PRUITT v. DAVIS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

SHAKEYSHA L. PRUITT, : Civ. Action No. 19-14529 (RMB)

:

Petitioner :

:

v. : OPINION

:

SARAH DAVIS, Administrator, :

and ATTORNEY GENERAL :

OF THE STATE OF NEW JERSEY, :

:

Respondents :

:

APPEARANCES:

Shakeysha L. Pruitt,

Petitioner, Pro Se

Nancy P. Scharff

Special Deputy Attorney General

Acting Assistant Prosecutor

Camden County Prosecutor’s Office

25 North Fifth Street

Camden, NJ 08102-1231

On behalf of Respondents

BUMB, UNITED STATES DISTRICT JUDGE

This matter comes before the Court upon Petitioner Shakeysha

L. Pruitt’s (“Petitioner”) Petition for a Writ of Habeas Corpus

under 28 U.S.C. § 2254, challenging her state court conviction for

aggravated manslaughter, (Pet., Dkt. No. 1), Respondents’ answer

in opposition to habeas relief (Answer, Dkt. No. 9), and

Petitioner’s traverse. (Traverse, Dkt. No. 14.) For the reasons

set forth below, the Court denies the petition for writ of habeas

corpus.

I. PROCEDURAL HISTORY

On July 28, 2013, in the New Jersey Superior Court, Camden

County, Petitioner Shakeysha Pruitt was charged with one count of

first degree purposeful knowing murder, a violation of N.J.S.A.

2C:11-3a(1) and (2), for the death of Kafarr Logan-Horton. (Uniform

Defendant Intake, Dkt. No. 10 at 22.) Approximately one year later,

on June 19, 2014, Petitioner entered into a pre-indictment plea

agreement. (Ra2, Dkt. No. 4.) She plead guilty to a single count

of first degree aggravated manslaughter, a violation of N.J.S.A.

2C:11-4a(1), as alleged in Camden County Accusation 1806-06-14.

(Id.; Ra1, Dkt. No. 3.) In accordance with the plea agreement, the

State would recommend a maximum “cap” sentence of a 20-year term

of imprisonment, subject to an 85% parole ineligibility term. (Ra2

at 2-3, Dkt. No. 4.)

After conducting a plea colloquy with Petitioner, who

provided a factual basis for her plea, the Honorable John T.

Kelley, J.S.C. accepted Petitioner’s guilty plea. (Rta1 at 14,

Dkt. No. 9-28.) Petitioner acknowledged that on July 28, 2013, she

accompanied the victim, Kafarr Logan Horton, to his apartment in

Oaklyn, N.J., where the two engaged in intimate relations before

having a dispute. (Id. at 10-11.) After the dispute, she left the

victim’s bedroom and proceeded to the kitchen, where she obtained

a knife, which she folded in a towel. (Rta1 at 11, Dkt. No. 9-28.)

She returned with the knife to the bedroom, where she stabbed Logan

Horton in the chest twice. (Id.) She admitted that her action posed

a probability of Horton’s death. (Id. at 12.) Petitioner waived

the defenses of intoxication, self-defense or passion-provocation,

after first discussing this with her counsel. (Id. at 12-13.) A

signed, written version of Petitioner’s factual statement was made

part of the record. (Ra2A, Dkt. No. 5.)

The sentencing hearing was conducted on July 25, 2014, before

the Honorable John T. Kelley, J.S.C., who imposed a 20-year term

of imprisonment, subject to an 85% parole ineligibility term. (Rta2

at 16-17, Dkt. No. 9-29.) The Court noted the midrange sentence

was appropriate and in the interest of justice under the

circumstances. (Id.)

On March 10, 2015, Petitioner’s appealed her sentence before

the Excessive Sentence Oral Argument (“ESOA”) panel of the

Appellate Division of the New Jersey Superior Court (Rta3, Dkt.

No. 9-30.) The Appellate Division affirmed the judgment and

sentence on the same day. (Ra8, Dkt. No. 9-11.)

On May 11, 2016, Petitioner filed a motion for post-conviction

relief (“PCR”). (Ra9, Ra10, Dkt. Nos. 9-12, 9-13.) Her counsel

filed an amended verified petition and certification (Ra11, Dkt.

No. 9-14), and a supporting brief on November 22, 2016. (Ra12,

Dkt. No. 9-15.) The Honorable John T. Kelley, J.S.C. held a PCR

hearing on February 3, 2017. (Rta4, Dkt. No. 9-31.) After

considering the parties’ oral arguments and written submissions,

he denied the petition by order issued the same day. (Ra14, Dkt.

No. 9-17.) On March 9, 2017, Petitioner appealed the PCR decision.

