Clark v. Ricci , 285 F. App'x 933 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-7-2008
    Clark v. Ricci
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-4985
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    Recommended Citation
    "Clark v. Ricci" (2008). 2008 Decisions. Paper 901.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/901
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 05-4985
    DERRICK CLARK,
    Appellant
    v.
    MICHELLE R. RICCI; ANNE MILGRAM,*
    The Attorney General of the
    State of New Jersey
    (*Amended per Clerk's Order of 9/12/07)
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. No. 02-cv-04148)
    District Judge: Honorable Joel A. Pisano
    Submitted Under Third Circuit LAR 34.1(a)
    June 24, 2008
    Before: SLOVITER, BARRY, and ROTH, Circuit Judges
    (Filed: July 7, 2008)
    _____
    OPINION
    SLOVITER, Circuit Judge.
    Petitioner, Derrick Clark, appeals the District Court’s dismissal of his petition for a
    writ of habeas corpus. The matter comes before us following the grant of a certificate of
    appealability by a motion panel of this court.
    I.
    Petitioner Derrick Clark and three other armed men went on a crime spree on
    August 10, 1991, robbing two convenience stores in Irvington, New Jersey, and killing a
    security guard in the process. Witnesses reported that the perpetrators used a red Ford
    Mustang in connection with the robberies. Earlier that evening, the same Mustang had
    been reported stolen from the parking lot of a mall in Livingston, New Jersey. Police
    discovered a blue Ford Escort parked with its motor running in the parking spot next to
    the spot from which the Mustang was reported stolen. Fingerprints taken from the
    Mustang belonged to Marcus Anthony and Elijah Bryant, and fingerprints taken from the
    Ford Escort belonged to Anthony and Clark. Anthony made a statement to the police
    implicating himself, Clark, Bryant, and Kevin Martin in the robberies, and later testified
    to the same at trial.
    Clark was indicted in New Jersey on eighteen counts of criminal conduct. He was
    tried in a New Jersey state trial court and was acquitted on several counts, but the jury
    was unable to reach a verdict as to the remaining counts. There were two retrials, both
    ending in mistrials. Following a third retrial, the jury convicted Clark on all remaining
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    counts, i.e., conspiracy to commit robbery, first degree robbery, receiving stolen property,
    unlawful possession of a .38 caliber handgun, unlawful possession of the handgun to use
    unlawfully against the person of another, and felony murder in the course of committing
    the robbery. He was sentenced to a total of forty-five years of imprisonment, with thirty-
    five years of parole ineligibility. The Appellate Division of the Superior Court of New
    Jersey affirmed Clark’s conviction and sentence, and the Supreme Court of New Jersey
    denied certification.
    Clark filed a pro se petition for post-conviction relief in the Superior Court of New
    Jersey, Law Division. Clark argued, inter alia, that his counsel provided ineffective
    assistance on several grounds. After Clark waived his right to an evidentiary hearing, the
    court denied his petition. Clark appealed, limiting the grounds of his ineffective
    assistance claim to trial counsel’s failure to object to the accomplice liability charge. The
    Appellate Division affirmed, concluding that the allegations of derelictions of counsel
    were without merit. The Supreme Court of New Jersey denied certification.
    Clark filed a timely petition for a writ of habeas corpus in federal court which was
    denied. This court granted Clark a certificate of appealability on two issues: (1) “whether
    [Clark]’s ineffective assistance of counsel claims for failing to object to testimony about
    the stolen Escort and failing to properly investigate and present witnesses are unexhausted
    such that the District Court should have dismissed the petition as mixed or stayed the
    petition pending exhaustion;” and (2) “whether counsel was ineffective in failing to
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    challenge the accomplice liability instruction under state law . . . .” App. at 60.1
    II.
    Clark’s trial counsel failed to object to testimony about the stolen Ford Escort. In
    his petition for post-conviction relief, Clark argued that his trial counsel’s failure to object
    to that testimony, as well as trial counsel’s failure to call certain witnesses, constituted
    ineffective assistance of counsel. These arguments were rejected by the Law Division
    and Clark failed to raise them in his appeal of the Law Division’s decision. The
    Appellate Division affirmed the denial of Clark’s petition for post-conviction relief.
    Thus, these ineffective assistance of counsel claims were not properly exhausted.
    Nonetheless, we may deny unexhausted claims if they are without merit. See 
    28 U.S.C. § 2254
    (b)(2); see also Bronshtein v. Horn, 
    404 F.3d 700
    , 728 (3d Cir. 2005). We so
    conclude.
    The testimony about the stolen Ford Escort, from which Clark’s fingerprints were
    retrieved, not only revealed the context and planning of the criminal conspiracy charged,
    see, e.g., State v. Louf, 
    313 A.2d 793
    , 796 (N.J. 1973) (holding that “where such evidence
    tends to establish the existence of a larger continuing plan of which the crime on trial is a
    part, it is admissible”), but also constituted circumstantial evidence linking Clark to that
    1
    The District Court had jurisdiction over Clark’s petition
    pursuant to 
    28 U.S.C. §§ 2241
     and 2254. We have jurisdiction
    pursuant to 
    28 U.S.C. §§ 1291
     and 2253(c). We exercise plenary
    review over a district court’s denial of habeas relief. See Jacobs v.
    Horn, 
    395 F.3d 92
    , 99 (3d Cir. 2005).
