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[[COURTLISTENER_SUBOPINION {"id":"10275524","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
:
MANUEL CONCEPCION, : Civ. Action No. 20-5133 (RMB)
:
Petitioner :
:
v. : OPINION
:
WARDEN, et al., :
:
Respondents. :
:
BUMB, Chief United States District Judge
This matter has been opened to the Court by Manuel Concepcionâs
(âpetitionerâ or âdefendantâ) filing of a habeas petition pursuant to
28 U.S.C. §
2254
. Having reviewed the Petition, Respondentâs answer, Petitionerâs traverse, and
the record in this matter, the Court denies the Petition for the reasons stated in this
Opinion and denies a certificate of appealability (âCOAâ).
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Petitioner was acquitted or murder but found guilty of aggravated
manslaughter and two weapons offenses in connection with the stabbing death of
Ignacio Castro (âCastro or âvictimâ). The Superior Court of New Jersey Appellate
Division provided the following factual background for the crime:
During the early morning hours of July 11, 2011,
near Bellevue and Pacific Avenues in Atlantic City,
Ignacio Castro met Megan Cassidy, a prostitute, and
solicited her services. Cassidy told Castro she charged
sixty dollars, and led him to the back of an alley. When
Cassidy asked for the money up front, Castro objected and
said sixty dollars was too much. Cassidy then demanded
twenty dollars from Castro for wasting her time. They
argued and Castro threw a $20 bill at Cassidy. After
cursing at each other, Castro slapped Cassidy and she
continued to yell at him as they left the alleyway.
A man, street-named âBoo,â who knew Cassidy,
overheard the commotion and asked Cassidy what was
happening. Cassidy explained, and Boo asked Castro why
he hit Cassidy. A second man, âPapi,â walked by and
began to speak to Castro in Spanish. As Castro, Boo, and
Papi were speaking, Cassidyâs ex-boyfriend âMizâ came
by. They were soon joined by defendant, Manuel
Concepcion.
Cassidy testified that Boo, Miz, and defendant each
hit Castro in the chest. Castro began bleeding, and
staggered away. Castro had been stabbed with scissors
and, when paramedics responded, he was unconscious,
not breathing, and without a pulse. Castro never regained
consciousness and sustained anoxic brain injury as a result
of prolonged lack of oxygen. He was maintained on life
support for a few weeks, but was removed on August 3,
2011, and died shortly thereafter.
On September 21, 2011, defendant was indicted on
a charge of possession of cocaine, N.J.S.A. 2C:35â
10(a)(1). Defendant was indicted again on February 15,
2012, on charges of first-degree murder, N.J.S.A. 2C:11â
3(a)(1), third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39â4(d), and fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39â5(d)
(2012 indictment). Tried by a jury, defendant was
acquitted of murder but convicted of the lesser included
offense of aggravated manslaughter and the two weapons
offenses. Petitioner subsequently pled guilty to the
possession of cocaine charge and was sentenced to an
aggregate forty-year custodial sentence, with an eighty-
five-percent period of parole ineligibility pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2.
State v. Concepcion, No. Aâ3884â13T4,
2015 WL 9694377
, at *1 (N.J. Super. App.
Div. Jan. 5, 2016).
On direct appeal, the Appellate Division affirmed petitionerâs convictions and
sentence in an unpublished opinion. See
id. at *4
; see also ECF No. 6-20, Exhibit 20,
State v. Concepcion, No. A-3884-13 (App. Div. Jan. 5, 2016). On May 6, 2016, the
New Jersey Supreme Court denied defendantâs petition for certification. ECF No. 6-
21, Exhibit 21, State v. Concepcion,
225 N.J. 339
(2016).
On or about June 15, 2016, petitioner filed a pro se petition for postconviction
relief in state court. See ECF No. 6-22, Exhibit 22, Petitionerâs PCR Brief and
Appendix at 40-44. On or about August 22, 2017, the PCR court denied the petition
without an evidentiary hearing. See Exhibit 22 at 69-79, PCR Letter Opinion dated
Aug. 22, 2017, at DA 51-61.
On December 4, 2017, petitioner filed a late notice of appeal.1 ECF No. 6-23,
Exhibit 23, Notice of Appeal dated Dec. 4, 2017. On November 26, 2018, the
Superior Court Appellate Division affirmed the denial of petitionerâs PCR in an
unpublished opinion. ECF No. 6-24, Exhibit 24, State of New Jersey v. Manuel
Concepcion, N.J. App. Div. (No. A-1589-17T2) (Nov. 26, 2018). The New Jersey
1 Petitioner also filed a motion to accept the appeal out of time, but the record does
not contain the order granting that motion. The Appellate Division addressed
Petitionerâs claims on the merits, and the Court assumes for purposes of this opinion
that the Appellate Division accepted the appeal as within time. The state does not
argue that the petition is untimely, and the Court does not address timeliness.
Supreme Court denied certification. ECF No. 6-25, Exhibit 25, State of New Jersey v.
Manuel Concepcion,
238 N.J. 60
(May 14, 2019).
On April 27, 2020, Petitioner filed a counseled habeas petition pursuant to
28
U.S.C. § 2254.2
ECF No. 1. The state filed its answer on June 8, 2020. ECF No. 6.
Petitioner filed his reply brief on July 22, 2020. ECF No. 7.
II. STANDARD OF REVIEW
Prior to bringing a federal habeas petition under
28 U.S.C. § 2254
(b)(1)(A), a
state prisoner must exhaust his state remedies. Nevertheless, â[a]n application for a
writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.â § 2254(b)(2).
If a state prisonerâs constitutional claim has been barred in the state courts on
independent and adequate state law grounds, there has been a procedural default,
and a habeas court cannot review the claim absent a showing of cause and prejudice
or actual innocence. Coleman v. Thompson,
501 U.S. 722, 729, 750
(1991).