(Ra15, Dkt. No. 9-18.) On October 18, 2018, the Appellate Division

affirmed the PCR court’s ruling, but remanded the matter to the

trial court to correct the Judgment of Conviction to reflect that

the court found mitigating sentencing factor 9 applicable but

accorded it little weight. (Ra18, Dkt. No. 9-21.) Pursuant to the

remand, an amended Judgment of Conviction was filed on October 31,

2018. (Ra19, Dkt. No. 9-22.)

Petitioner filed a petition for certification in the New

Jersey Supreme Court on November 28, 2019, along with a motion to

file the petition as within time. (Ra20, Ra21, Dkt. Nos. 9-23, 9-

24.) The Supreme Court granted petitioner’s motion to file the

petition as within time (Ra23, Dkt. No. 9-26), but on April 4,

2018, the court denied the petition for certification. (Ra24, Dkt.

No. 9-27.) Petitioner filed her petition for habeas corpus relief

in this Court on July 1, 2019. (Dkt. No. 1.)

II. FACTS DETERMINED BY APELLATE DIVISION ON POSTCONVICTION

RELIEF (“PCR”) REVIEW

28 U.S.C. § 2254(e)(1) provides that

In a proceeding instituted by an application

for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State

court, a determination of a factual issue made

by a State court shall be presumed to be

correct. The applicant shall have the burden

of rebutting the presumption of correctness by

clear and convincing evidence.

On October 18, 2018, the Appellate Division made the following

findings of fact.

On July 28, 2013, Kafarr Logan Horton called

a friend and asked him to come to his residence

in Oaklyn, New Jersey. Horton said he would

help his friend retrieve his car, but he first

had to drive a female to Camden. Horton’s

friend drove to Horton’s residence, and honked

his horn to let Horton know he had arrived.

Horton and a female exited the apartment.

Horton was covered in blood from his chest to

his shoes, and he said he had been stabbed.

Horton had to lean on the female to walk to

the car. They entered the car and drove to a

hospital in Camden. Horton later was taken to

a trauma center where he died.

The police investigated the incident, obtained

surveillance videos and identified

[petitioner] as the female who accompanied

Horton to the hospital. [Petitioner] later

provided a statement to investigators at the

Camden County Prosecutor’s Office. Initially,

[petitioner] denied knowing Horton, but later

admitted she was with him on July 28, 2013.

[Petitioner] said she met Horton at a Dunkin’

Donuts, and after making other stops, they

went to his apartment.

[Petitioner] stated that she and Horton had

sexual intercourse twice. She claimed Horton

became rough the second time, and after they

finished, Horton was lying on the bed talking

on his phone. [Petitioner] went to the

kitchen, took a knife, hid it under a towel,

and returned to the bedroom. She stabbed

Horton in the chest. [Petitioner] was charged

in W-2013-00115-0426 with purposeful and

knowing murder, contrary to N.J.S.A. 2C:11-

3(a)(1) or (2).

(Ra18 at 2-3, Dkt. No. 9-21) (alterations added).

III. DISCUSSION

A. Standard of Review

Prior to bringing a federal habeas petition under 28 U.S.C.

§ 2254, a state prisoner must exhaust his state remedies. §

2254(b)(1)(A). If a state prisoner’s constitutional claim has been

barred in the state courts on procedural grounds, a procedural

default occurs and a habeas court cannot review the claim absent

a showing of cause and prejudice or actual innocence. Coleman v.

Thompson, 501 U.S. 722, 729, 750 (1991).

If a constitutional claim has been exhausted,

[a]n 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.

28 U.S.C. § 2254(d).

When a state court summarily rejects all or some federal

claims without discussion, habeas courts must presume the

claim(s) was adjudicated on the merits. Bennett v. Superintendent

Graterford SCI, 886 F.3d 268, 282 (3d Cir. 2018) (citing Johnson

v. Williams, 568 U.S. 289, 302 (2013)). The presumption is

rebuttable. Bennett, 886 F.3d at 281-83. The Supreme Court

provided the following guidance.

[H]ow [is] a federal habeas court is to find

the state court's reasons when the relevant

state-court decision on the merits, say, a

state supreme court decision, does not come

accompanied with those reasons. For instance,

the decision may consist of a one-word order,

such as “affirmed” or “denied.” What then is

the federal habeas court to do? We hold that

the federal court should “look through” the

unexplained decision to the last related

state-court decision that does provide a

relevant rationale. It should then presume

that the unexplained decision adopted the same

reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on

different grounds than the lower state court's

decision, such as alternative grounds for

affirmance that were briefed or argued to the

state supreme court or obvious in the record

it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “When the

evidence leads very clearly to the conclusion that a federal

claim was inadvertently overlooked in state court, § 2254(d)

entitles the prisoner to an unencumbered opportunity to make his

case before a federal judge.” Johnson, 568 U.S. at 303.

