioner's right to claim that he was effective from denial of his state court PCR petition. would of Petitioner relies upon the arguments raised on appeal counsel. alleges assistance that his trial substantiate Notably, documents, or Petitioner counsel expand has certifications failed upon not or to his Namely, Petitioner call intoxication provided other witnesses defense. corroborating any evidence who identifying these purported witnesses to his intoxication. To prevail on a claim of ineffective assistance of counsel, Petitioner must demonstrate that ( 1) counsel's performance was so deficient as to deprive him of the representation guaranteed to him under the Sixth Amendment of the U.S. (2) the depriving Washington, Strickland, deficient the performance defendant 466 U.S. 668, Petitioner prejudiced of a 687 ( 1984) . must "reasonable probability that, fair for the trial. and defense by Strickland v. To show prejudice under demonstrate but Constitution, that there is a counsel's unprofessional errors, the result of the proceeding would have been different." Rainey v. Strickland, Varner, 603 F. 3d 189, 466 U.S. 197-98 (3d Cir. 2010) "The benchmark for at 694) . 21 (quoting judging any claim of ineffectiveness must undermined that the the proper trial functioning of counsel's the cannot be relied on as 466 U.S. at 686; Strickland, result." be whether conduct adversarial process having produced a Ross v. Varano, so just 712 F.3d 784, 797-98 (3d Cir. 2013). "Since Strickland, have emphasized the the Supreme Court and the Third Circuit necessity of assessing claim in light of all the circumstances." F.3d 224, 232 (3d Cir. 2009) (citing cases). under claim, (3d Cir. 2013); Siehl v. an Grant v. Lockett, 709 561 F.3d 189, Grace, When a ineffectiveness federal habeas 195 petition 2254 is based upon an ineffective assistance of counsel § "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable," which "is different from asking whether defense counsel's performance fell below (quoting 2254 (d) (1) Harrington, "an 1 standard." Strickland's 131 S.Ct. unreasonable at 785). For application of different from an incorrect application of (internal quotation marks omitted) (emphases state court must be granted a not in operation when assistance the case involves of F.3d at purposes federal federal in 232 of law law." original). § is Id. "A deference and latitude that are the Strickland standard itself." ineffective 709 Grant, I d. counsel 22 [direct] review under Federal habeas review of claims is thus "doubly deferential." Id. (quoting Cullen v. 14 03) . Federal habeas look at counsel's courts must performance" deferential lens of § "take a under 2254 (d) . " Pinholster, I d. 131 S.Ct. at highly deferential Strickland, "through the (internal quotation marks and citations omitted). In this case, claim of ineffective assistance Petitioner ¢ ¢ ¢ that I the Appellate Division rejected Petitioner's "presented no any such evidence witnesses testify at the time of trial." at *1. of trial during existed counsel, the or noting that PCR proceedings, were available to State v. Tirado, 2009 WL 2059727 Relying substantially on the PCR record, the Appellate Division recited Judge DeVesa's findings at length: In the trial the defendant had produced an expert witness, Doctor Fernandez, who testified that the defendant, based upon his review of the reports and his interview of the defendant, was intoxicated, and the State produced an expert who testified that the defendant was not suffering from any major disorder of the mind that would provide a defense and that although he might have had a long-term history of alcohol abuse [,] there was nothing in the record to support the fact that he was so intoxicated at the time as to provide him with a defense or mitigation to the charge of murder. In this case there was no real evidence of intoxication and, indeed, a number of witnesses who were present at or about the time of the shooting had been ·questioned at the trial and they indicated that the defendant did not smell of alcohol, that he was walking and talking without difficulty and, of course, the [c]ourt had the benefit of the confession of the defendant which was testified to and made clear that 23 the defendant, at least shortly after the shooting, was very coherent and was not apparently impaired in any way. Clearly, for one to raise a defense of intoxication or even a mitigating factor of intoxication, one's faculties really have to be significantly impaired; and the evidence that was presented in the trial which the jury found obviously persuasive was simply that he was not intoxicated and they rejected the testimony of his expert witness who simply was not present and who apparently was not persuasive in rendering such a conclusion. In this case the petition is simply insufficient in that the petitioner has only alleged that his trial lawyer failed to call any witnesses to support his claim of intoxication, but there are no certifications, there are no affidavits from any witnesses, and this [c]ourt has absolutely no basis to conclude that there are any such witnesses. Again, during the course of the trial those witnesses who were located and did come to [c]ourt all testified at variance with this alleged defense of intoxication, again, with the exception of the defendant's expert. So, based on the evidence that was presented, the testimony of those people who were able to offer testimony on the issue of intoxication, the lack of any indication here in the defendant's petition that there were, indeed, witnesses who might have testified as to the defendant's state of intoxication, not to mention a degree of intoxication that would have set up a claim of diminished capacity, the [c]ourt simply finds that the defendant has not made out a prima facie case for ineffective assistance [ ] [of] counsel and, therefore, the petition for post[-]conviction relief must be denied. Id., 2009 WL 2059727 at *2. 