Brewer v. D'Ilio
| Decision Date | 14 February 2018 |
| Docket Number | Civil Action No. 14-6886 (PGS) |
| Parties | TERENCE BREWER, Petitioner, v. STEPHEN D'ILIO, ET AL., Respondent. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Petitioner Terence Brewer, a convicted criminal in the State of New Jersey, files the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a conviction and sentence imposed by the State for murder, robbery, and unlawful possession of a firearm. Respondents have filed a Response, ECF No. 13. Petitioner did not file a Reply. The Court has considered the parties' submissions, as well as the relevant records of this case. For the reasons stated below, the Court denies the Petition.
The charges against defendant arose from incidents occurring during the afternoon of July 21, 1998 on Centre Street in Trenton, New Jersey.1 There was conflicting evidence produced at trial. Ahmad Harris testified that Petitioner robbed him of cash, a gold chain, and drugs at gunpoint during an attempted drug transaction between Harris and Petitioner in a driveway off Centre Street.Petitioner then fled, followed by Harris, who picked up a bottle while yelling that he had been robbed. During the chase, Petitioner was riding a bicycle and pointed his handgun at Harris. As Harris reached Broad Street, he saw his friend, Andrew Powell, running from Centre Street toward Petitioner. When Powell was four to five steps from Petitioner, Petitioner shot Powell twice. Harris later identified Petitioner at police headquarters, as well as the gun Petitioner used to rob him.
An eyewitness to the shooting, Samuel Johnson, stated he was driving home from work at approximately 4:00 p.m. when he saw two males being chased by a man holding a bottle in his hand at the intersection of Ferry and Broad Streets. Johnson identified Petitioner, who was pushing a bicycle, as one of the men being chased and Ray Carter as the other. Johnson stated that Harris raised the bottle as if to strike Petitioner and said to "give it up." Johnson then saw Petitioner reach into his waistband, pull out a handgun, and point it at Harris, causing Harris to step back. Petitioner then continued on the bicycle toward Broad Street.
Johnson decided to follow Petitioner and saw Harris continue his pursuit of Petitioner, but at a distance. When Petitioner reached Broad Street, he dropped the bicycle and began walking toward Market Street. Johnson then saw three males, including Harris, running from Centre Street toward Petitioner. Johnson heard Harris yell to the other two men, one of whom was Powell, that Petitioner's gun was a fake. Petitioner then pulled the gun from his waistband and shot Powell, who had confronted Petitioner. Powell was about one to two feet away from Petitioner when he was shot. Johnson stated that Powell had nothing in his hands at the time. Powell died from gunshot wounds.
Johnson followed Petitioner and Carter, and saw Carter enter a residence on Clay Street. He had also seen Petitioner discard clothing while walking toward the Clay Street area. Johnson went back to the scene of the shooting, informed the police about his observations, and led themback to the Clay Street residence. When the police arrived, Carter was on the porch and informed the police that Petitioner, his brother-in-law, was inside the house. Carter consented to a search of the house. Police found Petitioner in the attic, breathing heavily and sweating. When taken outside, Johnson identified Petitioner as the shooter.
Petitioner testified to a different version of the incident. Petitioner admitted that he went to the Centre Street area with Carter in an attempt to purchase drugs from Harris. Carter waited for him at the corner of Centre and Broad Streets. However, when Harris took him into the driveway, Harris pulled a handgun and demanded money. After dropping the money on the ground to distract Harris, Petitioner attacked Harris, grabbed the money and gun, and ran from the driveway. As Harris began to scream, Petitioner saw two males running towards him, so he ran out of the alley towards Ferry Street.
Petitioner stated that during the chase, Harris tried to hit him with a bottle and Petitioner pulled out the gun to make him back off. As Petitioner continued toward Broad Street, he saw Powell holding Carter up against a wall. Powell then approached Petitioner, reaching behind his back and pulling out what Petitioner thought was a gun. Petitioner ducked down and shot Powell twice. Petitioner denied taking any drugs, money or jewelry from Harris.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
When a claim has been adjudicated on the merits in state court proceedings, the writ shall not issue unless the adjudication of the claim (1) resulted in a decision that was contrary to, orinvolved 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. 28 U.S.C. § 2254(d); see also Parker v. Matthews, 132 S. Ct. 2148, 2151 (2012). A state-court decision involves an "unreasonable application" of clearly established federal law if the state court (1) identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case; or (2) unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams v. Taylor, 529 U.S. 362, 407 (2000). Federal courts must follow a highly deferential standard when evaluating, and thus give the benefit of the doubt to state court decisions. See Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011); Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). A state court decision is based on an unreasonable determination of the facts only if the state court's factual findings are objectively unreasonable in light of the evidence presented in the state-court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Moreover, a federal court must accord a presumption of correctness to a state court's factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e); see Rice v. Collins, 546 U.S. 333, 339 (2006) (); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) ().
The Petition raises the following six grounds for relief: (1) because the juror who was excused during deliberations was neither ill nor unable to continue under R. 1:8-2(d), her removal and replacement with an alternate juror violated defendant's right to due process of law and a fairtrial by an impartial jury; (2) defendant's convictions for robbery and felony murder must be reversed because inadequate instructions on robbery on a theory of attempted theft deprived defendant of the right to due process of law and a fair trial; (3) the verdict sheet improperly prevented the jurors from considering passion/provocation manslaughter unless they had first acquitted defendant of murder, in violation of his right to due process of law and a fair trial; (4) defendant's extended term of life imprisonment for robbery was not subject to the No Early Release Act; (5) the indictment should have been dismissed in its entirety; and (6) defendant was denied the effective assistance of trial counsel in violation of the United States and New Jersey constitutions. The Court rejects these claims.
In Ground Three, Petitioner asserts that the verdict sheet and the trial court's instructions improperly prevented the jury from considering passion/provocation manslaughter unless they had first acquitted him of knowing and purposeful murder. In Ground Four, Petitioner argues that his Graves Act2 extended term of life imprisonment for robbery was not subject to New Jersey's No Early Release Act.3 Petitioner raised both of these issues in his direct appeal and was successful. The Appellate Division agreed with Petitioner's arguments and granted relief; specifically, the court vacated Petitioner's conviction for knowing and purposeful murder and remanded the matter for re-sentencing on the robbery count.4 See State v. Brewer, No. A-924-02T4, slip op. at 8-16 (N.J. Super. Ct. App. Div. Mar. 30, 2004) ("Brewer I"), ECF No. 1 at 34-42. This Court cannot grant any further relief than what the State court has already provided by corrected the allegederrors. These claims are therefore moot and are not justiciable. Accordingly, Grounds Three and Four are dismissed.
Petitioner argues that the removal and replacement of a juror after deliberations had begun violated his right to due process and a fair trial. Jurors were permitted to take notes in court-provided notebooks, but were instructed not to take any notes home and not to conduct any independent legal or factual research. Brewer I at 20, ECF No. 1. In the course of deliberations, a juror informed the court that another juror, who was a law student, had written down the questions on the jury verdict sheet and had done legal research on the case during a break in deliberations. Id. When the jury returned to resume deliberations the following day, the juror was isolated from the other jurors and the...
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