SUTTLE v. DAVIS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

:

GARY SUTTLE, :

: Civ. No. 19-17041 (KM)

Petitioner, :

:

v. : OPINION

:

BRUCE DAVIS, et al., :

:

Respondents. :

_________________________________________ :

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

Pro se petitioner Gary Suttle, a state prisoner at New Jersey State Prison in Trenton, New

Jersey, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. DE 1. Suttle

challenges his conviction for the murder of a 60-year-old woman who was beaten to death with a

hammer. For the reasons below, the petition is denied and a certificate of appealability shall not

issue.

II. BACKGROUND

A. Factual Background1 and Procedural History of State Proceedings

On collateral appeal, the Appellate Division summarized Suttle’s criminal proceedings

and the evidence underlying his conviction as follows:

Lois Zukowitz was murdered in her Elizabeth apartment on March 11, 2004.

Police investigation led to defendant, who was charged with first-degree

murder, N.J.S.A. 2C:11-3(a), and possession of a weapon (a hammer) for an

unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant’s first trial, which occurred in

April 2008, produced an acquittal on the weapons offense and a hung jury on the

murder charge. A second trial in July 2008 resulted in defendant’s conviction of

1 Pursuant to 28 U.S.C. § 2254(e)(1), this Court affords deference to the factual determinations of the State

court.

first-degree murder and a fifty-five-year prison term. Defendant appealed, and we

reversed and remanded for a new trial. State v. Suttle, No. A-2417-08 (App. Div.

June 10, 2011). . . .

. . .

[At a third trial, which occurred in June and July 2012,] [t]he State put on

witnesses and offered evidence that linked defendant to Lois’s murder. The State

showed that, at sometime after 10:00 p.m., on March 11, 2004, Lois’s neighbor

heard: her scream; a male voice command her to “shut up”; and noises that

suggested someone was being punched. The neighbor called 9-1-1 sometime after

11:00 p.m., and by 11:25 p.m., police arrived, finding Lois dead and her body

face down in a pool of blood. A bloody towel was found, as well as numerous

blood-stained areas in the apartment. Near Lois’s body, police observed a bloody

impression from a Reebok sneaker. Lois’s bedroom and kitchen appeared to have

been ransacked.

Testimony was offered to show Lois was struck numerous times with a blunt

instrument. Police found on her bed a black rubber-handled claw hammer

wrapped in a plastic bag. A small clump of hair was found on the claw end; blood

was found on the striking end. No fingerprints were found on the hammer, but a

mixture of DNA was found on the hammer’s handle. The State offered testimony

that Lois could not be excluded as a potential contributor to that DNA mixture

and that the other DNA probably came from a female. Defendant was excluded as

a contributor to that DNA.

In the apartment, police found a black jacket with a fur collar. The jacket

contained a set of keys. Investigators later determined that a key in the jacket was

for the Mravlag Manor apartment of Joseph Lopez and his mother, Nilda Vargas.

Vargas was defendant’s girlfriend at the time. When police entered the Lopez-

Vargas apartment, a partially-clothed defendant appeared from one of the rooms.

Lopez went to get him some clothes and when Lopez returned with a pair of

Reebok sneakers, defendant said to him, “[n]o, not those shoes.” Aware of the

shoe print left in Lois’s apartment, police became suspicious about defendant’s

comment to Lopez; they obtained a search warrant for the apartment and seized

the Reeboks. No blood was found on them, but, at trial, the prosecution offered

evidence that the bloody shoe prints left at the crime scene were made by

Reeboks.

In his testimony, Lopez confirmed the jacket was his and the keys belonged to

defendant. Both Lopez and Vargas provided testimony that suggested defendant

left the apartment on the day of Lois’s murder and did not return until March 17,

2004. According to Lopez, when defendant departed he was in possession of

Lopez’s jacket but when he returned, he had neither the jacket nor his keys. Lopez

testified that when defendant returned after the week’s absence, he said he had

been “locked up” and that the jacket was taken at the jail.

The State called Arthur Barber, who testified that defendant told him “he had

gotten himself in a little bit of trouble and he needed to get out of town.” Barber

also testified that defendant admitted to killing a “white woman” but that he did

not mean to do it.

The State also called two of Lois’s neighbors who testified they saw Lois on the

afternoon of her murder with an African-American man wearing a black coat with

a fur hood. Two other women testified they had accompanied Lois on separate

occasions to buy heroin from an African-American man who lived in Mravlag

Manor. In addition, the State offered testimony that police obtained statements

from others: Corrine Hartley, and her brother James Hartley, as well as Deborah

Silverstein, who was a friend of Lois and who stated she had observed James

Hartley with Lois in the weeks leading up to the murder.

Defendant called Corrine Hartley to testify. She testified that she did not

remember giving a statement to the police. But the statement she gave was read to

the jury during a detective’s testimony and included information such as: shortly

after the murder her brother James gave her a bag of dirty clothes, which included

a pair of bloody jeans; James owned sneakers that were “either Reebok, or Nike

or Avia”; and James was often in the building where Lois lived. Evidence also

suggested that James attended the same methadone clinic as Lois.