The Third Circuit directed habeas courts to follow a two-

step analysis under § 2254(d)(1). See Rosen v. Superintendent

Mahanoy SCI, 972 F.3d 245, 253 (3d Cir. 2020) (citing Matteo v.

Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en

banc), cert. denied 528 U.S. 824 (1999)). First, courts should

“determine what the clearly established Supreme Court decisional

law was at the time Petitioner’s conviction became final” and

“identify whether the Supreme Court has articulated a rule

specific enough to trigger ‘contrary to’ review.” Id. at 253

(quoting Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004)).

“The ‘clearly established Federal law’ provision requires Supreme

Court decisions to be viewed through a ‘sharply focused lens.’”

Id. Clearly established law “refers to the holdings, as opposed

to the dicta, of [the Supreme Court’s] decisions as of the time

of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 412 (2000). A decision is “contrary to” a Supreme Court

holding within 28 U.S.C. § 2254(d)(1), only if the state court

applies a rule that “contradicts the governing law set forth in

[the Supreme Court’s] cases” or if it “confronts a set of facts

that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a [different result.]”

Williams, 529 U.S. at 405-06.

Second, if Supreme Court precedent is not specific enough

to trigger contrary review, habeas courts should “evaluate

whether the state court unreasonably applied the relevant body

of precedent.” Rosen, 972 F.3d at 253 (quoting Matteo, 171 F.3d

at 888)). Under § 2254(d)(1), “an unreasonable application of

federal law is different from an incorrect application of

federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(quoting Williams, 529 U.S. at 410). For relief under this

provision, the state court’s decision “evaluated objectively”

must have “resulted in an outcome that cannot reasonably be

justified under existing Supreme Court precedent.” Rosen, 972

F.3d at 252 (quoting Matteo, 171 F.3d at 890)). A habeas court

must frame the “relevant question as whether a fairminded jurist

could reach a different conclusion.” Shinn v. Kayer, 141 S. Ct.

517, 524 (2020) or, in other words, whether “every fairminded

jurist would disagree” with the state court. Mays v. Hines, 141

S. Ct. 1145, 1149 (2021).

A petitioner who claims that the state court’s adjudication

of his claim was based on an unreasonable factual determination

under § 2254(d)(2), faces a similarly heavy burden of proof

because “a determination of a factual issue made by a State court

shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see

also Miller-El v. Cockerell, 537 U.S. 322, 340 (2003). “The

petitioner must show that the state court verdict was based on an

unreasonable determination of the evidence and that a reasonable

factfinder could not have reached the same conclusion.” Rosen, 972

F.3d at 252 (3d Cir. 2020) (citing Campbell v. Vaughn, 209 F.3d

280, 291 (3d Cir. 2000)). Review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated the

claim on the merits. Pinholster, 563 U.S. 170, 180-81 (2011).

The habeas statute permits an evidentiary hearing under the

following circumstances,

(2) If the applicant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on

collateral review by the Supreme

Court, that was previously

unavailable; or

(ii) a factual predicate that could

not have been previously discovered

through the exercise of due

diligence; and

(B) the facts underlying the claim would

be sufficient to establish by clear and

convincing evidence that but for

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

28 U.S.C. § 2254(e). The Supreme Court explained,

Section 2254(e)(2) continues to have force

where § 2254(d)(1) does not bar federal habeas

relief. For example, not all federal habeas

claims by state prisoners fall within the scope

of § 2254(d), which applies only to claims

“adjudicated on the merits in State court

proceedings.” At a minimum, therefore, §

2254(e)(2) still restricts the discretion of

federal habeas courts to consider new evidence

when deciding claims that were not adjudicated

on the merits in state court. See, e.g.,

Michael Williams, 529 U.S., at 427–429, 120

S.Ct. 1479.

Pinholster, 563 U.S. at 185–86.

B. Ground One

In her first ground for relief, Petitioner alleges she was

denied effective assistance of counsel at sentencing because her

counsel failed to argue for mitigation based on factors such as

mental illness, PTSD and Battered Woman's Syndrome. (Pet. ¶12,

Dkt. No. 1.)

Respondents oppose relief on Ground One of the petition.

(Answer at 16-21, Dkt. No. 9.) They note that the PCR court found

any attempt by Petitioner to reconsider the aggravating and

mitigating sentencing factors was procedurally barred under N.J.

Ct. R. 3:22-3, because Petitioner argued on direct appeal that her

sentence was excessive, and a PCR petition cannot be used to

substitute for direct appeal. (Id. at 19.) The PCR court further

found the claim barred under N.J. Ct. R. 3:22-4 and N.J. Ct. R.