    4
    conspiracy and corroborating co-conspirator Anthony’s testimony. The Superior Court
    rejected Clark’s challenge to the admissibility of this evidence on direct appeal. We
    conclude that counsel’s failure to object to the admission of this evidence at trial was not
    unreasonable, and therefore appellate counsel’s failure to raise this claim on appeal was
    not ineffective.
    Clark also contends that trial counsel was ineffective in failing to call certain
    witnesses, in particular his parents, a police sergeant, and a social worker. He has not
    shown that any of those “witnesses” would have provided relevant evidence.
    Even if Clark’s parents would have testified that Clark did not turn himself in to
    the police because he was guilty but because he was afraid, Clark’s motivation for his
    surrender was not at issue during the trial. The fact that co-conspirator Anthony recanted
    his initial statement, the basis for Clark’s argument that counsel should have called the
    sergeant who took the recantation, would have been irrelevant because Anthony did in
    fact later testify and his recantation was known to the jury. Finally, the social worker who
    Clark argues should have been called would not have offered relevant testimony because
    Clark’s purported prior confession to that social worker was not introduced at this trial.
    Trial counsel’s strategic decisions not to call these witnesses were not
    unreasonable. Hess v. Mazurkiewicz, 
    135 F.3d 905
    , 908-09 (3d Cir. 1998). Clark’s
    ineffective assistance claims on these grounds fail.
    5
    III.
    Finally, Clark alleges his trial counsel was ineffective in failing to object to the
    trial court’s jury instruction regarding accomplice liability. Under New Jersey law,
    a conviction for robbery may lie where a defendant, in the course of a theft, uses force
    upon another or threatens another with immediate bodily injury. N.J. Stat. Ann. § 2C:15-
    1(a). Robbery is a crime of the first-degree if, inter alia, the defendant is “armed with, or
    uses or threatens the immediate use of a deadly weapon.” Id. § 2C:15-1(b). Robbery,
    regardless of the degree, serves as a predicate offense for felony murder. Id. § 2C:11-
    3(a)(3).
    After charging the jury on first- and second-degree robbery, conspiracy, the
    weapon offenses, and felony murder, the trial court instructed the jury on accomplice
    liability. As part of that instruction, the trial court stated that the defendant “must have
    shared the same intent, the purpose required to be proved of the person who actually
    committed the crime and he must have actually participated in some way in the
    commission of the crime.” Supp. App. at 54. The charge also referred to Clark “and his
    accomplices” on several occasions, without using the qualifying word, “alleged.” Supp.
    App. at 51. On the basis of these discrepancies, Clark argues that the charge was
    erroneous under state law and that counsel was constitutionally ineffective in failing to
    challenge this instruction at trial or on direct appeal.
    In New Jersey, “jury instructions on accomplice liability must include an
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    instruction that a defendant can be found guilty as an accomplice of a lesser included
    offense even though the principal is found guilty of the more serious offense.” State v.
    Norman, 
    697 A.2d 511
    , 526 (N.J. 1997) (citing State of Bielkiewicz v. Pitts, 
    632 A.2d 277
     (N.J. Super. Ct. App. Div. 1993)). The Supreme Court of New Jersey held in
    Norman that an instruction stating “that defendant ‘must have shared the same intent, the
    same purpose required to be proved of the person who actually committed the crime’”
    was erroneous. 
    Id.
     Nonetheless, the Court concluded that the failure to object to such an
    instruction did not prejudice defendant under the circumstances of that case because there
    was overwhelming evidence that all defendants shared the same mental state and because,
    despite the erroneous instruction, the charge as a whole demonstrated that the trial court
    had exhaustively detailed the lesser included offenses charged. Id. at 527. Finally, the
    Court noted that the defendant was tried separately from his co-defendants, minimizing
    the likelihood that the jury would confuse a principal’s intent with that of an accomplice.
    Id.
    Although the instruction in this case included language nearly identical to the
    erroneous instruction in Norman, all of the factors underlying the lack of prejudice found
    there are also present here. New Jersey presented physical evidence linking Clark to the
    conspiracy and co-conspirator testimony asserting the shared intent of Clark and his
    accomplices to rob the convenience stores. The trial court gave detailed instructions
    regarding felony murder and both degrees of robbery, either of which was sufficient for a
    7
    finding of felony murder. Robbery was the sole predicate offense charge at trial. Clark
    was tried separately from his co-defendants, making it “a remote possibility” that the jury
    failed to distinguish between Clark’s intent and that of his co-defendants. Id. Moreover,
    because Clark was convicted of felony murder based on the underlying robbery, Clark’s
    intent was not at issue. The jury concluded that Clark intended to commit robbery while
    armed with a handgun and that a victim was fatally shot in the course of the robbery;
    absent an affirmative defense, which Clark did not offer here, a conclusion of felony
    murder necessarily follows. See N.J. Stat. Ann. § 2C:11-3(a)(3). Under these
    circumstances, “the New Jersey court’s determination that [counsel]’s failure to object to
    the defective charge did not rise to the level of Strickland ineffectiveness is not an
    unreasonable application of Supreme Court precedent.” Duncan v. Morton, 
    256 F.3d 189
    , 203 (3d Cir. 2001).
    IV.
    For the above-stated reasons, we will affirm the judgment of the District Court
    denying the petition for habeas relief.
    8