Chisolm v. Ricci, Civil Action No. 10-2900 (JAP)

• Decision Date: 18 July 2013
• Docket Number: Civil Action No. 10-2900 (JAP)
• Parties: SAMMIE CHISOLM, Petitioner, v. MICHELLE R. RICCI, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

SAMMIE CHISOLM, Petitioner,

v.MICHELLE R. RICCI, et al., Respondents.

Civil Action No. 10-2900 (JAP)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date: July 18, 2013

NOT FOR PUBLICATION

OPINION

APPEARANCES:

SAMMIE CHISOLM, Petitioner pro se

# 421740/202198C

New Jersey State Prison

DIT MOSCO, ESQ.

WARREN COUNTY PROSECUTOR'S OFFICE

Counsel for Respondents

PISANO, District Judge

Petitioner Sammie Chisolm ("Petitioner" or "Chisolm"), a convicted state prisoner presently confined at the New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New Jersey state court judgment of conviction entered on or about June 15, 2001. For the reasons stated herein, the Petition is dismiss as time-barred.

I. BACKGROUND

A. Procedural History

On or about February 24, 1999, a Warren County Grand Jury indicted Chisolm with the following offenses: (Count One) purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2); (Count Two) third degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; and (Count Three) fourth degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d. (Ra7,¹ Def./App's Brief andAppendix on Direct Appeal at Da1-Da3, Indictment No. 99-02-0085-1, Feb. 24, 1999.)

A pretrial motion to suppress evidence was held before the Honorable John F. Kingfield, J.S.C., on December 8, 1999. Judge Kingfield denied the motion. (1T, 98:8-15.) The court also conducted a hearing on other motions by defense counsel in whichthe court ruled that defendant's statements to the police were admissible. (4T, 46:22-50:13.)

A jury trial was held on April 10, 17, 18, 24, 25, 26, and May 1 and 2, 2000, with Judge Kingfield presiding. On May 2, 2000, the jury found Petitioner guilty on all charges. (10T, 3:1-4:12.)

On May 11, 2000, Petitioner filed a motion for a new trial claiming there was insufficient evidence to support the verdict, and that the jury instruction on the lesser-included offense of passion/provocation manslaughter was improper. Petitioner also alleged prosecutorial misconduct during closing argument. The trial court heard oral argument on Petitioner's motion on June 23, 2000. At the hearing, the trial court denied Petitioner's motion for a new trial, however, on its own motion, the court raised the issue of an improper jury charge on whether purposeful or knowing murder was adequate in light of a recent New Jersey Supreme Court decision in State v. Cruz, 163 N.J. 403 (2000). (11T, 3:1-13:6.) On July 14, 2000, the court found that the jury charge, in light of Cruz, was inadequate and granted a new trial. (12T, 14:17-18:17.)

The State then filed an interlocutory appeal from the Order granting a new trial. In a decision filed on May 3, 2001, the Superior Court of New Jersey, Appellate Division reversed thetrial's court order,² reinstated the conviction, and remanded the matter for sentencing. (Ra5, May 3, 2001 Opinion at 7.) Petitioner was sentenced on June 15, 2001, to an aggregate term of 40 years in prison, with 30 years parole ineligibility. (13T, 20:5-21:7.)

On July 30, 2001, Petitioner filed a direct appeal from his conviction and sentence before the Appellate Division. On October 23, 2003, the Appellate Division affirmed the conviction and sentence. (Ra8.) The Supreme Court of New Jersey denied certification on February 3, 2004. (Ra9.) Petitioner did not file a petition for a writ of certiorari with the Supreme Court of the United States.

Petitioner filed his first pro se petition for post-conviction relief ("PCR") in state court on or about March 8, 2004.³ (Ra21, Def./App's Brief and Appendix at Da28-Da30.) An amended PCR petition with a supporting brief by appointed counsel was filed on May 12, 2005. (Ra20.) In a writtendecision and Order filed on October 5, 2005, the Honorable John H. Pursel, J.S.C., denied Petitioner's request for an evidentiary hearing and post-conviction relief. (Ra10.) Petitioner promptly appealed from the Order denying his PCR petition. (Ra21.) On October 26, 2006, the Appellate Division affirmed the decision denying the PCR petition. (Ra12.) The Supreme Court of New Jersey denied certification on January 29, 2007. (Ra13.)

On September 12, 2007, Petitioner filed his second pro se PCR petition. (Ra24, Def./App's Appendix, A-2188-07T4, at 28a-74a.) In a written decision and Order filed on December 3, 2007, Judge Pursel denied Petitioner's request for post-conviction relief. (Ra24, Def./App's Appendix, A-2188-07T4, at 75a-82a.) Petitioner appealed from the decision denying his second PCR petition. (Ra23.) While the appeal was pending, Petitioner also filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this District Court, on or about December 6, 2007. (See Chisolm v. Ricci, Civil No. 07-5875 (JAP)). That action was dismissed without prejudice, on December 13, 2007, as a mixed petition, for failure to exhaust state court remedies. (See Chisolm v. Ricci, Civil No. 07-5875 (JAP), Dkt. # 2 at ¶¶ 7-13.)

