Alfred Ricky Bishop v. Newjersey
| Decision Date | 31 August 2018 |
| Docket Number | Civil Action No. 16-9178(RMB) |
| Parties | ALFRED RICKY BISHOP, Petitioner v. THE STATE OF NEW JERSEY, et al., Respondents |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1) filed by Petitioner Alfred Ricky Bishop ("Petitioner"), an inmate confined in Northern State Prison in Newark, New Jersey. Respondents filed an answer opposing habeas relief. (Answer, ECF No. 5.) For the reasons discussed below, the Court denies the petition.
On September 7, 2004, Petitioner was indicted in state court in Atlantic County, New Jersey for possession of a controlled dangerous substance (cocaine) in violation of N.J.S. § 2C:35-10a(1) (Count One); possession of a controlled dangerous substance with intent to distribute in violation of N.J.S. §§ 2C:35-5a(1) and 2C35-5b(3) (Count Two); and possession with intent to distribute a controlled dangerous substance on public property, in violation of N.J.S. § 2C:35-7.1 (Count Three). (Answer, Ex. 9, ECF No. 5-11.) Petitioner pled guilty to Count One on February 22, 2005. (Answer, Exs. 1, 10, ECF Nos. 5-3, 5-12.)
On June 29, 2005, Petitioner waived indictment and pled guilty to the charges in Atlantic County Accusation No. 05-06-1364 including, aggravated manslaughter in violation of N.J.S. § 2C:11-4a (Count One); terroristic threats in violation of N.J.S. § 2C:12-3a; and unlawful possession of a weapon in violation of N.J.S. § 2C:39-5b (Count Three). (Answer, Exs. 2, 11, ECF Nos. 5-4, 5-13.) Petitioner attempted to withdraw his guilty plea in hopes of a lighter sentence but the trial court denied his motion. (Answer, Ex. 3, ECF No. 5-5 at 3T8-13.)
On August 25, 2005, Petitioner was sentenced in accordance with his plea agreements to a three-year term of imprisonment on Count One of Indictment No. 04-09-1827; a 24-year term of imprisonment with an 85% parole disqualifier and five-year term of parole supervision on Count One of Accusation No. 05-06-1364, to be served consecutively with Count One of the Indictment; four-year terms of imprisonment on Counts Two and Three of Accusation No. 05-06-1364, to be served concurrently with Count One of the Accusation, and consecutive to Count One of the Indictment. (Answer, Ex. 3, ECF No. 5-5 at 3T:35-37.) The remaining counts inIndictment No. 04-09-1827 were dismissed. (Answer, Ex. 3, ECF No. 5-5 at 3T37.)
On June 4, 2007, the Appellate Division affirmed Petitioner's sentence. (Answer, Ex. 15, ECF No. 5-17.) Petitioner timely filed a petition for certification to the New Jersey Supreme Court, which denied the petition on February 21, 2008. (Id., Ex. 17, ECF No. 5-19.) Petitioner filed a motion for post-conviction relief ("PCR") on April 4, 2008. (Id., Ex. 18, ECF No. 5-20.) The PCR Court held a hearing and denied the petition on March 31, 2009. (Id., Exs. 5, 19, ECF Nos. 5-7, 5-21.) Petitioner appealed, and on January 3, 2011, the Appellate Division affirmed in part and remanded in part for an evidentiary hearing. (Id., Exs. 20, 21, ECF Nos. 5-22, 5-23.) Petitioner filed a petition for certification with the New Jersey Supreme Court, appealing the Appellate Division's January 3, 2011 decision. (Id., Ex. 22, ECF No. 5-24.) The New Jersey Supreme Court denied the petition on June 16, 2011. (Id., Ex. 23, ECF No. 5-25.)
After holding a hearing on PCR remand, the PCR court denied the petition on January 6, 2014. (Id., Ex. 24, ECF No. 5-26.) Petitioner appealed, and the Appellate Division affirmed the PCR remand court decision on June 22, 2016. (Id., Exs. 25, 26, ECF Nos. 5-27, 5-28.) Petitioner filed a petition for certification to the New Jersey Supreme Court, and the New Jersey Supreme Court denied the petition on November 9, 2016. .) Petitioner filed the instant habeas petition on December 12, 2016. (Pet., ECF No. 1.)
In a plea hearing on Indictment No. 04-09-1827, held on February 22, 2005, Petitioner admitted he was in possession of cocaine at the Berkley Gardens Apartments in Atlantic City, New Jersey on August 5, 2004. (Answer, Ex. 1, ECF No. 1-3 at 1T6:17-7:5.) Pursuant to a plea agreement, Petitioner pled guilty to this offense in return for dismissal of the remaining charges and the State's recommendation of a long-term inpatient drug treatment or a three-year term of imprisonment. (Id., 1T3:1-13.)
On June 29, 2005, Petitioner waived indictment on Accusation No. 05-06-1364 in Atlantic County and pled guilty to three counts. (Answer, Ex. 2, ECF No. 5-4 at 2T2.) The state court record reveals the following details of the crimes to which Petitioner pled guilty. Around 2:00 or 2:30 in the afternoon of March 29, 2005, in Atlantic City, New Jersey, Petitioner saw Shaquanna Smith walking with her thirteen-year-old sister and called out to the thirteen-year-old girl. (Answer, Ex. 2, ECF No. 5-4 at 2T17:23-19:2; Ex. 5, ECF No. 5-7 at 5T16:18-17:9.) Smith told Petitioner the girl did not want to talk to him and Petitioner began following them. (Id.) Petitioner brandished a gun and yelled that he could speak to whomever he wished, threatening to shoot Smith if sheinterfered. (Id.) The girls continued walking and Petitioner eventually walked away from them. (Id.)