State v. Suttle, No. A-1255-17T3, 2019 WL 272491, at *1–2 (N.J. Super. Ct. App. Div. Jan. 22,

2019).

B. Procedural History

The jury convicted Suttle of first-degree murder, and, in August 2012, he was again

sentenced to a 55-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id.

at *1. The Appellate Division affirmed the conviction but remanded to eliminate a separate 30-

year parole disqualifier. Id. Suttle filed a PCR petition in July 2016; the PCR judge denied relief

without conducting an evidentiary hearing; and the Appellate Division affirmed. Id.

Suttle filed this petition in August 2019. DE 1. He asserts two grounds for relief: (1) “In

light of the jury’s not guilty finding on the possession of a weapon for an unlawful purpose . . .

charge in [his] first trial, the trial court erred and violated [Suttle’s] Double Jeopardy rights by

denying [his] motion to preclude the prosecutor from introducing the hammer into evidence and

arguing to the jury that defendant used the hammer to kill the victim” (DE 1 at 7); and (2) Suttle

“received ineffective assistance of counsel . . . when counsel failed to investigate and present

evidence supporting a third-party guilt defense” (id. at 11). The State has filed an answer to the

petition (DE 12), and Suttle has filed a reply (DE 16). This matter is therefore fully submitted

and ready for decision.

III. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996, 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 court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A habeas petitioner

must establish entitlement to relief for each claim in his petition based upon the record that was

before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); Parker v.

Matthews, 567 U.S. 37, 40–41 (2012). District courts must be “highly deferential” to the

determinations of state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).

If the state courts have adjudicated a claim on the merits, the district court shall not grant

a writ of habeas corpus unless that adjudication

(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)(1)–(2). Federal law is “clearly established” for these purposes if it is clearly

expressed in “the holdings, as opposed to the dicta” of the United States Supreme Court. See

Woods v. Donald, 575 U.S. 312, 316 (2015). “When reviewing state criminal convictions on

collateral review, federal judges are required to afford state courts due respect by overturning

their decisions only when there could be no reasonable dispute that they were wrong.” Id. If a

petitioner challenges an allegedly erroneous state court factual determination, that determination

“shall be presumed to be correct [and the] applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

The relevant state court decision for federal habeas corpus review is the last reasoned

state court decision. See Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008). These deferential

standards apply “even where there has been a summary denial” by the state court. Cullen v.

Pinholster, 563 U.S. 170, 187 (2011).

IV. DISCUSSION

A. Ground One

Suttle argues that the State was collaterally estopped from arguing that he killed the

victim with a hammer, because he was acquitted of possession of the hammer for an unlawful

purpose at his first trial. DE 1 at 7. He first asserted this argument on appeal of his conviction

after his second trial. The Appellate Division rejected the argument, setting forth the applicable

law as follows:

As the United States Supreme Court held in Ashe v. Swenson, 397 U.S. 436, 445–

46 (1970), the Double Jeopardy Clause of the Fifth Amendment includes the bar

of collateral estoppel. Defining collateral estoppel as follows—“when an issue of

ultimate fact has once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit”—the

Court explained that the doctrine applied “‘to a former judgment in a criminal

case.’” Id. at 443 (quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir.

1961)). Collateral estoppel may bar a later prosecution where the jury’s acquittal

in a prior case necessarily demonstrated its rejection of the essential facts on

which the State sought to base the second prosecution. See State v. Cormier, 46

N.J. (1966).

In Yeager v. United States, 129 S. Ct. 2360 (2009), the Court held that when a

defendant is acquitted on some charges and obtains a hung jury on others,

collateral estoppel principles may apply to the State’s attempt to retry the

defendant on the “hung counts.” Id. at 2368–69. In deciding a collateral estoppel

argument, the jury’s failure to return a verdict must be treated as a

“nonevent.” Id. at 2367. That is, the trial court must not speculate on the jury’s

reasons for being unable to return a verdict on some counts, and instead should

focus on the significance of the acquittal. Id. at 2367–68.

The Court cautioned that this focus should not be mechanical or technical, but

practical, in light of the way the first case was actually tried. Id. at 2367. Thus, a

court hearing a Double Jeopardy motion based on collateral estoppel must closely

scrutinize the record of the first trial to determine what was actually put in issue

and necessarily decided by the jury:

In Ashe, we squarely held that the Double Jeopardy Clause

precludes the Government from relitigating any issue that was

necessarily decided by a jury’s acquittal in a prior trial. In that

case, six poker players were robbed by a group of masked men.