3:22-5, because Petitioner had specifically challenged the

sentencing court’s application of the aggravating and mitigating

sentencing factors in her direct appeal. (Id.) The PCR court

nonetheless considered the merits of the claim.1 (Answer at 20,

1 Although the state court record establishes that Ground One of

the habeas petition was procedurally defaulted, Respondents assert

Dkt. No. 9.) Respondents assert that the record supports the

Appellate Division’s affirmance of the PCR court’s denial of this

claim. (Id. at 20-21.)

In her traverse, Petitioner asserts her counsel was

ineffective by failing to argue for a lesser sentence based on

Battered Woman’s Syndrome and PTSD. (Traverse at 5-7, Dkt. No.

14.) She suggests the facts of this case called for such mitigation

because she had no criminal record and alleged she was physically

and sexually abused by the victim just before stabbing him. (Id.)

1. Standard of Review: Sixth Amendment Ineffective

Assistance of Counsel

The burden of proof on a Sixth Amendment claim of ineffective

assistance of counsel under 28 U.S.C. § 2254 lies with the

petitioner. Pinholster, 563 U.S. at 181 (citing Woodford v.

Visciotti, 537 U.S. 19, 25 (2002) (per curiam)). To meet the

burden, Petitioner must satisfy the two-part test set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984). The two-part

test requires a petitioner to establish (1) counsel’s deficient

performance and (2) prejudice. Strickland, 466 U.S. at 687. The

first part of the test requires a petitioner to show that “counsel

the affirmative defense of procedural default only as to Ground

Three of the petition. Therefore, the Court will address the merits

of Ground One of the habeas petition. See Szuchon v. Lehman, 273

F.3d 299, 321 (3d Cir. 2001) (“A state ordinarily is required to

assert a procedural default in its answer if it intends to rely on

that defense.”) (citations omitted).

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. Furthermore, courts “must indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689.

“If it is easier to dispose of an ineffectiveness claim on

the ground of a lack of sufficient prejudice, . . . that course

should be followed.” Id. at 697. “Prejudice” is established when

there is “a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Id.

2. State court determination

As a preliminary matter, applicable to each of the grounds

for relief in the habeas petition, the New Jersey Supreme Court

denied review of the Appellate Division’s opinion on PCR appeal.

Therefore, this Court “look[s] through” to the Appellate

Division’s reasons for rejecting Petitioner’s federal claims. See

Wilson, 138 S. Ct. at 1192 (describing “look-through” procedure).

The Appellate Division, on PCR appeal, decided this claim as

follows:

The record supports [the PCR Judge’s] findings

of fact and his conclusion that [petitioner]

failed to present a prima facie case of

ineffective assistance of counsel. The record

supports the judge’s conclusion that counsel

did not err by failing to argue mitigating

factors four, eight and twelve at sentencing.

The record also supports the judge’s finding

that petitioner had not shown the result would

have been different if counsel had argued for

the additional mitigating factors. Moreover,

despite petitioner’s claim to the contrary,

defense counsel did argue mitigating factor

nine.

(Ra18 at 9-10, Dkt. No. 9-21) (alterations added.) Because this

claim was adjudicated on the merits in the state courts, Petitioner

is not entitled to an evidentiary hearing. Pinholster, 563 U.S. at

185–86.

3. Analysis

The Appellate Division accurately set forth the standard

announced by the U.S. Supreme Court for Sixth Amendment ineffective

assistance of counsel claims. (Ra18 at 6-7.) Therefore, the

question on habeas review is whether the state court’s decision

“evaluated objectively … resulted in an outcome that cannot

reasonably be justified under existing Supreme Court precedent.”

Rosen, 972 F.3d at 252 (quoting Matteo, 171 F.3d at 890)). In other

words, whether “every fairminded jurist would disagree” with the

state court. Mays, 141 S. Ct. at 1149.

The Appellate Division did not explain how the record

supported the PCR court’s decision. Therefore, review of the PCR

court’s decision is necessary. The PCR court concluded that counsel

did not err by failing to argue mitigating factors four, eight and

twelve at sentencing, and if counsel had argued for these factors,

the sentencing court would have rejected the argument.

But, if the Court were to consider the four

mitigating factors the defendant has presented

in her petition, defendant has failed to

establish a prima facie case of ineffective

assistance of counsel.

First, defendant argues that her mental health

disorders and her substance abuse both

contributed to the commission of her offense,

and tend to excuse or justify the defendant's

conduct. Though failing to establish a

defense, as set forth in factor number 4,

Defendant reports that she suffered from

depression and anxiety, with attended crying

spells, 1ow energy, sleep disturbances, low

tolerance for frustration, anhedonia, poor

appetite, problems with concentration, poor

compliance with prescribed psychiatric

medications and possible addiction to

percocet.

But of the five health records defendant

provides, two had litt1e or no mention of any

mental health issue. For example, the medical

record dated September 9, 2010 showed

defendant received follow-up care for

treatment for a broken nose, and an abscess on

her buttocks. Under psych/dep/anxiety, the

medical record is blank. Thus, the September

9, 2010 medical record would not have

supported the mental health claim for

mitigating factor 4.

