Petition for Writ of Certiorari — Willie Peterson, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.

Supreme Court briefMar 21, 2019

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SUPREMECOURT OF THE UNITED- S ATE

No. USCA3 #18-2583

WILLIE PETERSON

ADMINISTRATOR NEW JERSEY STATE PRISON, ET AL,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SUBMITTED BY:

Willie Peterson #452630/732981A

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

I OFFICE OLIE2

Petitioner,

Respondent.

U.S.

QUESTIONS PRESENTED

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claim that the

State Court Violated the United States Supreme Court Ruling in

Duncan v. Louisiana, Lewis v. United States and Illinois v. Allen

in Failing to Protect Petitioner's Right to be Present at All

Critical Phases of His Trial.

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claim that the

State Court Violated His Constitutional Rights to a Fair Trial.

3..)

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claims.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ii

LISTED PARTIES .............................................iv

TABLE OF AUTHORITIES .......................................v

OPINIONS BELOW .............................................1

STATEMENT OF JURISDICTION ..................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...........2

STATEMENT OF THE CASE ......................................3

REASONS FOR GRANTING THE WRIT ..............................13

CONCLUSION .................................................40

LIST OF PARTIES

The Petitioner is Mr. Willie Peterson, acting pro Se, and is

a prisoner presently confined at New Jersey State Prison in

Trenton, New Jersey.

The respondents are Charles Warren former Administrator of

New Jersey State Prison, and the Essex County Prosecutor's Office.

TABLE OF AUTHORITIES

Page No

Cases

Allen v. United States, No. 11-9335 (2013) ............40

Berger v. United States, 295 U.S. 78, 55 S.Ct 629,

79 L.Ed. 1314 (1935) .................................19

Betts v. Brady, 316 U.S. 455, 63 S.Ct 1252,

86 L.Ed 1595 (1942) .................................26

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 708 (1967) ...............................20,23

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct 1999,

26 L.Ed.2d 387 (1970) ...............................31,32

Cuyler v. Sullivan, 446 U . S. 335, 100 S.Ct 170,

864 L.Ed.2d 333 (1980) ..............................25

Davis v. Alaska, 415 U.S. 308, 94 S.Ct 1105 (1974)....

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct 1444,

20 L.Ed.2d 491 (1968) ...............................35

Griffin v. California, 380 U.S. 609, 85 S.Ct 1229,

14 L.Ed.2d 106 (1965) ...............................20

Hoffa v. United States, 385 U.S. 293, 87 S.Ct 408

(1966) ..............................................29

Illinois v. Allen, 397 U.S. 337, 90 S.Ct 1057,

2 L.Ed.2d 353 (1970) ................................34

Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877,

32 L.Ed.2d 411 (1972) ...............................32

Kuntze v. United States, 488 U.S. 932 (1988) ..........29

Lewis v. United States, 146 U.S. 370, 13 S.Ct 136,

36 L.Ed 1011 (1892) .................................34

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct 2531,

65 L.Ed.2d 597 (1980) .................................21

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.

158 (1932) ..........................................31

Slack v. McDaniel, 529 U.S. 473, 484 (2000)

Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct 330,

78 L.Ed 674 (1934), overruled on other grounds

20,24,26,30

TABLE OF AUTHORITIES

Page No

Cases con't

State v. Brown, 362 N.J. Super 180 (2003) .............39

State v. Frost, 158 N.J. 76 (1999) ....................19

State v. Harvey, 151 N.J. 117

(1997) .................19

State v. Hudson, 119 N.J. 165, 574 A.2d 434 (1990)

34,35

State v. Irizarry, 270 N.J. Super 669 (App. Div. 1994)

State v. Paralin, 171 N.J. 223 (2002) .................40

State v. Smith, 29 N.J. 561, 150 A.2d 769, cert.

denied, 361 U.S. 861, 8 S.Ct 120, 4 L.Ed.2d 103

(1959)..............................................34

State v. Whaley, 168 N.J. 94 (2001) ...................34

United States v. Cervantes-Pacheco, 826 F.2d 310

(5th Cir. 1987), cert. denied, 484 U.S. 1026 (1988)

United States v. Goff, 847 F.2d 149 (5th Cir.) cert.

Denied.............................................29

United States v. Swinehart, 617 F.2d 336 (3rd Cir.

1980)..............................................25

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,

18 L.Ed.2d 1149 (1967) ..............................31,33

Wiggins v. Smith, 123 S.Ct 2527, 2538 (2003) ..........25

Statute

28 U.S.C. §1254(1) ....................................1

OPINIONS BELOW

The United States Court Of Appeals for the Third Circuit

filed an order on December 17, 2018, denying petitioner's petition

for a Certificate of Appealability.

(See Appendix

Ex-1)

The United States Court Of Appeals for the Third Circuit

filed an order on January 15, 2019, •denying petitioner's petition

for a rehearing En Banc.

(See Appendix

Ex-3)

STATEMENT OF JURISDICTION

The United States District Court For the District Of New

Jersey denied petitioner's petition for writ of habeas corpus and

on the United States Court of Appeals for the Third Circuit filed

an order on December 17, 2018; denying petitioner's petition for a

Certificate of Appealability and a petition for a rehearing En

Banc were denied on January 15, 2019. This Court has jurisdiction

under 28 U.S.C. §1254(1) to review the circuit court's decisions

on a writ of certiorari.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The

VI Amendment

which states, "that in all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall

have previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for

his defense."

The XIV Amendment which states, "that all persons born or

naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which

abridges the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws."

STATEMENT OF THE CASE

Debbie Belle and Twanna Floyd met in 1995 at the same housing

complex.

They became friends.

seeing somebody.

Debbie told Floyd that she was

On or about September 1998, Debbie introduced

Floyd to the Petitioner, the man she was dating. A few months

after this.

Debbie discussed with Floyd the possibility of the

Petitioner moving in with her.

Floyd said this was not a good

idea and told Debbie that she did not know him long enough. Floyd

realized that the Petitioner had moved in with Debbie in February

1999.

She realized they lived together, when she saw him on

several occasions exit a car parked in Debbie's assigned parking

space in the complex.

Floyd perceived that Debbie's demeanor

changed once she and the Petitioner started living together.

Debbie was not happy and became quiet because she was upset. On

or about the middle of February 1999, Debbie entered Floyd's

apartment.

She was very angry and screamed to Floyd, "I don't

know what his problem is. Why would he steal from me?" Debbie

then told Floyd that the Petitioner had taken some jewelry and

petty cash from her apartment. She told Floyd that she wanted him

out because this was not the kind of life she desired. During

February or March 1999, Debbie, again upset entered Floyd's

apartment. She told her ,the Petitioner had taken her television

and stereo and pawned hem. She found pawn receipts on her kitchen

table.

Floyd recalled having seen the Petitioner carrying a

television and a stereo a placing it in the back seat of his car.

She assumed that he was moving out of the apartment because

Debbie had told him to leave.

On or about April 29, 1999, Floyd was preparing to move from

the complex.

As Floyd concluded a phone conversation with a

locksmith regarding the installation of locks for her new

apartment, Debbie entered Floyd's apartment and screamed, "I want

him out." She asked Floyd if she would recommend a locksmith.

Floyd called her locksmith and requested that he change the locks

to Debbie's apartment. Awaiting the locksmith's arrival, Debbie

told Floyd that the Petitioner was different from when she had

first met him. She did not want the type of life that she was

beginning to live. While the locks were being installed, Floyd

questioned Debbie as to why the locks were being changed. Floyd

said she would allow the Petitioner back in the apartment. Debbie

told Floyd that she was not going to let him back in the

apartment.

On or about May 1, Floyd was sitting on the porch of her old

apartment when she saw Debbie and the Petitioner in a car. As

Debbie left the car with the Petitioner. Floyd and Debbie said

hello from a distance.

