Harris v. Ricci

• Decision Date: 03 June 2010
• Docket Number: No. 09-2562.,09-2562.
• Citation: 607 F.3d 92
• Parties: Ambrose A. HARRIS, Appellantv.* Michelle R. RICCI, Administrator, New Jersey State Prison;Attorney General of the State of New Jersey.* (Substituted 3/31/10 pursuant to Rule 43(c), Fed. R.App. P.).
• Court: U.S. Court of Appeals — Third Circuit

607 F.3d 92

Ambrose A. HARRIS, Appellantv. * Michelle R. RICCI, Administrator, New Jersey State Prison;Attorney General of the State of New Jersey.* (Substituted 3/31/10 pursuant to Rule 43(c), Fed. R.App. P.).

No. 09-2562.

United States Court of Appeals Third Circuit.

Argued April 15, 2010.

Filed: June 3, 2010.

Carl J. Herman, West Orange, N.J., James K. Smith, Jr., (Argued), Office of Public Defender, Newark, N.J., for Appellant.

Daniel I. Bornstein, (Argued), Office of Attorney General of New Jersey, Trenton, N.J., for Appellee.

Before: SLOVITER and HARDIMAN, Circuit Judges, and POLLAK ^*, District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Before and during his state court trial for capital murder, Ambrose Harris was the subject of numerous inflammatory articles in two local newspapers, the Trentonian and the Trenton Times. Ultimately, the court presumed prejudicial pretrial publicity. Harris moved for a change of venue or, in the alternative, for a jury from another county (a “foreign jury”). The trial court adopted the alternative proposal. Harris, who was convicted and unsuccessful in his state court appeal, filed a petition for a writ of habeas corpus in the federal district court claiming that the denial of his motion to transfer venue deprived him of his constitutional right to a fair trial. Harris appeals the District Court's denial of his petition for a writ of habeas corpus.

I.Background

Harris was indicted in June 1994 for having murdered Kristin Huggins. ¹ Due to the pervasive publicity surrounding the murder and his arrest, Harris moved the trial court to transfer his case from Mercer County, New Jersey, where the crime was committed, to a different venue or, in the alternative, for the impanelment of a foreign jury. More specifically, Harris argued that “a fair trial [could not] be had in Mercer County” because of highly prejudicial pre-trial media coverage by two newspapers-the Trentonian and the Trenton Times-which had a combined circulation in Mercer County of about 130,000. App at 59.

The trial court agreed with Harris that the “likelihood” that the “taint” from these sources would “permeat[e] the trial [could not] be ignored.” App at 60. The trial court took particular note that the “intensity of [the] newspaper coverage [was] complicated by the vengeance-seeking crusade of the Trentonian ” which generated a “stream of invective” that was “constant and prolonged and sensationalized,” App at 60, and which “pander[ed] to its readers' worst instincts,” App at 59.² Therefore, although the trial court denied Harris's motion for a change of venue, it granted his motion to impanel a foreign jury.

Harris filed an interlocutory appeal to challenge the trial court's decision to impanel a jury from Hunterdon County, and the State cross-appealed the trial court's decision to impanel a foreign jury in the first instance, arguing that it was unnecessary. The Superior Court of New Jersey, Appellate Division, held that “the trial court did not abuse its discretion in concluding” that “prejudice [in Mercer County] may be presumed due to pretrial publicity,” and affirmed the trial court's decision “that th[e] case should be tried before a foreign jury.” State v. Harris, 282 N.J.Super. 409, 660 A.2d 539, 541-42 (1995) ( Harris I ). However, the Appellate Division also held that the trial court should have considered whether the racial demographics of the county from which it would draw the new jury pool were comparable to the racial demographics of the community in which the crime was committed, and further found that the trial court had abused its discretion in selecting Hunterdon County as the source of the jury pool because the racial demographics of Hunterdon County differed markedly from those of Mercer County. Id. at 544-45. It then remanded for further proceedings. Id. at 545.

On remand, the trial judge decided to impanel jurors from Burlington County, a county contiguous to Mercer County, where the racial demographics generally matched those of Mercer County, and where the combined readership of the Trentonian and the Trenton Times was only around 22,000, divided fairly evenly between the two. See State v. Harris, 156 N.J. 122, 716 A.2d 458, 471-72 (1998) ( Harris II ). The jury voir dire was conducted in Burlington County. During jury selection, Harris moved the trial court to change venue from Mercer County to Burlington County. In support of this motion, Harris submitted evidence that, among other things, the Trentonian was sold at sites near the Mercer courthouse. The trial court denied Harris's motion. Instead, each day of trial the jurors were transported by bus from the Burlington courthouse to the courthouse in Mercer. Meanwhile, “the inflammatory publicity continued throughout the trial[ ].” ³State v. Harris, 181 N.J. 391, 859 A.2d 364, 429 (2004) ( Harris IV ).