If a constitutional claim has been exhausted,
[a]n 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
2 The petition is dated March 25, 2020. See ECF No. 1, Petition at 15. Because the
petition is counseled, the court uses the date counsel filed the Petition.
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).
The Third Circuit directed habeas courts to follow a two-step analysis under §
2254(d)(1). See Rosen v. Superintendent Mahanoy SCI,
972 F.3d 245, 253
(3d Cir. 2020)
(citing Matteo v. Superintendent, SCI Albion,
171 F.3d 877, 888
(3d Cir. 1999) (en
banc), cert. denied
528 U.S. 824
(1999)). First, courts should âdetermine what the
clearly established Supreme Court decisional law was at the time Petitionerâs
conviction became finalâ and âidentify whether the Supreme Court has articulated a
rule specific enough to trigger âcontrary toâ review.â Id. at 253 (quoting Fischetti v.
Johnson,
384 F.3d 140, 148
(3d Cir. 2004)). âThe âclearly established Federal lawâ
provision requires Supreme Court decisions to be viewed through a âsharply focused
lens.ââ
Id.
Clearly established law ârefers to the holdings, as opposed to the dicta, of
[the Supreme Court's] decisions as of the time of the relevant state-court decision.â
Williams v. Taylor,
529 U.S. 362, 412
(2000). A decision is âcontrary toâ a Supreme
Court holding within
28 U.S.C. § 2254
(d)(1), only if the state court applies a rule that
âcontradicts the governing law set forth in [the Supreme Court's] casesâ or if it
âconfronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a [different result.]â Williams,
529 U.S.
at 405-06
.
Second, if Supreme Court precedent is not specific enough to trigger contrary
review, habeas courts should âevaluate whether the state court unreasonably applied
the relevant body of precedent.â Rosen,
972 F.3d at 253
(quoting Matteo,
171 F.3d at
888
)). Under § 2254(d)(1), âan unreasonable application of federal law is different
from an incorrect application of federal law.â Harrington v. Richter,
562 U.S. 86, 101
(2011) (quoting Williams,
529 U.S. at 410
). For relief under this provision, the state
courtâs decision âevaluated objectivelyâ must have âresulted in an outcome that
cannot reasonably be justified under existing Supreme Court precedent.â Rosen,
972
F.3d at 252
(quoting Matteo,
171 F.3d at 890
)). A habeas court must frame the
ârelevant question as whether a fairminded jurist could reach a different conclusion.â
Shinn v. Kayer,
141 S. Ct. 517, 524
(2020), or, in other words, whether âevery
fairminded jurist would disagreeâ with the state court. Mays v. Hines,
141 S. Ct.
1145, 1149
(2021).
A petitioner who claims that the state courtâs adjudication of his claim was
based on an unreasonable factual determination under § 2254(d)(2), faces a similarly
heavy burden of proof because âa determination of a factual issue made by a State
court shall be presumed to be correct.â
28 U.S.C. § 2254
(e)(1); see also Miller-El v.
Cockerell,
537 U.S. 322, 340
(2003). âThe petitioner must show that the state court
verdict was based on an unreasonable determination of the evidence and that a
reasonable factfinder could not have reached the same conclusion.â Rosen,
972 F.3d
at 252
(3d Cir. 2020) (citing Campbell v. Vaughn,
209 F.3d 280, 291
(3d Cir. 2000)).
âAlthough state prisoners may sometimes submit new evidence in federal
court,â the habeas statute, âis designed to strongly discourage them from doing so.â
Cullen v. Pinholster,
563 U.S. 170, 186
(2011). âProvisions like §§ 2254(d)(1) and
(e)(2) ensure that â[f]ederal courts sitting in habeas are not an alternative forum for
trying facts and issues which a prisoner made insufficient effort to pursue in state
proceedings.ââ Id. (quoting Williams,
529 U.S. at 437
(additional citations omitted)).
Review under § 2254(d)(1) is limited to the record before the state court that
adjudicated the claim on the merits. Pinholster,
563 U.S. at 180-81
.
III. DISCUSSION
Petitionerâs claims for habeas relief allege ineffective assistance of trial and
appellate counsel.3 These claims are governed by the familiar standard set forth in
Strickland v. Washington,
466 U.S. 668
(1984), which constitutes âclearly established
Federal lawâ for AEDPA purposes. See Williams v. Taylor,
529 U.S. 362
(2000);
Rainey v. Varner,
603 F.3d 189, 197
(3d Cir. 2010). âUnder Strickland, a defendant
who claims ineffective assistance of counsel must prove (1) âthat counselâs
representation fell below an objective standard of reasonableness,â and (2) that any
such deficiency was âprejudicial to the defense.ââ Garza v. Idaho,
139 S. Ct. 738, 744
,
3 As discussed below, the Petition raises ineffective assistance claims in Ground One
and a due process claim in Ground Two. Petitionerâs counseled brief discusses only
the ineffective assistance claims.
(2019) (citations omitted) (quoting Strickland, 466 U.S. at 687â88, 692). With respect
to the performance prong, Strickland admonishes that âa court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is a petitioner must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.â Id. at 689 (internal citations omitted). To establish prejudice, â[t]he
defendant must show that there is a reasonable probability that, but for counselâs
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.â Id. at 694. A reasonable probability means a ââsubstantial,â not just
âconceivable,â likelihood of a different result.â Shinn,
141 S.Ct. at 523
(citing
Pinholster,
563 U.S. at 189
).
