Opinion
Civil Action No. 97-1599 (JBS).
June 20, 2000.
Henry Micheliche Jr., Bayside State Prison, Leesburg, N.J., Petitionerpro se.
John J. Farmer, Jr., Attorney General of New Jersey, By: Wendy Alice Way, Deputy Attorney General, Division of Criminal Justice Appellate Bureau, Trenton, N.J.
OPINION
I. INTRODUCTION
Petitioner, pro se , Henry Micheliche, currently incarcerated in Bayside State Prison in Leesburg, New Jersey, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner presents five grounds upon which he claims that he is being unlawfully held in custody. Specifically, petitioner asserts that (1) his Fourth and Fourteenth Amendment rights were violated when the trial court denied his motion to suppress a recording of a conversation procured by a wiretap which the petitioner claims was issued without probable cause; (2) his Sixth and Fourteenth Amendment rights were violated by the State's failure to disclose the date of the "verbal" authorization of the wiretap; (3) his Sixth and Fourteenth Amendment rights were violated by (a) the motion judge's refusal to hear the entire recording of the taped conversation at the pretrial suppression hearing, (b) the motion judge's failure to recuse himself from the pretrial motion because of a conflict of interests, (c) the trial court's failure to reopen the suppression hearing when the evidence from the suppression hearing was refuted at trial, and (d) his counsel's ethical violations; (4) his Sixth and Fourteenth Amendment rights were violated by the State's failure to dismiss the indictment because it was based on entrapment; (5) his Sixth and Fourteenth Amendment rights were violated by the trial judge's failure to charge the jury with entrapment instructions. For reasons discussed herein, petitioner's application for habeas relief will be denied on all grounds.
II. PROCEDURAL HISTORY AND STATEMENT OF FACTS
On March 29, 1993, petitioner, Henry Micheliche, was convicted in the New Jersey Superior Court of one count of conspiracy in violation of N.J.S.A. 2C:5-2. (Resp't's Ex. 5 at 1.) The Honorable Peter J. Giovine, J.S.C., sentenced Micheliche to serve a term of ten years, of which five years would be served without the possibility of parole. (Id.)
Petitioner is presently incarcerated pursuant to his conviction for conspiring to murder two police officers. The basis for this conviction is as follows. On the night of February 10, 1991 the officers arrested petitioner for speeding, attempting to cause bodily harm to a police officer, and resisting arrest. (Resp't's Ex. 5 at 2.) At the time, petitioner had been convicted of homicide and had been released, pending appeal, on bail of $200,000. (Id.).
The next morning, petitioner's associate, Richard Ludlow, and petitioner's brother posted bail. (Id.) Petitioner repeatedly stated to Ludlow and his brother that the arrest would hurt his homicide case on appeal and that he wanted to kill the arresting officers. (Id.) The next day, the petitioner continued to talk about killing the officers, mentioning various methods by which the murder could be carried out. (Id.) The most frequently mentioned method was to use a high powered rifle with a night scope. (Id.) Petitioner informed Ludlow of his plans and showed him two.45 caliber handguns. (Id.) At that, Ludlow contacted the Ocean County Prosecutor's office and informed Investigator Pyper of the petitioner's plans. (Id.) Based on the prosecutor's approval, Ludlow was fitted with a body wire which would enable Investigator Pyper to hear a conversation between Ludlow and the petitioner. (Resp't's Ex. 5 at 2-3). Ludlow then made a visit to the petitioner's home carrying a scope which was provided by the prosecutor's office to give him credibility. (Resp't's Ex. 5 at 3.) The conversation between Ludlow and petitioner included a discussion of a night scope that would be compatible with a "a mini 14 or M-14" and "an AR-15" assault rifle. (Id.) Ludlow made another visit to the petitioner's home, during which he and petitioner discussed the price of the scope. (Id.) Finally, Ludlow made a recorded phone call to the petitioner to ensure that the petitioner and his coconspirator would both be present for the arrest. (Id.)
After the arrest, the petitioner's home and storage facility were searched. The search revealed explosives and over twenty-five weapons, including an AR-15 assault rifle. (Resp't's Ex. 5 at 3-4.) In a pretrial motion, petitioner moved to suppress the evidence taken from the wiretapped discussions. The motion judge denied the motion to suppress. (Resp't's Ex. 3 at 1-2.)
At trial, petitioner was found guilty by a jury of one count of conspiracy and sentenced to ten years in prison. (Resp't's Ex. 3 at 2.)