Also, the medical record dated September 13th,

2011, defendant was treated for a urinary

tract infection and follow-up from an abortion

three weeks earlier. Defendant complained of

frequent abdominal pain, lower back pain, and

bladder tenderness.

Defendant also complained of anxiety and mild

depression. While the medical record listed

follow-up with psych with monitoring BuSpar

and Xanax, the predominant treatment was for

the urinary tract infection and abortion

follow-up with the recommendation. Thus, the

defendant is relying on the remaining three

medical records, none of which appear to be

from a psychiatrist or a psychologist.

Additionally, defendant has presented no

evidence linking defendant's anxiety or

depression two years earlier to the incident

with defendant having stabbed the victim.

Despite defendant's lack of evidence in

support of her claim that her mental health

disorders and her substance abuse contributed

to the commission of her offense, the New

Jersey Supreme Court has long held that drug

dependency does not qualify as a factor for

justification, as explained in State versus

Gertler (phonetic).

The Appellate Division reaffirmed the

exclusion of drug dependency as factor 4

considerations in State versus Tawaie

(phonetic). Further, the code does not condone

leniency, even where the commission of the

offense may be related to an offender's drug

or alcohol addiction, as explained in State

versus Rivera, in State versus Setzer.

Therefore, even if trial counsel had argued

that defendant's mental health disorder and

drug addiction justified defendant's conduct

under mitigating factor 4, the Court would

have rejected mitigating factor 4 at

sentencing.

Second, defendant asked the Court to consider

her mental health disorders and substance

abuse under mitigating factors 8 and 9.

Defendant claims that the confluence of her

untreated mental health problems and her

substance abuse played a critical role in the

tragedy that took place on July 28th, 2013.

Defendant argues that her lack of criminal

history before her offense, and her lack of

any new charges while incarcerated,

establishes that her struggle with her mental

health and substance abuse led to her conduct,

and now that she is sober, these circumstances

are unlikely to occur, which would be set

forth in 8.

Similarly, defendant argues that her untreated

mental health disorders and substance abuse

treatment from her being able to control- her

behavior -- prevented her from being able to

control her behavior, and that these factors

contributed to her offense. However, as the

state points out, our courts have long

rejected double counting mitigating factors,

because double counting mitigating factors

distorts the sentencing guidelines as much as

double counting aggravating factors as

explained in State versus * (2:19:36)

Defendant has already received the benefit of

a downgraded charge from purposeful, knowing

murder to aggravated manslaughter. The

aggravated manslaughter charge to which the

defendant pled guilty reduced the mens rea to

recklessness from purposeful, knowing

conduct. Thus, using defendant's mental health

and substance abuse history would result in

the Court double counting for mitigating

factors 4, 8 and 9 in addition to the downgrade

to aggravated manslaughter.

Finally, defendant argues that trial counsel

committed ineffective assistance of counsel by

failing to argue for mitigating factor 12.

Defendant argues that she showed a willingness

to cooperate with law enforcement. Defendant

states that she agreed to accompany the

authorities to the Camden County Prosecutor's

Office for an interview, waived her Miranda

Rights, and confessed to her role in Mr.

Horton' s death.

However, defendant initially denied

responsibility. Only after being shown the

video footage of defendant at the hospital did

defendant finally cooperate and admit her

wrongdoing. Even in her admission, defendant

downplayed her responsibility by claiming that

she had been sexually assaulted. The defendant

never reported the sexual assault until after

her confession, even though she was in the

hospital at the time of the offense and could

have received treatment for the alleged sexual

assault.

In the context of waiving mandatory minimum

and extended terms in narcotics cases, our

courts have adopted the substantial value

standard which accords with the approach

established by the federal courts, as

explained in State versus Gerns (phonetic).

The United States sentencing guidelines

provide the sentencing court may depart

downward from the presumptive punishment range

when the government has shown that the

defendant has provided substantial assistance

to the prosecution.

Here, it is -- it can hardly be said that the

defendant provided substantial [assistance]

to the prosecution. Video footage had been

obtained, showing the defendant with the

victim before defendant admitted to the

offense. Defendant has failed to set forth a

prima facie case of ineffective assistance of

counsel.

Regarding the first prong of Strickland,

defendant has failed to prove that trial

counsel made errors so serious that she was

not functioning as counsel guaranteed by the

Sixth Amendment. Counsel has failed to prove

that the sentencing court would have

considered mitigating factors 4, 8, 9 and 12

had the trial court argued for such factors at

sentencing.

