Potter v. Attorney Gen. of N.J.

ERIC POTTER, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.

Civ. No. 15-8784 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

June 29, 2018

NOT FOR PUBLICATION

OPINION

FREDA L. WOLFSON, U.S.D.J.

I. INTRODCUTION

Before the Court is the Petition for a writ of habeas corpus by Petitioner Eric Potter, ("Petitioner" or "Potter") brought pursuant to 28 U.S.C. § 2254. (ECF No.1.) For the reasons set forth below, Petitioner's habeas petition is DENIED, and Petitioner is DENIED a certificate of appealability.

II. BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division, on Petitioner's direct appeal:

On the evening of April 26, 2010, Officer Eddy Raisin of the Street Crimes Unit (Unit) of the Asbury Park Police Department met with a confidential informant who had provided reliable information in the past. The informant told him that Potter was known to walk from the Vita Garden Apartments in Asbury Park during the early morning hours to a house on Bangs Avenue, where he would play poker on the second floor and sell heroin. To reach Bangs Avenue, he would cut through a municipal basketball court. The informant provided a physical description of Potter.

Shortly before 10:00 a.m., on April 27, Raisin met at police headquarters with other members of his Unit, including Lieutenant David Desane, Officer Lorenzo Pettway, Officer Adam Mendes, and Officer Kamil Warraich, as well as members of the Monmouth County Narcotics Strike Force, including Detectives Todd Rue, Scott Samis, and Christopher Camilleri. After the meeting, they set up surveillance sites at the basketball court, Bangs Avenue, and the street connecting the two, using unmarked police cars.

Warraich and Camilleri's vehicle was in a parking lot near the basketball courts. Raisin and Mendes were on the connecting street and had a clear view of the basketball courts. Desane, Samis, and Pettway positioned their vehicle so they could view the house on Bangs Avenue, but they could not observe the basketball court from their location.

At approximately 11:40 a.m., Raisin observed a man matching Potter's description heading from the Vita Garden Apartments toward the basketball courts. Raisin immediately told Warraich to drive toward the basketball courts and approach Potter.

Warraich and Camilleri left the parking lot, drove closer to the courts, and parked. They got out of the vehicle and approached Potter. While doing so, Warraich positioned himself to Potter's right side and Camilleri positioned himself to the left. Warraich asked Potter for his name and what he was doing in the area.

Before Potter answered, Warraich observed a clear, "Ziploc[-]type" plastic bag in the front right pocket on the outside of Potter's jacket. Although the bag was inside the pocket, it was visible because the bag created a bulge that kept the pocket open. Warraich could also see the packages in the bag, which were wrapped in paper and shaped like a small brick.

Based on his training and experience, including having "seen plenty of bricks of heroin," Warraich concluded that the bag contained drugs. Warraich immediately placed Potter under arrest and removed the plastic bag from his pocket. The bag contained several bricks of what was subsequently identified as heroin. A search incident to the arrest uncovered a second plastic bag in Potter's left pocket that also contained several bricks of what proved to be heroin. Nine unbundled packets of heroin were also recovered. Following his arrest, Potter was transported to police headquarters,where another search revealed that Potter was carrying $1520 in cash.

Warraich turned the plastic bags and nine loose packets over to Officer Raisin. In his investigation report, Raisin recorded his inventory of the two bags. One of them contained 498 glassine packets, 298 of which bore the stamp "Candy Girl," 150 of which were stamped "Extra Power," and 50 of which were stamped "Knockout." The other bag held 350 glassine packets, 150 of which were stamped "Candy Girl," 150 of which bore the stamp "Extra Power," and 50 of which were stamped "Knockout."

At police headquarters, Potter was interviewed by Samis and Raisin. The interview was videotaped and transcribed. Before the start of the interview, Samis informed Potter of his Miranda rights. Potter initialed a Miranda form acknowledging, among other things, that he was waiving his right to remain silent, his right to consult with an attorney, and his right to have one present during the interview. Potter also acknowledged that he had been informed that his decision to waive his rights was not final and could be revoked at any time during the interview.

