Pantusco v. Lagana, Civil Action No. 11-0680 (SDW)

• Decision Date: 16 August 2013
• Docket Number: Civil Action No. 11-0680 (SDW)
• Parties: PATRICK PANTUSCO, Petitioner, v. MR. LAGANA, Administrator, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

PATRICK PANTUSCO, Petitioner,

v.MR. LAGANA, Administrator, et al., Respondents.

Civil Action No. 11-0680 (SDW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: August 16, 2013

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Patrick Pantusco

Northern State Prison

Petitioner prose

Vered Adoni

Office of the County Prosecutor

Bergen County

Counsel for Respondents

WIGENTON, District Judge

Petitioner Patrick Pantusco ("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 Mr. Lagana and the Attorney General of the State of New Jersey. Petitioner presents three grounds for relief: (1) ineffective assistance oftrial counsel; (2) that the New Jersey Statute on "felony murder" is unconstitutionally vague; and (3) that Petitioner's right to a fair trial was violated when jurors were permitted to continuously view him in shackles and handcuffs throughout his trial. Most notably, Petitioner argues that he should not have been convicted of the felony murder of a third-party he struck and killed in a police chase as he fled apprehension for a robbery, because the police chase did not immediately follow the robbery.

For the reasons stated herein, the Petition shall be denied as without merit.

I. BACKGROUND

A. Factual Background

This case revolves around a unique, and tragic, set of facts.¹ At trial, the petitioner was accused of stealing a black 1991 Ford Explorer in Riverdale, New Jersey, and then of snatching several purses from women in the surrounding locale.

The first purse snatching occurred after 4:00 in the afternoon of June 18. Vera Rattansingh got off work at that time and drove to the Bradlees store in Clifton. As she was walking toward the store, a vehicle described as a black Ford Explorer pulled beside her and the driver asked her for directions to Main Street in Nutley. ... While Rattansingh looked for the street on a map, she realized that the man in the vehicle was attempting to take the purse off her shoulder. According to Rattansingh, "he pulled with so much force that he got the bag off my shoulder and I fell to the ground." The car ran over Rattansingh's left instep of her foot, and her arm and buttocks were bruised.

...

Shortly after the theft of Rattansingh's purse, at around 5:00 p.m. on June 18, Diane Dorry walked in the parking lot of the Paramus Park Mall. As Dorrywas walking from her vehicle to the mall she heard a man say "excuse me." She turned around and a man in a black Explorer asked her for directions to the Garden State Parkway. Dorry walked up to the car window and began giving him directions when he grabbed the handle of her purse and accelerated the vehicle. She let go of the purse in fear that she might be dragged by the moving car. She described that force was used because of the "pull on [her] shoulder ... at the time he was accelerating the gas." Dorry was not injured. ...

The third incident also occurred on the same day, while seventy-four year old Gloria Miskerik was shopping with her friend ... also in Paramus. The women finished shopping at around 5:00 p.m., when they began walking back to their car. A car ... approached the women and stopped to ask for directions .... While the two women were conversing about who was to give him directions, the man reached out of the car window, grabbed Miskerik's purse and "floored" the vehicle. Miskerik did not let go of the purse. She ran with the accelerating car until eventually she fell to the ground and was forced to let go of her purse. Miskerik was seriously injured by the moving car, leaving her with severe cuts to her head and shoulder, and a blood clot in her left hip. ...

While defendant was stealing Miskerik's purse, an off-duty police officer, Albert Maas, was parking his car. He witnessed the entire event. Maas immediately directed another shopper to call 9-1-1 while he attended to the injured Miskerik. He then spoke to Paramus Police on the phone to give the dispatcher additional information regarding what he characterized as a "robbery."

State v. Pantusco, 330 N.J. Super. 424, 432-33 (App.Div. 2000) (footnotes omitted).

Following the theft of Miskerik's purse, at 5:36 pm, Patrolman Richard Skinner heard about two purse snatchings over a SPEN radio broadcast from the Paramus Police Department. Skinner was directed by his tour commander to "check Linwoods Avenue ..." for the black Ford Explorer. Skinner observed the vehicle on that road, and approached it to confirm the license plate and identity of the driver. Thereafter, Skinner began to follow the vehicle and engage in a police chase:

At this point, Officer Skinner verified the license plate on his mobile computer terminal and turned his vehicle around to follow defendant. Thereupon defendant "passed the vehicles on the right side and then just shot through the stop sign." Skinner then activated his overhead lights and sirens, radioed headquarters to alert them that he found defendant, and continued to follow the vehicle south on Pascack Road.