Further, under the second prong of Strickland,

defendant has failed to prove that she was

prejudiced by trial counsel’s alleged

deficient performance, because her trial

counsel had argued for the appropriate

mitigating factors at sentencing. Defendant

was sentenced according to the plea agreement,

and defendant's sentence was within the range

of latitude for a sentence for the offense

committed. Thus, having failed to make a prima

facie case of ineffective assistance of

counsel, defendant's petition for post-

conviction relief will be denied.

(Rta4 at 30-36, Dkt. No. 9-31.)

The PCR court thoroughly explained the basis in state law

applied to the facts of the case to support the decision that trial

counsel was not ineffective in failing to argue for mitigating

factors 4, 8, 9 and 12 at sentencing. Further, the PCR court

explained why, as the sentencing judge, he would not have imposed

a lower sentence if defense counsel had argued for these mitigating

factors. Petitioner has not pointed to a factually similar case

where the Supreme Court, or any federal court, came to a contrary

conclusion under similar facts. Therefore, it was not objectively

unreasonable for the Appellate Division to affirm the PCR court’s

denial of his claim. Petitioner has not shown that she is entitled

to habeas relief on Ground One of the petition.

C. Ground Two

For her second ground for relief in the habeas petition,

Petitioner alleges her trial counsel violated her right to

effective assistance of counsel under the United States

Constitution by: (1) failing to request a psychiatric examination

performed; (2) failing to call an expert witness due to

Petitioner’s PTSD caused by multiple rapes; (3) failing to advise

Petitioner, prior to her guilty plea, of the available defenses,

including diminished capacity and Battered Woman's Syndrome; and

(4) failing to explain the elements that constitute the crime of

aggravated manslaughter. (Pet. ¶12, Dkt. No. 1.)

Respondents oppose habeas relief on Ground Two of the

petition. (Answer at 21-27, Dkt. No. 9.) Respondents contend that

the Appellate Division reasonably applied the Strickland standard

in determining that defense counsel effectively represented

Petitioner with respect to her guilty plea to aggravated

manslaughter.

In her traverse to the answer, Petitioner realleges the claims

in her petition and concludes that if her attorney had better

prepared, Petitioner’s sentence likely would have been shorter.

(Traverse at 8, Dkt. No. 14.)

1. State court determination

The Appellate Division, on PCR appeal, decided this claim as

follows:

Defendant claims she did not enter her guilty

plea knowingly and intelligently because her

attorney allegedly "fail[ed] to advise her of

available defenses, such as PTSD, self-

defense, diminished capacity[,] and battered

woman's syndrome." She claims her attorney did

not "explain the elements that constitute the

crime of aggravated manslaughter[,] and that

the State ha[d] the burden of proving all of

the elements beyond a reasonable doubt." She

asserts her attorney should have obtained a

psychiatric evaluation, which would have

revealed she was suffering from PTSD and other

mental disorders.

Here, Judge Kelley noted in his order denying

PCR that he had considered defendant's pro se

arguments. In his decision, Judge Kelley

specifically noted the standard that applies

to claims of ineffective assistance of counsel

regarding a plea. The judge stated that

defendant claimed her attorney did not

properly investigate the case but failed to

present an affidavit or certification setting

forth the facts such an investigation would

have revealed. The judge also pointed out

there was insufficient evidence to support

defendant's claim that her mental health

disorders contributed to the commission of the

offense. Furthermore, the transcript of the

plea hearing provides no support for

defendant's claim that her attorney failed to

provide her with sufficient advice when she

entered her plea. The court asked defendant

whether she had an opportunity to review the

case with her attorney, and she said, "Yes."

The court asked defendant whether her lawyer

had answered all of her questions about the

charges. She replied, "Yes." Defendant also

acknowledged counsel had provided her with all

of the discovery materials. Defendant

acknowledged that by pleading guilty, she was

giving up certain rights, including the right

to a jury trial and the right to have the State

prove she was guilty beyond a reasonable

doubt.

In addition, defendant told the court she

understood the charge of aggravated

manslaughter. She said she was satisfied with

the legal advice provided by her attorney, and

she was pleading guilty voluntarily. Defendant

was asked if she was waiving a defense based

on intoxication, self-defense, or

passion/provocation. She replied, "Yes." She

also said she had discussed these defenses

with her attorney and she understood them. We

therefore reject defendant's contention that

the PCR court failed to address the claims

asserted in her pro se petition. The record

supports the PCR court's determination that

defendant had not presented a prima facie case

of ineffective assistance of counsel with

regard to her plea.

(Ra18 at 11-12, Dkt. No. 9-21) (alterations in original). Because

the state courts addressed the merits of the claim, Petitioner is

not entitled to an evidentiary hearing. Pinholster, 563 U.S. at

185–86.

2. Analysis

The Appellate Division applied the correct standard under

Strickland in assessing this claim. (Ra18 at 10, Dkt. No. 9-21.)