The United States Supreme Court recently discussed âthe special importance
of the AEDPA framework in cases involving Strickland claims.â Shinn,
141 S. Ct. at
524
. In Shinn, the Supreme Court reiterated that âfederal courts may not disturb the
judgments of state courts unless âeach ground supporting the state court decision is
examined and found to be unreasonable.ââ
Id.
at 524 (quoting Wetzel v. Lambert,
565
U.S. 520, 525
(2012)). Thus, the Court explained, âif a fair-minded jurist could agree
with either [the state courtâs] deficiency or prejudice holding, the reasonableness of
the other is âbeside the point.ââ
Id.
a. Failure to Investigate and Call Witnesses (Ground One(a))
In his habeas petition, petitioner asserts that his counsel was ineffective for
failing to investigate and obtain statements from several witnesses who could have
exculpated him. Petitioner raised this claim in his PCR, and the Appellate Division
summarized the trial evidence relevant to this claim as follows:
Ignacio Castro met Megan Cassidy, a prostitute, and
solicited her services. The two engaged in an argument
and Castro slapped Cassidy. An individual known to
Cassidy as âBooâ asked her what occurred. Shortly
thereafter, Boo and a number of other individuals,
including defendant and Michael Jones,4 approached and
confronted Castro. That confrontation turned violent as
Cassidy testified that Boo, Jones, and defendant each
struck Castro in the chest. Castro began bleeding,
staggered away and ultimately died as a result of a stab
wound to his chest.
At the trial of the 2012 indictment, defendant testified but
called no other witnesses. He testified that he made money
by hustling, dealing drugs and cutting hair. Cassidy gave
him the money she earned as a prostitute, and, in return,
he provided her with food, shelter and drugs. On the day
of the stabbing, defendant testified he saw a commotion on
the street, and was told that Castro had not paid Cassidy
and had hit her. Defendant admitted that he struck Castro,
but denied stabbing him.
A number of witnesses provided statements inculpating
defendant. Three of those witnesses, Cassidy, Jones, and
Alexis Campbell, recanted those statements prior to trial.
Despite Cassidyâs and Campbellâs recantations, the State
played their original, audiotaped statements to the jury.
The State also played an audiotaped statement of Willy
Henderson, Jr. Jones did not testify at trial.
In Cassidyâs original, taped statement to the police, she
said defendant admitted to her that he stabbed Castro with
4 Michael Jones was also known as âMizâ
scissors, cut his hand and broke the scissors in the process.
Campbellâs taped statement also included an admission by
defendant that he stabbed a man who was arguing with
Cassidy over money. Hendersonâs taped statement
included a similar admission by defendant and defendantâs
request that Henderson recover the broken scissors from
the scene.
Concepcion, No. A-1589-17T2,
2018 WL 6164806
, at *1-2 (App. Div. Nov. 26, 2018).
In addition to his statement, Henderson also testified at trial that Petitioner
asked him to retrieve the scissors and that he did so and threw them away. ECF No.
6-19, Exhibit 29, Trial Tr. Dated Sept. 17, 2013, 6T:168-24 to 25; Exhibit 34,
transcript of trial, October 1, 2013, 12T:102-20 to 104-3).
Another crucial witness for the state was Christin Wright, who did not recant
her prior statement inculpating petitioner. Wright testified at trial that she spoke
with Petitioner a few days after the homicide and that Petitioner admitted to stabbing
Castro with scissors. See ECF No. 6-12, Exhibit 12, Trial Tr. dated Oct. 1, 2013,
12T:18-24 to 19-20.
On or about June 15, 2016, defendant filed a pro se PCR petition, which was
supplemented by appointed PCR counselâs brief and two witness statements of
Heather Reynolds, dated May 8, 2017, and June 20, 2017. ECF No. 6-22, Exhibit
22, PCR Appendix at DA 41-45. Defendant also submitted to the PCR court the
recanted statements from Cassidy, Jones, and Campbell. See Exhibit 22 at 66-69,
PCR Appendix at DA 48-50.
In her first statement, Heather Reynolds states that she saw petitioner and
âMizâ âstrikeâ the victim. Afterwards, she saw petitioner âwa[]ving his handsâ and
heard petitioner yell about the victim not paying money. From her vantage point
across the street, Reynolds did not see anything in petitionerâs hands or any injuries
to petitionerâs hands. Exhibit 22 at 59, Petitionerâs Appendix at DA 41-42. In her
second statement, Reynolds stated that Cassidy told Reynolds that police threatened
that she would be sent back to prison and told her what to say regarding the
altercation. See Exhibit 22 at 60, PCR Appendix at 43-45.
In her letter dated November 1, 2012, Alexis Campbell states that she made an
âuntrueâ statement to detectives during questioning. Exhibit 22 at 68, Petitionerâs
PCR Appendix at DA 50. Campbell further states that petitioner ânever told
[Campbell] anything about killin[g] anyone. He never once mentioned anything
about the situation at all.â
Id.
Campbell further states that she was afraid during the
interrogation and told the detectives what she âfelt they wanted to hear in order for
them to work with me on my own situationâ
Id.
Campbell also mentions in the letter
that she and petitioner shared a child together and were not on good terms at the
time she gave the false statement.
Id.
The letter from Cassidy is dated October 11, 2012. Cassidy states that she was
âhigh on illegal drugsâ at the time of the altercation and has âno personal knowledge
of whether the blow from [petitioner] had anything to do with the victimâs death.â
See Exhibit 22 at 66, Petitionerâs PCR Appendix at DA 48. Cassidy also states that
petitioner told her he âpunchedâ the victim, and she assumed he caused his death but
that petitioner ânever told [her] he killed [the victim].
Id.
The letter affidavit from Michael Jones (âMizâ) is dated July 12, 2012.
Exhibit 22 at 67, Petitionerâs PCR Appendix at 49. In the affidavit, Jones states that
he ânever gave any statement saying that [petitioner] told [Jones] anything dealing
with the accused crime on the above date of 7-11-11.â
Id.
The record also reflects that on January 21, 2013, prior to trial, petitionerâs
counsel submitted a request for investigation as to Cassidy, Campbell, and Jones
based on the recanting statements obtained by petitioner. See Exhibit 22 at 64,
Petitionerâs PCR Appendix at DA 46. At trial, Detective Micheletti also testified
that the prosecution was unable to locate Jones. See ECF No. 6-34, Exhibit 34, Trial
Tr. Dated Sept. 19, 2013, at 8T116:17-117:18.
