Rowe v. Nelson, Civ. No. 13-4971 (NLH)
| Decision Date | 22 April 2016 |
| Docket Number | Civ. No. 13-4971 (NLH) |
| Parties | DERIC ROWE, Petitioner, v. KENNETH NELSON, et al., Respondents. |
| Court | U.S. District Court — District of New Jersey |
DERIC ROWE, Petitioner,
v.
KENNETH NELSON, et al., Respondents.
Civ. No. 13-4971 (NLH)
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
April 22, 2016
OPINION
APPEARANCES:
Deric Rowe, #488225 / 310202B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner, pro se
Jennifer L. Bentzel
Office of the Prosecutor, County of Burlington
49 Rancocas Rd.
P.O. Box 6000
Mount Holly, NJ 08060
Counsel for Respondents
HILLMAN, District Judge
Petitioner Deric Rowe, a prisoner confined at the New Jersey State Prison in Trenton, New Jersey has submitted a petition for writ of habeas corpus, under 28 U.S.C. § 2254, challenging his state court conviction for first-degree robbery. The respondents are Kenneth Nelson and the Attorney General of
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the State of New Jersey. For the reasons set forth below, the Petition will be DENIED.1
The factual background of this case was succinctly summarized by the state appellate court:
On the afternoon of September 5, 2002, Elizabeth Cook, then seventy-six years old, went to the bank. After completing her business inside, she walked toward her car, which she had parked in the bank's lot. As she opened the car door and tossed her purse onto the passenger seat, a man approached her from the rear, held a hard object to her back and told her to get into the car. Ms. Cook thought the man had a gun and she began to scream; the man quickly walked away. Ms. Cook looked toward the man and yelled at him, "What's the matter, what are you trying to do to me?" She noted that he was wearing black pants and a hat with a visor that was hanging down in the back. He got into
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a nearby car and drove away. She also saw another man standing across the parking lot.
Ms. Cook got into her own car. She said she was too shaken to go to the police and drove home, which took only a few minutes. Her son-in-law was there and, crying, she told him what had happened to her. He called the police who came and took her statement.
The State also presented the testimony of Gary Shivers, who had parked his car in the bank's lot and walked toward the bank. He saw a small blue Honda that had only partially pulled into a stall in the bank lot. He then heard a woman scream and saw a man walking toward the blue Honda. Shivers said the man was wearing a heavy jacket, which he thought unusual for a warm September day. When the man got to the Honda, Shivers saw him trying to stuff a handgun into a pocket. Shivers said he saw the handle of the gun, not the barrel. The man got into the car and drove away, but as he did so, Shivers noted the car's license plate number and wrote it down. After he finished his business at the bank, he drove to the police station to report what he had seen.
Defendant was apprehended later that day. A search of his car turned up a small orange cap of the type placed on the barrels of toy plastic guns to signify clearly they are not real weapons. The police returned to Mrs. Cook and took her for a drive-by [for identification purposes], in which she identified defendant.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *1 (N.J. Super. Ct. App. Div. Nov. 22, 2005).
On November 7, 2002, Petitioner was charged in a two-count indictment for robbery, N.J.S.A. 2C:15-1a(2) (Count One), and carjacking, N.J.S.A. 2C:15-2a(2) (Count Two). At trial, Petitioner testified on his own behalf:
He admitted he encountered Ms. Cook in the bank parking lot but said their meeting was entirely innocent. According to defendant, he had parked his
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car and was walking to pick up some Chinese food from a nearby Chinese restaurant when he bumped into Ms. Cook. He said she made a remark to him which he interpreted as a racial slur. He was angered by this and responded with a racial remark of his own. He got into his car and drove away without going to the restaurant. He was stopped by police as he arrived at his apartment complex.
State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *1.
On March 9, 2004, a jury found Petitioner guilty of robbery, but was unable to reach a unanimous verdict with regard to Count Two, first-degree carjacking. At sentencing on June 11, 2004, the trial court imposed an extended term of thirty years to robbery, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and dismissed the count for carjacking.
