Herrera v. Lagana

• Decision Date: 08 August 2013
• Docket Number: Civil Action No. 11-0734 (SRC)
• Parties: CARMELO HERRERA, Petitioner, v. PETER K. LAGANA, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

CARMELO HERRERA, Petitioner,

v.PETER K. LAGANA, et al., Respondents.

Civil Action No. 11-0734 (SRC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: August 8, 2013

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Petitioner prose

Carmelo Herrera

Northern State Prison

Counsel for Respondents

Stephanie Paige Davis-Elson

Assistant Prosecutor of Hudson County

CHESLER, District Judge

Petitioner Carmelo Herrera ("Petitioner"), a prisoner currently confined at Northern State Prison in Newark, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Peter K. Lagan a and the Attorney General of New Jersey.

For the reasons stated herein, the Petition will be dismissed.

I. BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Supreme Court of New Jersey.¹

On February 26. 2002, Benjamin Valentin, a sixty-three-year-old private security guard, was assigned to work the 4:00 p.m. to 12:00 a.m. shift in a Hoboken housing complex. He had been working in that area for approximately one month. At the conclusion of his shift, Valentin entered his car and drove to the exit to wait for traffic to pass. While stopped, Valentin observed a man, later identified as defendant Carmelo Herrera, approach on his bicycle before stopping near the front of Valentin's car and yelling something. Valentin did not hear what defendant said to him and lowered his window. Defendant walked to the window and asked Valentin for five dollars. When Valentin replied that he had no money, defendant punched him twice, once in the face and once on the back of the neck, knocking Valentin unconscious. When Valentin regained consciousness, his car was missing and he was bleeding. He walked to a nearby security booth and called the police.

Officer James Miller of the Hoboken Police Department arrived at the scene a short while later. Valentin related the incident and described his assailant as a Hispanic male, about 57", with a husky build, and a scar on his face, who was wearing something white and red. [FN1] Valentin was taken to St. Mary's hospital in Hoboken for treatment.

[FN1] At trial Officer Miller testified that Valentin described defendant as a "Hispanic male about five-seven in height, wearing blue jeans, white sneakers, black jacket with red lettering, and he had a short style cut black hair." On cross-examination, Officer Miller stated the "red lettering" was not referenced in his report, but he recalled Valentin saying red lettering.

Meanwhile, Officer Joseph Carr of the Harrison Police Department was called to an accident scene shortly after 1:00 a.m. He observed a damaged vehicle in the roadway with the front passenger side tire missing. A man, later identified as defendant, was standing in front of the vehicle. Because defendant appeared intoxicated, Officer Carr arrested and transported him to the police station to administer a breathalyzer test. A search of his person revealed four black belt keepers, which are used by police or security personnel to secure their belts to gunholsters. While preparing his report, Officer Carr received information that the damaged vehicle was stolen from Hoboken.

After the Hoboken police were informed that Valentin's car had been recovered, Lieutenant Edward Mecka contacted the Hudson County Prosecutor's Office to request a "showup" between the victim and the person found with the victim's car. Following that conversation. Lieutenant Mecka and Detective Padilla traveled to St. Mary's Hospital where they informed Valentin of the situation and asked him to go to the police station to identify the man who attacked him. Lieutenant Mecka transported Valentin to the station, where, on arrival, Lieutenant Mecka learned that defendant had been taken to West Hudson Hospital, so the Lieutenant drove Valentin there. As soon as Valentin entered the emergency room of the hospital, he looked around and identified defendant, who was sitting on a hospital bed about six feet away, as the man who had attacked him. The only other persons in the emergency room were two police officers and nurses.

State v. Herrera, 187 N.J. 493, 496-97 (2006).

B. Procedural History

Petitioner was indicted for first-degree carjacking, N.J.S.A. 2C: 15-2. and third-degree receiving stolen property, N.J.S.A. 2C:20-7. Prior to trial, he unsuccessfully moved to suppress Valentin's out-of-court identification. Following a jury trial in the Superior Court of New Jersey, Law Division, Hudson County, Petitioner was found guilty of both counts. On August 19, 2003, the trial court sentenced Petitioner to a term of thirty years imprisonment, subject to an eighty-five percent period of parole ineligibility under New Jersey's No Early Release Act, N.J.S.A. 2C:43-7.2. (Answer, Ex. Ra25-Ra26.)