24 Accordingly, the Appellate Division ruled that had failed to meet performance and two-pronged test of deficient Strickland's prejudice. Petitioner The court further observed that trial counsel rendered competent representation by producing an expert witness to support the intoxication defense. The court reasoned that, u[h]ad any eyewitnesses to that intoxication been available, is, it have produced identity them at and/or 'testified likely trial. [ PCR] intoxication .... '" of any judge noted, variance at with At Id. that trial Defendant's availability As the telling. therefore, counsel silence as such witnesses would to is the most witnesses to the shooting alleged this best, the of defense court concluded, Petitioner's ineffectiveness of counsel claim ubarely rises the level of speculation." Having carefully to Id. reviewed the state court record, this Court likewise concludes that Petitioner has · failed to make a prima the facie showing of Strickland factual basis, ineffectiveness of standard. witness Petitioner certifications, trial has not counsel under provided any or any other evidence, other than his speculative conjecture, to support his claim that counsel defense. that was failed to substantiate Petitioner has not not called, and he or expand his intoxication identified any potential witness has 25 not specified what further investigation intoxication was necessary defense. for counsel "[C] ounsel has to a substantiate duty to make his [only] reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." u.s. at 691. See also Echols v. Aug. 19, 2011), 19, 2012). purely aff'd, 2011 WL 3678821 Ricci, 2012 U.S. App. LEXIS 14803 In this case, speculative Strickland, 466 (D.N.J. (3d Cir. July the state courts expressly noted the nature of Petitioner's claim and observed that counsel vigorously pursued the intoxication defense by use of an expert witness, which was the only means to support the intoxication in defense light of the contradictory witness testimony against Petitioner's intoxication. Simply deficient stated, Petitioner performance intoxication defense· by trial that undermining the verdict. has failed counsel would have Therefore, in had to demonstrate presenting any effect an of this Court concludes that the determinations of the state PCR court and appellate court in denying Petitioner's ineffectiveness of trial counsel claim did not result in a decision that was contrary to, unreasonable application of, clearly or involved an established federal law under Strickland, 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. 26 See Parker, ,, 132 S.Ct. at 2151; Williams, Accordingly, 529 U.S. at 413. the Court will deny federal habeas relief on Petitioner's claim of ineffective assistance of trial counsel because this claim is substantively meritless. B. Intoxication Defense In Ground One of his petition, Petitioner asserts that the trial court should have conducted an evidentiary hearing with regard to insanity intoxication and evidence diminished because capacity it was defenses. relevant Petitioner to also seems to claim that intoxication evidence showing mental defect should have been considered by the trial court at the time of his sentence as a mitigating factor. This claim is essentially Petitioner's assistance failure to call defense, as discussed in the preceding section of this Opinion. State Petitioner witnesses reiterates, had intoxication at ultimately was counsel of ineffective The of duplicative in presented trial to its a regarding substantiate his answer full to the defense on counsel's intoxication petition, the Thus, jury, 27 of which and upheld by the state the State contends claim should be denied here as well. that issue (by producing an expert witness) , rejected by the courts on review. claim that Petitioner's As discussed above, the state courts properly concluded that an evidentiary hearing on the issue of counsel's failure to witnesses call concerning Petitioner's and intoxication diminished capacity was not warranted because the witnesses who were present Petitioner's and who testified at intoxication defense, trial did not and because corroborate Petitioner gave no indication as to those witnesses who might have testified as to The Petitioner's court intoxication. specifically held 2009 WL 2059727 Tirado, that record to support the fact that "there was at in nothing *2. the [Petitioner] was so intoxicated at the time as to provide him with a defense or mitigation to the charge state of murder . " decisions court Thus, Id. regarding