Therefore, the issue is whether the state court’s decision was

objectively unreasonable under clearly established Supreme Court

precedent. Petitioner has not set forth a factually similar Supreme

Court case in support of her claim. Therefore, habeas relief is

appropriate only if every fairminded jurist would disagree with

the Appellate Division’s decision. The Appellate Division rejected

the claim based on Petitioner’s plea colloquy with the trial court,

where she agreed that she understood the charges, waived her

defenses, her lawyer answered all her questions, and she was guilty

beyond a reasonable doubt.

Further, the Appellate Division found that there was

insufficient evidence that Petitioner was suffering from mental

disorders when she stabbed the victim. The record supports this

conclusion because Plaintiff produced only five medical records

from two years before the crime, none of which contained a

diagnosis of PTSD or mentioned that Petitioner was a victim of

physical or sexual abuse. (Rta4 at 27-28, Dkt. No. 9-31.)

Furthermore, as noted by the PCR court,

Defendant has produced no evidence to have

[mental health] treatment at the time of the

offense. Defendant's parents did not comment

on defendant's mental health history at the

time of the sentencing. Defendant's pre-

sentence report states [“]none reported[”]

under mental health treatment history, as well

as under diagnosis comments.

And despite the fact that the pre-sentence

report states that the defendant reported

prior percocet and ecstacy use, defendant did

not use at the time of the offense.

(Id. at 28.) Thus, the record supports the Appellate Division’s

rejection of Petitioner’s ineffective assistance of counsel claim.

The Court will deny Ground Two of the petition.

D. Ground Three

Petitioner’s third ground for relief is that her guilty plea

was not knowing and voluntary because the trial court failed to

explain the elements of aggravated manslaughter. (Pet. ¶12, Dkt.

No. 1.)

Respondents argue that this claim is unexhausted because

Petitioner failed to raise it in her direct appeal, and it is also

procedurally defaulted because she was barred in the PCR court

from raising any claim she could have raised on direct appeal.

(Answer at 37, Dkt. No. 9.)

In her traverse, Petitioner claims she exhausted Ground Three

by raising it in the PCR court and by appeal of the PCR court

decision. (Traverse at 8-10, Dkt. No. 14.) Alternatively, she asks

the Court to strike the unexhausted claim and consider the

remainder of the claims in the petition. (Id. at 10.)

1. State court determination

Neither the PCR court nor Appellate Division on PCR Appeal

explicitly addressed whether Petitioner’s claim that the trial

court failed to advise her of the elements of aggravated

manslaughter was procedurally defaulted. The PCR court, however,

explained that “Defendant filed an appeal on this case, and could

have included all issues in her direct appeal.” (Rta4 at 19, Dkt.

No. 9-31.) The PCR court concluded that, “under Rule 3:22-4,

defendant's petition is barred.”2 (Id. at 20.)

2 New Jersey Court Rule 3:22-4(a) provides:

(a) First Petition for Post-Conviction relief.

Any ground for relief not raised in the

proceedings resulting in the conviction, or in

a post-conviction proceeding brought and

decided prior to the adoption of this rule, or

in any appeal taken in any such proceedings is

barred from assertion in a proceeding under

this rule unless the court on motion or at the

hearing finds:

(1) that the ground for relief not

previously asserted could not reasonably

have been raised in any prior proceeding;

or

The PCR court also addressed the merits of Petitioner’s claim

that her plea was not knowing and voluntary. Because the state

courts addressed the merits of the claim, Petitioner is not

entitled to an evidentiary hearing. Pinholster, 563 U.S. at 185–

86.

During the plea colloquy, [petitioner]

acknowledged reviewing the charges in

discovery with her attorney before pleading

guilty. The [petitioner] also acknowledged

understanding the charges to which the

[petitioner] was pleading, and the maximum

sentence.

The court then went over the [petitioner]’s

rights which she was waiving by pleading

guilty. I made certain that she was satisfied

with [trial counsel]’s representation.

I then made sure the [petitioner]’s plea was

knowing and voluntary. I additionally made

sure that she understood the plea forms and

answered the questions truthfully, and that

she fully understood the terms of the plea

agreement. After the [petitioner] provided a

factual basis, I found the [petitioner]’s plea

to be knowing and voluntary.

(Rta4 at 5, Dkt. No. 9-31.) (alternations added).

(2) that enforcement of the bar to preclude

claims, including one for ineffective

assistance of counsel, would result in

fundamental injustice; or

(3) that denial of relief would be contrary

to a new rule of constitutional law under

either the Constitution of the United

States or the State of New Jersey.

The Appellate Division, discussing Petitioner’s claim that

her counsel was ineffective for failing to explain the elements of

aggravated manslaughter, stated the following.

