Perez v. Steven D'Ilio & the Attorney Gen. of N.J.
| Decision Date | 20 August 2019 |
| Docket Number | Civil Action No. 16-4767(MCA) |
| Parties | JOSE ANTONIO PEREZ, Petitioner, v. STEVEN D'ILIO and THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Respondents. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter has been opened to the Court by the pro se Petition pursuant to 28 U.S.C. § 2254 (ECF No. 1 ("Petition")) of Jose Antonio Perez ("Petitioner"). For the reasons explained below, the Court will deny the Petition with prejudice and will deny a certificate of appealability.
After extensive review of the sizeable record from which this case arises, and to give context to this Opinion, the Court will summarize briefly the facts pertinent to the analysis herein. In doing so, the Court relies upon the state courts' fact recitations.1 See State v. Perez, No. A-4031-12T1, 2014 WL 5431323, at *1 (N.J. Super. Ct. App. Div. Oct. 28, 2014); ECF No. 10-11 at 4.
Petitioner and nine co-defendants were members of a gang known as the Latin Kings. Co-defendant Michael Romero held a Latin Kings meeting at his Jersey City home on June 29, 1998. The prior day, a drive-by shooting at Romero's apartment complex had occurred, presumably in retaliation for a June 28, 1998 street fight. Romero believed he was the drive-by's intended target. He wanted Latin Kings to retaliate by kidnapping and killing those responsible. (ECF No. 10-7 at 10-11.) On June 29, Latin Kings gang members picked up Omar W. Morante ("Omar W."), Juan Cortes ("Cortes"), and Omar D. Morante ("Omar D."). (Id. at 11-12.) Jimmy Cabrera ("Cabrera") also attended the meeting at Romero's house. (Id. at 12.)2
After the meeting, David Martinez drove Edwin Rivera's Bronco, with Rivera, Miguel Torres, Juan Cortes ("Cortes"), and Omar W. Morante ("Omar W.") as passengers. Luis Manso drove his car, with Michael Romero, Omar D. Morante ("Omar D.") (Omar W.'s twin brother)), and Petitioner as passengers. Juan DeJesus drove Jesus Rodriguez's vehicle, with Jesus Rodriguez, Luis Rodriguez, Edwin Diaz, Jimmy Cabrera, and Sfand Rajabzaden as passengers. The group headed to Branch Brook Park in Newark. (Id. at 12-13.)
While they were stopped at a tollbooth, Omar W. received permission to leave the car to use the bathroom. Instead, he went to a nearby Turnpike office, asked someone to call the State Police, and escaped. Cortes was subsequently released. Co-defendants concluded it was too risky to kill Cortes because he had been seen by toll collectors with some of them during the stop. (Id. at 9, 15.) Omar D. and Cabrera were taken to Branch Brook Park, where they were strangled to death and left lying face down in the water. (Id. at 9.)
Following the (1) kidnappings of Omar D., Omar W., Cortes, and Cabrera; and (2) murders of Omar W. and Cabrera, ten co-defendants were charged with: four counts of second-degree conspiracy to commit kidnapping; four counts of first-degree kidnapping; four counts of second-degree conspiracy to commit murder; two counts of murder; two counts of felony murder; and two counts of attempted murder. (ECF No. 10-11 at 4; Perez, 2014 WL 5431323, at *1; ECF NO. 10-11 at 4; ECF No. 10-1.)
Six of the ten co-defendants pled guilty. Perez, 2014 WL 5431323, at *1.
Petitioner and three others were tried before a jury between January 24 and March 17, 2000. (ECF Nos. 10-24 - 11-25.)
Petitioner was acquitted of: kidnapping of Cortes (count sixteen); murders of Cabrera and Omar D. (counts nine and five); and attempted murder of Omar W. and Cortes (counts fourteen and eighteen). Petitioner was convicted of: conspiracy to murder Omar D., Cabrera, Omar W., and Cortes (counts one, six, eleven, and fifteen, respectively); kidnapping of Omar D., Cabrera, and Omar W. (counts two, seven, and twelve, respectively); criminal restraint of Cortes (a lesser-included offense of count sixteen); second-degree conspiracy to murder Omar D., Cabrera, Omar W., and Cortes (counts three, eight, thirteen, and seventeen, respectively); murder of Omar D. (count four); and felony murders of Omar D. and Cabrera (counts five and ten). (ECF Nos. 10-11 at 5 and 10-2; ECF No. 10-1.)