Ashe was charged with—and acquitted of—robbing Donald

Knight, one of the six players. The State sought to retry Ashe for

the robbery of another poker player only weeks after the first jury

had acquitted him. The second prosecution was successful: Facing

“substantially stronger” testimony from “witnesses [who] were for

the most part the same,” Ashe was convicted and sentenced to a

35–year prison term. We concluded that the subsequent

prosecution was constitutionally prohibited. Because the only

contested issue at the first trial was whether Ashe was one of the

robbers, we held that the jury’s verdict of acquittal collaterally

estopped the State from trying him for robbing a different player

during the same criminal episode. We explained that “when an

issue of ultimate fact has once been determined by a valid and final

judgment” of acquittal, it “cannot again be litigated” in a second

trial for a separate offense. To decipher what a jury has necessarily

decided, we held that courts should “examine the record of a prior

proceeding, taking into account the pleadings, evidence, charge,

and other relevant matter, and conclude whether a rational jury

could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration.” We

explained that the inquiry “must be set in a practical frame and

viewed with an eye to all the circumstances of the proceedings.”

[Id. at 2366–67 (emphasis added; internal citations omitted).]

State v. Suttle, No. A-2417-08T3, 2011 WL 2314474, at *2–3 (N.J. Super. Ct. App. Div.

June 10, 2011).

The Appellate Division noted that Yeager was decided a year after the judge in

Suttle’s case decided Suttle’s Double Jeopardy motion, “[h]owever, the motion judge,

who had also presided over the prior trial, engaged in a similar analysis, considering what

was in issue in the first trial.” Suttle, 2011 WL 2314474, at *3. The Appellate Division,

“likewise read the record of the first trial, with an eye to how the case was tried, how the

jury was charged, and whether ‘a rational jury’ hearing that case could have acquitted

defendant of possessing a weapon (in this case, the hammer) for an unlawful purpose, on

a basis that would not be inconsistent with the State’s theory that he killed the victim with

the hammer.” Id. In that analysis, the Appellate Division focused on the acquittal of the

charge of possession of a weapon for an unlawful purpose and, in accordance with

Yeager, “[did] not speculate on why the jury deadlocked on the murder charge.” Id. The

court set forth the facts relevant to its analysis as follows:

In the first trial, the prosecutor set forth the State’s theory of the murder charge in

his opening statement: “this defendant beat Lois Zukowitz to death with a

hammer.” However, he said nothing about the charge of possession of a weapon

for an unlawful purpose. Defense counsel’s opening likewise focused solely on

the murder charge, although he stressed that defendant’s fingerprints and DNA

evidence were not found on the hammer.

The only person who “witnessed” the crime was Jamie Brown, the tenant in the

apartment next to the victim. Brown testified that on March 11, 2004, at around

11:00 p.m., he “heard the lady next door screaming,” although the screaming

sounded “muffled.” He also heard a man’s voice “telling her shut up, shut up, shut

up.” He then heard what sounded like someone being “punched.” Believing that

the victim’s “boyfriend” was beating her up, he called 9–1–1 and reported a

suspected domestic violence incident.

When the police arrived ten to fifteen minutes later, they found the victim’s

apartment door unlocked. They entered the apartment and found the victim’s

body. Forensic evidence revealed that she had been killed by repeated blows to

the head from a blunt instrument. She also had defensive injuries on her hands

and arms. In the same room with the body, the police found a bloody hammer.

The shapes of the victim’s wounds were consistent with the shape of the

hammerhead. The hammer bore DNA consistent with that of the victim and

another unidentified female. Neither defendant’s DNA nor his fingerprints were

found on the hammer.

Defendant eventually became a suspect, and a search of his residence turned up a

pair of sneakers that matched bloody footprints found at the crime scene. The

State also presented evidence that the victim was a drug addict who was taking

methadone for her addiction but was also buying heroin. There was evidence that

defendant was the middleman who supplied the victim with the heroin. In his

testimony defendant admitted that he obtained heroin for her. According to

defendant, on the day of the murder, he met Lois at her apartment. She gave him

some money to buy heroin for her. Leaving his jacket at her apartment, he

departed for Newark, where he bought the heroin. He then called her to find out if

she was ready for him to come back to her apartment, but she told him she was

not ready yet. When he finally returned to her apartment, it was night time.

Arriving at the apartment, he found the door ajar. He pushed it open, and called to

her but got no response. He then entered the apartment, which was in “disarray,”

and found Lois’s body.

Believing that the police would immediately accuse him of the murder because he

was “a black person in [the] Elmora section of town,” and she was an older white

woman, he did not call the police. Instead, fearing for his own life, he fled

through a window and down the fire escape, leaving his jacket in the apartment.

He denied that he killed Lois. In his statement to the police, which was read into

evidence, he denied seeing a hammer in the apartment.

At the charge conference, all counsel agreed that the judge should not charge the

jury with any lesser included offenses to murder. Therefore the jury was only

charged as to murder and possession of a weapon for an unlawful purpose.