defense were neither contrary to, application of, state court the Court did not that the intoxication Petitioner's nor involved an unreasonable clearly established federal decisions finds result in law. a Further, decision that the was based on an unreasonable determination of the facts in light of the evidence presented in the state Parker, 132 S.Ct. at 2151; Williams, The State further argues, court proceeding. See 529 U.S. at 413. however, that Petitioner is not entitled to an evidentiary hearing because he failed to develop the factual basis for his claim in state otherwise met the standard under 28 U.S.C. 28 court § and has 2254(e) (2), not which permits evidentiary hearings by the federal court under very narrow circumstances. district A court is permitted to hold an evidentiary hearing on a claim asserted in a § 2254 petition so long as such a hearing is not barred by 28 U.S.C. section, a the petitioner was factual basis for diligent his claim proceedings, see Palmer v. Hendricks, 2010), in his in the attempt state to court 592 F.3d 386, 392 (3d Cir. or the petitioner satisfies the criteria set forth in§ 2254 (e) (2). that Under that a habeas court is barred from holding. an evidentiary hearing unless develop § 2254(e) (2). the Section 2254(e) (2) claim constitutional relies law or previously have been diligence, and on a uthe requires the petitioner to show a new factual discovered facts and retroactive predicate through that rule could exercise the underlying the claim of not of would due be sufficient to establish by clear and convincing evidence that but have for constitutional found Palmer, the error, applicant 592 F.3d at 392 no guilty reasonable of the (quoting 28 U.S.C. factfinder underlying would offense." § 2254(e) (2) (A) and (B) ) . The decision to grant such discretion of the district court." Palmer, 592 F.3d at 393. In 29 a hearing Schriro, Schriro, rests 550 U.S. the in the at 468; Supreme Court instructs that a district court should consider two related factors in its exercise of discretion as to whether to hold an evidentiary hearing: ( 1) "whether the petition presents a prima facie showing which, if proven, would enable the petitioner to prevail on the merits of the asserted claim, " and the factual allegations contravened by Palmer, supra (quoting Schriro, 550 record." "are u.s. ( 2) the whether existing at 474-75. In this case, Petitioner has not even attempted to meet the threshold criteria of § 2254(e) (2). Certainly, the claim that he was not able to fully present his intoxication defense does not rely on either a new rule of constitutional law or a factual predicate that could not previously have been discovered through due diligence. witnesses Indeed, alleges he Petitioner still fails are necessary to to identify the substantiate his intoxication defense. Moreover, as observed by the state courts, the testimony of witnesses at trial refutes Petitioner's intoxication at the time of the offense. "witnesses to Tirado, the 2009 WL 2059727 at *2, shooting 'testified at 3 (noting that variance with this alleged defense of intoxication'"). Therefore, a prima the facie evidence the Court finds that the petition fails to make showing of a potentially meritorious claim, at trial clearly 30 contravenes the and intoxication ' ' I defense. Petitioner is not entitled to an evidentiary hearing, and this claim is denied for lack of merit. C. Sentencing Claim Petitioner next asserts that his thirty-year prison term is cruel and unusual ~ (Petition, 12 punishment at Ground and violates Two.) He due process. also - challenges sentencing court's consideration of aggravating factors. the ( Id.) Petitioner did not raise these claims on state court review. federal A limited such to as challenges being motivated, ability ·to based cruel review upon and 10-5335 (JAP) I (quoting Grecco v. unusual, 1987)). Thus, a is not sentencing 661 F. challenge to reviewable state a in a or Yorio II *3 I sentences federal racially 2012 WL 3133948 0 'Lone, state "proscribed or enhanced by indigencies. Civil No. 2012) court's v. 408, court's federal grounds ethnically New Jersey, Jul. (D.N.J. Supp. is 415 311 (D.N.J. discretion at habeas proceeding unless it violates a separate federal constitutional limitation. See Yorio, McGuire, "The supra. also 28 U.S.C. § 2254(a); Estelle v. 502 U.S. 62, 67 (1991). Eighth punishments, 'applies See Amendment, contains a to noncapi tal U.S. 11, 20 (2003) which forbids cruel and unusual 'narrow proportionality principle' sentences.' 11 (citations omitted). 31 Ewing v. California, that 538 Essentially, the Eighth ' ' . Amendment forbids disproportionate" only to extreme sentences the crime. 53 8 Ewing, that U. are S. "grossly at 2 3 . The Supreme Court has identified three factors that may be relevant to a determination of whether a sentence is so disproportionate to the crime committed that "(1) the penalty; same gravity ( ii) of the offense the sentences jurisdiction; it violates the harshness the sentences the in the imposed commission of the same crime in other jurisdictions." Helm, of imposed on other criminals (iii) and and the Eighth Amendment: for Solem v. 463 U.S. 277, 292 (1983). Reviewing Petitioner's Eighth Amendment claim, this Court finds that Petitioner has failed to present any cogent argument as to why or how his sentence is unconstitutional. There is no evidence that Petitioner's sentence is grossly disproportionate to the crime he committed. Indeed, the New Jersey Supreme Court has held that there is no presumptive term for murder, but that "the standard range for murder years and life imprisonment." 