In his PCR brief, Petitioner also claimed that his trial counsel failed to
investigate and obtain favorable statements from Aspen Baker and Edwin Castro,
who were present at the scene, but he provided no statements or affidavits from these
individuals. See Exhibit 22 at 56, Petitionerâs PCR Brief at DA 38.
The PCR court held a non-evidentiary hearing, ECF No. 6-16, Exhibit 16,
Hearing Tr. Dated Aug. 15, 2017, and subsequently denied petitionerâs PCR petition
in a written decision dated August 22, 2017. See Exhibit 22 at 69-79, PCR Letter
Opinion dated Aug. 22, 2017, at DA 51-61. The PCR court determined that
petitioner failed to establish prejudice with respect to any of the witnesses5 and that
5 The PCR court first noted that Petitioner had not submitted affidavits with respect
to Edwin Castro or Aspen Baker. See
id.
Exhibit 22 at 66-67, PCR Opinion at DA
58-59.
Reynoldâs statements were âinconsequentialâ due to the overwhelming evidence
from other witnesses:
During the trial, the State called nine witnesses. Audio
taped statements of several witnesses, including Cassidy,
were played for the jury. In Cassidyâs statement, she told
police that the Defendant admitted to her that he stabbed
the victim with scissors. Christian Wright testified at trial
that she spoke with the Defendant a few days after the
homicide and that the Defendant admitted to stabbing the
victim with scissors. The State also played the statement of
Alexis Campbell, who said that the Defendant admitted
that he stabbed the victim in a dispute over money.
Another witness, Will Henderson, whose statement was
also played at trial, likewise told investigators that the
Defendant had stabbed the victim with scissors.
Henderson also testified that the Defendant asked him to
retrieve the scissors and that he did so and threw them
away.
Moreover, the Defendant testified and admitted to striking
the victim, but denied stabbing him. The Defendantâs trial
counsel chose a trial strategy in which he argued that it
was someone else involved in the altercation that delivered
the fatal stab wound to the victim. The Defendantâs trial
counsel went as far as suggesting that it was Michael
"Miz" Jones who stabbed the victim, insinuating that this
was why he was not able to be located before trial. The
jury did not believe this, as the jury found the Defendant
guilty of the lesser included offense, Aggravated
Manslaughter. After considering the quantum and quality
of the evidence, the court finds that the overwhelming
evidence, comprised of multiple admissions by the
Defendant, renders Ms. Reynoldâs sworn statement
inconsequential to the outcome of the trial. Contra
Strickland,
466 U.S. at 496
([A] verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than with overwhelming record support.)
Exhibit 22 at 77-78, PCR Opinion at DA 59-60.
Petitioner appealed the denial of postconviction relief and argued that he was
entitled to an evidentiary hearing on this claim. See Exhibit 22 at 80-82, Notice of
Appeal at DA 62-64. In reviewing this claim, the Appellate Division explained that
the PCR court
concluded that defendant failed to establish that he was
prejudiced by trial counsel's alleged failure to investigate
and call Reynolds, Cassidy, Jones and Campbell as trial
witnesses and, therefore, did not satisfy the second prong
of the two-part test for ineffective assistance of counsel
detailed in Strickland v. Washington,
466 U.S. 668
(1984)
and adopted by [the New Jersey] Supreme Court in State v.
Fritz,
105 N.J. 42
(1987). Judge Blee determined that as to
Carter6 and Baker, defendant failed to support his petition
with a statement or affidavit from either witness or a
description of their proposed testimony.
Concepcion,
2018 WL 6164806
, at *2.
The Appellate Division affirmed the PCR courtâs denial of PCR and provided
an analysis of each witness:
Applying the Strickand/Fritz test to defendantâs claim that
trial counsel failed to investigate and present witnesses at
trial, we agree with the PCR court that defendant failed to
establish that it was reasonably probable that but for trial
counselâs alleged ineffective representation, there would
have been a different outcome at trial. We address each
witness separately.
In her May 18, 2017 statement, Reynolds indicated that
while standing across the street, she witnessed defendant,
Jones, and Cassidy engaged in a verbal dispute with a
âMexicanâ individual while someone she knew as Castro
stood by. She claimed that defendant and Jones attacked
the Mexican male âwho ... had both of his hands up in a
defensive position.â She also stated defendant âsw[u]ng
upward and str[uck] [the] âMexican maleâ in the upper part
6 This appears to be a typo and should read âCastroâ
of his face or chestâ at least once. She recounted that
defendant then walked toward her, upset, yelling, and
âwaiving his hands,â but Reynolds claimed she did not see
anything in his hands. In her June 20, 2017 statement,
Reynolds said Cassidy told her âshe was threatened by the
police,â and that the police âtold [Cassidy] what to say.â
We agree with the PCR court that in light of the
overwhelming evidence of defendantâs guilt, any failure to
call Reynolds as a trial witness did not prejudice
defendant. The State called nineteen7 witness at trial and
played multiple audiotapes of witnesses recounting
defendantâs admissions that he stabbed the victim with
scissors. Further, despite denying that he stabbed Castro,
defendant admitted at trial that he did in fact strike him.
Thus, the PCR court correctly concluded that âthe
quantum and quality of the evidenceâ indicative of
defendantâs guilt was âoverwhelmingâ and rendered
Reynoldsâ statements âinconsequentialâ to the trialâs
outcome.
With respect to Cassidy and Campbell, both witnesses
testified at trial and were subject to cross-examination
where trial counsel elicited the substance of their
recantations. Defendant has failed to identify specifically
what additional pre-trial investigation counsel should have
performed or how it would have affected Cassidyâs or
Campbellâs trial testimony.
As to Jones, the record reflects that trial counsel requested
that an investigator locate and interview him before trial.
Jones could not be found and the State did not introduce
his pre-trial statement. Thus, there is no merit to
defendantâs claim that trial counsel was ineffective or that
defendant was in any way prejudiced by trial counselâs
failure to interview or call a witness that counsel was not
able to locate and who did not testify at trial.
