Palmer v. Hendricks
| Decision Date | 26 January 2010 |
| Docket Number | No. 06-2991.,06-2991. |
| Parties | Wali PALMER, Appellant v. ROY L. HENDRICKS and Peter Harvey. |
| Court | U.S. Court of Appeals — Third Circuit |
Stephen M. Latimer, Esq. (Argued), Loughlin & Latimer, Hackensack, NJ, for Appellant.
Jack J. Lipari, Esq. (Argued), Assistant Prosecutor, Atlantic County Prosecutor's Officer, Mays Landing, NJ, for Appellees.
Before: SLOVITER, FUENTES, and ALDISERT, Circuit.
In 1999, a jury found Wali Palmer guilty of multiple crimes related to a 1998 shooting death in an Atlantic City bar. After he unsuccessfully appealed his conviction, Palmer sought post-conviction relief in the New Jersey state courts, asserting that his attorney had been constitutionally ineffective. The New Jersey courts denied Palmer's petition for post-conviction relief, and Palmer thereafter filed a petition for a writ of habeas corpus in the New Jersey District Court pursuant to 28 U.S.C. § 2254. The District Court did not convene an evidentiary hearing and dismissed Palmer's petition.
We granted Palmer's application for a certificate of appealability as to three issues: (1) whether Palmer's trial attorney rendered ineffective assistance of counsel by failing to advise Palmer of his right to testify at trial and at a suppression hearing, (2) whether his attorney was ineffective in failing to inform Palmer that the choice of whether to testify was ultimately Palmer's to make, and (3) whether the District Court should have held an evidentiary hearing to resolve these claims. We conclude that Palmer failed to make a prima facie showing of the prejudice element of his ineffective assistance of counsel claims and that the District Court did not abuse its discretion in declining to convene an evidentiary hearing to resolve Palmer's claims.
In March 1998, Palmer was attacked by a group of young men at a bar in Atlantic City, New Jersey. During the scuffle, Palmer pulled out a nine-millimeter automatic handgun and fired two wild shots. One shot hit the leg of one of his attackers, Shawn Brantley; the other shot hit and killed Palmer's cousin, Junior (Jerry) Cooper, who had been trying to help Palmer. Palmer attempted to assist his cousin, but when he realized that his cousin was not moving, Palmer fled the scene on a bicycle. Police responded to the shooting, gathered a description of Palmer from the wounded Brantley, and arrested Palmer a few blocks from the bar.
After his arrest, Palmer gave several incriminating statements to the police. He later moved, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to exclude some of the statements. Palmer did not testify during the suppression hearing, and the record is silent as to whether he wanted to testify, what the contents of his testimony would have been, and whether his attorney discussed with him the possibility or propriety of testifying. The trial court eventually admitted most, but not all, of the statements.
Trial was conducted between June 15 and June 23, 1999. After the State rested, Palmer and his attorney, Williams Harris, Esq., engaged in two colloquies on the record, which became relevant during the state post-conviction proceedings. First, once the State had rested, the court and counsel discussed whether all of the State's exhibits had been admitted into evidence, after which the following colloquy took place:
The next day, before the court charged the jury, the following exchange between the court, defense counsel, and Palmer took place:
The jury was charged and, after deliberating, it found Palmer guilty of aggravated manslaughter, aggravated assault, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Palmer was subsequently given a sentence of twenty-two years for the manslaughter conviction, a consecutive sentence of eight years for the assault conviction, and a concurrent sentence of five years for the weapons convictions. Palmer appealed the convictions and sentence, challenging, among other things, the admissibility of the non-suppressed statements and the severity of his sentence. The New Jersey Appellate Division affirmed.
After his direct appeal failed, Palmer filed a petition for post-conviction relief. In his petition, Palmer argued that Harris had been constitutionally ineffective for, among other things, failing to advise him of his right to testify on his own behalf. Palmer submitted with his petition a sworn affidavit that stated:
• That, my former trial attorney Mr. Williams Harris had never informed me about my right to testify prior to trial, or that the decision not to testify was my decision to make and not Mr. Harris's.
• That, prior to going into the courtroom, Mr. Harris had c[o]me down to the bullpen or holding cell area in the courthouse, and I had asked Mr. Harris when he was going to put me on the stand to tell my side of what happened, and Mr. Harris had told me that he was not going to put me on the stand or testify or call me as a witness.
• That, during my trial, the Judge began reading something about me choosing not to testify, and saying that I chose not to testify, at which point I attempted to respond by telling Mr. Harris that he's making it sound like I don't want to tell my side, and Mr. Harris tapped me to hold up, and asked the judge for a second to speak to me.
• That, Mr. Harris then told me that, because he was not using me as a witness that the judge has to read those things to the jury so that they can't hold anything against me or bring up anything about me not taking the stand, and that Mr. Harris at that point still did not explain to me that I had a right to testify or that the choice of whether to testify was solely mine[] to make and not his.
• That, prior to Mr. Harris telling me that he was not going to put me on the stand, I was under the impression that I would get to tell my side of what happened.
• That, I would have taken the stand to testify on my own behalf to explain my side of what really happened if I was allowed to do so.
(App.87a-b.) In sum, Palmer argued that his trial counsel never took the time to explain to him that the choice of whether or not he would testify was for Palmer, not Harris, to make. Palmer also argued that the trial record was inconclusive as to whether Harris ever conveyed this information and that the jury charge colloquy revealed little about whether Palmer understood his right to testify. Accordingly, Palmer requested an evidentiary hearing to subpoena Harris and develop the factual record. Notably, Palmer did not set forth the facts to which he would have testified had he taken the stand at his trial.
The post-conviction relief ("PCR") court rejected Palmer's petition without granting an evidentiary hearing. Emphasizing the colloquy between the court and defense counsel at the close of the State's case, the PCR court found that Palmer and his attorney had been afforded the opportunity for Harris to counsel Palmer as to whether or not to testify. Additionally, relying upon the colloquy between the court, defense counsel, and Palmer just prior to the jury charge, the PCR court found that Palmer understood that he had a choice regarding whether to testify:
Then we get to what transpires with respect to the charge. And Mr. Harris says, "Your Honor, I'd like to have you read the defendant's election not to testify charge to my client so that we can make a decision on that." So we're talking about defendant's election not to testify, the defendant's right not to testify.
Implicit in that is a right to testify. And the charge that was read to him was this: "The defendant in this case chose not to be a witness." First line in the charge. If you choose not to be a witness, you can also choose to be a witness. So by the charge itself, which was read to the defendant, the defendant was told by me with respect to his choices. He chose not to be; implicit in that is a choosing to be. And the last sentence of the charge ... reads that, "The defendant is entitled to have the jury consider all of the evidence and he is entitled to the presumption of innocence even if he does not testify as a witness." Implicit in that as well is the fact that he can testify as a witness. To say that he was never told that he could be a witness, I think is belied by the transcript in this particular case.
(App.47-49.) The Appellate Division upheld this decision "for substantially the same reasons," but also took note of the...
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