In their summations, neither attorney referred to the weapons charge. Defense

counsel argued that if defendant was the murderer, his DNA should have been on

the hammer. However, his main arguments were that defendant was credible; that

the hostile way the police treated Jamie Brown, the black man who reported the

crime, corroborated defendant’s opinion that it would be dangerous for a black

man to call the police to the scene; that the victim’s estimated time of death was

consistent with defendant’s testimony that she was dead when he arrived; and that

the crime scene, in which the bloody footprints were not covered by any debris,

was consistent with defendant’s testimony that he entered the apartment after

someone else had ransacked it.

The prosecutor focused on rebutting those arguments, citing the circumstantial

evidence of defendant’s guilt. She also argued that the murderer had to be

someone who knew the victim, because the brutality of the crime suggested that it

was “personal” and must have stemmed from “the relationship that this defendant

had with the victim.” Not once in her summation did the prosecutor mention the

weapons charge or explain how it related to the case or how the State had proven

that charge. Nor, obviously, did she ask the jury to convict defendant of that

charge.

Suttle, 2011 WL 2314474, at *3–4.

The Appellate Division then rejected Suttle’s estoppel argument, finding that the first

verdict did not estop the State from retrying Suttle on the murder charge because the first trial

did not turn on whether Suttle possessed the hammer or his intent in possessing it. Rather:

The trial focused more generally on whether [Suttle] was the killer. In fact, far

from presenting “a critical issue of ultimate fact” in the first trial, [as required by

Yeager], the weapons charge was a non-issue in that trial. As the case was

actually tried, the weapons offense was a “throwaway” charge, which the State

made no effort to prove. Neither attorney addressed that charge or explained what

evidence supported or did not support it. Thus, when the judge gave the jury the

charge on possession of a weapon for an unlawful purpose, the only factual

tailoring was the judge’s explanation that “[i]n this case the unlawful purpose

alleged by the State is that the defendant possessed the weapon in order to beat

Lois Zukowitz to death.”

To obtain a conviction for possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39–4d, the State must prove four elements:

(1) the item possessed was a weapon within the meaning

of N.J.S.A. 2C:39–1r; (2) the defendant possessed the weapon with

knowledge or awareness of control over the weapon; (3) the

defendant’s purpose or conscious objective was to use the weapon

against the person or property of another; and (4) the defendant

intended to use the weapon in a manner proscribed by law.

[State v. Villar, 150 N.J. 503, 510 (1997).]

The fourth element requires the State to prove that the accused possessed the

weapon “with the actual purpose of using the weapon against another in a

criminal manner.” State v. Harmon, 104 N.J. 189, 204 (1986).

In the first trial, the jury heard testimony and arguments from which they could

have inferred that the murder was a crime of passion or anger. They heard

testimony from Brown that a man was telling Lois to “shut up, shut up, shut up”

and that Brown thought domestic violence was occurring. The prosecutor also

argued that the crime was “personal” and was overkill based on the number of

blows struck. Reasonable jurors might well have found that: the killer did not

bring the hammer to the scene; and the killer was either using the hammer for

some non-violent purpose when Lois said something to enrage him, or the killer

became suddenly enraged and grabbed the first object at hand and hit Lois with it.

Thus, the jury could have concluded that the killer acted in a blind, instantaneous

rage and did not have time to form the purpose or conscious objective to possess

the hammer as a weapon or to possess it with knowledge or awareness of control

of the hammer, even if he intended to kill Lois. Or, the jury could simply have

decided that the State, which had offered no explanation to them whatsoever as to

how the evidence proved the weapons charge, had failed to prove the charge

beyond a reasonable doubt.

As a leading commentator noted in discussing N.J.S.A. 2C:39–4:

[A] finding of not guilty under this section does not preclude a

finding of guilt as to armed robbery, aggravated assault or other

offense in which a [weapon] was used . . . because although

defendant must have used or possessed a weapon in those offenses

he may not have possessed it with the intention of committing any

crime.

[Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:39–4

(2010).]

Addressing seemingly inconsistent verdicts, in State v. Mieles, 199 N.J. Super. 29

(App. Div.), certif. denied, 101 N.J. 265 (1985), we likewise observed:

The verdict here may simply have reflected a finding by the jury

that while defendant did not originally possess the weapon for

unlawful use the difficulties between defendant and [the victim]

triggered the aggravated assault and armed robbery. There would

be no inconsistency in the verdict, for the possession count related

to the purpose for which defendant possessed the gun and not how

he used it.

[Id. at 41.]

Defendant was not charged with possessing the hammer as well as possessing it

for an unlawful purpose. Therefore, this case is not analogous to one in which, for

example, a defendant is acquitted at the first trial of both possessing the gun

known to be the only possible murder weapon and of possessing it for an unlawful

purpose. In those circumstances, a stronger argument might be made that

acquittals on both charges could estop the State from attempting to prove in a

second trial that the defendant killed the victim with that gun. But we need not

address such an issue here.