With respect to Edwin and Baker, defendant failed to
submit an affidavit or statement from either witness that
described the purported exculpatory information these
witnesses possessed. Thus, defendantâs claim that trial
counsel should have interviewed and called them, or any
7 This appears to be a typo and should read ânineâ witnesses.
other unidentified witness, at trial is nothing more than a
âbald assertion[ ]â and insufficient to warrant relief. See
State v. Porter,
216 N.J. 343, 355
(2013) (quoting State v.
Cummings,
321 N.J. Super. 154, 170
(App. Div. 1999)); see
also R. 3:22-10(c).
Concepcion,
2018 WL 6164806
, at *3â4.
The right of an accused to present witnesses in his own defense âis a
fundamental element of due process of law.â Taylor v. Illinois,
484 U.S. 400, 409
(1988) (quoting Washington v. Texas,
388 U.S. 14, 19
(1967)); see also State v. Sanchez,
143 N.J. 273, 290
(1996) (âfew rights are more fundamental that that of an accused â
to present witnesses in his own defenseâ) (quoting Chambers v. Mississippi,
410 U.S.
284, 302
(1973)); State v. Garcia,
195 N.J. 192, 201-02
(2008). Both the Sixth
Amendment to the United States Constitution and Article 1, Paragraph 10 of the
New Jersey Constitution guarantee the accused the right âto have compulsory
process for obtaining witnesses in his favor.â That guarantee provides a criminal
defendant with nothing less than âa meaningful opportunity to present a complete
defense.â State v. Garron,
177 N.J. 147, 168
(2003). With respect to witnesses,
â[c]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.â Strickland,
466 U.S. at
690-91
; see also Rolan v. Vaughn,
445 F.3d 671, 682
(3d Cir. 2006) (finding attorney's
decision to not pursue a self-defense claim was unreasonable because attorney failed
to investigate witnesses the prosecution told him âwere not alibi witness[es],â and
thus, the decision was âuninformedâ).
Here, even assuming petitionerâs counsel was deficient for failing to
investigate witnesses, petitioner must also show that there is a reasonable probability
that the outcome of his trial would have been different had his trial counsel
investigated and called any of these additional witnesses to testify. The Appellate
Division did not unreasonably apply Stricklandâs prejudice prong in finding that
petitioner did not meet this standard.
The only new witness from whom Petitioner provided a statement is
Reynolds. Reynolds stated that she was standing across the street and saw petitioner
and Jones attack a Mexican male but did not see anything in petitionerâs hands or
injuries to his hands when he was waving them. Had petitioner located Reynolds
and called her to testify, her testimony would not have made a difference in light of
the multiple witnesses who gave statements and/or testified that petitioner admitted
he stabbed the victim with scissors. Even assuming there is a basis for admitting
Reynoldsâ statement that Cassidy told Reynolds that she was threatened by police
and the police told her what to say, that testimony would have been cumulative of
Cassidyâs firstâhand testimony to the same effect, which the jury did not believe. To
meet Stricklandâs prejudice prong, petitioner must show a ââsubstantial,â not just
âconceivable,â likelihood of a different result.â Shinn,
141 S.Ct. at 523
(citing
Pinholster,
563 U.S. at 189
), and Reynoldsâ testimony does not clear that high bar.
With respect to Jones, Petitioner has not provided clear and convincing
evidence that contradicts the Appellate Divisionâs factual finding that trial counsel
sought to locate him, see
29 U.S.C. § 2254
(e)(1), and, therefore, counsel was not
deficient for failing to investigate Jones or call him to testify at trial. Petitioner also
fails to show that he was prejudiced by the failure to locate Jones and call him to
testify. Although Jonesâ denied that he gave a statement to police that inculpated
petitioner, Jonesâ statement inculpating petitioner was not admitted at trial.8
Moreover, as the PCR court noted, the absence of Jones at trial allowed petitioner to
suggest that Jones was the individual who stabbed the victim.
Counselâs alleged failure to investigate Campbell and Cassidy also did not
prejudice petitioner at trial because both witnesses testified at trial and defense
counsel elicited the substance of their recantations.
Finally, petitioner asserts that his counsel should have located and obtained
statements from Edwin Castro and Aspen Baker, but he provides no affidavits from
these witnesses about how their testimony would have been helpful to him. Thus, he
cannot establish he was prejudiced by his counselâs failure to investigate these
individuals.
For these reasons, the Appellate Division did not unreasonably apply
Strickland or rely on an unreasonable determination of the facts in rejecting
petitionerâs claims that his counsel provided ineffective assistance when he failed to
investigate and obtain statements from witnesses. The Court denies relief on this
claim.
8 Jones does not state in his letter for instance, that he stabbed the victim, that a third
party stabbed the victim, or that petitioner did not stab the victim.
b. Failure to Object to Confrontation Clause Violation (Ground 1(b))
In Ground One of the Petition, petitioner also raises an ineffective assistance
claim premised on 1) trial counselâs failure to object to Detective Michelettiâs hearsay
testimony regarding an admission made by Jones (âMizâ), which violated the
Confrontation Clause, and 2) appellate counselâs failure to challenge the trial courtâs
admission of this testimony on direct appeal.
At trial, Detective Micheletti testified that he was the lead detective in the case
and interviewed several people, including Michael Jones, who was also known as
âMiz.â See Exhibit 34, Trial Tr. Dated Sept. 19, 2013, at 8T111:3-111:12. Detective
Micheletti spoke to Jones on August 12, 2011, at 9am and read him his Miranda
rights prior to speaking with him.
Id. at 111:13-112:7
. The Detective testified that he
read Jones his Miranda rights because âbased upon the investigation at that point, we
had believed that he had punched the victim, which if he had to talk about that, he
would be incriminating himself to an assault, so we advised him of his rights.â
Id. at
112:8-112:12
.