Petitioner appealed his conviction and sentence. On November 22, 2005, the appellate division affirmed Petitioner's conviction, but remanded for sentencing. See State v. Rowe, No. A-7131-03T4, 2005 WL 3108492, at *1 (N.J. Super. Ct. App. Div. Nov. 22, 2005). Petitioner filed a petition for certification to the Supreme Court of New Jersey. On August 8, 2006, the New Jersey Supreme Court granted certification on the issue of defendant's sentence, and remanded the matter to the trial court for resentencing. See State v. Rowe, 188 N.J. 267, 905 A.2d 876 (2006).
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Upon resentencing, the trial court again imposed a sentence of 30 years' imprisonment with an 85 percent period of parole ineligibility. Petitioner appealed this sentence, and the appellate court affirmed. His petition for certification to the Supreme Court of New Jersey was denied on September 24, 2009. See State v. Rowe, 200 N.J. 371, 982 A.2d 458 (2009).
Petitioner then filed a pro se petition for Post-Conviction Relief ("PCR") on April 15, 2010. He amended his petition on September 13, 2010. On September 20, 2010, Petitioner's counsel filed another brief in support of his PCR petition. Among other things, Petitioner raised an ineffective assistance of counsel claim. The matter was heard before the state PCR court on December 17, 2010. On December 20, 2010, the PCR court issued a written opinion denying Petitioner's PCR petition. (Appendix Ra19, PCR Op., Dec. 20, 2010, ECF No. 9-22). Specifically, the PCR court denied the petition as untimely because it was filed more than five years after Petitioner's June 11, 2004 conviction. Despite the ruling of untimeliness, the PCR court addressed Petitioner's claims on the merits and found them to be without merit. The PCR petition was denied formally in an order dated December 22, 2010. (Appendix Ra20, Order, Dec. 22, 2010, ECF No. 9-23).
Petitioner appealed the PCR court's ruling and, in an opinion dated January 11, 2013, the appellate court affirmed the
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PCR court's determination that Petitioner's ineffective assistance of counsel claim failed on the merits. (Appendix Ra21, Appellate Order, Jan. 11, 2013, ECF No. 9-25). The New Jersey Supreme Court denied the petition for certification on July 12, 2013. See State v. Rowe, 214 N.J. 175, 68 A.3d 890 (2013).
On or about August 14, 2013, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). On or about August 20, 2013, Petitioner paid the required filing fee and submitted an Amended Petition. (ECF No. 2). In his Amended Petition, Petitioner asserts eight grounds for relief. Namely he alleges, (1) "the trial court erred to defendant's prejudice by improperly charging the jury as to carjacking, necessitating reversal"; (2) "the trial court permitted improper and highly prejudicial hearsay testimony concerning the alleged crime, necessitating reversal"; (3) "the State committed significant and prejudicial misconduct, necessitating reversal"; (4) "the extended-term sentence imposed on defendant is improper and illegal"; (5) "the Defendant was denied the effective assistance of appellate counsel"; (6) "ineffective assistance of trial counsel"; (7) "Defendant's PCR petition should not have been procedurally barred"; and (8) "an evidentiary hearing is required for [Petitioner] to establish a
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prima facie showing of ineffective assistance of counsel." (Am. Pet. 4, 5, 6, ECF No. 2).
The Court issued an Order to Answer on February 6, 2014. (ECF No. 5). After receiving an extension, Respondents filed their Answer on June 4, 2015. (ECF No. 9). As an initial matter, Respondents argue that some of Petitioner's claims are procedurally barred due to Petitioner's failure to comply with state procedural rules.2 (Resp'ts' Br. 27, ECF No. 9). Alternatively, Respondents contend that Petitioner's claims should be denied on the merits.
Petitioner submitted his Reply on July 9, 2015. (ECF No. 11). The matter is now fully briefed.
A. STANDARDS GOVERNING PETITIONER'S CLAIMS
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:
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(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 violation of the Constitution or laws or treaties of the United States.
With respect to any claim adjudicated on the merits in state court proceedings, the writ shall not issue unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., for the Court, Part II). "[A] state-court decision involves an unreasonable application of [Supreme Court] precedent if the...
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