Although the State’s theory in the second trial, as in the first, was that defendant

killed Lois with the hammer, the State did not need to prove that defendant

possessed the hammer with an unlawful purpose in order to prove that he

murdered her. Rather, the State was required to prove that defendant “purposely”

or “knowingly” caused “death or serious bodily injury resulting in [the victim’s]

death.” N.J.S.A. 2C:11–3(1), –3(2). On this record, we cannot accept defendant’s

argument that the first jury’s verdict established, by principles of collateral

estoppel, that defendant did not use the hammer to kill the victim. The first verdict

therefore did not estop the State from retrying defendant on the murder charge.

State v. Suttle, No. A-2417-08T3, 2011 WL 2314474, at *5–6 (N.J. Super. Ct. App. Div. June 10,

2011) (citations omitted).

On direct appeal after the third trial, the Appellate Division rejected Suttle’s Double

Jeopardy argument because it was “essentially the same” as the argument it had rejected after his

second trial, and therefore precluded by “the law of the case.” Suttle, 2015 WL 9943603, at *2.

The court explained:

Law of the case is a discretionary rule that calls on one court to balance the value

of judicial deference for the rulings of a coordinate court against those factors that

bear on the pursuit of justice and, particularly, the search for truth.

Here, that balance bars relitigation. Defendant again argues that the State was

collaterally estopped from arguing that defendant killed the victim with a

hammer, because defendant was acquitted of possession of the hammer for an

unlawful purpose at his first trial. Although defendant argues this is a new theory

of collateral estoppel, we find he makes essentially the same arguments he made

in his prior appeal. Thus, this issue has been fully and fairly litigated and is the

law of the case.

. . . As we explained [in the prior opinion], the weapons offense in the first case

was a throwaway charge, which the State made no effort to prove or argue.

Indeed, neither attorney had referred to the charge in their summation. Thus, we

could not “accept defendant’s argument that the first jury’s verdict established, by

principles of collateral estoppel, that defendant did not use the hammer to kill the

victim. The first verdict therefore did not estop the State from retrying defendant

on the murder charge.” Suttle, supra, slip op. at 16.

Suttle, 2015 WL 9943603, at *2–3 (citations omitted; cleaned up).

The Appellate Division’s rejection of Suttle’s Double Jeopardy argument was not

contrary to or an unreasonable application of clearly established federal law; numerous federal

courts have recognized that a defendant can be re-tried in similar circumstances (i.e., where a

first trial results in an acquittal on a weapons charge and a hung jury on a charge related to use of

that weapon). See, e.g., Wade v. Timmerman-Cooper, 785 F.3d 1059, 1074–75 (6th Cir. 2015)

(jury acquitted defendant of firearm-related charges in initial trial, but prosecution was

nonetheless permitted to introduce evidence on retrial on rape and kidnapping charges that

defendant used a gun because use of a gun was not an essential element of rape or kidnapping);

Clarke v. Spencer, 582 F.3d 135, 145–47 (1st Cir. 2009) (defendant was first acquitted of assault

and battery with a dangerous weapon, rape by penetration with a gun, and aggravated rape

(which could be proven by the use of a gun during a rape); at a subsequent trial on kidnapping

and rape charges, the prosecution was permitted to introduce evidence that the defendant

threatened the victim with a gun because the use of a gun was not an element of the rape and

kidnapping charges); Santamaria v. Horsley, 133 F.3d 1242, 1247 (9th Cir. 1998) (although jury

in prior murder trial found against sentence-enhancing factor that defendant used a knife, on

retrial after reversal, prosecution was not precluded from presenting evidence that defendant

stabbed victim with a knife because use of a knife was not a required element of a murder

conviction). Accordingly, habeas relief on this ground is denied.

B. Ground Two

Suttle argues that his trial counsel was ineffective because he did not “investigate and

present evidence supporting a third-party guilt defense.” DE 1 at 11. In support, Suttle contends

that counsel failed to (1) interview Corrine Hartley, James Hartley, and Deborah Silverstein and

call them as witnesses; and (2) obtain DNA samples from James Hartley and Silverstein to be

matched against the DNA found on the murder weapon. DE 1 at 11. The PCR court rejected

these arguments. DE 12-10 at 10–24. As to Suttle’s argument that counsel was ineffective for

failing to interview Corrine and James Hartley and Silverstein, the court opined:

Petitioner has not established what would have been revealed if trial counsel were

to have interviewed these three witnesses. Ms. Hartley and Ms. Silverstein gave

recorded statements to the police. These were certainly available to the defense

through discovery. Ms. Hartley was interviewed by the police, and the notes of

that interview were presumably available to the defense through discovery. Ms.

Hartley’s father was interviewed by the police and provided an alibi for his son.

Petitioner has not come forward with any information from these witnesses that

differs from that already in the record.

Furthermore, both Ms. Hartley and Ms. Silverstein testified at trial. Ms. Hartley’s

trial testimony and what appears to be her whole, if not a substantial portion, of

her March 18, 2014 statement were placed before the jury. Accordingly, all of her

favorable testimony about Mr. Hartley’s purported incriminating comments and

blood on his clothes were presented to the jury.