Petitioner was sentenced on April 5, 2000. (ECF No. 11-26.)He received: two consecutive forty-year sentences for the first-degree murder and felony murder convictions (counts four and ten), with an eighty-five percent period of parole ineligibility; two concurrent thirty-year sentences for kidnapping (counts two and twelve), eighty-five percent without parole; and three concurrent twenty-year sentences for two counts of conspiracy to murder and conspiracy to kidnap (counts thirteen, fifteen, and seventeen), with ten years of parole ineligibility on each. The remaining convictions merged. (Ibid.)
Romero, Manso, Rodriguez, and Petitioner filed notices of appeal on or about September 13, 2000. In a March 8, 2005 unreported decision, the Appellate Division affirmed Petitioner's conviction and remanded for resentencing with respect to application of the No Early Release Act ("NERA"), N.J. Stat. Ann. § 2C:43-7.2. (Id. at 7; ECF No. 10-7 at 95.) The New Jersey Supreme Court denied certification to the foursome on September 23, 2005. (ECF NO. 10-11 at 7.)
Petitioner filed his first PCR petition on April 3, 2006. (ECF Nos. 10-8, 10-9, and 10-10.) He raised the following issues: (1) ineffective assistance of counsel ("IAC") (ECF No. 10-8 at 8-11; ECF No. 10-10 at 8-11); (2) fair trial deprivation from the prosecutor's summation (ECF No. 10-8 at 12-13; ECF No. 10-10 at 12-13); (3) due process deprivation from trial court's failure to address juror's prayer meeting and expert testimonyskepticism (ECF No. 10-10 at 13-14); (4) excessive sentence (id. at 14-15); and (5) cumulative error (id. at 15). After evidentiary hearings (ECF Nos. 11-27, 11-28, 11-29, and 11-30), the Honorable Peter V. Ryan, J.S.C., in an order and lengthy written opinion dated January 7, 2013, denied the PCR petitions of co-defendants Romero, Manso, Rodriguez, and Petitioner. (ECF Nos. 10-11 and 10-12.)
On or about April 29, 2013, Petitioner filed a notice of appeal of PCR denial. (ECF No. 10-13.) He raised the following issues: (1) PCR denial should be reversed because trial counsel did not advise Petitioner of his right to testify; and (2) PCR denial violated Petitioner's right to effective assistance of counsel. Perez, 2014 WL 5431323, at *1. On October 28, 2014, the Appellate Division affirmed Judge Ryan in a written opinion. (Ibid.) On May 22, 2015, the New Jersey Supreme Court denied certification. State v. Perez, 115 A.2d 832 (N.J. 2015).
On December 9, 2015, Petitioner filed a second PCR petition. (ECF No. 10-18.) On July 18, 2016, the state court denied PCR. (Ibid.) Petitioner did not appeal the denial of his second PCR petition.
Petitioner executed his § 2254 petition on July 29, 2016. (ECF No. 1 at 20-21.) The Clerk's Office of this Court received and docketed it on August 4, 2016. (ECF 1.) He raises eight grounds for relief: (1) trial counsel error in denyingPetitioner's motion for a mistrial with respect to prosecutor's improper and prejudicial statements made to the jury during summation (ECF No. 1 at 7); (2) juror misunderstanding of reasonable doubt, requiring that Petitioner's sentence be vacated (id. at 8); (3) trial court error in failing to excuse a juror who "expressed feelings of fear and danger as a result of being followed by certain persons on a lunch break and because this was discussed with other jurors" (id. at 9); (4) trial court error in denying Petitioner's motion for acquittal at the conclusion of the State's case as to the kidnapping counts of the indictment (id. at 10); (5) Petitioner's conviction and sentence for felony murder should be vacated and dismissed (id. at 10-11); (6) erroneous and prejudicial jury instruction on felony murder based on failure to instruct on affirmative defenses (id. at 11); (7) trial court abuse of discretion in imposition of consecutive sentences for murder and felony murder (id. at 11); and (8) excessive sentence based on disparity between Petitioner's and co-defendants' sentences. (Id. at 12.)
On October 4, 2017, Respondents filed an answer (ECF No. 9), to which Petitioner filed a reply. (ECF No. 16.)
Under 28 U.S.C. § 2254(a), the district court "shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State courtonly on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition. See Harrington v. Richter, 562 U.S. 86, 98 (2011); Price v. Vincent, 538 U.S. 634, 641 (2003). District courts must afford great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).
Where state courts have adjudicated a claim on the merits, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication:
28 U.S.C. § 2254(d)(1)-(2). See Conover v. Main, 601 F. App'x 112, 114 (3d Cir. 2015) (citing 28 U.S.C. § 2254(d)).
Federal law is "clearly established" for these purposes where it is clearly expressed in "only the holdings, as opposed to the dicta" of the opinions of the United States Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
A decision is "contrary to" a Supreme Court holding within the meaning of § 2254(d)(1) if the ...
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