177 F.3d 149 (3rd Cir. 1999), 97-5687, Baker v. Barbo

Docket Nº:97-5687.
Citation:177 F.3d 149
Party Name:James BAKER, Appellant, v. James F. BARBO; Attorney General of the State of New Jersey.
Case Date:May 13, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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177 F.3d 149 (3rd Cir. 1999)

James BAKER, Appellant,


James F. BARBO; Attorney General of the State of New Jersey.

No. 97-5687.

United States Court of Appeals, Third Circuit

May 13, 1999

Argued March 23, 1999.

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Theodore Sliwinski (argued), East Brunswick, NJ, for Appellant.

Thomas V. Manahan, Prosecutor of Union County, Steven J. Kaflowitz (argued), Assistant Prosecutor, Office of Prosecutor of Union County, Union County Administration Building, Elizabeth, NJ, for Appellee.

BEFORE: GREENBERG and ROTH, Circuit Judges, and POLLAK, [*] District Judge.

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GREENBERG, Circuit Judge.


On this appeal we review the district court's order denying James Baker's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Baker, who has been incarcerated since February 12, 1987, contends that he received ineffective assistance of counsel in violation of his rights under the Sixth Amendment and that his resentencing to a greatly enhanced sentence following his unsuccessful appeal of his convictions violated his right to due process under the Fourteenth Amendment. We have jurisdiction under 28 U.S.C. § 1291, and will affirm the denial of the writ for the reasons which follow.


On March 19, 1987, a New Jersey grand jury indicted Baker together with co-defendant Stephen L. Garry for two sets of crimes committed on the evening of January 7, 1987, in Elizabeth, New Jersey: the robbery and attempted abduction of Elizabeth Soto and the abduction, kidnaping, and aggravated sexual assault of M.B., a 15-year-old girl. Together, these incidents constituted second degree robbery in violation of N.J. Stat. Ann. § 2C:15-1 (West 1995); attempted kidnaping in violation of N.J. Stat. Ann. § 2C:5-1 (West 1995) and N.J. Stat. Ann. § 2C:13-1b (West 1995); criminal restraint in violation of N.J. Stat. Ann. § 2C:13-2 (West 1995); first degree kidnaping in violation of N.J. Stat. Ann. § 2C:13-1b; and aggravated sexual assault in violation of N.J. Stat. Ann. § 2C:14-2a (West Supp.1998).

Baker and Garry committed the first crime at approximately 8:00 p.m. on January 7, 1987. At that time Baker, who was driving a stolen car, and Garry, his passenger, pulled up alongside Soto, who was leaving a store. Garry jumped out and chased Soto. A struggle then ensued after Soto unsuccessfully tried to run away. Garry dragged Soto into the middle of the road toward the car. She told Garry to take her purse, but he said, "no, we want you." Soto then began to hit and kick Garry and called for help, and, after a ten-minute struggle during which Garry took Soto's purse, Garry jumped back into the car, and he and Baker drove off. A witness saw the struggle and the police were called. They arrived minutes later and began a search for the car.

Meanwhile, about a mile away, Garry and Baker pulled up along side 15-year-old M.B. sometime after 8:30 p.m. as she was walking home from a friend's house. One of the two men pulled M.B. into the backseat of the car and over the next two hours Garry raped her twice and Baker forced her to perform fellatio on him and attempted to rape her. They then released her onto the street, and she made her way home. Her mother took her to a police station and then to a hospital. Subsequently, the police arrested both men and the grand jury indicted them for the offenses we have described.

The heart of this appeal lies in the fact that at the time of Baker's offenses, indictment, trial, and sentencing a new law was in effect which required a mandatory minimum term of incarceration of 25 years in this case. Under N.J. Stat. Ann. § 2C:13-1c (West 1995) the sentencing range for first degree kidnaping until one month before Baker's offenses had been 15 to 30 years without any requirement for a mandatory period of parole ineligibility. 1979 N.J. Laws c. 178, § 23. However, on December 8, 1986, the Legislature amended this section by enacting 1986 N.J. Laws c. 172, § 2, to provide that a person found guilty of kidnaping a victim under 16 years of age against whom a sexual assault under N.J. Stat. Ann. § 2C:14-2 or N.J. Stat. Ann. § 2C:14-3a is committed, shall be sentenced to a term of between 25 years and life imprisonment with 25 years of parole ineligibility. N.J. Stat. Ann. § 2C:13-1c(2)(a) (West 1995). Inasmuch as M.B. was under 16 and Baker and

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Garry sexually assaulted her during the kidnaping, the law required their sentencing upon conviction to an imprisonment term of at least 25 years without parole.