When the prosecutor asked if Jones had any information about the incident,
Micheletti responded, âyes, he did.â
Id. at 114:9-114:11
. Without objection from
defense counsel, the following exchange occurred between the prosecutor and
Detective Micheletti:
The Prosecutor: During the interview, did Mr.
Jones admit to hitting the victim in the face?
Detective Micheletti: Yes.
The prosecutor next asked Detective Micheletti whether the Detective charged Jones
with any crime, and Micheletti responded, âNo.â
Id. at 115:20-115:22
. The
prosecutor asked, âwhy notâ, and Micheletti responded that the Atlantic County
Prosecutorâs Office makes charging decisions, and he was instructed not to charge
Jones because âit was a simple assault, a disorderly persons offense[.]â
Id.
at 115:23-
116:3. Petitionerâs trial counsel also did not object during this portion of the
testimony.
In his PCR, petitioner argued that his counselâs failure to object to
inadmissible hearsay testimony damaged his defense because Jones admitted that he
hit the victim in the head and the fatal stab wound was to the victimâs chest. See
Exhibit 22 at 58, PCR Brief at DA 39. Petitioner further argued that appellate
counsel was ineffective for failing to raise ineffective assistance of trial counsel on
direct appeal. See
id.
The PCR court found that the testimony at issue was
inadmissible hearsay, but that counsel was not ineffective for failing to object because
the testimony supported petitionerâs defense:
Lastly, the Court finds that the Defendantâs arguments
regarding trial counselâs failure to object when the
prosecutor asked Det. Micheletti whether Michael Jones
ever admitted to hitting the victim to be inconsequential.
Det. Micheletti answered in the affirmative. While the
answer to that question constituted inadmissible hearsay,
the Court finds that this information, in fact, strengthened
the Defendantâs theoryâthat it was someone else, and
possibly Michael Jones, who stabbed the victim.
Exhibit 22 at 78-79, PCR Opinion at DA 60-61. The PCR court did not directly
address Petitionerâs ineffective assistance of appellate counsel argument.
On appeal, petitioner argued that trial counsel provided ineffective assistance
when he failed to object to Michelettiâs inadmissible hearsay testimony; however,
appellate PCR counsel further argued that the admission of the testimony not only
undermined petitionerâs defense, but also violated the Confrontation Clause. See
Exhibit 22 at 10-14, PCR Appellate Brief at 7-11. Petitionerâs appellate PCR counsel
also argued that appellate counsel should have challenged the trial courtâs admission
of the testimony in petitionerâs direct appeal. See
id. at 11
.
The Appellate Division rejected both claims as follows:
We also agree with the PCR court that trial
counselâs failure to object to the admission of Detective
Michelettiâs hearsay testimony did not affect the trialâs
outcome. As the PCR court explained, trial counsel âchose
a trial strategy in which he argued that it was someone else
involved in the altercation that delivered the fatal stab
wound to the victim.â Judge Blee acknowledged that
Detective Michelettiâs response was inadmissible hearsay
but rather than harm defendantâs case, the testimony
actually âstrengthened the [d]efendantâs theory ... that it
was someone else, and possibly Michael Jones, who
stabbed the victim.â
We similarly find no merit to defendantâs claim that
appellate counsel was ineffective for failing to raise
Detective Michelettiâs testimony on direct appeal as an
appellate counsel is not ineffective for failing to raise every
issue imaginable. State v. Gaither,
396 N.J. Super. 508, 515
(App. Div. 2007) (citing Jones v. Barnes,
463 U.S. 745
, 753-
54 (1983)). Rather, appellate counsel is afforded the
discretion to construct and present what he or she deems
are the most effective arguments in support of the client's
position. Id. at 516. Here, in light of the overwhelming
evidence unrelated to Detective Michelettiâs testimony
establishing defendantâs guilt, including [petitionerâs]
admissions to multiple individuals, appellate counselâs
representation was not deficient for failing to raise an issue
that was unlikely to affect the outcome of the appeal.
Concepcion,
2018 WL 614806
, at *4. In his habeas petition, Petitioner argues that the
Appellate Division unreasonably applied Strickland in resolving these claims.
The admission of Jonesâ hearsay statement implicates his Sixth Amendment
right to confrontation. The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee a criminal
defendant the right to confront âthe witnesses against him.â U.S. Const. amend. VI;
N.J. Const. art. I, ¶ 10. The right of confrontation is an essential attribute of the right
to a fair trial, requiring that a defendant have a ââfair opportunity to defend against
the Stateâs accusations.ââ State v. Garron,
177 N.J. 147, 169
,
827 A.2d 243, 256
(2003) (quoting Chambers v. Mississippi,
410 U.S. 284, 294
(1973)).
âThe Confrontation Clause provides two types of protections for a criminal
defendant: the right physically to face those who testify against him, and the right to
conduct cross-examination.â Pennsylvania v. Ritchie,
480 U.S. 39, 51
(1987). The
constitutionally guaranteed right to cross-examination âis a functional right that
promotes reliability in criminal trials,â Lee v. Illinois,
476 U.S. 530, 540
(1986), and
âreflects a judgmentâ that the reliability of a witnessâs testimony is best determined
by testing in the âcrucible of cross-examination,â Crawford v. Washington,
541 U.S.
36, 61
(2004). A criminal defendantâs right to cross-examine the witnesses against
him applies not only to in-court testimony but also to out-of-court statements
introduced at trial. Crawford,
541 U.S. at 50-51
. Therefore, âa witness whose prior
statement is to be used must not only be produced but must also be sworn and made
available for cross-examination.â United States ex rel. Thomas v. Cuyler,
548 F.2d 460,
463
(3d Cir. 1977); see also Preston v. Superintendent Graterford SCI,
902 F.3d 365, 380
(3d Cir. 2018) (explaining same).
In Crawford v. Washington,
541 U.S. 36
, 53â54 (2004), the Supreme Court held
that the Confrontation Clause bars âadmission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.â 9 See also Davis v. Washington,
547 U.S. 813, 821
(2006).