Ms. Silverstein was called as a witness during Petitioner’s case in chief and was

asked about her relationship with James Hartley.

The State attempted to call Mr. Hartley as a witness on rebuttal, but he could not

be located. It is highly doubtful that his testimony at trial would have differed

from his statements to the investigating officers or been as favorable to Petitioner

as the inferences, which were drawn from his statements to Ms. Hartley.

As noted above, Petitioner has not established that an “interview” of these

witnesses[] would have presented information that was either not before the jury

already, or more favorable than the evidence presented to the jury. Therefore,

Petitioner’s argument is denied.

DE 12–10 at 20 (citations omitted).

As to counsel’s failure to obtain DNA samples from James Hartley and Silverstein, the

PCR court found that DNA testing would not have provided meaningful information and counsel

used the lack of testing to support the defense:

During trial it was revealed that the handle of the hammer contained DNA from a

combined source. However, both sources were from a female contributor.

Accordingly, the undisputed DNA evidence from the hammer did not inculpate

Petitioner as it was that of the victim and an unidentified female. The only

evidence in the case concerning the attacker was that the attacker was a male (as

heard by Mr. Brown and as implied by the size of the bloody footprints). There

was no evidence in the case that the attacker was a female. DNA testing of Ms.

Silverstein and Mr. Hartley would have no potential evidentiary value as Ms.

Silverstein could not have been the attacker and Mr. Hartley’s DNA did not exist

upon the hammer. Said differently, “a favorable DNA result” was an impossibility

here.

Furthermore, a review of the record shows that trial counsel used the lack of DNA

testing skillfully to his advantage. In summation, trial counsel argued:

They never checked the DNA. Now, the DNA person said, well

you know, it’s likely that it’s a woman’s DNA, the other DNA, but

we could look at it and find out, if they were ever given any chance

to do that, but they were not. They were not. There were no other

samples ever collected. . . . A little swab in the mouth. And they

could have done that. They could have asked for permission. They

could have gotten court orders. They could have done an

investigation, and they did not. They did not.

[DE 12-25 at 37].

Trial counsel later reiterated:

Are they searching for the truth, or are they prosecuting at all costs

Gary Suttle? I submit to you that they’re prosecuting Gary Suttle,

and they have ignored the truth. They have ignored what happened.

They’ve ignored what they should have been looking at. They

should have found out whose DNA was on the hammer handle.

[Id. at 40–41].

Thus, while trial counsel did not seek to obtain a DNA sample, such an approach

was entirely appropriate given that DNA testing would not have provided any

meaningful information. Instead, trial counsel used the failure to test to

appropriately argue reasonable doubt in conformity with the defense’s theory of

third-party guilt. While the strategy was not ultimately successful, that does not

render counsel’s decision ineffective.

DE 12–10 at 21–22.

The Appellate Division affirmed, stating that Suttle’s arguments were of “insufficient

merit to warrant further discussion in a written opinion.” Suttle, 2019 WL 272491, at *1. As to

the sufficiency of counsel’s pretrial investigation, the court found that the PCR judge’s rejection

of the argument was a result “compelled by a proper application of the Strickland/Fritz test.” Id.

at 3. As to counsel’s decision not to obtain DNA samples, the court added the following

comments:

As the judge recognized, the prosecution provided testimony that the DNA

belonged to a female, thus exculpating him from that link to the hammer; for the

same reason it exculpated James Hartley. But, rather than run the risk that

samples from the other potential targets of defendant’s third-party guilt theory

would exculpate them as well, defense counsel “used the lack of DNA testing,” as

the PCR judge said, “skillfully to his advantage,” pointing out a number of

passages from defense counsel’s summation along those lines. Again, because

counsel took a reasonable tactical approach to this circumstance, Strickland, 466

U.S. at 689, defendant was unable to present a prima facie case of ineffectiveness.

Suttle, 2019 WL 272491, at *3.

The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668,

686 (1984). A claim of ineffective assistance has two necessary components. Id. at 687. First, the

defendant must “show that counsel’s representation fell below an objective standard of

reasonableness,” id. at 687–88, meaning he “must identify the acts or omissions of counsel that

are alleged not to have been the result of reasonable professional judgment.” Id. at 690. Second,

a petitioner must establish prejudice, i.e., a reasonable probability that the result of the trial

would have been different absent the deficient act or omission. Id. at 687. Further, “[i]f it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that

course should be followed.” Strickland, 466 U.S. at 697).