The following day Floyd, stopped by

Debbie's apartment. As they spoke, Floyd realized the Petitioner

was in the bedroom. Debbie gestured to Floyd that she would call

her.

That was the last Floyd heard from Debbie.

During their

numerous conversations, Debbie never told Floyd . that the

Petitioner physically or emotionally hurt her.

Debbie worked at the federal probation office in Manhattan.

She was last seen at work on or about May 17, 1999. In the early

morning of May 18, 1999, the Petitioner drove his car into a

divider on Route 1 and 9. Police and an ambulance responded to

the scene. As ambulance workers placed the Petitioner into the

ambulance, he said he wanted to kill himself. He did not want to

be treated so that he could bleed to death.

On or about May 24, 1999, at approximately 7:45 p.m. Officer

Mendez of the Newark Police Department went to Debbie's apartment.

Mendez went to the side of the building, after not receiving a

response by ringing the doorbell and knocking on the door. He saw

one of the windows half open. Mendez was unable to see much but

did detect a foul odor.

After locating the building's

superintendent, Mendez entered the apartment.

Debbie's decomposed clothed body was discovered in the

bathroom face down, with one of her feet sticking out from the

tub. A bloody six or seven inches long knife was on a comforter

in the bathroom, near the body. A pocketbook's contents were on

the floor of the master bedroom. The handle was ripped off. It

appeared Debbie had been killed in the bedroom before being placed

in the bathroom. The telephone cords in the bedroom were torn

from the wall. There was a gallon water container smeared with

blood in the bedroom. This gave the appearance as if someone had

attempted to clean up the blood. There was no evidence of forced

entry into the apartment.

Fingerprints were analyzed and

determined to be the Petitioner's prints. No prints were lifted

from the knife.

DNA analysis of the bloodstains on the knife

determined that it was the Petitioner's blood. Bloodstains found

on the jacket, which attired the body, and pants and a wallet

discovered in the apartment was the Petitioner's.

A toolbox in the apartment, containing the Petitioner's

personal paper was found.

Among the papers was a note

the

Petitioner apparently wrote regarding Debbie, which read:

Debbie, shit!

The first time I realized you just lie

for no reason at all, Ginger ale soda. Then I tell you

to send my mother $100.00 back as soon as the check

cleared, in fact, I said put $100.00 cash! in the mail

She did not. But instead she optioned to take Mom

Two Forty-dollar money orders & $20 in cash, I still

ain't figured out what that was about shyster, very

shysty. $600.00 Fake phone bill, shit fake-ass uncle in

New York who just happened to have a car for $600.

Another note in the toolbox, dated May 17, 1998, read:

Debbie, let's not forget how many times I ask for a 2dollar watch, shit, to wear it.

I ask you. Now, she

thinks she's "cute," yeah! and I always wanted to tell

you to "just sit the fuck up" Lovely-be-DoubbeeFronten. Day after Mother's Day

my orders never got

to Mom let not forget about

you couldn't make the

calls I ask you too make, but you found the time

the

strength

yeah!

I'm tired. To call the office just

how much I owed them! When they took my check for $60.

I never asked! May 16th after talking to Mom, I asked

her, how much is the collection agency looking for, she

said about $1,000 dollars, but there's no bill

Nor

has there ever been any notice. I've ask again for the

old "phone Bill" & Pawn shop ticket!! set the record

straight! bitch and walked the fuck out.

A letter from Debbie to the Petitioner was in the toolbox.

It read:

Willie, you embarrassed me Sunday, July 26, you also

said horrible words to me.

Don't know who you are.

You totally acted like an ignorant nigger. No respect.

A street low life, I will never in my life forget that

abuse in my life. The worst woman you had, no, it was

the best. You acted horrible, very ignorant, no class,

you embarrassed me.

Your mouth is filthy.

You're a

very evil ignorant man, no respect. I don't want to be

with you. Don't ask me about my bills, you don't pay

them. No, I don't -want no car with you. I will mail

your $48.00 back.

You're horrible very ignorant low

life street wise evil.

Who are you? Said I was an

animal. You are a very nasty evil man. You said some

horrible things to me.

Don't ask me, I repeat, about

my money. I don't ask you about yours. Get your own

place an car.

God will take care of me.

You killed

everything in me.

Words you say to people are very

horrible, very hurtful.

I cannot forget that your

mouth is a weapon. I really don't know you. Debbie.

In response to this letter, the Petitioner wrote a letter to

Debbie, also found in the toolbox:

I have your letter. When you send my $48.00 and all

other people, an all other property, Send my check for

$200.00 Back also.

Like I Said, you're a Very Sick

Bitch

So Don't Fuck With Me. Get all My Shit to

Mom, I mean it, Bitch.

Fuck you

you're Just a big

liar

Sorry ass Nigga-Ho.

Prior to this exchange of letters, Debbie wrote to the

Petitioner:

June 24th, 1998.

Hi, Mr. Hots.

Enjoy with the fur

blind girls. Miss you and need you, can't wait for you

to have some. Boo, do you want some (smile)

July 4th

we are going to cook out at Mom Duke's house an have

fun.

Baby, pls stay off salt and try and eat some

veggies for your health sake, okay. Don't let yourself

get to fat. Hang in there. Okay, Be good. Miss you.

Boo will mail telephone bill to you.

Don't have any

more film for camera and I will not buy more. Cannot

aim at Fluffy Jr. Hope that you can aim better with

Peter, Jr. Love U, Fluffy.

Investigator Nicole Berrian of the Essex County Prosecutor's

Office believed that all of the aforementioned notes and letters

found in the Petitioner's toolbox were written no later than late

An autopsy of Debbie's body disclosed that she died of

multiple stab wounds of the face. They are the wound to the eye

an entering the brain; the second stab wound to her lip and

entering the jaw; and the third wound to the right corner cheek

and entering the mandible. The wounds were about three inches in

depth, and the wound to the eye, entering the brain, was caused by

moderate amount of force. There were no defensive wounds on the

body.

It appeared she did not attempt to defend herself.

toxicological exam determined that her brain tissue had a 0.193

percent alcohol level. Due to the body decomposition, no blood

was able to be analyzed for alcohol.

Petitioner crashed a car,

which had been impounded by the police. On or about May 28, 1999,

a gold bracelet that was Debbie's was discovered in the car.

On May 29, 1999, in the morning, Petitioner waved down police

officer in Queens, New York, and said, "You have to take me in."

One of the officers, Carlos Clintron, asked why.

Petitioner

replied, "I just killed my wife." Officer Clintron questioned how

he had done it. He said he had used his hands. He was put in

cuffs and taken to a Newark police station. The police wanted to

question him regarding the death of Debbie Belle.

Investigator

Berrian, noted superficial "knife wounds" on Petitioner's neck and

stomach, and "injuries" to his knuckles.

While Petitioner was in the Essex County Jail for Debbie

Belle's homicide, Eric Wiltshire also was incarcerated there. He

was convicted in New York in 1985 of assault and in 1986 of

aggravated assault. He was in the Essex County Jail for firstdegree kidnapping, second-degree aggravated assault, four counts

of terroristic threats, two counts of unlawful possession of a

weapon and two counts of possession of a weapon for an unlawful

purpose.

Wiltshire stated that, on or about October 14, 2000, he

conversed with the Petitioner in the jail's dayroom. During their

conversation Petitioner told Wiltshire that he had "stabbed his

wife," or fiancee, regarding an "argument over money." He stated

to Wiltshire that his car crashed on Route 1 and 9. He turned

himself in to a police officer. He wrote a letter to the Essex

County Prosecutor on October 14, 1999, recounting Petitioner's

stating that he had killed a woman over money. Wiltshire also

included in his letter that Petitioner and the woman had gotten

into a physical altercation and the Petitioner had displayed to

him marks on his right knuckles.

