734 Fed.Appx. 95 (3rd Cir. 2018), 17-2761, Kushner v. Attorney General New Jersey

Docket Nº:17-2761
Citation:734 Fed.Appx. 95
Opinion Judge:RESTREPO, Circuit Judge.
Party Name:Larry J. KUSHNER, Appellant v. ATTORNEY GENERAL NEW JERSEY; New Jersey State Parole Board
Attorney:Adrienne Box, Student Counsel [ARGUED], Matthew Goddard, Student Counsel [ARGUED], Adrian N. Roe, Esq., Duquesne University School of Law, Tribone Center for Clinical Legal Education, Counsel for Appellant Ian D. Brater, Esq. [ARGUED], Christopher J. Gramiccioni, Esq., Monmouth County Prosecutor’...
Judge Panel:Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges.
Case Date:May 22, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 95

734 Fed.Appx. 95 (3rd Cir. 2018)

Larry J. KUSHNER, Appellant

v.

ATTORNEY GENERAL NEW JERSEY; New Jersey State Parole Board

No. 17-2761

United States Court of Appeals, Third Circuit

May 22, 2018

NOT PRECEDENTIAL

Argued: May 1, 2018

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-14-cv-03709), District Judge: Honorable Peter G. Sheridan

Adrienne Box, Student Counsel [ARGUED], Matthew Goddard, Student Counsel [ARGUED], Adrian N. Roe, Esq., Duquesne University School of Law, Tribone Center for Clinical Legal Education, Counsel for Appellant

Ian D. Brater, Esq. [ARGUED], Christopher J. Gramiccioni, Esq., Monmouth County Prosecutor’s Office, Counsel for Appellee

Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges.

OPINION[*]

RESTREPO, Circuit Judge.

Page 96

Appellant Larry Kushner filed this habeas corpus petition challenging his New Jersey conviction under the speedy trial guarantee of the Sixth Amendment. The District Court denied the petition. We will affirm.

I

In 2010, Kushner pled guilty to theft by deception, N.J. Stat. Ann. § 2C:20-4, and failure to file a state tax return, N.J. Stat. Ann. § 54:52-8. He was sentenced to seven years’ incarceration and $1,122,200 in restitution. We recount the procedural history of his case only as is necessary for this appeal.

On February 8, 2007, Kushner was arrested on charges of credit card fraud and identity theft. Within days, he was released on bail. On May 12, 2008— approximately fifteen months later— the state indicted Kushner on twenty-six counts of theft by deception, credit card fraud, identity theft, and failure to file New Jersey tax returns.

On September 14, 2010, Kushner pled guilty, reserving his right to raise a speedy trial claim. The trial court subsequently denied his speedy trial motion. Among other things, the trial court found that the state’s delay in indicting Kushner resulted from the complex nature of the case, which involved over four thousand pages of discovery, multiple corporations and properties, and investigation in three states. The Superior Court of New Jersey, Appellate Division, affirmed. State v. Kushner, No. 08-05-1175, 2012 WL 5990107 (N.J.Super.Ct.App. Div. Dec. 3, 2012) (per curiam). It found that Kushner’s speedy trial rights were not violated under the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The New Jersey Supreme Court denied review.

This habeas corpus petition followed. Kushner now asserts that his speedy trial rights were violated by the fifteen month delay between his arrest and indictment.1 The District Court denied relief, finding that Kushner could not overcome the standard of review of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). The District Court granted a certificate of appealability because reasonable jurists could disagree.2 See Buck v. Davis, __ U.S. __, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017).

Page 97

II3

AEDPA limits the ability of a federal court to grant habeas corpus relief to a petitioner based upon a federal constitutional claim where, as here, that claim was "adjudicated on the merits" in state court. 28 U.S.C. § 2254(d). Under Section 2254(d), habeas relief shall not be granted unless the adjudication "(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. (emphasis added). Under Section 2254(d)(1), a state court decision involves an unreasonable application "if the court identifies the correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular case." McKernan v. Superintendent, 849 F.3d 557, 563 (3d Cir. 2017) (quotation marks and citation omitted). A state court’s findings of fact are presumed correct absent clear and convincing evidence to rebut them. 28 U.S.C. § 2254(e)(1).

III

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.’ " U.S...

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