Harris was convicted and the jury recommended that he be sentenced to death. Harris II, 716 A.2d at 463. The New Jersey Supreme Court affirmed Harris's conviction and the jury's recommended death sentence. Id. at 498. The New Jersey Supreme Court held, in part, that “the selection of a jury composed of out-of-county residents, and [the trial court's] general questioning of the jurors during the trial concerning any exposure to trial publicity sufficiently ensured that defendant's trial was free of extraneous influences.” Id. at 463. More specifically, the Court noted that in the past it had approved the use of a foreign jury as a “trial management technique[ ] ... to ensure that a defendant's right to an impartial jury is not compromised,” id. at 470, and it observed that “a change of venue has the same benefits and drawbacks as the impanelling of a foreign jury since both methods utilize jurors from communities where publicity may be less intense,” id. (quoting State v. Williams, 93 N.J. 39, 459 A.2d 641, 656 n. 13 (1983)). Although the Harris II Court affirmed Harris's conviction, it stated that “[w]hen ... a capital case is accompanied by a stream of public invective such as surrounded this case, it occasions us to reconsider our precedent,” id., and held that “[i]n future capital cases a court should change the venue of a capital trial when there is a realistic likelihood that presumptively prejudicial publicity will continue during the conduct of a trial,” id. at 471. Later, the New Jersey Supreme Court undertook a separate “proportionality review” of the recommended death sentence and concluded that Harris's sentence was not disproportionate compared to other cases. State v. Harris, 165 N.J. 303, 307, 757 A.2d 221 (2000) ( Harris III ).

Harris next petitioned for post conviction relief, making “multiple claims of ineffective assistance of counsel and assorted other challenges to the validity of his conviction and sentence.” Harris IV, 859 A.2d at 374. His petition was eventually reviewed de novo and denied by the New Jersey Supreme Court. ⁴ Id. at 380, 449.

Thereafter, Harris filed a petition for a writ of habeas corpus in the New Jersey district court. See Harris v. Cathel, Civ. No. 05-4858(AET), 2009 WL 539898, at *1 (D.N.J. Mar.4, 2009) ( Harris V ). While the resolution of his petition was pending, New Jersey repealed the death penalty and New Jersey Governor Jon Corzine commuted Harris's death sentence to life imprisonment without the possibility of parole. See id. at *2. Harris thereafter abandoned all of his arguments based on the imposition of the death penalty, and pressed only the following claims that “flow from the Sixth Amendment's guarantee of a fair trial”: (1) in light of the pretrial publicity surrounding the case, the trial court's use of a foreign jury deprived him of a fair trial; (2) the trial court should have taken more extensive precautions to ensure that the impaneled jurors were not infected by the mid-trial publicity; (3) the trial court should have held a hearing to explore allegations of contact between jurors and a former public defender; (4) the trial court should have allowed Harris to call a witness who would have testified that Gloria Dunn, who was Harris's accomplice in the murder of Kristin Huggins and who was the state's primary witness against Harris, was a violent person; and (5) his counsel was ineffective. Id. at *2, *7, *9. The District Court rejected all of Harris's arguments, denied his petition for a writ of habeas corpus, and denied Harris a certificate of appealability. Id. at *10. This court granted Harris's petition for a certificate of appealability, finding that the “sole claim presented [on] appeal [was] ‘adequate to deserve encouragement to proceed further,’ ” App. at 30 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)), and instructed the parties to brief “the issue of whether the New Jersey Supreme Court held contrary to, or unreasonably applied, ‘clearly established Federal law,’ see 28 U.S.C. § 2254(d)(1), in affirming the trial court's decision to impanel a foreign jury rather than transfer the case to a different venue in light of the pretrial publicity that surrounded the case,” App at 30-31.⁵

II.Analysis

Because this case arises from a state court proceeding in which the merits of Harris's sole claim on appeal were adjudicated, the standards established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) apply. See 28 U.S.C. § 2241-2266. Harris is not entitled to a writ of habeas corpus unless the state proceedings “(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.” Id. § 2254(d)(1)-(2). The certificate of appealability granted in this case is limited to the “contrary to” prong.

There has been considerable...