[D]efendant told the court she understood the

charge of aggravated manslaughter. She said

she was satisfied with the legal advice

provided by her attorney, and she was pleading

guilty voluntarily. Defendant was asked if she

was waiving a defense based on intoxication,

self-defense, or passion/provocation. She

replied, "Yes." She also said she had

discussed these defenses with her attorney and

she understood them.

(Ra18 at 12, Dkt. No. 9-21.)

2. Procedural default analysis

Respondent correctly notes that although petitioner filed a

direct appeal in the state court, she did not raise her claim that

the trial court failed to explain the elements of aggravated

manslaughter. (Ra5, Dkt. No. 9-8; Rta3, Dkt. No. 9-30.) She, did,

however, include the claim in Ground Three of her pro se PCR

petition (Ra10 ¶8c, Dkt. No. 9-13.), which in turn was incorporated

with her other pro se claims in the brief filed in support of her

PCR petition by her PCR counsel (Ra12 at 22, Dkt. No. 9-15.) The

claim was procedurally barred from consideration in the state court

because it could and should have been raised in petitioner’s direct

appeal. N.J. Ct. R. 3:22-4. See Cabrera v. Barbo, 175 F.3d 307,

314 (3d Cir. 1999) (N.J. Ct. R. 3:22-4 provided an independent and

adequate state ground to procedurally bar the petitioner’s federal

habeas claim.) Therefore, Ground Three of the habeas petition is

procedurally defaulted. Petitioner did not specifically assert

cause and prejudice or actual innocence to excuse the procedural

default. Nonetheless, the PCR court addressed the merits of the

claim, and this Court will consider whether the PCR court’s denial

of the claim was based on an unreasonable determination of the

facts or contrary to clearly established federal law.

3. Standard of Law: Knowing and Voluntary Plea

A guilty plea is valid where “the plea represents a voluntary

and intelligent choice among the alternative courses open to the

defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North

Carolina v. Alford, 400 U.S. 25, 31 (1970). The Supreme Court

determined that the most efficient method of insuring the

intelligent, voluntary nature of a guilty plea is through the

colloquy between the trial judge, the defendant and the defendant’s

attorney. McCarthy v. U.S., 394 U.S. 459 (1969) (requiring trial

court, pursuant to Rule 11, to personally inquire as to the

defendant’s understanding of the nature of the charge).

Furthermore, a habeas petitioner challenging the voluntary

nature of his or her guilty plea faces a heavy burden. Zilich v.

Reid, 36 F.3d 317, 320 (3d Cir. 1994).

[T]he representation of the defendant, his

lawyer, and the prosecutor at [a plea]

hearing, as well as any findings made by the

judge accepting the plea, constitute a

formidable barrier in any subsequent

collateral proceedings. Solemn declarations

made in open court carry a strong presumption

of verity.

Zilich, 36 F.3d at 320.

4. Analysis: Knowing and voluntary plea

The Appellate Division, on PCR appeal, found that the plea

hearing transcript provided “no support” for petitioner’s claim

that she had not received sufficient advice prior to entering her

guilty plea. (Ra18 at 11 to 12, Dkt. No. 9-21.) Upon review of the

plea transcript (Rta1, Dkt. No. 9-28), this Court agrees. The

Appellate Division correctly noted that “[D]efendant told the

court she understood the charge of aggravated manslaughter.” (Id.

at 12.) The written factual basis for the plea indicates that

Petitioner admitted to facts that established the elements of an

aggravated manslaughter charge under New Jersey law.3 (Ra2A, Dkt.

No. 9-5.) Therefore, although Ground Three of the petition is

procedurally defaulted, it also fails on the merits. See e.g.

United States v. Cefaratti, 221 F.3d 502, 508 (3d Cir. 2000)

(finding plea was knowing and voluntary although the trial court

failed to recite the elements of the offense.)

3 N.J. Stat. Ann. § 2C:11-4 (West) (effective January 8, 2002 to

January 20, 2020) defines aggravated manslaughter “Criminal

homicide constitutes aggravated manslaughter when … The actor

recklessly causes death under circumstances manifesting extreme

indifference to human life[.]”

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c)(1)(A), unless a circuit

justice or judge issues a certificate of appealability, an appeal

may not be taken from “the final order in a habeas corpus

proceeding in which the detention complained of arises out of

process issued by a State court.” A certificate of appealability

may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists

of reason could disagree with the district court’s resolution of

his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockerell, 537 U.S. 322, 327 (2003). Jurists

of reason could not disagree with this Court’s resolution of

Petitioner’s habeas claims. Therefore, the Court denies a

certificate of appealability.

V. CONCLUSION

For the reasons discussed above, Petitioner has not met her

burden for habeas relief under 28 U.S.C. § 2254, and a certificate

of appealability shall not issue.

An appropriate Order follows.

Dated: July 21, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District