On direct appeal, the Superior Court of New Jersey, Appellate Division, affirmed the convictions but remanded for resentencing, based on the trial judge's erroneous understanding that New Jersey law imposed a twenty-year presumptive sentence for carjacking. (Answer, Ex. Ra151-Ra168, Opinion of Superior Court of New Jersey, Appellate Division (Feb. 23, 2005).) Petitioner sought certification from the Supreme Court of New Jersey, which granted certification "limited to the issue of the identification procedure used by the police." (Answer, Ex. Ra199.)More specifically with respect to the federal issue raised. Petitioner argued that the showup identification procedure was impermissibly suggestive and resulted in a very substantial likelihood of irreparable misidentification, in violation of Petitioner's Fourteenth Amendment right to due process, under United States v. Wade, 388 U.S. 218 (1967), and its progeny Stovall v. Denno, 388 U.S. 392 (1967), Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977). (Answer, Ex. Ra200-Ra232, Defendant's Supplemental Brief before the Supreme Court of New Jersey.) On June 20, 2006, the Supreme Court of New Jersey affirmed the conviction. State v. Herrera, 187 N.J. 493 (2006).

During the pendency of the direct appeal, Petitioner was resentenced on April 14, 2005, to the same sentence previously imposed. (Answer, Ex. Ral69-Ral 70, Judgment on Resentencing.) Petitioner appealed his sentence, and on June 4, 2007, the Appellate Division affirmed. (Answer, Ex. Ra 335, Order of Superior Court, Appellate Division (June 4, 2007).) Petitioner did not further appeal his sentence.

Petitioner's initial petition for state post-conviction relief ("PCR"), filed on or about September 22, 2006, was dismissed without prejudice, as premature, on November 9, 2006. (Answer, Exs. Ra796-Ra806 (PCR Petition), Ra807 (Order).) On December 3, 2007, following the conclusion of Petitioner's direct appeals, he refilled his state petition for post-conviction relief, in which he asserted the following grounds for relief:

Ground 1:

TRIAL COUNSEL'S FAILURE TO PERFORM PROPER PRE-TRIAL INVESTIGATION OF BOTH STATE AND MATERIAL WITNESSES, LACK OF TRIAL PREPARATION, FAILURE TO ESTABLISH AN EFFECTIVE DEFENSE, AND TO RAISE CORRECT ARGUMENT TO THE TRIAL COURT REGARDING IDENTIFICATION PROCEDURES WERE SO EGREGIOUS AS TO DENY DEFENDANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR TRIAL AS PROVIDED BY THE U.S.

CONSTITUTION, AMENDS. VI AND XIV; N.J. CONSTITUTION, ART. I, PAR. 10.

Ground 2:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AS PROVIDED BY THE U.S. CONSTITUTION, AMENDS. VI, AND XIV; N.J. CONSTITUTION, ART. I, PAR. 10.

(Answer, Ex. Ra-341, Defendant's Verified Petition seeking PCR relief.) In his supplemental brief, Petitioner also argued that trial counsel was ineffective for coercing him not to testify, for failing to pursue an intoxication defense and to request an intoxication charge, for failing to request a cross-racial identification charge, for falling to argue certain mitigating factors relevant to sentencing, and for cumulative errors. Also in his supplemental brief, Petitioner argued that appellate counsel was ineffective in failing to argue that the trial court erred by not charging trespass and by failing to adequately argue the mitigating factors on appeal. (Answer, Ex. Ra349-Ra376, Defendant's Supplemental Brief.) On May 9, 2008, following oral argument, the trial court denied relief. (Answer, Ex. Ra571 -Ra592,) On March 8,2010, the Appellate Division affirmed the denial of relief. State v. Herrera, No. A-5834-07T4,2010 WL 816816 (N.J. Super. App.Div. Mar. 8, 2010). On August 3, 2010, the Supreme Court of New Jersey denied certification. State v. Herrera, 203 N.J. 580 (2010).

This Petition, with supporting documents dated February 7, 2011, followed. Here, Petitioner asserts the following grounds for relief:

Ground One: Identification procedures used by the police were impermissibly suggestive in violation of the Sixth and Fourteenth Amendments, not following the latest scientific techniques tainting [sic] the identification evidence which should have resulted in reversal of the convictions based on either the federal or state constitution. ...

Ground Two: Trial and appellate counsel were ineffective in failing to argue that the latest scientific techniques should have barred the identification testimony pursuant to either the federal or state constitution, contrary to petitioner's Sixth and Fourteenth Amendment rights.

(Petition, ¶ 12.)² Respondents have answered, asserting that the petition is both time-barred and meritless. Petitioner has replied and this matter is now ready for decision.

II. 28 U.S.C. 8 2254

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or 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

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