In prosecutions where there are multiple participants in a crime, the
Confrontation Clauseâs âtruth finding function is uniquely threatened when an
accompliceâs confession is sought to be introduced against a criminal defendant
without the benefit of cross-examination.â Lee v. Illinois,
476 U.S. 530, 541
(1986)).
Thus, in Bruton v. United States, the United States Supreme Court held that a
defendantâs confrontation right was violated by the admission of his co-defendant's
9 As explained in Davis v. Washington, â[i]t is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause.â
547
U.S. at 821
. In the context of police interrogations, â[s]tatements are nontestimonial
when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.â
Id. at 822
.
incriminatory confession, even if curative jury instructions were later given.
391 U.S.
123, 126
, (1968).
In his habeas petition, Petitioner contends that his conviction violates Douglas
v. Alabama,
380 U.S. 415, 419
(1965) (holding that the statements of a non-testifying
co-defendant or accomplice cannot be introduced in trial through the testimony of
law enforcement). There the state called as a witness in Douglasâ trial for assault a
man who had been indicted along with Douglas and found guilty in a separate trial.
Douglas,
380 U.S. at 416
. The witness was concerned that his testimony would
negatively impact his own criminal proceedings.
Id.
Although the trial court ruled
that the witness did not have a valid claim of Fifth Amendment privilege, the witness
refused to answer any questions on direct- or cross-examination.
Id.
The prosecutor
was permitted to introduce portions of a written confession previously signed by the
witness, which implicated Douglas in the assault.
Id. at 416-17
. The Supreme Court
held that Douglas had been denied the âright of cross-examination secured by the
Confrontation Clause.â
Id. at 419
.
Petitionerâs case is not on all fours with the Douglass (or the circuit court
decisions cited in petitionerâs reply brief) because Jonesâ admission that he hit the
victim in the face, standing alone, does not directly implicate petitioner in the crime.
Nevertheless, even assuming the admission of Jonesâ statement violated the
Confrontation Clause, Petitioner must also show that the Appellate Division
unreasonably applied Strickland to warrant habeas relief on this claim.
Here, the Appellate Division did not unreasonably apply Stricklandâs prejudice
prong in finding that the improperly admitted statement strengthened the defense
theory of the case and had no effect on the trialâs outcome. To meet Stricklandâs
prejudice prong, petitioner must show a ââsubstantial,â not just âconceivable,â
likelihood of a different result.â Shinn,
141 S.Ct. at 523
(citing Pinholster,
563 U.S. at
189
).
It is undeniable that petitionerâs counsel pursued a defense strategy suggesting
that someone else involved in the altercation stabbed the victim. With respect to that
strategy, Michelettiâs testimony that Jonesâ admitted he hit the victim cuts both ways.
On the one hand, the fact that Jones admitted to hitting the victim in the head and
was not charged does not align perfectly with the defenseâs theory that Jones stabbed
the victim in the chest. On the other hand, however, Jonesâ admission that he
assaulted the victim arguably strengthened the defenseâs theory that Jones may have
also fatally stabbed the victim. Because the police failed to locate or charge Jones,
the defense was free to imply that the actual killer was still free. As such, the
Appellate Division did not unreasonably resolve this issue.
Moreover, the evidence at trial included petitionerâs admissions to multiple
witnesses that he stabbed the victim, as well as testimony that petitioner asked
Henderson to retrieve scissors from the scene. Given this strong evidence of
petitionerâs guilt, petitioner cannot show a reasonable probability that he was
prejudiced by his attorneyâs failure to object to the admission of Jonesâ statement and
Michelettiâs testimony that Jones was not charged.
Petitioner argues that the Appellate Division failed to consider the lack of
DNA evidence connecting petitioner to the scissors and the fact that the witnesses
were drug addicts, several of whom recanted their earlier statements inculpating
petitioner. Although no DNA evidence definitively connected petitioner to the
scissors, Henderson testified that petitioner asked him to retrieve the scissors from
the scene. And although Wright, Cassidy, Campbell, and Henderson all had
credibility issues and were not model citizens, the jury had the opportunity to listen
to each of them at trial and determine what statements and testimony it found
credible.
Petitioner also argues that the Appellate Division failed to consider the
prosecutorâs use of Jonesâ admission in his closing. Petitioner objects to the
following portion of the closing:
I want to start off with going over who didnât stab and kill
Ignacio Castro because there seems that â I was talking
about Michael Jones. Heâs the easy â heâs the easy, easy,
easy choice here to the point the finger at if youâre the
defense.
But why didnât Michael Jones do it. Other than
Cassidyâs trial testimony â and Iâll amend that because we
heard from the defendant today â so letâs say other than
Cassidyâs and the defendantâs trial testimony, thereâs no
direct evidence that Jones punched Castro in the chest.
You heard from Will Henderson. He said he didnât
recall where he punched him. You heard from Cassidy
and Iâm going to â Iâd submit Iâm going to, you know, go
over this later, this difference between her original
statement and her trial testimony. But Iâd submit that itâs
not â the trial testimony she had here a couple of weeks
ago, it wasnât the most credible testimony.
Iâm going to go over the video [defense counsel]
played. Iâm going to play it later on. And I submit that
the video shows Jones punched or attempted to punch
Castro in the head. Jones himself admitted to Detective
MattyâMiceletâexcuse me Micheletti that he punched
Castro in the head.
Megan Cassidy stated right here on the stand that
Jones never had scissors on him that night. She stated he
had a look of shock on his face when Poppy told her Mr.
Castro had been stabbed. If you recall her statement and
her testimony; that after this incident they walked around
the other way and back up Florida Avenue, her and
Michael Jones.
Thatâs when Poppy . . . confronted them and said,
yo, man, that guyâs â that guyâs dead up there on the
corner. And if you remember, she stated that Michael
Jones had a look of shock on his face when he was told
that. I would submit that someone who just knowingly
stabbed a person would not have that look of shock on his
face.
