Birthwright v. Johnson

ERIC BIRTHWRIGHT, Petitioner, v. STEPHEN JOHNSON, Respondent.

Civil Action No. 18-14019 (SDW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

January 27, 2020

OPINION

WIGENTON, District Judge:

Presently before the Court is the amended petition for a writ of habeas corpus of Eric Birthwright ("Petitioner") brought pursuant to 28 U.S.C. § 2254 challenging his state court convictions. (ECF No. 6). Following an order to answer, Respondents filed an answer to the amended petition (ECF No. 14). Petitioner did not file a reply. For the following reasons, the Court will deny Petitioner's amended habeas petition, and deny Petitioner a certificate of appealability.

I. BACKGROUND

In affirming Petitioner's conviction, the Superior Court of New Jersey - Appellate Division found that the "evidence of [Petitioner]'s guilt [presented at trial] was compelling" and summarized that evidence as follows:

[Wiley] Kinman[, the victim in this matter] was a known drug dealer who sold drugs at Mravlag Manor in Elizabeth. Dihunat Williams testified he was involved in selling drugs with both Kinman and [Petitioner]. Kinman's arrangement with [Petitioner], who was also known as "Rue," was that Kinman provided [Petitioner] drugs to sell and expected a portion of the profits in return. [Petitioner] owed Kinman around $300 to $400 from money he failed to return after selling drugs provided by Kinman. During the weeks leading up to Kinman's death, the money [Petitioner] owed to Kinman was a constant topic of conversation, which sometimes escalated into a heated argument and physical violence or threats of violence.

In the late afternoon of November 14, 2006, Kinman and [Petitioner] were involved in such an argument at Gail Williams' [("Gail")] apartment in Mravlag Manor. Kinman yelled at [Petitioner] that he wanted his money and referred to [Petitioner]'s past debts. Kinman told [Petitioner] he would see him later and that he was going to "jump [him] or fuck [him] up."

About five minutes later, [Petitioner] left the apartment with Larry Perkins, Kinman's cousin. As they were leaving, [Petitioner] said to Perkins, "I'm about to pop him or get him popped" and that he was going to call an individual named Bivot. Perkins went to downtown Elizabeth and [Petitioner] left with Bivot to go to another apartment in Mravlag Manor.

Kinman and Williams headed toward a nearby restaurant, Chicken Shack. While inside the restaurant, Williams received a phone call from [Petitioner] asking him where he was. Williams told [Petitioner] that he was at the restaurant. As Kinman and Williams left Chicken Shack, Kinman stopped to talk to some people, while Williams kept walking toward Mravlag Manor. Williams saw [Petitioner] walking toward him with a group of about three or four other people. As [Petitioner] passed him, Williams asked, "What's up, where you going?" [Petitioner] did not answer and kept walking. Seconds later, Williams heard three gunshots. Williams took off running toward his mother's house across the street. He did not turn around, but he knew the shots came from behind him. At his mother's house, Williams called Kinman's phone, but there was no answer.

Kinman was killed by three gunshot wounds to the head and neck, fired from behind. A bullet to the top of his head penetrated his skull but not his brain. Two other bullets delivered fatal wounds. One bullet entered his jawline, travelled through his throat and injured two major blood vessels in his neck before exiting. There was a second fatal wound that was instantly lethal, caused by a bullet that entered behind Kinman's left ear, travelled through the left lobe of the cerebellum and then the right lobe, partially transecting the brain stem.

Responding officers found three or four shell casings near Kinman's body. Two of the shell casings had sufficient identifying marks to indicate they were fired from the same firearm.

On the evening of the shooting, [Petitioner] called his half-sister, S.T., and asked her to come to Elizabeth from Trenton to pick him up. She said [Petitioner] sounded "anxious" but would not tell her what was wrong. She drove to Elizabeth with her housemate. [Petitioner] was quiet on the drive back to Trenton and said he would explain the reason for the big rush when they got there. After they arrived in Trenton, [Petitioner] told S.T., her housemate, and S.T.'s boyfriend, George Melvin, that "he just murdered somebody." Thinking he was kidding, they questioned him, but [Petitioner] repeated himself and "looked like he was being serious." When asked what happened, [Petitioner] said he had been arguing with a guy who threatened to smack him with a stick; that he went to get a gun and shot him. Later, [Petitioner] called S.T.'s housemate and told her that "he killed the guy because the guy kept coming at him."

At around 10 p.m. that evening, [Petitioner] had a phone conversation with J.H., whom he was dating, and told her Kinman had been shot. J.H. recalled that [Petitioner] sounded scared. In subsequent conversations, [Petitioner] told J.H. he loved her but knew she would be unwilling to "do jail time" with him. [Petitioner] also referred to J.H.'s cousin, a drug dealer who, like Kinman, wanted [Petitioner] to pay him money he owed. [Petitioner] told J.H. to tell her cousin that "it was [Petitioner's] work what happened in Mravlag Manor," which J.H. understood to mean that [Petitioner] killed Kinman.

Three days later, J.H. heard from [Petitioner] again. [Petitioner] said he shot Kinman after an argument in which Kinman threatened to beat his face in with a stick and that [Petitioner] "took the gun from his boy." He told J.H. about an earlier argument with Kinman and that the shooting happened across the street from Chicken Shack.

The day after the murder, [Petitioner] called Williams and said he knew that everybody was mad at him.

The jury convicted [Petitioner] on all charges [including murder, unlawful possession of a firearm, and possession of a firearm for an unlawful purpose]. He was sentenced to a fifty-year prison term with an eighty-five percent period of parole ineligibility on his conviction for first-degree murder, and concurrent sentences on the weapons offenses.

(Document 7 attached to ECF No. 14 at 2-6).

II. DISCUSSION

A. Legal Standard

Under 28 U.S.C. § 2254(a), the district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." The petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S. Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), district courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73 (2010).

Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for the purposes of the statute where it is clearly expressed in "only the holdings, as opposed to the dicta" of the opinions of the United States Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015). "Whenreviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Id. Where a petitioner challenges an allegedly erroneous factual determination of the state courts, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

B. Analysis

1. Petitioner's jury instruction claims

In his first series of arguments, Petitioner challenges various elements of the jury instructions issued in his case. Specifically, Petitioner challenges the refusal of the trial judge to charge the jury as to two lesser included charges - aggravated manslaughter and passion/provocation manslaughter - and challenges the sufficiency of the charge given by the trial judge as to conflicting statements given by witnesses, which Petitioner argues deviated critically from the state courts' model jury instruction on the issue. That a jury "instruction was allegedly incorrect under state law is not a basis for habeas relief." Duncan v. Morton, 256 F.3d 189, 203 (3d Cir.) (quoting Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)), cert. denied, 534 U.S. 919 (2001). A petitioner can therefore only show his entitlement to habeas relief based on an allegedly insufficient or improper jury instruction where the petitioner proves that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977). A reviewing court must therefore review a jury instruction in the context of the entire charge given by the trial court and in light of the whole of Petitioner's trial. Duncan, 256 F.3d at 203. That a challenged instruction was "undesirable, erroneous, or even universally condemned," is...