During the interview, Potter admitted that he was told by another person to pick up the two bags and deliver them to someone he did not identify. There was one buyer for the larger bag for $2500 and another for the smaller bags for around $1800. Potter expected to receive $300 for facilitating the transactions. He told the officers that he had four or five customers and was averaging a couple of bundles a day in sales. He also asserted that the quantity he had with him that day was a lot more than he usually sold. Potter maintained that he used the money to buy food and support himself.

At the end of the interview, Samis told Potter that they would "let [him] make phone calls" once they found out what the bail amount would be. According to Samis, Potter had not asked to make a phone call prior to that exchange.

State v. Potter, Indictment No. A-1175-12T3, 2015 WL 3843309, at *1-2 (N.J. Super. Ct. App. Div. June 23, 2015) (footnotes omitted).

B. Procedural History

Following a jury trial, Petitioner was convicted of:

[T]hird-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin in a quantity of one-half ounce or more with the intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); and third-degree possession of heroin with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three).

. . .

[The sentencing judge] imposed a sentence of fifteen years in prison with seven-and-one-half years of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f).

Id. at *1-4.

Prior to trial, Petitioner filed several motions:

On December 16, Potter filed a motion seeking to represent himself.

. . .

The judge ultimately allowed Potter to proceed pro se, but with standby counsel.

Potter's attorney had filed a motion to suppress the evidence seized on the day of his arrest. The judge heard some testimony on that issue on April 14. Warraich and Raisin testified for the State. The judge then adjourned the hearing pending disposition of Potter's motion to compel production of the personnel records of certain members of the Asbury Park Police Department and the Monmouth County Prosecutor's Office. That motion was denied on May 12.

The motion to suppress resumed on May 26, with testimony by Camilleri, Samis, Rue, and others. On July 19, following the presentation of additional evidence, the judge placed an oral decision on the record. She found that both Warraich and Camilleri were credible witnesses, and that Warraich was very knowledgeable about the packaging of narcotics. She concluded that Warraich had sufficient reasonable suspicion to warrant an investigative stop. The judge found that Warraich observed Potter carrying drugs in plain view when he sought to question him, which provided probable cause for the arrest and the subsequent search.

Potter filed a motion to dismiss the indictment on August 25. The judge assigned to conduct the trial heard oral argument on themotion on November 3, and issued a written decision and order denying the motion six days later.

On December 2, Potter filed a motion to suppress the statements he made to the police following his arrest, arguing (1) that the police coerced him to make the statement through a promise; (2) that he was suffering from heroin withdrawal at the time; and (3) that he did not know he was being videotaped.

The trial judge conducted a hearing on that motion on March 13, 2012. The following day, he issued an order and a written decision. The judge concluded (1) that Potter had failed to present evidence of the existence of any promise, much less a promise that overbore his will, (2) that there was no evidence presented that he was suffering from heroin withdrawal, and (3) that Potter had no privacy right with respect to his statement because he had been told it would be recorded, if not videotaped.

Id. at *2-3.

Petitioner appealed his conviction and sentence. The Appellate Division affirmed on June 23, 2015. Id. The New Jersey Supreme Court denied certification on November 6, 2015.¹ State v. Potter, 125 A.3d 391 (N.J. 2015). In December 2015, Petitioner filed a habeas petition with this Court raising eleven grounds for habeas relief:

1. The defendant's right to be free from unreasonable searches and seizures as guar[a]nteed by the [F]ourth [A]mendment to the United States Constitution and Art.1, Par.7 of the New Jersey Cons[t]itution was violated by the unlawful detention and the search of the defendant. [T]he police officer[]s detained the defendant on the basis of information from a confidential informant that the police, not the courts decided was reliable without any corroboration to stop and detain and to [] search the defendant. Without any reasonable suspicion that the defendant committed a crime. The trial judge that decided the suppression motion ruled that the stop was a[n] investigative stop.

2. The defendant's State and Federal Cons[t]itutional Right To A Grand Jury Indictment was Violated, and the trial court erroneously denied the defendant's motion to dismiss the indictment on those grounds. The defendant moved to dismiss the indictment on the grounds that the state merely proffered hearsay evidence when it could have

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