On habeas review, it is not enough that a federal judge would have found counsel

ineffective. The judge must find that the state court’s resolution of the issue was unreasonable, a

higher standard. Harrington v. Richter, 562 U.S. 86, 101 (2011). “And while judges may be

tempted to second guess defense counsel’s decisions, we must keep in mind that ‘advocacy is an

art and not a science, and . . . strategic choices must be respected in these circumstances if they

are based on professional judgment.’” Gaines v. Superintendent Benner Twp. SCI, 33 F.4th 705,

712 (3d Cir. 2022) (quoting Strickland, 466 U.S. at 681). In other words, “counsel’s strategic

choices will not be second-guessed by post-hoc determinations that a different trial strategy

would have fared better.” Rolan v. Vaughn, 445 F.3d 671, 681–82 (3d Cir. 2006).

Here, the state courts’ determination that Suttle failed to establish that counsel was

ineffective was not unreasonable. As to counsel’s alleged failure to interview Corrine Hartley,

James Hartley, and Deborah Silverstein and call them as witnesses, the Appellate Division

reasonably found that Strickland compelled the PCR court’s finding that counsel was not

ineffective.

A failure to investigate potentially exculpatory evidence or witnesses may form the basis

of ineffective assistance of counsel. See Strickland, 466 U.S. at 690–91; see also Brown v.

United States, No. 13-2552, 2016 WL 1732377, at *4–5 (D.N.J. May 2, 2016). To establish this

claim, a petitioner “must make a comprehensive showing as to what the investigation would

have produced. The focus of the inquiry must be on what information would have been obtained

. . . and whether such information, assuming admissibility in court, would have produced a

different result.” See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew, 88 F.3d

1065, 1073 (D.C. Cir. 1996) (internal quotation marks omitted)). Where a petitioner asks the

court to “speculate both as to whether [the witnesses] would have in fact have testified on his

behalf and as to what [the witnesses’] testimony would have been,” rather than presents the court

with sworn testimony, he will not be able to establish prejudice. Duncan v. Morton, 256 F.3d

189, 201–02 (3d Cir. 2001) (citing United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989)); see

also Freeman v. Davis, No. 18-8269, 2021 WL 4705009, at *17 (D.N.J. Oct. 7, 2021).

As the PCR court stated, Suttle failed to establish “that an ‘interview’ of these witnesses[]

would have presented information that was either not before the jury already, or more favorable

than the evidence presented to the jury.” DE 12–10 at 20. First, Corrine Hartley and Silverstein

gave statements to the police, which were available to the defense, and testified at trial. Id.

Second, the State was unable to locate James Hartley, despite efforts to do so; thus, it is uncertain

at best whether defense counsel would have been able to locate him. Id.; see also DE 12-25 at

25–26 (where the state moved for an adjournment to locate James Hartley, stating, “We’ve been

looking for him, trying to find him,” the trial judge denied the request, stating, “This case was

reversed a year and a half ago over the issue of James Hartley, third-party guilt”; “you had a year

and a half to find James Hartley.”). However, even if he were available, it is unlikely that he

would have implicated himself in the murder. Rather, it was a reasonable strategic decision for

the defense to rely on the inferences drawn from Corrine Hartley’s statement—which supported

the theory that her brother may have been the guilty party—than it was to risk eliciting testimony

from James Hartley that would dispel any notion that he could have committed the crime.

Finally, not only does Suttle not establish that the witnesses would have provided

favorable testimony for him, he in fact establishes the opposite; his petition reiterates that when

Corrine Hartley and Silverstein testified at trial, they were unwilling to stand by the (arguably

exculpatory) statements they had previously given to the police:

Petitioner denied committing the crime. His defense was third party guilt based on

Corrine Hartley’s statement to police implicating her brother, James Hartley in the

murder. James Hartley knew the victim from the methadone clinic. Shortly after

the murder, James told his sister and Deborah Silverstein that he had to leave the

state because he was in trouble. James gave Corrine a bag containing blood-

stained jeans that he wanted washed. James did not allow Corrine to look inside

another laundry bag he had with him. When Silverstein mentioned that the victim

had quantities of money and Xanax in her apartment, James Hartley told her to

“Shut up.”

Deborah Silverstein told police that the victim was supplied with Xanax by a

black male named William and the victim was having a dispute with William over

drug prices. James Hartley knew where the victim lived as Silverstein had taken

him there to buy drugs just a couple of weeks before the murder.

Trial counsel did not interview the Hartleys or Ms. Silverstein, nor did he seek to

obtain DNA samples from any of them. When called by the State at Petitioner’s

trial, both Corrine Hartley and Deborah Silverstein feigned memory losses so

complete that each of them claimed they had no recollection of the sworn

statements that gave [sic] to police.

DE 1 at 11–12 (emphasis supplied); see also DE 12-24 at 86–99 (Corrine Hartley testified:

“when I was arrested, I was under the influence of Xanax very badly and I don’t remember any

of this statement at all”; “I don’t believe any of it”; “My brother didn’t have anything to do with

this. This is ridiculous.”); DE 12-25 (when asked if there was anything about her life at the

relevant time that would interfere with her memory, Silverstein responded, “I was taking

Xanax”). Accordingly, Suttle’s assertion that counsel was deficient for not calling these

witnesses had no basis in fact.