11-1631 State v. (FLW), 2012 Abdullah, received a WL is a Bueno sentence v. between Civil No. Bartkowski, 32937, *10 (D.N.J. Jan. 6, 2012) 184 N.J. 497, 30-year prison term, 507 Here, (quoting Petitioner plainly at the low end of the standard range for a murder conviction. 32 (2005)). thirty . ' . Petitioner's due process claim also fails to explain how the sehtencing court erred in considering aggravating factors to assess his Specifically, sentence. the sentencing determined that the single aggravating factor mitigating factor (no (Ra2 0.) Thus, it pr~or is court (deterrence) and criminal record) were in "equipose." apparent that the state court did not impose a sentence on Petitioner on the basis of any aggravating At best, Petitioner may be attempting to claim that the factor. court should have considered his factor. this However, Opinion, intoxication as a mitigating as demonstrated in the preceding sections of there was nothing in the state court record to support Petitioner's intoxication defense sufficient to mitigate the charge of murder. Therefore, petition, Petitioner's asserting constitutional that limitations, claim his is under Ground sentence without Two violates merit and of his federal is denied accordingly. D. Ground Four of the Petition In Ground Four of his habeas application, Petitioner refers to the arguments raised in his motion for reconsideration before the Supreme Court without opinion. of New Jersey, . which was summarily In his motion for reconsideration, 33 denied ~etitioner J to ¢ ¢ claimed that "the lower 'inferior' courts proceeded in the cause without proper jurisdiction." (PE-R at 3.) Petitioner pursued this claim in state court after having filed his first federal habeas petition before this Court. that first the habeas petition, State of New Petitioner also was Jersey, its courts, prosecutors and correctional department, convict him and that his Tirado, In claiming that public defenders, lacked jurisdiction to conviction is a void judgment. 2011 WL 1256624 at *2. See This Court summarily dismissed Petitioner's claim as having "absolutely no legal basis." I d. at *4. Because Petitioner action. E. is this claim precluded has from been adjudicated raising the same on its claim merits, in this Therefore, Ground Four of the petition is denied. Cumulative Errors Finally, trial Petitioner argues coupled with his denied him a fair trial. trial that the counsel's cumulative errors ineffective assistance Petitioner fails, the cumulative errors at trial. at however, to specify This claim was not exhausted on state court review. While "[i]ndividual errors that do not entitle a petitioner to relief may do so when combined," Fahy, 516 F. 3d at 205, test whether for a cumulative error claim 34 is the the overall deficiencies the resulting conviction a 63 7, 11-7132 Civil No. of 643 (FSH), Hein 11 v. (relying on Donnelly ( 197 4)) . See also Cox v. 2013 WL 6022520, Nov. 13, 2013); Merritt v. Bartkowski, 2013 WL 4588722, due process. (9th Cir. 2010) 416 U.S. DeChristoforo, Warren, denial 601 F .'3d 897, 917 Sullivan, v. "so infected the trial with unfairness as to make Civil No. *20 (D.N.J. Aug. 28, 2013). * 10 (D .N.J. 11-3756 (JAP), "Cumulative errors are not harmless if they had a substantial and injurious effect or influence in determining the jury's verdict, which means that a habeas petitioner is not entitled to cumulative errors unless he can establish Albrecht Brecht, v. Horn, 471 F.3d 435, 468 relief based on 'actual prejudice.' (3dd Cir. 2006) II (citing 507 U.S. at 637). Here, as deliberated above, Petitioner has failed to assert any individual error of constitutional magnitude. Likewise, there is no basis or merit for habeas relief on the grounds of an alleged accumulation of the errors that, exist. in reality, did not Therefore, this claim is denied as patently meritless. V. This Court CERTIFICATE OF APPEALABILITY next must appealability should issue. Rule 22.2. determine whether a See Third Circuit certificate of Local Appellate The Court may issue a certificate of appealability only if the petitioner "has made a 35 substantial showing of the denial of a constitutional right." the reasons discussed above, 28 U.S.C. § 2253(c) (2). For this Court's review of the claims advanced by Petitioner demonstrates that he has failed to make a substantial showing necessary for a this Court of the denial of a constitutional right Thus, certificate of appealability to issue. declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) (2). VI. CONCLUSION For the above reasons, this Court habeas petition appealability will must not be denied, issue. finds and a Petitioner's that the § 2254 certificate motions for of a rehearing and for judgment on the pleadings (ECF Nos. 26 and 29) are denied as moot. An appropriate Order follows. 36
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