                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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"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                                                 NOT PRECEDENTIAL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



                                              2
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



                                              3
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



                                               6
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.




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