On the record before me, the state courts’ finding that counsel was not ineffective for

failing to interview Corrine Hartley, James Hartley, and Deborah Silverstein and call them as

witnesses is not contrary to or an unreasonable application of clearly established federal law or

an unreasonable determination of the facts. See, e.g., Eaddy v. Sauers, No. 10-7538, 2011 WL

7409076, at *8 (E.D. Pa. Aug. 2, 2011) (“counsel’s decision to not call William Jones as a

witness was reasonable since his proposed testimony . . . would not have helped

Petitioner”), report and recommendation adopted, 2012 WL 569369 (E.D. Pa. Feb. 22, 2012);

Blasi v. Atty Gen. of Com. of Pa., 120 F. Supp. 2d 451, 474 (M.D. Pa. 2000) (“Logically, counsel

cannot be ineffective for failing to call a witness whose identity was unknown and could not

have been known, or who was unavailable at the time of trial.”). Suttle has also failed to show

potential information from these witnesses would have produced a different result at his trial. He

has thus failed to establish prejudice. See, e.g., Freeman v. Davis, No. 2:18-CV-8269, 2021 WL

4705009, at *18 (D.N.J. Oct. 7, 2021) (“Petitioner has not provided any sworn testimony,

affidavit, or certification from either witness. Petitioner’s mere speculation regarding the

potential witnesses’ testimony is insufficient to establish prejudice.”) (citation omitted); Blasi,

120 F. Supp. 2d at 474 (“the defense cannot have been prejudiced unless the potential witness

had favorable evidence to provide”). Accordingly, Suttle is not entitled to relief on this claim.

As to counsel’s failure to obtain a DNA sample from James Hartley and Silverstein to be

matched against the DNA found on the murder weapon, the PCR court and Appellate Division

reasonably found that counsel’s approach to the DNA evidence was strategic and, thus, entitled

to deference under Strickland. 466 U.S. at 690; Simmers v. Akinbabyo, No. CV 17-1596, 2021

WL 1092577, at *9 (D. Del. Mar. 22, 2021) (“The decision whether to request DNA or

fingerprint testing is a tactical one, and reasoned tactical decisions by counsel are entitled to

deference.”). First, the DNA evidence obtained from the hammer already supported the defense

theory of third-party guilt. Suttle was definitively excluded as a contributor to that DNA. DE 12-

22 at 42, 48, 50. Second, it was arguably preferable to leave the DNA unidentified than it was to

potentially confirm that neither Hartley nor Silverstein were a DNA match and, thus, exculpate

them as potentially responsible for the murder. Third, counsel used the lack of testing to the

defense’s advantage, arguing that the State was prosecuting Suttle “at all costs” instead of

pursuing available leads including, most notably, identifying the DNA on the hammer. DE 12-25

at 40.

On this record, the state courts’ finding that counsel’s decision not to seek DNA samples

“was entirely appropriate” and “a reasonable tactical approach” is not contrary to or an

unreasonable application of clearly established federal law or an unreasonable determination of

facts. DE 12–10 at 22; Suttle, 2019 WL 272491, at *3; see Simmers, No. CV 17-1596, 2021 WL

1092577, at *8 (“trial counsel’s strategic reasons for not obtaining DNA testing fall within the

presumption of reasonableness” where counsel “planned to use the State’s failure to

perform DNA testing to impeach and undermine the State’s case”); see also Curry v. Secretary,

Fla. Dep’t of Corrections, 735 F. App’x 609, 612 (11th Cir. 2018) (trial court did not err in

denying ineffective assistance claim where counsel used absence of DNA “strategically, arguing

that there was no physical evidence” linking defendant to the crime); United States v. Roberts,

417 F. App’x 812, 823 (10th Cir. 2011) (“Roberts’ counsel made an informed, strategic decision

that further DNA testing posed more of a risk than being able to argue the absence of such

evidence and we will not second-guess that choice. Counsel’s performance was not deficient.”);

Baker v. Yates, No. 04-CV-1533, 2007 WL 2156072, at *14 (S.D. Cal. July 25, 2007) (“trial

counsel’s decision not to pursue DNA testing was a reasoned tactical decision entitled to

deference” where, “[b]y adopting this strategy, counsel was able to call into question both the

adequacy of the prosecution’s investigation and the strength of its case with little risk to

Petitioner”). Accordingly, Suttle is not entitled to relief on this claim.

V. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability (“COA”), an appeal may not be taken from a final order in a proceeding under 28

U.S.C. § 2254. 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. Cockrell, 537 U.S. 322,

327 (2003). Here, reasonable jurists would not find the Court’s habeas ruling debatable.

Accordingly, no certificate of appealability shall issue.

VI. CONCLUSION

For the foregoing reasons, Suttle’s petition is denied and no certificate of appealability

shall issue. An appropriate order follows.

DATED: December 15, 2022

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge