Klah v. Attorney Gen.

PETER KLAH, Petitioner, v. ATTORNEY GENERAL STATE OF NEW JERSEY, et al., Respondents.

Civ. No. 16-8791 (PGS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 23, 2020

OPINION

PETER G. SHERIDAN, U.S.D.J.

I. INTRODUCTION

Petitioner Peter Klah ("Petitioner" or "Klah") is a state prisoner proceeding pro se with a second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See ECF 42). For the following reasons, the second amended habeas petition is denied and a certificate of appealability shall not issue.

II. FACTUAL AND PROCEDURAL BACKGROUND

The factual background is taken from the New Jersey Superior Court, Appellate Division's opinion on Petitioner's direct appeal.

Trenton Police Detective Matthew Przemieniecki and his partner, Officer Joseph D'Ambrosio, were driving an unmarked police patrol car near the intersection of Monmouth and Clinton Streets in Trenton on October 24, 2006, at 11:09 p.m., when Przemieniecki heard a gunshot and saw the muzzle flash of a gun being fired by defendant Peter Klah. According to Przemieniecki, after hearing the gunshot and turning his head to the right in the direction of the gunshot sound, he put his car in reverse to turn down Monmouth street. He then had an unobstructed view as he watched defendant fire a handgun at a man running down the sidewalk, who was later identified as the victim, Charles Bennett. Przemieniecki then observed defendant enter a silver Buick. Przemieniecki radioed surrounding units and headquarters, relaying what he had witnessed and indicating that the shooter was traveling down Monmouth Street in a silver Buick. A marked police car, driven by Officer Samuel Gonzalez, pulled into the intersection of Walnut and Monmouth Streets to cut off the silver Buick's path.

Upon exiting his vehicle, Przemieniecki approached the driver's side of the silver Buick with his weapon drawn; his partner approached the passenger side. According to Przemieniecki, he "approach[ed] the vehicle[,] ... opened the driver-side door and removed the driver Chad Dillard from the vehicle." At the suppression hearing, Przemieniecki related the events that followed.

Q: Were you able to get the occupants out?

A: Yes....

Q: And were both occupants asked out of the—removed from the vehicle at that point?

A: They were.

Q: Now, initially when the occupants were removed from the vehicle, were they patted down for your safety?

A: Absolutely.

Q: Were any weapons located on Dillard at that point?

A: No ...

Q: After the occupants were removed from the vehicle, ..., were the doors left open or closed?

A: They were left open....

Q: What did you do next?

A: Once ... both occupants were secured, they were put into police vehicles, made sure the car was secured and [I] basically just stood by to make sure everything was ... the whole scene was secured....

Q: After those two individuals were secured, did you have occasion to look in the interior of the vehicle?

A: Yes, we did.

Q: And particularly why did you look in the vehicle?

A: Again, because we just saw an individual enter that same vehicle that just got done firing a handgun so—

Q: And no weapons were found on the occupants as you got them out?

A: Absolutely....

Q: When you looked in the vehicle, what if anything did you see?

A: Saw a clear bag.

Q: And based on your training and experience, what did the bag look to have ... or contain ...

A: It looked to contain suspected CDS marijuana....

Q: In addition to the CDS, Detective, did you observe any other contraband in the vehicle at that time?

A: Yes.

Q: And what did you observe?

A: Handle of what appeared to be a handgun.

Przemieniecki did not touch or seize either item of contraband, and a search warrant for the car was subsequently obtained. Detective Thomas Ertel, an employee of the Trenton Police Department Crime Scene Unit, responded to the scene of the shooting, photographed the scene and removed the handgun and marijuana from the car. Additionally, Detective Mark Berkeyheiser, also from the Trenton Police Department Crime Scene Unit, recovered four shell casings from the sidewalk in the area where Przemieniecki had observed defendant standing.

Officer Douglas Moreland heard the radio call about shots being fired and headed to the area to determine if anyone had been struck. He observed a female screaming and pointing to a black male, later identified as Charles Bennett, lying face down in the street. Bennett was dead.

Dr. Raafat Ahmad, the Mercer County medical examiner, performed an autopsy on the victim's body and found the victim had been shot four times. At trial, Dr. Ahmad testified that the cause of death was perforating gunshot wounds to the heart and lungs. She opined that the manner of death was "homicide."

The handgun retrieved from the vehicle, the spent shell casings, and the bullet recovered from the victim's body were forwarded to the New Jersey State Police Laboratory. Detective James Ryan, a firearms expert employed as a supervisor in the New Jersey State Police ballistics unit opined that the bullet and shell casings recovered from the crime scene were fired from the weapon found in the vehicle.