Petitioner alluded to having

unsuccessfully attempted to provide information to the

prosecutor's office on another occasion.

Wiltshire told the

prosecutor that "I will not let you down" and asked that his bail

be reduced. He was interviewed by Investigator Berrian on October

24, 1999, and provided a signed statement regarding Petitioner's

matter.

On or about November 6, 2002, Wiltshire entered into a plea

agreement with the Essex County Prosecutor's Office, whereby he

pleaded guilty to second-degree aggravated assault an the

kidnapping charge would be reduced to criminal restraint in

exchange fore the State's recommendation that any custodial term

would not exceed 12 years of which he must serve 85 percent before

being eligible for parole. Wiltshire's attorney indicated at the

plea hearing that, because Wiltshire had cancer and was willing to

cooperate with the State regarding Petitioner's homicide trial.

He would requesting time served at Petitioner's sentencing. The

judge agreed that if there was no new development that had any

negative impact upon Wiltshire, time served, which was 18 months

at the time of Petitioner's trial, would be imposed. Wiltshire

testified at the Petitioner's trial that he was really concerned"

about his own case; that "I don't know" whether the kidnapping

charge was "serious or not," an that the reason he had come

forward on Petitioner's matter was because "there's a matter of

right and wrong."

On November 28, 2000, December 5, 2000, June 6, 2001,

December 2, 2002, December 11, 2002, and January 7-9, 2003,

pretrial motions were conducted before Honorable F. Michael Giles,

J.S.C.

On January 29, 2003, the Petitioner's trial began before the

Honorable F. Michael Giles, J.S.C. and a jury. The jury acquitted

the Petitioner on March 4, 2003, as to the murder, felony murder

and robbery charges. He was convicted of aggravated manslaughter

(a lesser-included offense of murder), theft, unlawful possession

of a weapon, and possession of a weapon for an unlawful purpose.

Thereafter on May 9, 2003, Petitioner was sentenced to an

extended sentence of 60 years with an 85% parole disqualifier of

the first 30 years.

On July 10, 2013, Petitioner filed a petition for a writ of

habeas corpus. The petition raised sixteen grounds: Ground One:

The Prosecutor's Remarks In Summation To The Jury, Regarding

Defendant's Not Having Presented A Self-Defense Theory Prior To

Jury Summations, Violated Petitioner's Constitutional Right

Against Self-Incrimination;

Ground Two:

The Introduction Of

Hearsay Which Arguably Provided Petitioner's Alleged Motive And/Or

Intent, Violated Petitioner's Constitutional Right Of

Confrontation, (a) Debbie Belle's Statements To Twanna Floyd Were

Admitted, (b) Debbie Belle's Letter To Petitioner; Ground Three:

The Admission Of Petitioner's "Bad Conduct" Letters To The Victim

Was Unduly Prejudicial; Ground Four: The Trial Court's Instruction

To The Jury That It Could Infer That Petitioner's Attempted

Suicide, Indicated Proof Of Consciousness Or Guilt, Was

Unsupported By Reasonable Inferences; Ground Five: Trial Counsel

Was Ineffective For Failure To Adequately Prepare And Exercise

Normal Customary Skills In Establishing Petitioner's Innocence,

And The Lack Of Adequate Client Consultation, Which Resulted In

Gross Ignorance Of Petitioner's Specific Instructions For Defense

Tactics; Ground Six: The Trial Court Erred In Not Assigning A New

Counsel In Light Of A Conflict Of Interest Between The Petitioner

And His Present Counsel; Ground Seven: The Trial Court Abused Its

Discretion In Admitting Evidence Of Discord In The Relationship

Because The Probative Value Of The Evidence Was Substantially

Outweighed By The Prejudice; Ground Eight: The Trial Court Failure

To Instruct The Jurors Regarding The Effect Of A Witness' Actual

Or Perceived Expectation Of Favorable Treatment By The State

Deprived Petitioner Of His Right To A Fair Trial And Due Process;

Ground Nine: Trial Counsel Were Ineffective For Failing To File A

Motion To Suppress Petitioner's Statement As Excited Utterance;

Ground Ten: Trial Counsel Was Ineffective For Failing To Prepare A

Diminished Capacity Defense; Ground Eleven: Trial Counsel Was

Ineffective For Failing To File A Motion To Suppress Testimony

That Lacked Of Scientific Testing; Ground Twelve: Trial Counsel

Was Ineffective For Failing To Communicate With The Petitioner And

To Initiate Plea Negotiations; Ground Thirteen: Petitioner's Pcr

Attorney Failed To Obtain Either An Affidavit Or Certification

From Trial Counsel, State Counsel Or The Trial Judge As To Why The

Petitioner Was Not Allowed To Be Present In Court On Separate

Occasions, Despite There Were No-Waiver From The Petitioner,

Denied The Petitioner His Right To Due Process; Ground Fourteen:

Petitioner's Trial Attorney Failed To Advise Him Of The Existence

Of The Trial Memorandum And Failed To Procure Petitioner's

Presence During The Signing Of This Crucial Document; Ground

Fifteen: Trial Counsel Failed To Consult With The Petitioner

Regarding The Sentencing Exposure, Therefore Depriving Him Of His

Constitutional Rights To Effective Assistance Of Counsel; Ground

Sixteen: The Pcr Court Erred In Denying Petitioner's Petition As

He Established A Prima Facie Case Of, Ineffective Assistance Of

Counsel When All Counsels Below Failed To Raise The Trial Court's

Violations Of Petitioner's Right To Due Process When It Failed To

Arraign Petitioner Or Conduct A Pre-Trial Conference On The

Superseding Indictment As Required By 3:9-1(A) And (E).

The district court denied the petition for a writ of habeas

corpus. Peterson v. Warren, No. 13-4250 (JLL), slip opinion.

Thereafter, on or about July 21, 2018, petitioner filed a

timely notice of appeal and moved for a petition for a COA.

On December 17, 2018, the Third Circuit denied the petition

for a COA.

On January 15, 2019, the Third Circuit denied a

petition for rehearing and rehearing en banc.

REASONS WHY CERTIORARI SHOULD BE GRANTED

Point I

Reasonable Jurists Could Disagree with the District

Court's Ruling that the Prosecutor's Remarks in

Summation to the Jury, Regarding Petitioner's not

having presented a Self-Defense Theory prior to the

Jury, Summations, Violated Petitioner's Constitutional

Right Against Self-Incrimination and His Constitutional

Rights to a Fair Trial by an Impartial Jury.

At the charge conference prior to jury summations, the court

ruled that self-defense would be included in the final

instructions for the jury's consideration.

Consequently, defense counsel's summation to the jury dealt

solely, and at considerable length, with a self-defense scenario.

It reads, in pertinent part:

What was causing problems in the relationship? Money

and arguments over money. And, and that really started

to be destructive? That Willie Peterson would take

thing from Debbie; take things, right? And sneakily do

it; right?

This pawning of things from the apartment is what is

driving Debbie crazy. It's what she can't stand. It's

destructive to this relationship.

It's getting her

angry. It gets her angry. Her best friend [Twanna

Floyd] tells you angrier than she's ever seen her, so

angry that she can't be controlled.

On May 17th, we know that Debbie goes to work, right?

That' a Monday. Right? Debbie goes to work. Remember

we're told by Investigator Berrian that she signs out

of her computer about .4:45 or 4:50, and she leaves at

5:00. You know, she works for the federal government.

She's, I think a clerical worker in a parole office

parole office in New York; right? Federal courthouse

in New York. And she leaves work.

What do we also know is happening on that same day of

May 17th? What else is happening? Do you remember what

else is happening on a May 17t? On May 17th (displaying

item), as Debbie is getting ready to leave from work

and, again, this one of theses documents you're going

to have in evidence, S129 in evidence. These are

photocopies of the document that man brought in from

Rich's Pawn Shop.

At 3:42 P.M., that very same day

this VCR is being pawned; okay? It's being pawned.

What does Debbie do? She goes home, she goes into her

bedroom top what? To change her clothes. And what does

she see, or rather what does she not see? There's no

VCR there anymore. Jesus, there's no VCR there any

more. Again? Again this crap again? After commuting

from work in New York City, again we're going to start

this?

There's no [Twanna Floyd] across the street to go and

vent with anymore.

[Twanna Floyd] moved.

She's not

there. And maybe he doesn't want to hear it even.

Right? I told you so or whatever.

She's just pissed

off. How can this keep happening? Mad at herself, and

mad at him. And should be mad at him.

What does she do? She does what many people do when

things aren't going right, when just it' been too much,

and that is, Ladies and Gentlemen, that she starts to

drink. I'm looking in here, and you'll have in there

with you, the Medical Examiner's report.

[The

prosecutor] told us in her opening statement that we'd

be hearing this, and we heard it from the medical

examiner. She started to drink.

She wasn't drinking at work; right? She's not drinking

on her way home from work; right? She going home, the

ethanol, the alcohol level in her brain as .193. .193.

Willie Peterson never used violence. We know that.

All the blood on this knife was Willie Peterson's

blood. That's the knife, Ladies and Gentlemen, that

Debbie took because she was fed up, and she waited

there with that knife for Willie to get home.

[T]he medical examiner, what did he tell us?

That

during the autopsy she was examined and displayed no

defensive wounds. What's a defensive wound? I put up

my hands to stop an attack. Where do we usually put up

our hands (demonstrating)? Right? To protect our face

a lot of times; right? We know that's, in fact, where

Debbie was stabbed.

And Debbie had the knife, but no defensive wounds?

Well, quite clearly because you were on the offensive

for the attack, you were the attacker; right? That's

why you wouldn't have any defensive wounds.

But also what you'll see when you look at these

photographs is

Nicole Berrian, the prosecutor's

investigator, she takes pictures of Willie Peterson in

areas where you can look and you can draw your

conclusions, but which would constitute defensive

wounds on Mr. Peterson, that initially Mr. Peterson was

being attacked and attempted to thwart the attack.

We have a picture here of stab wounds that Mr. Peterson

or cuts that he received on his neck. All right?

You'll see those. Nicole Berrian took those. She said

she took them because they were obviously stab wounds.

And the one that he had on his belly that she took. I

mean and that's exactly where you would imagine a

bigger man would be stabbed by a smaller person, in the

belly. Those are facts for you to look at.

[W]hat does that mean, acting in self-defense?

means that the State, the Judge will tell you, has to

disprove self-defense beyond a reasonable doubt. They

have that burden. It's not whether you find beyond a

reasonable doubt he was acting in self-defense. No.

If you have a reasonable doubt as to that issue, I

can't decide, I don't know, I'm not firmly convinced

one way or the other, it's an unknown to me, the Judge

will tell you that's reasonable doubt, the defendant

gets the benefit of that doubt, and unless the State

has disproved

listen to that

disproved selfdefense beyond a reasonable doubt, you must find that

it applies, and you must acquit

find Mr. Peterson

not guilty based on self-defense.

Near the close of the summation, the prosecutor stated:

It wasn't self-defense.

The first time you heard self-defense, Ladies and

Gentlemen, was today, and you you've heard no evidence

of it from the witness stand.

Defense counsel immediately objected, and the following

exchange occurred at side bar:

[DEFENSE COUNSEL]: Judge, I have no recourse but to ask

for a mistrial at this point in time. The prosecutor

just said that, "The first time I herd anything about

self-defense was today, and I didn't hear anything from

witness stand." That is a clear, clear comment on the

fact that Mr. Peterson did not testify in this case.

There is no remedy under the case law for such gross,

unfortunately, malfeasance except for the Court to

order a mistrial, and that's the remedy I'm requesting

at this time.

THE COURT: Any comments, Ms. [Prosecutor]?

[PROSECUTOR]: Yes, Judge. Counsel did not open to selfdefense, There was no evidence presented with regard to

self-defense, and if counsel had let me continue, I

would have commented on the fact that defendant made

statements to both Wiltshire and Cintron and never

indicated that there was any evidence or that there s

any existence of self-defense or any type of attack.

[DEFENSE COUNSEL]: Judge, it's up to the Court to

protect the defendant from what can only be termed

gamesmanship and that's clearly what this was. It was

a direct

I mean, how much more direct could you be a

comment on Mr. Peterson's failure to testify in this

case? That's what it said, and that's why I ask for the

remedy I ask for.

THE COURT: Well, I don't necessarily agree, [defense

counsel], that the implication would suggest that the

defendant's testimony has anything to do with that

point is involved.

I will remind the jury that they,

will be instructed with regard to the defense of self

because the testimony supports or supplies a reason for

that and their recollection should control with regard

to their recall about that testimony.

I will deny your application for a mistrial because, as

I've said, the comment does not point to the defendant

or the defendant's election not to testify in this

trial. Anything else.

[PROSECUTOR]: No.

THE COURT: You plan to continue with your presentation

in the manner that you suggested?

[PROSECUTOR]: I'm almost done.

THE COURT: No. In the manner that you suggested?

[PROSECUTOR]: Yes.

THE COURT: Anything else that you intend to say with

regard to that?

[PROSECUTOR]: No.

[DEFENSE COUNSEL]: I'd ask for a curative.

THE COURT: That's what I intend to tell this jury.

[DEFENSE COUNSEL]: Even though it does not impact on my

motion for a mistrial

I'm not abandoning my motion.

I know you've ruled on it. I'd ask you to remind this

jury Mr. Peterson has no obligation to testify, that it

should not enter into their deliberations whatsoever.

THE COURT: I'm going to think about that. I think that

would unnecessarily highlight the comment, and what

I've indicated to you, the comment, in the context it

was made, [defense counsel] does not point in any way

to the defendant's election not to testify in this

trial.

[DEFENSE COUNSEL]: I'd ask you to have it red back

then, Judge, because that is the only inference that

could be drawn from it.

THE COURT: I heard what she said. She said you haven't

heard anything about self-defense until today. Is that

essentially

[DEFENSE COUNSEL]: And then she commented on the fact

that there was no evidence of it from the witness

stand. I mean how is that not directly basically saying

to them Mr. Peterson didn't take the stand to tell you,

he didn't have self-defense?

[PROSECUTOR]: That's exactly

because where I was

going, Cintron didn't hear anything about self-defense

and neither did Wiltshire.

[DEFENSE COUNSEL]: Then she wanted to comment on the

fact my client didn't say more to officer Cintron?

That Fifth Amendment right.

[PROSECUTOR]: That's not

THE COURT: Hold on. Hold it. We can't all talk at the

same time, can we? Now, are you finished?

[DEFENSE COUNSEL]: Yes, Judge.

THE COURT: What would you like to say?

[PROSECUTOR]: That was a voluntary statement.

walked up Cintron. Cintron wasn't interrogating him.

The point is that he turned himself in. At that point

did he say I did it in self-defense?

THE COURT: In that regard, I had no problem with your

indication previously about what you meant to continue

about in that area.

[PROSECUTOR]: Fine.

THE COURT: If you re going to use certain witnesses in

order to, in effect, allow the jury to analyze it back

to the defendant's election not to testify, I won't

allow that. All right? So you don't need to talk about

what Officer Cintron didn't tell us with regard to

self-defense because he wasn't told by Mr. Peterson on

that day.

You can talk about what Mr. Peterson did not say to Mr.

Wiltshire in the jail, which they heard about, may have

heard about here or didn't hear about here, which in

effect, will create the implication that [defense

counsel] has a problem with. That implication does not

is not a problem right now.

[PROSECUTOR]: So what can I say?

THE COURT: What did you say, suggest you were going to

say before?

[PROSECUTOR]: What I suggested I was going to say is

that we heard no testimony from either Officer Cintron

or Eric Wiltshire that indicated that the defendant

that there was any level of attack or self-protection

defense.

THE COURT: I think you've said enough with regard to

that, said there's no testimony, no evidence in this

case about self-defense. You've made the comment that

we're here at side bar about. I'm going to indicate to

them what I said before, that the evidence, certainly

I've ruled that there is the evidence testimony which

may provide a basis for them to be instructed on selfdefense, and I'm going to leave it at that.

[PROSECUTOR]: Okay.

[DEFENSE COUNSEL]: Is the prosecutor

Judge. I don't

mean to inquire of you, but is the prosecutor going to

ask

comment any further in this area? If she is, I

have some other things I'd like to put on the record.

[PROSECUTOR]:

right?

Well, I think I'm being told not to;

THE COURT: Yes, that would solve any problems so e

don't have to keep coming back to side bar, and the

further we go, the more the implication may be created

that [defense counsel] was initially concerned about;

all right?

[PROSECUTOR]: Okay.

THE COURT: All right.

The Court then addressed the jury:

All right, before [the prosecutor] continues, I have

something, an instruction I want to give you.

decided, outside of your presence, that somewhere in

the evidence, in all the evidence, the testimony that

you heard, that there was a basis to instruct you in

the law of self-defense.

It is your recall of the testimony and evidence that

controls. Because the testimony of certain witnesses in

this case may give you a basis to decide, along with

everything else you are required to decide in this

case, whether the defendant acted in self-defense,

that's why you'll be instructed when I give my

instructions to you tomorrow about that.

The prosecutor then concluded her summation without providing

any clarification to the comment, "the first time you heard selfdefense, Ladies Gentlemen, was today, and you've heard no evidence

of it from the witness stand."

The prosecutor is accorded considerable latitude in summing

up the State's case forcefully and graphically and to pursue to

prosecutorial duty with earnestness and vigor. See e.g. State v.

Frost, 158 N.J. 76 (1999); State v. Harvey, 151 N.J. 117 (1997).

Nevertheless, prosecutor also have overriding obligation to see

that justice is fairly done. The classic statement of that

obligation by the United States Supreme Court in Berger v. United

States, 295 U.S. 78, 88, 55 S.Ct 629, 633, 79 L.Ed. 1314, 1321

(1935), explains that:

The *** [prosecuting] attorney is the representative

not of an ordinary party in a controversy, but of a

sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution is

not that is shall win a case, but that justice shall be

done. As such, he is in a peculiar and very definite

sense the servant of the law, the twofold aim of which

is hat guilt shall not escape or innocence suffer. He

may prosecute with earnestness and vigor

indeed, he

is not at liberty to strike foul ones. It is an much

his duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.

It is fair to say that the average jury, to a greater or

lesser degree, has confidence that these obligations,

which so plainly rest upon the prosecuting attorney,

will be faithfully observed. Consequently, improper

suggestions, insinuations and, especially assertions of

personal knowledge are apt to carry much weight against

the accused when they should properly carry none.

For example, prosecutorial suggestion on Petitioner's failure

to testify

as was the case in the instant matter

violates the

self-incrimination clause of the Fifth Amendment to the United

States Constitution, which is made applicable to the States by the

Fourteenth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct

1229, 14 L.Ed.2d 106 (1965); see also State v. Irizarry, 270 N.J.

Super 669 (App. Div. 1994).

Moreover, because the error deprived the Petitioner of a

federal constitutional right, it may not be considered harmless

unless it was "harmless beyond a reasonable doubt." Chapman v.

California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 708,

711 (1967)

In the Petitioner's case the prosecutor comments blunted, if

not eviscerated the Petitioner's self-defense theory.

As such, reasonable jurists could disagree with the district

court's decision. Slack v. McDaniel, 529 U.S. 473, 484 (2000)

Point II

Reasonable Jurists Could Disagree with the District

Court's Ruling that the Introduction of Hearsay which

Arguably Provided Petitioner' s Alleged Motive and/or

Intent, Violated Petitioner's Constitutional Right of

Confrontation, and Due Process.

Admission of a hearsay declaration implicates concerns

reflected in the Sixth Amendment's Confrontation Clause, U.S.

Const. amend. VI, which is mirrored in the New Jersey

Constitution. N.J. Const. art. I, par. 10. As this Court has

noted, if read literally, the Clause would preclude admission of

"any statements made by a declarant not present at trial." Ohio v.

Roberts, 448 U.S. 56, 63, 100 S.Ct 2531, 2537, 65 L.Ed.2d 597, 605

(1980)

In contrast, the admission under the exception in the New

Jersey Rules of Evidence has been recognized and approved

notwithstanding the fact that the right to confrontation is

effectively denied.

In the Petitioner's case, hearsay statements were admitted,

despite their not falling within any of the exception to the

hearsay rule and, therefore, should have been deemed inadmissible.

(a) Debbie Belle's statements to Twanna Floyd were admitted.

At a pretrial hearing, Twanna Floyd testified, inter alia,

one evening in March 1999, Debbie Belle, screaming and crying,

entered her apartment and complained that petitioner had stolen

jewelry and petty cash from her. Floyd did not know when Debbie

first discovered the items missing.

Floyd also testified at the hearing that Debbie, again upset,

subsequently told her that she was "through" and "just had it"

because of her having discovered pawn tickets, indicating that

[ petitioner]

had pawned her television and stereo.

Over defense counsel's objection that Debbie's statements to

Floyd were inadmissible hearsay, the State proffered the

statements as falling within either the excited utterance

exception or the present sense impression exception to the hearsay

rule.

The court deemed the statements admissible under the present

sense impression exception, stating, "it does not appear that

we're talking about the [petitioner's] state of mind.

We're

talking about the witness' [sic] present sense impression."

Debbie Belle's statements to Twanna Floyd did not fall within

either hearsay exception.

Here, where no time was established as to the time of the

alleged incidents and Debbie's reporting them to Floyd, the court

correctly did not allow the statements under the excited utterance

exception, because "a reasonable proximity in time between the

event and the declarant's subsequent description of it, and

whether there was a lack of opportunity to deliberate or fabricate

the circumstances" had not been satisfied.

(b) Debbie's Belle's Letter to Petitioner

A letter from Debbie to petitioner, found in a toolbox in

Debbie's apartment, was read to the jury:

Willie, you embarrassed me Sunday, July 26, you

also said some horrible words to me.

Don't know who

you are. You totally acted like an ignorant nigger. No

respect.

A street low life, I will never in my life

forget that abuse in my life. The worst woman you had,

no, it was the best. You acted horrible, very ignorant

no class, you embarrassed me.

Your mouth is filthy.

You're a very evil ignorant man, no respect. I don't

want to be with you. Don't ask me about my bills, you

don't pay them. No, I don't want no car with you. I

will mail your $48.00 back.

You're horrible very

ignorant low life street wise evil. Who are you? Said

I was an animal. You are a very nasty evil man. You

said some horrible things to me.

Don't ask me, I

repeat, about my money. I don't ask about yours. Get

your own place and car. God will take care of me. You

killed everything in me. Words you say to people are

very horrible, very hurtful. I cannot forget that your

mouth is a weapon. I really don't know you. Debbie.

At a pretrial hearing, the State proffered the letter as

being "relevant as to intent." Defense counsel objected, inter

alia, that the letter should be excluded as being inadmissible

hearsay.

Without addressing the hearsay issue, the court deemed

the letter admissible because of its being "relevant, probative."

There was no showing that Debbie feared the petitioner. In

fact, Twanna Floyd testified before the jury that, never once

during their numerous conversations, had Debbie told her that

petitioner physically or emotionally hurt her.

Therefore, because the erroneous admission of Debbie Belle's

statement to Twanna Floyd and her letter to the Petitioner

deprived the Petitioner of his federal Constitutional right, it

should not be considered harmless unless it was "harmless beyond a

reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct

824, 828, 17 L..Ed.2d 705, 711 (1967)

The error committed in the

Petitioner's case was harmless, as the alleged motive and/or

intent by the Petitioner illustrated by Debbie's statements to

Floyd and her letter to Petitioner

prosecutor's jury summation

an highlighted in the

significantly diminished the

Petitioner's self-defense claim.

As such, reasonable jurists could disagree with the district

court's decision. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Reasonable Jurists Could Disagree with the District

Court's Ruling that the Trial Counsel was Ineffective

for Failing to Adequately Prepare and Exercise Normal

Customary Skills in Establishing Petitioner's

Innocence, and the Lack of Adequate Client

Consultation, which denied the Petitioner the right to

a Fair Trial.

The constitution guarantee of counsel can not be satisfied by

mere formal appointment, the right to counsel is the right to

effective assistance of counsel. Wiggins v. Smith, 123 S.Ct 2527,

2538 (2003)

It is beyond dispute that the Sixth amendment not only

provides defendants in criminal proceedings with the right to

assistance of counsel, but also guarantees that such assistance be

effective. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct 170,

864 L.Ed.2d 333 (1980); United States v. Swinehart, 617 F.2d 336,

340 (3rd Cir. 1980)

In the Petitioner's case, trial counsel was ill prepared to

properly defend his client's rights as a direct result of his

conflict an his subsequent failure to properly an adequately

prepare for trial. Had counsel thoroughly interviewed the

witnesses against his client, he would been far better prepared to

cross-examine an thus discredit the State's witnesses, especially

Twanna Floyd, an Eric Wiltshire and show how Investigator Nicole

Berrian played a verbal gymnastics game by giving selective and

misleading responses to questions where the answer greatly

prejudiced the Petitioner an restricted his ability to properly

present a defense.

As stated in Justice Black's dissent in Betts v. Brady, 316

U.S. 455, 476, 63 S.Ct 1252, 86 L.Ed 1595 (1942), "whether a man

is innocent cannot be determined from a trial in which, as here,

denial of counsel has made it impossible to conclude, with any

satisfactory degree of certainty that the defendant's case was

adequately presented."

In the Petitioner's -case, the Petitioner contends that he was

denied the effective assistance of counsel due to a pretrial

conflict between him and trial counsel. In that defense counsel

did not prepare himself to defend his client properly, and he did

not aggressively put forth a defense to protect his client's

trial, and/or appellate rights versed in the nuances of New Jersey

criminal procedures.

As such, reasonable jurists could disagree with the district

court's decision. Slack v. McDaniel, 529 U.S. 473, 484 (2000)

Point IV

The Trial Court's Failure to Instruct the Jurors

Regarding the Effect of a Witness' Actual or Perceived

Expectation of Favorable Treatment by the State

Deprived Petitioner of His Right to a Fair Trial and

Due Process.

The State presented the testimony of Eric Wiltshire, Jr...

Wiltshire was on the same cell block when both were incarcerated

at the Essex County Jail in October of 2001. Mr. Wiltshire claimed

that the Petitioner Willie Peterson confessed to him that he had

killed the victim Deborah Belle over a money dispute. Mr.

Wiltshire was in jail on unrelated matter pending against him for

second degree aggravated assault, first degree kidnapping, four

counts of terroristic threats, and two counts of possession of a

weapon for an unlawful purpose.

In the Petitioner's case, while Mr. Wiltshire remained in

jail unable to post bail he seized the opportunity under the

pretense of assisting Petitioner to understand what he was being

charged with and taking copies of all the Petitioner's discovery

material to read and discuss with him during their dayroom

recreation periods. Due to his incarceration and inability to make

bail Mr. Wiltshire after reading much of the Petitioner's

discovery material contacted the Essex County Prosecutor's Office

and concocted plan with Investigator Berrian who draft a statement

about his alleged conversations with the Petitioner. After

providing Investigator Berrian with a statement the State's key

witness Eric Wiltshire did not sign that statement pending the

confirmation of a plea offer by the Essex County Prosecutor's

Office. And, that offer to Mr. Wiltshire was in fact confirmed and

thereafter' Mr. Wiltshire signed his October 24, 2001, statement on

November 5, 2001.

A formal promise or agreement had been made between the State

and the witness in exchange for his testimony Mr. Wiltshire would

receive a custodial sentence not exceeding 12 years with 85 months

of parole

or eighty-five percent of that to be served as a

parole ineligibility.

Despite the obvious effect that any hope or expectation of

benefits Wiltshire must have had in exchange for his statement and

his trial testimony, which implied that the Petitioner killed

Deborah Belle for money, the judge failed to instruct the jury on

how to evaluate the hopes or expectations of Eric Wiltshire. The

only charge the court gave the jury with respect to Wiltshire

concerned his conviction and how the jury should evaluate his

credibility and believability in light of that conviction. There

was absolutely no instruction on how the jury should evaluate the

hopes and expectations Eric Wiltshire may have had for giving the

statement and testimony he did.

Federal court have long recognized the special credibility

problems created by informants who have a strong motivation to

fabricate. As was noted in Davis v. Alaska, 415 U.S. 308, 316, 94

S.Ct 1105, 1110 (1974), the partiality of a witness, as a result

of bias, is "always relevant as discrediting the witness and

affecting the weight of his testimony." Citing 3A J. Wig more,

Evidence §940, p. 775 (Chadbourn rev. 1970). The Court added that

"the exposure of a witness' motivation in testifying is a proper

and important function of the constitutionally protected right of

cross-examination." Id. at 316217, 94 S.Ct at 1110. Thus,

specifically in cases involving confidential informant who are

paid contingent fees, federal trial judges are required to provide

the jury with an instruction tailored to the problems relating to

the credibility of informant. E.g., Hoffa v. United States, 385

U.S. 293, 311-12, 87 S.Ct 408, 418-19 (1966); United States v.

Cervantes-Pacheco, 826 F.2d 310, 316 (5th Cir. 1987), cert.

denied, 484 U.S. 1026 (1988). In the Petitioner's case, Wiltshire

was not a paid informant. However, given his strong motivation to

fabricate and work with a plan with law enforcement authorities

based on his hope or expectation of benefits, a specific

credibility instruction akin to the informant credibility

instruction mandated in the above-cited federal cases was required

here.

The instruction in United States v. Goff, 847 F.2d 149, 161

n.13 (5th Cir.) cert. denied sub nom Kuntze v. United States, 488

U.S. 932 (1988), (emphasis added), is illustrative of the type of

instruction which should have been supplied to the jury in the

instant case:

The testimony ... of one who provides evidence against a

defendant as an informer for pay ... or for personal

advantage ... must always be examined and weighed by

the jury with greater care and caution than the

testimony of ordinary witnesses. You, the jury, must

decide whether the witness's testimony has been

affected by any of those circumstances, or by his

interest in the outcome of the case..., or by the

benefits that he has received ... financially ...; and,

if you determine that the testimony of such a witness

was affected by any one or more of those factors, you

should never convict any defendant upon the unsupported

testimony of a such a witness unless you believe that

testimony beyond a reasonable doubt.

The credibility of the State's witness was a crucial issue.

His testimony that the Petitioner had confessed the killing to

Wiltshire for money was devastating to the defense. Wiltshire's

testimony portrayed the Petitioner as a cold-blooded killer.

Without an instruction on how to evaluate Wiltshire's testimony in

light of his expectations for a favorable plea agreement, for his

alleged cooperation with law enforcement authorities the jury was

left without guidance.

Therefore, because the jury was not charged on his issue, the

Petitioner was denied a fair trial and as such, reasonable jurists

could disagree with the district court's decision.

McDaniel, 529 U.S. 473, 484 (2000).

Slack v.

Point V

Reasonable Jurists Could Disagree with the District

Court's Ruling that the Petitioner's 14th Amendment

Right to Due Process was Violated when He was Denied

Presence at the Initial Pretrial Memorandum Hearing!

Aswell as Trial Court's Failure to Prepare a New Trial

Memo or Status Conference.

The Sixth Amendment guarantees an accused the assistance of

counsel not just at trial, but whenever it is necessary to assure

a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 87

S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). As the Supreme Court

has stated:

A person accused of a crime "requires the guiding hand

of counsel at every step in the proceedings against

him," Powell v. Alabama, 287 U.S. 45, 69 [53 S.Ct. 55,

641 77 L.Ed. 1581 (1932), and

that constitutional

principle is not limited to the presence of counsel at

trial.

"It is central to the principle that in

addition to counsel's presence at trial, the accused is

guaranteed that he need not stand alone at any stage of

the prosecution, formal or informal, in court or out,

where counsel's absence might derogate from the

accused's right to a fair trial." United States v.

Wade, supra, at 226, 87 S.Ct. at 1932.

Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct 1999, 2002, 26

L.Ed.2d 387 (1970).

Thus, recognizing that "the period from

arraignment to trial [is] perhaps the most critical period of the

proceedings," Wade, 388 U.S. at 225, 87 S.Ct at 1931, involving

"critical confrontations of the accused by the prosecution. at

pretrial proceedings where the results might well settle the

accused fate and reduce the trial itself to a mere formality," Id.

at 224, 87 S.Ct at 1931, the Court has held that the Sixth

Amendment right to counsel applies to all such "critical" stages.

Coleman, 399 U.S. at 7, 90 S.Ct at 2002; Wade, 388 U.S. at 224, 87

S.Ct at 1930.

A critical stage is one where potential substantial prejudice

to defendant's rights inheres in the particular confrontation and

where counsel's abilities can help avoid that prejudice. Coleman,

399 U.S. at 9, 90 S.Ct. at 2003. Such confrontations include, for

example, the indictment, arraignment, and [suppression hearing],

Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32

L.Ed.2d 411 (1972).

In the Petitioner's case at bar, on June 27, 2001, a status

conference was scheduled, however, the Promis/Gavel event details

for this first indictment #99-07-26321 clearly shows that it was

Judge Giles that had the Petitioner's presence postponed for that

status conference. However, on this same day of June 27, 2001,

Judge Giles engaged in an improper exparte off-the-record

communication with the prosecutor and defense attorney "in

chambers," where the pretrial memorandum was discussed and signed

only by themselves. Without the Petitioner or a Court Reporter.

A trial date of November 26, 2001, was also discussed and set at

this same time. This is also called structural error. The mere

existence of the one and only pretrial "memorandum" was made known

to the Petitioner some 8 years later by Judge Peter V. Ryan, it

was hidden from the Petitioner and that is why it is not signed by

the Petitioner.

The record clearly shows, Prosecutor's misconduct, trial

court failure to establish a record and ineffective assistance of

trial counsel, all denying the Petitioner His Due Process of law

by not allowing Him to aid and participate in His own defense and

there is no way that trial counsel was not aware of his obligation

to the Petitioner, to file a motion pursuant to R. 3:20-2, which

is required by law for a new trial based on alleged Non-Waiver to

be made prior to sentencing.

The Petitioner was denied his Sixth Amendment right to

effective assistance of counsel at a critical stage of the

proceedings, when trial counsel improperly waived the Petitioner's

presence at a pretrial plea negotiation, nor was he present when a

pretrial memorandum was signed at a status conference. As

explained in Rule 2:10-2 (1948) (current version at R. 3:16

states:

The defendant shall be present at every stage of the

trial, including the impaneling of the jury and the

return of the verdict, and at the imposition of

sentence, unless otherwise provided by Rule.

Nothing

in this Rule, however, shall prevent a defendant from

waiving the right to be present at trial. A waiver may

be found either from (a) the defendant's express

written or oral waiver placed on the record, or (b) the

defendant's conduct evidencing a knowing, voluntary,

and unjustified absence after (1) the defendant has

received actual notice in court or has signed a written

acknowledgment of the trial date, or (2) trial has

commenced in defendant's presence. Ibid.

In the Petitioner's case, he contends that he was never

formally arraigned on the charges contained in the superseding

indictment before he was tried and convicted of those charges. The

Petitioner, who was at all times deemed indigent by the New Jersey

Courts, and represented by court appointed counsels; all who

failed to identify and raise this error.

There is no indication in the record of any finding by the

trial judge of good cause for Petitioner's absence, nor a valid

waiver by the Petitioner, which violated his due process under the

Constitution of the United States and the New Jersey Constitution.

There is no question, Petitioner was not produced for this

scheduled event and critical stage of the trial. Petitioner did

not waive his right to be present and, neither defense counsel nor

the trial judge had the right to abrogate Petitioner's right to be

present, simply because the State failed to produce Petitioner on

time.

The prejudice to Petitioner was twofold: First, Petitioner

was denied the opportunity to request, or secure and input on what

was taking place; and Second, Petitioner was denied the right to

have the trial judge state his findings and reasons on the record,

for not giving the superseding indictment for meaningful appellate

review.

Petitioner's failure to raise his objection is attributed to

the fact that defense counsel never informed him of the conference

being.

Also in State v. Whaley, 168 N.J. 94, 99-100 (2001), the New

Jersey Supreme Court held:

The United States and New Jersey Constitutions

guarantee criminal defendants the right to confront

witnesses against them. U.S. Const. Amend. VI; N.J.

Const. Art. I, 9110. An essential of the guarantee is

the right of the accused to be present in the courtroom

at every stage of the trial. Illinois v. Allen, 397

U.S. 337, 338, 90 S.Ct 1057, 1058, 2 L.Ed.2d 353, 356

(1970) (citing Lewis v. United States, 146 U.S. 370, 13

S.Ct 136, 36 L.Ed 1011 (1892); State v. Hudson, 119

N.J. 165, 171, 574 A. 2d 434 (1990); State v. Smith, 29

N.J. 561, 578, 150 A.2d 769, cert. denied, 361 U.S.

861, 8 S.Ct 120, 4 L.Ed.2d 103 (1959)

A criminal

defendant's right to be present at trial also is a

condition of the Due Process Clause of the Fourteenth

Amendment to the extent that a defendant's absence

would hinder a fair and just hearing. Hudson, supra,

119 N.J. at 171, 574 A.2d 434 (citing Snyder v.

Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct 330, 333,

78 L.Ed 674, 679 (1934), overruled on other grounds,

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct 1444, 20

L.Ed.2d 491 (1968).

Therefore, the Petitioner's failure to be present at every

stage, denied him the opportunity to enter a plea as required

under Rule 3:9, which states:

Post-Indictment Procedure. When an indictment is

returned, or an indictment sealed pursuant to R. 3:6-8

is unsealed, a copy of the indictment, together with

all available discovery as provided for in R. 3:133(b) (1) for each defendant named therein, shall be

either delivered to the criminal division managers

office, or be available through the prosecutors office.

If a plea offer is tendered, it must be in writing and

should be included in the discovery package. Upon the

return or unsealing of the indictment, the defendant

shall be notified in writing by the criminal division

manager's office of the date, time and location to

appear for arraignment, which shall occur within 14

days of the return or unsealing of the indictment. The

criminal division manager's office shall ascertain

whether the defendant is represented by counsel and

that an appearance has been filed pursuant to Rule 3:81. Upon receipt of the indictment by the criminal

division manager's office, counsel for the defendant

shall immediately be notified electronically of the

return or unsealing of the indictment and the date,

time and location of the arraignment. If the defendant

is unrepresented, the criminal division managers office

shall ascertain whether the defendant has completed an

application form for public defender services and the

status of that application.

Arraignment; In Open Court.

The arraignment shall be conducted in open

court no later than 14 days after the return or

unsealing of the indictment.

If the defendant is

unrepresented at arraignment, upon completion of an

application for services of the Public Defender, the

court may assign the Office of the Public Defender to

represent the defendant for purposes of the

arraignment.

At the arraignment, the judge shall (i) advise

the defendant of the substance of the charge; (ii)

confirm that if the defendant is represented by the

public defender, discovery has been obtained, or if the

defendant has retained private counsel, discovery has

been requested pursuant to R. 3:13-3(b) (1), or counsel

has affirmatively stated that discovery will not be

requested; (iii) confirm that the defendant has

reviewed with counsel the indictment and, if obtained,

the discovery; (iv) if so requested, allow the

defendant to apply for pretrial intervention; and (v)

inform all parties of their obligation to redact

confidential personal identifiers from any documents

submitted to the court in accordance with Rule 1:387(b).

(3) The defendant shall enter a plea to the

charges. If the plea is not guilty, counsel shall

report on the results of plea negotiations and such

other matters discussed by the parties which shall

promote a fair and expeditious disposition of the case.

Unless otherwise instructed by the court, at the

arraignment counsel shall advise the court of their

intention to make motions pursuant to R. 3:10-2(a).

Meet and Confer Requirement; Plea Offer. Prior to

the Initial Case Disposition Conference, the prosecutor

and the defense attorney shall discuss the case,

including any plea offer and any outstanding or

anticipated motions, and shall report thereon at the

Initial Case Disposition Conference. The parties shall

discuss any other matters as instructed by the court.

The prosecutor and defense counsel shall also confer

and attempt to reach agreement on any discovery issues,

including any issues pertaining to discovery provided

through the use of CD, DVD, e-mail, internet or other

electronic means. Any plea offer to be made by the

prosecutor shall be in writing and shall be included in

the post-indictment discovery package.

Disposition Conferences. After arraignment, the

court shall conduct the Initial Case Disposition

Conference, the Final Case Disposition Conference and

the Pretrial Conference, as described in paragraph (f)

of this rule. At the Initial Case Disposition

Conference, if not filed consistent with R. 3:10-2(a),

the court shall set date(s) for submission of briefs,

the hearing of pretrial motions, and schedule a Final

Case Disposition Conference, if necessary, according to

the differentiated needs of each case. For good cause,

prior to the Pretrial Conference, the court may

schedule a Discretionary Case Disposition Conference.

In advance of any scheduled disposition conference, the

prosecutor and the defense attorney shall discuss the

case, including any plea offer and any outstanding or

anticipated motions, and shall report thereon at the

conference. The prosecutor and defense counsel shall

also confer and attempt to reach an agreement as to any

discovery issues, including any issues pertaining to

discovery provided through the use of CD, DVD, email,

internet or other electronic means. Any plea offer to

be made by the prosecutor shall be in writing and

forwarded to the defendants attorney. At the conclusion

of either the Final Case Disposition Conference or the

granted Discretionary Case Disposition Conference, the

court may in its discretion set a trial date, schedule

any necessary pretrial hearings, or schedule another

conference. Each of these conferences shall be held in

open court with the defendant present.

Pretrial Hearings. Hearings to resolve issues

relating to the admissibility of statements by

defendant, pretrial identifications of defendant, sound

recordings, and motions to suppress shall be held prior

to the Pretrial Conference, unless upon request of the

movant at the time the motion is filed, the court

orders that the motion be reserved for the time of

trial. Upon a showing of good cause, hearings as to

admissibility of other evidence may also be held

pretrial.

Pretrial Conference. If the court determines that

discovery is complete; that all motions have been

decided or scheduled in accordance with paragraph (e);

and that all reasonable efforts to dispose of the case

without trial have been made and it appears that

further negotiations or an additional conference will

not result in disposition of the case, or progress

toward disposition of the case, the judge shall conduct

a pretrial conference. The conference shall be

conducted in open court with the prosecutor, defense

counsel and the defendant present. Unless objected to

by a party, the court shall ask the prosecutor to

describe, without prejudice, the case including the

salient facts and anticipated proofs and shall address

the defendant to determine that the defendant

understands: (1) the States final plea offer, if one

exists; (2) the sentencing exposure for the offenses

charged, if convicted; (3) that ordinarily a negotiated

plea should not be accepted after the pretrial

conference and a trial date has been set; (4) the

nature, meaning and consequences of the fact that a

negotiated plea may not be accepted after the pretrial

conference has been conducted and a trial date has been

set; and (5) that the defendant has a right to reject

the plea offer and go to trial and that if the

defendant goes to trial the State must prove the case

beyond a reasonable doubt. If the case is not otherwise

disposed of, a pretrial memorandum shall be prepared in

a form prescribed by the Administrative Director of the

Courts. The pretrial memorandum shall be reviewed on

the record with counsel and the defendant present and

shall be signed by the judge who, in consultation with

counsel, shall fix the trial date. No admissions made

by the defendant or defendants attorney at the

conference shall be used against the defendant unless

the admissions are reduced to writing and signed by the

defendant and defendant's attorney. The court shall

also inform the defendant of the right to be present at

trial, the trial date set, and the consequences of a

failure to appear for trial, including the possibility

that the trial will take place in defendant's absence.

Therefore, the Petitioner's right to Due process and a Fair

Trial and as such, reasonable jurists could disagree with the

district court's decision.

Point VI

Reasonable Jurists Could Disagree with the District

Court's Ruling that Trial Counsel was Ineffective for

Failing to explain to The petitioner His Sentence

Exposure.

The Promis/Gavel for the superseding indictment #02-08-30821

was founded on August 16, 2002, and an arraignment date for

September 16, 2002, which he was present for.

Clearly the

Promis/Gavel shows that there was not even one (status conference)

held or scheduled for the preparing of a new pretrial memorandum

in accordance with R. 3:9-1(e) and also R. 3:16(a) held in opencourt.

Despite, • the fact that on January 29, 2003, the initial

indictment #99-07-26321 was in-fact dismissed by the Hon. Giles.

So, where is the plea offer that trial counsel is recalling in his

May 1, 2013, letter head in response to Petitioner's request for

his affidavit.

Under R. 3:16(a) the Petitioner has clearly shown that he was

(absolutely) prejudiced by the Judge's failure to have

not

prepared a new pretrial memorandum or records as mandated by R.

3:9-1(e) 1 thru 4 and the Judge shall ask the defendant to

determine that the defendant understand his full sentencing

exposure for the offenses charged.

The Petitioner also contends that where there is structural

error found a reversal is required without the need for a showing

by the Petitioner of specific prejudice. State v. Brown, 362 N.J.

Super 180 (2003)

Whereas here, the N.E.R.A was never submitted

to the jury in the verdict sheet, nor was a written notice to the

Petitioner ever given as was the law in 1999. The year of the

crime. See State v. Paralin, 171 N.J. 223 (2002) Pg. 230 Section

(e)

Also, Allen v. United States, No. 11-9335 decided June 17,

2013. Holding because mandatory minimum sentences increases the

penalty for a crime.

Any fact that increases the mandatory

minimum is an "element" that must be submitted to the jury.

Therefore, the Petitioner's right to Due process and a Fair

Trial and as such, reasonable jurists could disagree with the

district court's decision.

CONCLUSION

The Court should grant the petition for a writ of certiorari

and reverse the decision of the Third Circuit Court of Appeals.

Respectfully submitted,

Dated: April

2019

LJIL Qii

Willie Peterson

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.