Vargas v. Warren

• Decision Date: 08 August 2014
• Docket Number: Civil No. 12-3439 (JLL)
• Parties: MARCUS VARGAS, Petitioner, v. CHARLES WARREN, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

MARCUS VARGAS, Petitioner, v. CHARLES WARREN, et al., Respondents.

Civil No. 12-3439 (JLL)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

August 8, 2014

NOT FOR PUBLICATION

OPINION

LINARES, DISTRICT JUDGE

Petitioner Marcus Vargas ("Petitioner"), a prisoner currently confined at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the petition will be denied.¹

I. BACKGROUND

This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)² will recount salient portions of the recitation of facts as set forth by Appellate Division on direct appeal:

Fifteen year old Lysandra Mercado at about 2:10 a.m. on July 2, 1997 was walking with her boyfriend, seventeen year old Edwin Figueroa in Perth Amboy, when they realized that they were being pursued by three or four individuals. They tried to lose their pursuers, but were eventually surrounded and stopped. A small gun was pushed into Figueroa's back and money was demanded. Figueroa handed hiswallet to the man with the gun and the assailants ordered Figueroa and Mercado to lie face down on the ground.

While Mercado was lying on the ground, one of the men pushed something hard into her back and ripped off the two silver chains she was wearing. Figueroa asked the men not to hurt Mercado and one replied, "we don't hurt girls." Shortly thereafter, Mercado heard a single gunshot and the assailants disappeared. Mercado, who had not had a sufficient opportunity to identify her attackers, eventually sat up and told Figueroa to get up, but he told her that he had been shot. Mercado called the police at a nearby pay phone. Figueroa later bled to death as a result of being shot in the chest.

The police investigation initially focused on four individuals, two of whom were soon indicted for armed robbery of Mercado and Figueroa and the murder of Figueroa. Subsequent investigation, however, eventually led to defendant and co-defendants Patrick D'Aiuto, Dennis Galan, and Norberta Caraballo, and the initial indictment against the two other individuals was dismissed.

During the investigation, Caraballo admitted that at the time of the murder he lived in a motel with defendant, who was a long-time associate. D'Aiuto, Galan and Caraballo confessed to the robbery and participation in the murder and identified defendant as the shooter. Shortly thereafter, John Maslak, an investigator from the Middlesex County Prosecutor's Office, traveled to California, where defendant was living. Defendant initially denied any involvement in the robbery/murder. However, after Maslak told defendant that he had been implicated by the three other participants and identified by Caraballo as the shooter, defendant gave a statement.

In his statement, defendant claimed that he decided not to participate in the robbery and walked off alone to conduct a drug deal. Defendant told Maslak that he saw Caraballo shoot one of the victims, and that Caraballo had stated that the gun had "gone off" and he did not know whether he had hit one of the victims.

At defendant's trial, D'Aiuto and Galan testified against defendant for the State pursuant to a plea bargain. They recounted that they were driving around looking for a gas station to rob, but decided instead to rob Mercado and Figueroa. Both D'Aiuto and Galan testified that defendant had shot Figueroa. When Caraballo asked defendant why he shot the victim, defendant laughingly said he shot Figueroa "in the ass'' because he wanted to scare him. According to Galan, he later asked defendant why he shot Figueroa and defendant replied that he "just wanted to see what it felt like to shoot someone."

Defendant did not testify at trial, but had his girlfriend testify that she was with defendant at the Circle Motor Lodge three times during the week of the murder from 10:30 p.m. to 3:30 p.m. In addition, defense counsel placed before the jury testimony by an investigator about the four other suspects, including the two

persons who had been previously indicted for the same crimes for which defendant was now being prosecuted.

State v. Vargas, A-5478-99T4 (N.J. Super. Ct. App. Div. Feb. 21, 2003).

The jury convicted Petitioner of murder, N.J.S.A. 2C:11-3(a)(l) or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of first degree robbery, N.J.S.A. 2C:15-1. (Id.) During sentencing, the state judge merged the felony murder conviction into the murder conviction and the conspiracy to commit armed robbery and the weapon possession convictions into the two first-degree robbery convictions. (Id.) He then sentenced Petitioner on the murder conviction to life imprisonment, with 63 3/4 years of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; for one of the robberies to a concurrent fifteen-years imprisonment; and for the other robbery to a consecutive fifteen-years imprisonment, with 12 ½ years of parole ineligibility, pursuant to N.J.S.A. 2C:43-7.2. (Id.) On direct appeal, the Appellate Division affirmed all of the convictions but remanded for imposition of a mandatory parole disqualifier under N.J.S.A. 2C:11-3(b)(1) or N.J.S.A. 2C:43-7(a) (6), a restitution hearing, reconsideration of financial penalties, and amendment of the judgment of conviction. (Id.) The Supreme Court of New Jersey denied the petition for certification. State v. Vargas, 827 A.2d 291 (N.J. 2003).