Michael Jones ran toward the victim after he found
out that he had been stabbed. Again, Megan Cassidy
testified that when Poppy told him that, he runs toward
the victim, toward Florida Avenue. I would submit that a
person who just stabbed someone would not go back
toward the victim. They would run and hide, as we know
defendant did by going one block up to Kathy Campbellâs
house and staying there.
Who did stab Ignacio Castro? I would say the State
(indiscernible) you were here because we believe the
defendant did it.
ECF No. 6-25, Exhibit 35, Trial Tr. Dated Oct. 2, 2013, at 13T 115:23-117:23
(emphasis supplied).
Setting aside the fact that petitioner did not challenge the propriety of the
prosecutorâs closing arguments in state court, petitioner also vastly overstates the
damaging effect of Jonesâ admission, which was briefly reiterated by the prosecutor
in his closing. The prosecutorâs closing testimony about Jones primarily focused on
admissible evidence that suggested that Jones did not stab the victim. For instance,
the prosecutor highlighted the video evidence that arguably showed that Jones hit the
victim in the head and Cassidyâs testimony that Jones returned to the scene upon
finding out that the victim had been stabbed and looked âshockedâ when he received
the news.
For all these reasons, the Appellate Division did not unreasonably apply
Strickland or unreasonably consider the evidence in resolving petitionerâs ineffective
assistance of trial counsel claim.
The Appellate Division also did not unreasonably apply Strickland when it
determined that appellate counsel was not deficient for failing to raise the hearsay or
Confrontation Clause issue on direct appeal. Claims of ineffective assistance of
appellate counsel are evaluated under the same Strickland standard applicable to trial
counsel. See Lewis v. Johnson,
359 F.3d 646, 656
(3d Cir. 2004). It is well-established
that an attorneyâs decision about which issues to raise on appeal are strategic, and an
attorney is not required to raise every possible non-frivolous issue on appeal. See
Jones v. Barnes,
463 U.S. 745
, (1983); Smith v. Robbins,
528 U.S. 259, 272
(2000).
Effective appellate counsel must âselect the most promising issues for review,â not
every possible claim. Jones,
463 U.S. at 751-52
(explaining that an experienced
advocate will emphasize âthe importance of winnowing out weaker arguments on
appeal and âfocusing on a few key issues.ââ). To overcome the presumption of
effective assistance of counsel, a petitioner must show that counsel ignored issues
that are âclearly stronger than those presented.â Smith v. Robbins,
528 U.S. at 288
.
Here, it is well-established that a violation of the Confrontation Clause is
subject to harmless error analysis. See Del v. Van Arsdall,
475 U.S. 673, 684
(1986). A
federal constitutional error is harmless where the court is able to âdeclare a belief that
it was harmless beyond a reasonable doubt.â State v. Castagna,
187 N.J. 293, 312
(2006) (citing Chapman v. California,
386 U.S. 18, 24
, (1967)). Whether a
constitutional error is harmless in a particular case depends upon a number of
factors, including the importance of the witnessâ testimony in the prosecutionâs case,
whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and the overall strength of the
prosecutionâs case. See Del v. Van Arsdall,
475 U.S. at 684
.
Here, Michelettiâs brief testimony that Jonesâ admitted to hitting the victim in
the head and that Jones was not charged was a very small part of the overall
evidence presented by the prosecution that arguably strengthened, rather than
weakened, the defense. Moreover, the prosecutionâs overall case was very strong
and included statements and testimony from multiple witnesses who claimed that
petitioner admitted to stabbing the victim and asked a witness to retrieve the scissors
from the scene. Under these circumstances, a reasonable appellate attorney would
have viewed Jonesâ admission that he hit the victim and Michelettiâs statement that
Jones was not charged as harmless beyond a reasonable doubt. As such, the
Appellate Division did not unreasonably apply the performance prong of Strickland
in finding that appellate counsel was not deficient for failing to raise this issue on
direct appeal.
For these reasons, the Court denies Ground One(b) of the Petition.
c. Denial of Due Process â âKnowing use of Perjured Testimony Inspired by
Police Officersâ (Ground Two)
Finally, Petitioner also raises what appears to be a due process claim premised
on the âknowing use of perjured testimony inspired by police officers.â ECF No. 1,
Petition at 8. Petitioner claims to have exhausted this claim for relief, see
id.,
but he
provides no record support that this claim is exhausted, and his counseled brief does
not address this claim. Although the record reflects that several witnesses recanted
their testimony and claimed that police pressured them to provide statements
inculpating petitioner, petitioner has provided no evidence that the prosecution
knowingly presented perjured statements from any witnesses in this matter. Because
this claim appears unexhausted and unsupported, the Court denies this ground for
relief on the merits pursuant to
28 U.S.C. § 2254
(b)(2).
d. Certificate of Appealability
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court
of Appeals for the Third Circuit, at the time a final order denying a habeas petition is
issued, the district judge is required to determine whether a COA should issue.
Having denied the claims in the Petition, the Court will also deny a COA. Pursuant
to
28 U.S.C. § 2253
(c), a petitioner may not appeal from a final order in a habeas
proceeding unless he has âmade a substantial showing of the denial of a
constitutional right.â See Slack v. McDaniel,
529 U.S. 473, 484
(2000); Miller-El v.
Cockrell,
537 U.S. 322
(2003). Because Petitioner has not made a substantial showing
of the denial of a constitutional right, the Court will deny a COA.
IV. CONCLUSION
For the reasons explained in this Opinion, the Court denies the Petition and
denies a COA. An appropriate Order follows.
Date: April 27, 2023.
s/Renée Marie Bumb
RENĂE MARIE BUMB
CHIEF UNITED STATES DISTRICT JUDGECase Information
- Court
- D.N.J.
- Decision Date
- April 27, 2023
- Status
- Precedential