At approximately 10:00 p.m. that same evening in Atlantic City, Petitioner approached K.O. and her friends, pulled out his gun, and ordered the girls to get on the ground. (Answer, Ex. 2, ECF No. 5-4 at 2T17-18; Ex. 5, ECF No. 5-7 at 5T17:10-14; Ex. 21, ECF No. 5-23 at 3.) Petitioner fired his gun into the air and rode away on his bicycle. (Id.)
That night, Petitioner was at his girlfriend's home in Atlantic City, and Eliza Hernandez, whom Petitioner knew, was also there. (Id., Ex. 2, ECF No. 5-4 at 2T14:9-17:18; Ex. 5, ECF No. 5-7 at 5T17:17-18:10.) Petitioner, standing directly in front of Hernandez, pointed a loaded revolver in her face. (Id.) Cocking and uncocking the hammer of the gun, Petitioner shot Hernandez in the eye, killing her. (Id.)
Prior to sentencing, Petitioner attempted to withdraw his guilty plea to aggravated manslaughter, arguing the recommended sentence was excessive for what he called an accident. (Id., Ex. 3, ECF No. 5-5 at 3T8:12-17.) The court denied the motion and sentenced Petitioner according to the terms of the plea agreements. (Id. at 3T12:8-10; 3T32:7-37:5.) In support of the sentence, the court found that aggravating factors for risk of reoffending (factor three), Petitioner's criminal history (factor six), and need for deterrence (factor nine) substantially outweighed theabsence of mitigating factors. (Answer, Ex. 3, ECF No. 5-5 at 3T33:12-34:24.)
Petitioner appealed the sentence, arguing that the court improperly used his mental health history to support findings of aggravating factors three and nine. (Id., Ex. 4, ECF No. 5-6 at 4T25:11-26:8.) The Appellate Division rejected the argument and affirmed Petitioner's sentences. (Answer, Ex. 15, ECF No. 5-17.)
Petitioner raised various claims of ineffective assistance of counsel in his PCR petition, including that his counsel was ineffective for failing to file a motion to suppress a statement Petitioner made to police upon his arrest. (Id., Ex. 5, ECF No. 5-7 at 5T5:3-4, 5T7:2-7.) Petitioner also claimed his attorney was ineffective for failing to hire a mental health expert to determine if Petitioner had a mental health defense. (Id. at 5T31:8-11.) The PCR court denied the petition, and the Appellate Division affirmed with the exception of the claim asserting counsel should have hired a mental health expert, which the Appellate Division remanded for an evidentiary hearing. (Id., Ex. 21, ECF No. 5-23 at 9-10.)
At the PCR remand hearing, Petitioner testified that he was in a trance when he shot Eliza Hernandez, and he heard voices telling him to play with the gun. (Id., Ex. 6, ECF No. 5-8 at 6T23:16 - 25:6.) After the shooting, he left the house and emerged from the trance, realizing he had done something wrong. (Id.) He went to his brother's house in Somers Point, then went toWashington D.C., where his aunt lived. (Answer, Ex. 6, ECF No. 5-8 at 6T23:16-25:6.)
Psychologist David Bogacki testified on Petitioner's behalf. (Id., Ex. 7, ECF No. 5-9 at 7T20:1-6.) Dr. Bogacki evaluated Petitioner after the Appellate Division remanded for a PCR evidentiary hearing, and he diagnosed Petitioner with polysubstance abuse in full sustained remission, generalized anxiety disorder, rule out bipolar disorder, history of psychotic symptoms, and personality disorder NOS, with histrionic and antisocial traits. (Id., Ex. 29, ECF No. 5-31 at 7.) He concluded that Petitioner was likely suffering from a mental health disorder at the time of the shooting. (Id., Ex. 7, ECF No. 5-9 at 7T29:10-30:1-10.)
On cross examination, Dr. Bogacki testified that Petitioner never told him he heard voices telling him to shoot Hernandez. (Id. at 7T41:11-17.) Dr. Bogacki also testified that during his evaluation of Petitioner, Petitioner said he was extremely reckless at the time of the shooting, and the shooting occurred as a result of his recklessness. (Id. at 7T42:14-20.) Dr. Bogacki agreed that Petitioner's conduct and statements following the shooting indicated his awareness of wrongdoing. (Id. at 7T42.)
Petitioner's trial counsel, Joel Mayer, testified on behalf of the State at the PCR remand hearing. (Answer, Ex. 6, ECF No. 5-8 at 6T54-6T64.) Mr. Mayer was aware of Petitioner's mental healthhistory prior to Petitioner's plea and he discussed it with the prosecutor during plea negotiations. (Answer, Ex. 6, ECF No. 5-8 at 6T64:8-23.) Mr. Mayer had represented clients in cases where diminished capacity or insanity defenses were at issue, but he decided against having Petitioner evaluated by a mental health expert because he did not think a mental health defense was viable in light of the...
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