Scott v. D'Ilio, Civil Action No. 14-7475(SRC)

• Decision Date: 05 January 2018
• Docket Number: Civil Action No. 14-7475(SRC)
• Parties: CLARENCE E. SCOTT, JR., Petitioner, v. STEPHEN D'ILIO, et al., Respondents
• Court: U.S. District Court — District of New Jersey

CLARENCE E. SCOTT, JR., Petitioner, v. STEPHEN D'ILIO, et al., Respondents

Civil Action No. 14-7475(SRC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY NEWARK VICINAGE

January 5, 2018

NOT FOR PUBLICATION

OPINION

CHESLER, District Judge

This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 filed by Petitioner Clarence E. Scott, Jr., ("Petitioner"), an inmate confined in New Jersey State Prison, in Trenton, New Jersey. (Pet., ECF No. 1.) On February 13, 2001, a jury in Passaic County Court, New Jersey, found Petitioner guilty of (1) fourth-degree aggravated assault for pointing a weapon; (2) second-degree possession of a weapon for an unlawful purpose; (3) third-degree unlawful possession of a weapon; and (4) second-degree certain persons not to have weapons. (Pet., ¶¶1-5); State v. Scott, No. A-2819-07T4, slip op., at 2 (N.J. Super. Ct. App. Div. Apr. 30, 2003). Petitioner was sentenced to an extended Graves Act term of twenty years with ten years' parole ineligibility on the possession of a weapon for an unlawful purpose charge, and a consecutive extended term of twenty years with ten years' parole ineligibility on the possession of a weapon by a convicted felon charge. Id. Petitioner appealed his conviction and sentence, and the Appellate Division, on April 30, 2003, affirmed Petitioner's conviction and the extended Graves Act sentence, but vacated the second extended sentence and remanded for resentencing. Id. at 7. Petitioner was later resentenced to an aggregate term of 30 years with 15 years of parole ineligibility. (Pet., ¶ 3.) The New Jersey Supreme Court denied certification. (ECF No. 10-19.)

Petitioner filed a petition for post-conviction relief on January 29, 2004. (Pet., ¶ 11.) The PCR Court denied the petition on February 3, 2012. (Id.) The Appellate Division affirmed, State v. Scott, No. A-5238-11T1, 2014 WL 814069 (N.J. Super. Ct. App. Div. Mar. 4, 2014), and the New Jersey Supreme Court denied certification, 219 N.J. 630 (Sep. 25, 2014). Petitioner filed his habeas petition in this Court on December 1, 2014. He raised the following grounds for relief:

GROUND ONE: Ineffective Assistance of Counsel.

GROUND TWO: The Extended Term Sentence Imposed on Defendant was Illegal and Excessive.

GROUND THREE: Trial court erred in denying defendant motion for Judgment of Acquittal.

GROUND FOUR: Ineffective Assistance of Appellate Counsel and PCR Counsel.

(Pet., ECF No. 1 at 5-10.)

I. BACKGROUND

The factual background in this matter was summarized in part by the New Jersey Superior Court, Appellate Division upon Petitioner's direct appeal.¹ Scott, No. A-2819-01T4 (ECF No. 10-16). On February 27, 1997, Defendant Clarence Scott shot Lamont Folsom in the arm, breaking it and causing nerve damage. At the time of the incident, the two were in Folsom's bedroom with the door closed, apparently arguing. However, after the shot occurred, Folsom's mother witnessed Scott standing over Folsom with a gun pointed at his head.

At trial, Mr. Folsom testified that after having a discussion in his bedroom with Petitioner, Petitioner pulled a gun from his coat and then Mr. Folsom heard a bang. (ECF No. 10-4 at p. 11.) Mr. Folsom further testified that after he was shot, Petitioner pointed the gun towards Mr. Folsom's head and told him not to tell anyone that Petitioner shot him. (Id. at pp. 11-13.) Petitioner testified that he told Mr. Folsom's mother, who entered the room after the shot was fired, that theshooting had been an accident. (Id. at pp. 11.) Mr. Folsom's mother also testified that Petitioner stated that the gun discharged accidentally. (Id. at pp. 68-69.) Petitioner further testified that Mr. Folsom had handed him the gun during discussions about a debt that Mr. Folsom owed Petitioner and that Petitioner did not initially realize that the object was a gun; Petitioner stated that the gun fired accidentally when Mr. Folsom placed it in his hand. (ECF No. 10-6 at pp. 91-94.)

II. DISCUSSION

A. Standard of Review

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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.

"Contrary to clearly established Federal law" means the state court applied a rule that contradicted the governing law set forth in U.S. Supreme Court precedent or that the state court confronteda set of facts that were materially indistinguishable from U.S. Supreme Court precedent and arrived at a different result than the Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase "clearly established Federal law" "refers to the holdings, as opposed to the dicta" of the U.S. Supreme Court's decisions. Williams, 529 U.S. at 412. An "unreasonable application" of clearly established federal law is an "objectively unreasonable" application of law, not merely an erroneous application. Eley, 712 F.3d at 846 (quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).

In addition, any state-law-based challenges are not cognizable in federal habeas review. "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982). "If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable." Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982). "[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause." Johnsonv. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, "it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citation omitted); see also, Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).

B. Analysis

1. Ground One

In Ground One of the habeas petition, Petitioner argues that his trial counsel was ineffective. First, Petitioner claims that counsel was unprepared and failed to "conference sufficiently" with Petitioner to prepare for trial. Second, Petitioner asserts that counsel failed to request an instruction regarding the mistake of fact defense pursuant to N.J. Stat. Ann. 2C:2-4. Third, Petitioner argues that counsel failed "to request the trial court mold instructions to the jury incorporating facts favorable to the defense with respect to the charge of possession of a weapon for an unlawful purpose." Fourth, Petitioner argues that counsel failed to request a proper instruction with respect to the possession of a weapon for an unlawful purpose charge. Finally, Petitioner asserts that counsel failed "to ensure the petitioner's right to be present at every stage of the proceeding by allowing his exclusion from portions of the voir dire." Petitioner raised these issues in the course of his PCR proceedings. The PCR courtdenied the claim and, for the reasons stated by the PCR court, the Appellate Division affirmed.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating an ineffective assistance of counsel claim. First, the petitioner must show that considering all of the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688; see also Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). Petitioner must identify acts or omissions that are alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. The federal court must then determine whether in light of all of the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. See id.

Second, a petitioner must affirmatively show prejudice, which is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." See id. at 694; see also McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n. 11 (3d Cir. 2012). "With respect to the sequence of the two prongs, the Strickland Court held that 'a court need not determine whether counsel's performance was deficient beforeexamining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'" Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at 697).

Additionally, in assessing an ineffective assistance of counsel claim under AEDPA, the Supreme Court has noted that:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA,

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