Nevertheless, the prosecution, unaware of the amendment to N.J. Stat. Ann. § 2C:13-1c, offered Garry a plea bargain under which he would receive an aggregate custodial sentence of no more than 30 years with 15 years of parole ineligibility, conditioned upon Garry pleading guilty and "testifying truthfully" against Baker. Garry accepted this offer and thus pleaded guilty. The trial court, also unaware of the amendment, sentenced Garry to an aggregate custodial term of 30 years with 15 years of parole ineligibility.

The State offered Baker the same plea bargain: a maximum term of 30 years with 15 years of parole ineligibility. Baker declined this offer, however, and chose to go to trial because his attorney advised him that he had nothing to gain from accepting the plea: if he went to trial the maximum sentence he faced was 30 years with 15 years of parole ineligibility--the very same "deal" the State was offering. Baker's attorney, like the court and the prosecutor, was, of course, unaware of the change in the law.

After a two-day trial, a jury on September 10, 1987, found Baker guilty of robbery, attempted kidnaping, kidnaping and aggravated sexual assault. The court dismissed the charge of criminal restraint. On December 4, 1987, the court, unaware of the change in the law, sentenced Baker to concurrent nine-year terms of imprisonment with three-year terms of parole ineligibility for robbery and attempted kidnaping and a consecutive 18-year term of imprisonment with an eight-year term of parole ineligibility for kidnaping. The court merged Baker's conviction for aggravated sexual assault into his conviction for kidnaping. Thus, the court sentenced Baker to an aggregate custodial term of 27 years with 11 years of parole ineligibility. Accordingly, both Baker and Garry received illegal sentences.

Baker filed an untimely notice of appeal from his conviction on July 18, 1988, but the Appellate Division of the New Jersey Superior Court, entered an order on February 22, 1989, authorizing the appeal to be filed nunc pro tunc. Baker asserted various trial errors on appeal, but when he filed the appeal he still was unaware of the sentencing amendment on the kidnaping charge. However, on August 21, 1989, the State filed a motion for leave to file a cross-appeal nunc pro tunc, contending that Baker's sentence for kidnaping was illegal because of the change in law prior to the commission of the offenses. 1 The Appellate Division granted that motion on September 12, 1989. Then, in an unpublished per curiam opinion filed on January 2, 1990, the Appellate Division affirmed Baker's convictions and, inasmuch as it agreed with the State that Baker was subject to the 25-year parole disqualifier, it remanded the case to the trial court for reconsideration of the sentence. State v. Baker, No. A-5384-87T4 (N.J.Super.Ct.App.Div. Jan. 2, 1990).

Baker moved in the Appellate Division for reconsideration of the order remanding the case for reconsideration of his sentence, but the court denied his motion on February 27, 1990, stating that the trial court could address the issues he raised in the motion when it reconsidered Baker's sentence. The New Jersey Supreme Court denied Baker's petition for certification

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on June 13, 1990. State v. Baker, 122 N.J. 186, 584 A.2d 246 (N.J.1990).

Baker then filed a petition for post-conviction relief in the trial court on March 27, 1991, alleging that he had been denied effective assistance of counsel and that he had been denied due process and equal protection of the law because the State had entered into a plea bargain with Garry under which Garry testified against Baker in exchange for an illegally short sentence. After an evidentiary hearing, the trial court denied his petition on October 7, 1991.

On February 19, 1992, the trial court resentenced Baker to a 25-year term of imprisonment without eligibility for parole for kidnaping and concurrent nine-year terms of imprisonment with three-year periods of parole ineligibility for robbery and attempted kidnaping. The court merged Baker's conviction for aggravated sexual assault into his conviction for kidnaping. Thus, the court resentenced Baker to an aggregate custodial term of 25 years without eligibility for parole, more than doubling the period of parole ineligibility it had imposed in the original sentence.

Baker filed separate notices of appeal from the denial of his petition for post-conviction relief and from the judgment entered on his resentencing. The Appellate Division consolidated these appeals on December 30, 1992, and affirmed Baker's convictions on January 21, 1994, over a dissent. State v. Baker, 270 N.J.Super. 55, 636 A.2d 553 (N.J.Super.Ct.App.Div.1994). On further appeal, the Supreme Court of New Jersey, on October 27, 1994, affirmed the decision of the Appellate Division with one justice dissenting. State v. Baker, 138 N.J. 89, 648 A.2d 1127 (N.J.1994).

Baker filed a petition for a writ of habeas corpus on April 23, 1996, pursuant to 28 U.S.C. § 2254 in the district court but the court denied the petition in an order entered September 24, 1997. Baker then appealed. 2 As the district court relied entirely on the state court record and did not hold...

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