At the hearing on the motion to suppress, defendant argued that the contraband was not in plain view; he also challenged the constitutionality of his seizure on the grounds that the police lacked probable cause to stop him. Judge Kelly denied the motion, concluding:

I just don't find there's any justification for me to find that there was a violation of constitutional rights here by the stop and seizure of these two parties under the totality of these circumstances here ... [there was] a particularized suspicion that at least when you see somebody shooting a handgun in the middle of the street after 11 o'clock at night in the City of Trenton, ... at someone who was running down the street, there's enough there in my opinion to justify that stop.

State v. Klah, No. A-1271-10T3, 2012 WL 2427809, at *1-2 (N.J. Super. Ct. App. Div. June 28, 2012). Petitioner was found guilty of first-degree murder, second-degree possession of a weapon for an unlawful purpose, third-degree theft by receiving stolen property and third-degree possession of a controlled substance with intent to distribute on or near school property.

After appropriate mergers, the trial judge sentenced defendant on the murder charge to an aggregate minimum term of seventy-five years' imprisonment, subject to an eighty-five percent minimum period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentences on the other convictions were to run concurrent to the sentence imposed on the murder conviction.

Klah, 2012 WL 2427809, at *1.

The New Jersey Superior Court, Appellate Division affirmed the judgment of conviction on direct appeal. See id. The New Jersey Supreme Court denied certification on Petitioner's direct appeal. See State v. Klah, 65 A.3d 834 (N.J. 2013).

On December 27, 2013, Petitioner filed a post-conviction relief ("PCR") petition in the Law Division raising several ineffective assistance of trial counsel claims. (ECF No. 1 ¶¶ 11(a)(3)-(5)). The PCR court denied the petition without an evidentiary hearing on June 30, 2014. (ECF No. 1 ¶¶ 11(a)(7)-(8)). The Appellate Division affirmed, State v. Klah, No. A-5844-13, 2016 WL 1418315 (N.J. Super. Ct. App. Div. Apr. 12, 2016), and the New Jersey Supreme Court denied certification on September 23, 2016, State v. Klah, 151 A.3d 969 (N.J. 2016).

Petitioner submitted his § 2254 to this Court on November 24, 2016. (ECF No. 1). He indicated in his petition that he mailed a second PCR petition to the Law Division on November 23, 2016. (ECF No. ¶ 15). Petitioner filed an Amended Petition on December 16, 2016. (ECF No. 3). The Court ordered an answer or a motion to dismiss based on timeliness from Respondent on January 25, 2017. (ECF No. 6). Respondents filed their answer on June 12, 2017. (ECF No. 12).

Klah v. Attorney Gen. of New Jersey, No. 16-8791, 2018 WL 3105427, at *1 (D.N.J. June 25, 2018). Thereafter, Petitioner moved for a stay and abeyance of this action so he could pursue a second PCR petition which was granted. See id. at *2-3.

In March, 2019, Petitioner filed a second amended habeas petition (see ECF 42). The second amended habeas petition raises the following claims:

1. Petitioner's motion to suppress was improperly denied because Detective Przemieniecki's testimony was a pretextual fiction designed to conceal an unlawful warrantless search of the vehicle ("Claim I").

2. The trial court erred in charging the jury on flight ("Claim II").

3. Comments made by the prosecutor during his opening statement prejudiced Petitioner's right to a fair trial ("Claim III").

4. Dr. Ahmed's testimony that the cause of death was homicide was plain error ("Claim IV").

5. Petitioner's seventy-five year sentence was manifestly excessive ("Claim V").

6. Trial court error in admitting crime scene evidence ("Claim VI").

7. Ineffective assistance of counsel in failing to call witnesses who would have challenged the state's theory of the case ("Claim VII").

8. Ineffective assistance of counsel in failing to retain a ballistics expert ("Claim VIII").

9. Ineffective assistance of counsel in failing to move to sever or object to evidence and appellate counsel's ineffectiveness for not raising this claim on appeal ("Claim IX").

10. Ineffective assistance of counsel in failing to object to the opening and closing statements of the prosecutor and appellate counsel's ineffectiveness for not addressing the state's vouching for the police officer witness in closing argument ("Claim X").

11. Reserving the right to raise additional issues ("Claim XI").

12. Cumulative error deprived Petitioner of his due process and fair trial rights ("Claim XII").

In May, 2019, the stay was lifted. (See ECF 44). Respondents filed a response to the second amended habeas petition in September, 2019. (See ECF 51). Thereafter, Petitioner filed a reply in support of his second amended habeas...