...Since traffic was heavy at the intersection of Oradell Avenue, thereby preventing defendant from turning right, he pulled into a Texaco Gas Station. Officer Skinner followed. Defendant then attempted to exit the gas station through another exit, but Skinner blocked that exit with his vehicle. As Skinner began to exit his car, defendant "rammed" the right front fender of the patrol car, causing Officer Skinner to hit his head on the car door jamb. Defendant was then able to exit the gas station and started to head north on Pascack Road. Officer Skinner drew his weapon, ran toward the defendant's car, and ordered him to stop. Defendant nonetheless continued to head north on Pascack Road, Officer Skinner returned to his car and attempted to follow.

At this point, Officer Skinner lost sight of defendant, but he noticed a man on the side of the road yelling, "he went down that way, he went down that way," pointing down Bedford Court. Skinner radioed to headquarters the location where defendant was heading, and turned down Bedford Court where he noticed the black Ford Explorer parked next to the curb on Rutgers Place. As Skinner approached the vehicle, defendant took off again, and Skinner followed him back onto Pascack Road. At this point, Officer Skinner described that defendant "was driving fast and recklessly."

In the interim, Officer Smith had the traffic stopped at the intersection of Pascack Road and Oradell Avenue, so as to block defendant from continuing down Pascack Road. However, defendant avoided Smith, and turned left down Oradell Avenue while Skinner followed close behind. At this point, other police vehicles joined the chase.

330 N.J. Super. at 434-35.

Toward the end of the chase, Officer Skinner observed that the black Ford Explorer had hit a red Chevrolet Blazer. The driver of the damaged Ford Explorer exited the vehicle, and fled on foot, only to be apprehended by Officer Skinner and other officers who had arrived. The medical examiner concluded that the driver of the Chevrolet Blazer died at the scene due to "multiple fractures and injuries" from the car accident. 330 N.J. Super. at 435-36.

B. Procedural History

Following a jury trial in the Superior Court of New Jersey, Law Division, Bergen County, Petitioner was convicted of felony murder, N.J.S.A. 2C: 11-3a(3); aggravated manslaughter, N.J.S.A. 2C:11-4a; resisting arrest, N.J.S.A. 2C:29-2; eluding a police officer,N.J.S.A. 2C:29-2b; five counts of aggravated assault, N.J.S.A. 2C:12-1b;² three counts of robbery, N.J.S.A. 2C:15-1;³ burglary and theft of an automobile, N.J.S.A. 2C:18-2 and 2C:20-3; and theft of a credit card, N.J.S.A. 2C:21-6c. On February 4, 1998, the trial court sentenced Petitioner to an aggregate term of 50 years' imprisonment, with a 30-year parole disqualifier. (Answer, Ex. 1 at Da9-Da10, Judgment.)

On April 24, 2000, on direct appeal, the Superior Court of New Jersey, Appellate Division affirmed the felony murder conviction and sentence, directed the merger of the aggravated manslaughter and all the robbery convictions into the felony murder conviction, otherwise affirmed the judgment and concurrent sentences imposed for those crimes, and remanded for a corrected judgment. State v. Pantusco, 330 N.J. Super. at 443-45. On September 8, 2000, the Supreme Court of New Jersey denied certification. State v. Pantusco, 165 N.J. 527 (2000).

On September 6, 2001, Petitioner filed with the trial court his first state petition for post-conviction relief ("PCR"). (Answer, Ex. 9, App. at 55 to 59.) On July 9, 2003, following an evidentiary hearing limited to the question whether trial counsel were constitutionally ineffective for failing to request an eluding manslaughter charge, as a lesser-included offense of felony murder, the trial court denied relief. (Answer, Ex. 34.) On June 8, 2006, the Appellate Division affirmed the trial court's decision regarding the eluding manslaughter charge, but remanded to permit Petitioner to present additional claims for post-conviction relief to the trial court. State v. Pantusco, Ind. No. S-997-96, 2006 WL 1549687 (N.J. Super. App. Div. June 8, 2006). OnNovember 9, 2006, the Supreme Court of New Jersey denied certification. State v. Pantusco, 188 N.J. 576 (2006).

On November 10, 2006, Petitioner filed his amended state petition for post-conviction relief. (Answer, Ex. 9, App. at 70-112.) On June 20, 2007, after a non-evidentiary hearing, the PCR court denied relief. (Answer, Ex. 35.) On July 26, 2010, the Appellate Division affirmed the denial of post-conviction relief. State v. Pantusco, Ind. No. 96-07-0997, 2011 WL 13850 (N.J. Super. App. Div. July 26, 2010). On November 4, 2010, the Supreme Court of New Jersey denied certification. State v. Pantusco, 205 N.J. 16 (2010). This Petition followed.

Here, Petitioner asserts the following grounds for habeas relief under 28 U.S.C. § 2254: (1)...