Petitioner filed a petition for post-conviction relief on February 17, 2004, and the trial court denied the petition on September 25, 2006. State v. Vargas, 2009 WL 586742 (N.J. Super. Ct. App. Div. Mar. 10, 2009). On appeal, the Appellate Division reversed that decision and remanded the matter to the lower court for an evidentiary hearing. Id. On remand, the court conducted a hearing and again denied the petition. State v. Vargas, 2011 WL 4444477 (N.J.Super. Ct. App. Div. Sept. 27, 2011). The Appellate Division affirmed that denial on appeal, id., and the Supreme Court of New Jersey denied certification, State v. Vargas, 40 A.3d 57 (N.J. Mar. 22, 2012).

Petitioner filed the instant habeas petition on May 29, 2012. (ECF No. 1.) He raises the following grounds:

GROUND ONE: TRIAL COUNSEL "DAVID R. OAKLEY" WAS INEFFECTIVE FOR FAILING TO SUBMIT, TWO WITNESSES STATEMENTS THAT WERE EXCULPATORY IN NATURE AND FAVORABLE TO THE DEFENSE, TRIAL COUNSEL WITHHELD MATERIAL EVIDENCE FROM THE PETITIONER, THE STATE, AND FAILED TO INCLUDE THEM TO [sic] PETITIONER'S DISCOVERY THIS VIOLATED PETITIONER'S RIGHT TO DUE PROCESS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH, AMENDMENTS THERETO.

GROUND TWO: THE APPELLATE DIVISION ERRED WHEN IT CONSTRUCTED THEIR OPINION ON FACTS NOT SUPPORTED BY WITNESS STATEMENTS, TESTIMONY, DISCOVERY OR EVIDENCE. THIS VIOLATED PETITIONER'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENT THERETO.

GROUND THREE: TRIAL COUNSEL (DAVID R. OAKLEY ESQ.) PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CALL AN EXCULPATORY WITNESS FOR THE DEFENSE THAT WOULD OF CHANGE [sic] THE OUTCOME OF THE TRIAL. THIS VIOLATED PETITIONER'S DUE PROCESS RIGHTS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS THERETO.

GROUND FOUR: PETITIONER SUBMITS THERE WAS A CONFLICT OF INTEREST WHERE APPOINTED COUNSEL ON REMAND (MICHAEL G. PAUL ESQ.), WAS RE-APPOINTED AFTER PETITIONER MADE CLAIMS DURING THE INITIAL POST CONVICTION RELIEF PROCEEDINGS UNDER DOCKET NO. A-2104-06T4 THAT PCR COUNSEL WAS INEFFECTIVE FOR A NUMBER OF REASONS, THIS VIOLATED PETITIONER'S RIGHTS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AND SIXTH AMENDMENTS THERETO.

GROUND FIVE: TRIAL COUNSEL (DAVID R. OAKLEY ESQ.) PROVIDED

CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT AND ARGUE AS THE PROSECUTOR BLATANTLY COACHED THE STATES WITNESS THOUGH A WHOLE LINE OF QUESTIONING, THIS VIOLATED PETITIONER'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AND SIXTH AMENDMENTS THERETO.

GROUND SIX: THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT'S MOTION FOR MISTRIAL AFTER SEVERAL JURORS SAW A RELATIVE OF THE DECEASED VICTIM WEARING A T-SHIRT WITH A PICTURE OF THE VICTIM AND THE WORDS "IN MEMORY" WRITTEN ON IT, VIOLATED PETITIONER'S RIGHT TO A FAIR TRIAL, BY AN IMPARTIAL JURY AND DUE PROCESS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS THERETO.

GROUND SEVEN: THE COURT'S RULING DENYING POST-CONVICTION-RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AND SIXTH AMENDMENTS THERETO.³

GROUND EIGHT: NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED PETITIONER OF HIS DUE PROCESS RIGHT, THEREFORE, VIOLATING PETITIONER'S RIGHT TO A FAIR TRIAL, AND DUE PROCESS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS THERETO.

Respondents filed their Answer to the Petition on January 29, 2013. (ECF No. 12.) On August 13, 2013, Petitioner filed his Reply. (ECF No. 28.)

II. DISCUSSION

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 provides, in pertinent part:

(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.

. . .

(d) An application for a writ of habeas corpus on behalf of a person in custody...