On November 13, 2009, the Appellate Division affirmed the denial of Petitioner's second PCR petition substantially for the reasons expressed by Judge Pursel in his December 3, 2007 opinion. (Ra17, State v. Chisolm, 2009 WL 3849680, *2 (N.J.Super. A.D. Nov. 13, 2009)). The Supreme Court of New Jersey denied certification on February 25, 2010. (Ra18.)

On June 1, 2010, Petitioner filed this habeas petition pursuant to 28 U.S.C. § 2254.⁴ (Dkt. # 1.) The State filed an answer and the relevant state court record on January 11, 2012. (Dkt. ## 19, 20.) On February 3, 2012 and February 21, 2012, the State filed additional documents from the state court record. (Dkt. ## 21, 23.) Petitioner filed his traverse or reply on March 15, 2012. (Dkt. # 30.) This Court deniedPetitioner's motions for appointment of counsel and for an evidentiary hearing in an Opinion and Orders filed May 31, 2012. (Dkt. ##, 32, 33, and 34.)

B. Factual Background

The facts of this case, as recounted by the state court on direct review, are afforded appropriate deference under 28 U.S.C. § 2254(e)(1). Accordingly, this Court will simply recite the factual findings, as set forth in the published opinion of the Superior Court of New Jersey, Appellate Division, decided on October 23, 2003, with respect to Petitioner's direct appeal, as follows:

The evidence can be summarized as follows. On September 25, 1998, defendant was at the home of his friends James Truss (Ricky) and Davene Cartegena. During the visit, defendant consumed at least four beers. In the early evening, he saw Qia Walters, his girlfriend, in a car at a gas station across the street from the Truss residence and called her over. Walters parked the vehicle in front of the house. Sitting in the passenger seat of the car was her female friend, Demetrius Wideman, and Walter's baby daughter. Defendant had arranged to spend the evening with Walters, but Walters told him that she was going to spend the evening with Wideman. An argument ensued between defendant and Walters. They walked around the corner of the house and continued their argument. Wideman remained in the vehicle. Eventually, defendant and Walters returned to the vehicle. Defendant pushed Walters back into the car.

Defendant then walked around to the passenger side of the vehicle. According to the State, defendant blamed Wideman for his problems with Walters. Defendant told Wideman, "I should hit you in the face, you stupid bitch." Defendant opened the car door, grabbed Wideman's clothing and pulledher hair. He also scratched Wideman on the chest, hit her between her neck and jaw, and pulled out some of her hair extensions. Wideman eventually shut and locked the car door. Defendant told Wideman to "go get whoever you want." Wideman responded that she'd be right back.

After Walters and Wideman drove off, defendant and Ricky Truss started drinking again. They were joined by Cartegena and Guy Shupe. Defendant was angry and said to his drinking companions:

[y]ou all mother f[@*#]ers think I'm a joke. I ain't no joke. I'll show you all my Newark style.

Fifteen minutes later, Wideman returned to the Truss residence with her father, George Davis. Davis began to take off his jewelry and asked who Sammie was. After defendant was identified, Davis threw a punch at his face. Wideman also hit defendant. Defendant stumbled back but did not fall. Defendant then pulled a knife out and stabbed Davis once in the chest. Davis pushed his daughter out of the way and indicated that he had been stabbed before collapsing to the ground. Defendant kicked Davis several times in the face. Defendant's friends pulled him away from the body. Wideman fled to a gas station across the street and called the police. Truss performed CPR on Davis. Defendant, with Shupe following, ran into the basement of Truss' residence. Cartegena ordered them to leave the basement. Defendant dropped the knife and left the building. He and Shupe ran down the street.

Phillipsburg Police Patrolman Shawn Carmody responded to the scene with his partner, Officer Kisselbach. Carmody asked the gathering crowd if there were any witnesses. Cartegena explained the incident to Carmody. She led Carmody to the basement and opened up the door. Carmody called for backup. Warren County Police Officer Kenneth Decker and Detective Robert Bunn assisted Carmody in searching the basement. They found the kitchen knife and secured the area.

Someone on the street informed Officer Reppert that defendant was at Laramy Furman's home. Decker and additional law enforcement officers went to Furman'sresidence. On the way there, they met Furman, who stated that defendant might possibly be at his home. He agreed to escort the officers to his home and let them in. Upon arriving at Furman's home, Decker was able to see through a window an unidentified male, later identified as defendant, lying on a couch watching television. Defendant surrendered.

Defe

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