Petitioner then appealed, raising the following claims to the Appellate Division. First, that the trial court failed to dismiss petitioner's indictment on due process grounds. (Resp't's Ex. 5 at 4.) Second, that the trial court abused its discretion and violated the evidentiary standard set out by the New Jersey Supreme Court in State v. Driver, 38 N.J. 255 (1962). (Resp't's Ex. 5 at 5.) Third, that the trial court erred in admitting various weapons seized during the search of petitioner's home and storage facility. (Resp't's Ex. 5 at 8.) Fourth, that the state's failure to disclose the time at which the wiretap was authorized denied petitioner a fair trial. (Id.) Fifth, that the trial court erred by presenting the jury with an instruction on the standards of conspiracy, while failing to charge the jury upon the subject of "due process entrapment". (Resp't's Ex. 5 at 9.) Sixth, that the trial court erred by admitting evidence informing the jury of the violent character of petitioner's previous conviction. (Id.) Seventh, that petitioner was denied a fair trial because his attorney was ethically prohibited from representing him. (Resp't's Ex. 5 at 10.) Eighth, that the trial court's sentence was excessive. (Id.) Ninth, that the trial court erred by not suppressing the evidence which was gathered from the wiretap for want of "reasonable suspicion". (Resp't's Ex. 5 at 11.) On December 26, 1995, the Appellate Division denied the petitioner's appeal on all grounds. (Pet. at 1.) On February 27, 1996, petitioner's Petition for certification to the Supreme Court of New Jersey was denied, making his conviction final for the purposes of habeas review. (Id.)
Petitioner then timely filed the instant habeas corpus petition, pursuant to 28 U.S.C. § 2254(d) on March 26, 1997.
III. DISCUSSION
1) Petitioner's argument that the trial court's failure to suppress the wiretap violated his Fourth and Fourteenth Amendment rights.
In ground one of his application, petitioner alleges that his Fourth and Fourteenth Amendment rights were violated when the trial court admitted evidence gathered from recordings of the wiretapped conversations. Petitioner argues that the wiretap was authorized without probable cause, making the wiretap's admission a violation of the Fourth Amendment.
Since the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), most claims based upon the Fourth Amendment have been excluded from federal habeas corpus review. Under Stone, "where a state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at 495-96.
Conversations recorded through electronic eavesdropping devices are considered to be within the scope of the Fourth Amendment. In Berger v. New York, 388 U.S. 41 (1967), the Supreme Court held that a statute permitting government officials to authorize electronic eavesdropping without probable cause was a violation of the Fourth and Fourteenth amendments. In Katz v. United States, 389 U.S. 347 (1967), the Court held that the government's activity of electronically listening to and recording a defendant's words spoken into a telephone receiver constituted a search and seizure within the scope of the Fourth Amendment. Under the reasoning of Stone and Berger, then, wiretapped conversations are searches and seizures and habeas review of such claims is strictly limited. Here, there is no indication that petitioner here did not have a full and fair opportunity to litigate his Fourth Amendment/Wiretap claims before the trial court. Indeed, the record shows that petitioner argued such claims at the Appellate Division and Supreme Court levels where his claims were again rejected. (Resp't's Br. at 3.) Accordingly, petitioner's claims in ground one of his petition are within the scope of Stone and not subject to this Court's review. As a result, the petitioner's argument in ground one is not one upon which habeas relief may be granted and such claims must be denied.
2) Petitioner's argument that the State's failure to disclose when the wiretap was authorized violated his Sixth Amendment right.
In ground two of his application, petitioner asserts that he was denied a fair trial because of the State's failure to disclose the point in time that the wiretap was authorized by the Ocean County Prosecutor. Petitioner contends that the legality of the wiretap is contingent upon the time at which it was authorized. Petitioner further contends that Investigator Pyper's testimony at trial was inconsistent with his pretrial affidavit on the question of the time at which the wiretap was authorized. Finally, the contradictory testimony, as well as the trial court's subsequent refusal to reopen the suppression hearing, violated his Sixth Amendment right to due process.
Although the petitioner has framed this claim as a Sixth Amendment issue, it is in reality a Fourth Amendment issue precluded from habeas review. Petitioner's motive in questioning the time of authorization is to challenge the admissibility of the wiretap. As discussed above, the admissibility of the wiretap is directly related to the Fourth Amendment suppression issues. The Stone doctrine precludes this Court from reviewing habeas claims based on the Fourth Amendment that were previously the subject of a full and fair oppurtunity to litigate. As a result, the petitioner's second claim is not subject to habeas review and must be dismissed.
3) Petitioner's argument that he was denied his Fourteenth Amendment right of due process.
In ground three of his application, petitioner lists four separate violations of the Fourteenth Amendment as claims for habeas relief. These claims will be discussed in turn.
a) The motion court refused to hear the entire tape of the wiretapped conversation at the suppression hearing.
Petitioner claims that the motion judge's decision not to hear the entire tape at the suppression hearing and to subsequently admit it as evidence deprived him of his Fourteenth Amendment right to due process. Petitioner's claim is specifically based upon a violation of an evidentiary standard set forth in the New Jersey Supreme Court case ofState v. Driver, 38 N.J. 255 (1962). (Pet. at 4.)
An error by a state court on a question of state law does not constitute grounds for habeas corpus relief. In Johnson v. Rosenmeyer, 117 F.3d 104 (3d Cir. 1997), the Third Circuit stated:
Even if state courts made a mistake of state law, which prejudiced [petitioner] by altering the proofs necessary to support a conviction, to obtain habeas relief, he must demonstrate that the mistake deprived him of a right which was enjoyed under the Constitution, laws, or treaties of the United States. Thus, errors of state law cannot be repackaged as federal error simply by citing the due process clause.Johnson, 117 F.3d at 110.
In the present case, petitioner may not obtain habeas relief because the trial court misinterpreted or misapplied state law. Petitioner's claim is based on an alleged misinterpretation of the New Jersey Supreme Court's decision in Driver, supra. According to the Third Circuit inJohnson, petitioner may not "repackage" a violation of state law by a state trial court by invoking the due process clause, as he has under this claim. Id. As a result, this court may not grant habeas relief on this claim, and the petition will be denied to this extent.
b) The motion judge's failure to recuse himself from the suppression hearing because of a conflict of interests denied Petitioner a fair trial.
Next, petitioner claims that the motion judge should have recused himself from the suppression hearing because he had once been a neighbor of the targeted officer. At trial, the motion judge informed the petitioner and his attorney of the relationship before the suppression hearing, but this revelation did not result in an objection from petitioner.
The Appellate Division and the New Jersey Supreme Court each held that the motion judge had no duty to recuse himself from the suppression hearing. The duty of a New Jersey judge to recuse is governed by theRules Governing the Courts of the State of New Jersey, which are enacted and administered by the Supreme Court of New Jersey. Therefore, the question of a judge's duty to recuse himself from a suppression hearing is an issue of state law. As noted above, a state court's interpretation of state law does not constitute grounds for habeas relief un derJohnson.
Petitioner's claim is based upon a violation of state law by a state court. Even though petitioner has framed his claim as a violation of the due process clause of the Fourteenth Amendment, under Johnson it is not cognizable for the purposes of habeas corpus review. Consequently, the claim must be denied.
c) The trial court should have reopened the suppression hearing when testimony regarding the timing of the wiretap's authorization was refuted at trial.
Petitioner alleges that the trial court's refusal to reopen the suppression hearing in the light of Investigator Pyper's contradictory testimony at trial deprived him of his Fourteenth Amendment right to due process.
The substance of this claim is essentially the same as the argument petitioner makes in ground two of his application. Investigator Pyper's testimony is directly related to the question of the admissibility of the wiretapped conversation. The admissibility of the wiretap evidence is a Fourth Amendment issue. As explained above, the Stone doctrine precludes this Court from relitigating the State Court's suppression decisions. As a result, this claim must be denied.
d) Petitioner was denied a fair trial because his attorney was ethically prohibited from representing the petitioner.
Petitioner alleges that his attorney was ethically prohibited from representing him because the attorney had at one time represented his co-defendant. The co-defendant's earlier case involved an aggravated manslaughter offense that occurred ten years earlier and was unrelated to the present case.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 777 (1986). The Supreme Court established the benchmarks for determining ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim for ineffective assistance of counsel, the petitioner must demonstrate that, 1) his or her counsel's performance was deficient, and 2) counsel's deficient performance so prejudiced the defense as to deprive the defendant of a fair trial. Id. at 687. Stated another way, a court must decide whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. Id. at 686.
The deficiency of counsel's performance is measured by an "objective standard of reasonableness." Strickland at 687-88. The petitioner must prove that counsel's representation was unreasonable under normal professional norms, and "that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 384.
In applying the Strickland standard to the present case, it is apparent that both the Appellate Division and the New Jersey Supreme Court were correct in determining that petitioner was not denied a fair trial on the basis of ineffective assistance of counsel.
According to the New Jersey Rules of Professional Conduct, "a lawyer who has represented a client in a matter shall not thereafter represent a client in the same or substantially related matter in which that client's interests are materially adverse to the interests of the former client."New Jersey Rules of Professional Conduct 1.9(a)(1). As the Appellate Division concluded, the co-defendant's aggravated manslaughter offense and the petitioner's conspiracy charges are not substantially related. Furthermore, petitioner's interests in avoiding the conviction for conspiracy in the present case did not conflict with the interests of his co-defendant in the earlier case. Therefore, petitioner's counsel was not ethically prohibited from representing him, and there is no violation of the first prong of Strickland because counsel's performance has not been shown to fall below the objective standard of reasonableness.
Turning to Strickland's prejudice prong, petitioner offers no evidence that his counsel's performance so prejudiced the defense to the point that he was denied a fair trial. Accordingly, petitioner has failed to show a violation of Strickland.
In sum, the Appellate Division and the New Jersey Supreme Court correctly concluded that the petitioner was not denied effective assistance of counsel, and thus there was no unreasonable application ofStrickland. As a result, the petitioner's claim that he was denied a fair trial must be denied.
4) Petitioner's argument that the trial court's failure to dismiss the indictment on the ground of entrapment as a matter of due process denied him his Sixth and Fourteenth Amendment Rights.
In ground four of his application, petitioner contends that the trial court applied the incorrect standard for determining whether "due process entrapment" was present.
"Due process entrapment" is distinguishable from statutory entrapment. In State v. Johnson, 127 N.J. 458 (1992), the New Jersey Supreme Court defined due process entrapment as "a defense as a matter of due process. The defense arises when conduct of government is patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." Johnson, 127 N.J. at 473. The Court continued to explain that due process entrapment was a matter of state, not federal law:
We explicitly found that defense on the New Jersey Constitution. The adoption of the defense of entrapment reposes within the authority of the state courts. Federal principles of entrapment `are not controlling on the state courts, which are free to formulate and establish the contours of the defense of entrapment for their own jurisdictions'. The entrapment defense based on due process reflects basic and distinctive state policies.Johnson at 473 (quoting State v. Talbot 71 N.J. 160, 165-67 (1976)).
An error by a state court on a question of state law does not constitute grounds for habeas corpus relief. Johnson v. Rosenmeyer, 117 F.3d at 110 (3d Cir. 1997).
In the present case, petitioner may not obtain habeas relief on the ground that the trial court misinterpreted the state doctrine of due process entrapment. As a result, this court may not grant habeas relief, and petitioner's claim in ground four of his application must be denied.
5) The trial court's failure to charge the jury with statutory entrapment denied petitioner his Sixth and Fourteenth Amendment rights.
In ground five of his application, petitioner alleges that the trial judge's failure to charge the jury with statutory entrapment violated his Sixth and Fourteenth Amendment rights.
Jury instructions are subject to a federal court's habeas corpus review if they are in violation of Federal law. "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). The Third Circuit has stated: "Normally, jury instructions in state trials are matters of state law. However, they are reviewable by a federal court on collateral attack where the instruction violates specific federal constitutional standards imposed on the states through the due process clause of the Fourteenth Amendment." Hallowell v. Keve, 555 F.2d 103, 106 (3d Cir. 1977).
In Cupp v. Naughten, 414 U.S. 141 (1973) the Supreme Court set forth the standard of review to be employed by a federal habeas court to determine whether a state court's jury instructions violate due process. The Court stated that there is no basis for habeas corpus relief unless "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 146-47.
In the present case, petitioner's contention that the absence of an entrapment instruction denied him a fair trial asserts a Sixth and Fourteenth Amendment violation. The Sixth and Fourteenth Amendment are matters of Federal Constitutional law, making this claim subject to habeas corpus review.
Having concluded that the trial court's jury instructions are subject to habeas review, the claim must be analyzed on its merits according to the Cupp standard. At the state level, the Appellate Division and the New Jersey Supreme Court concluded that the trial court's failure to charge the jury with statutory entrapment did not violate petitioner's due process rights. Each court held that petitioner had not produced clear and convincing evidence that entrapment was present. (Resp't's Br. at 8.)
The state appellate courts' rejection of the entrapment instruction is grounded in the trial judge's factual findings. The record indicates that the trial court found that the conspiracy to kill the officers was well under way by the time the Prosecutor's office became involved in the events. (Resp't's Ex. 5 at 4-5.) Accordingly, the state cannot be said to have put the idea into the petitioner's mind the idea to conspire to kill two police officers for giving him a traffic ticket. The trial court appropriately excluded any reference to entrapment in the charge on the basis of its factual finding that no entrapment took place. The findings of fact by a state court are to be accorded a presumption of correctness. Under 28 U.S.C. § 2254(e)(1), "the determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
Here, the trial court's factual finding that entrapment was not present should be granted a presumption of correctness. Petitioner has failed to introduce any substantial evidence to rebut this presumption and has failed to meet his burden of providing clear and convincing evidence of factual error. Therefore, the absence of a jury instruction of entrapment could not have infected the trial to the point that due process was violated and this claim must be denied.
IV. CONCLUSION
For the reasons stated above, petitioner is not entitled to habeas corpus relief under 28 U.S.C. § 2254(d). The accompanying Order is entered.
O R D E R
This matter having come before the Court upon petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the court having reviewed the submissions of the parties, and for the reasons stated in the Opinion of today's date;
IT IS, this ___ day of June, 2000, hereby ORDERED that petitioner's application for a writ of habeas corpus is DENIED; and,
IT IS FURTHER ORDERED that no certificate of appealability shall issue.