Scherzer v. Ortiz

111 F. App'x 78
CourtCourt of Appeals for the Third Circuit
DecidedAugust 18, 2004
Docket02-4608, 02-4609
StatusUnpublished
Cited by1 cases

This text of 111 F. App'x 78 (Scherzer v. Ortiz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scherzer v. Ortiz, 111 F. App'x 78 (3d Cir. 2004).

Opinion

OPINION OF THE COURT

SMITH, Circuit Judge.

Kevin Scherzer, Kyle Scherzer and Christopher Archer appeal from the District Court’s denial of their petitions for a writ of habeas corpus. The Scherzers assert that they were denied effective assistance of counsel during a lengthy trial that lasted from October, 1992 to March, 1993. All three defendants argue that they were denied their right to a fair trial due to the lack of an impartial jury and several instances of prosecutorial misconduct. For the reasons set forth below, we reject the defendants’ arguments and affirm the District Court.

I.

The underlying facts developed at the trial of the Scherzers and Archer are outlined in the New Jersey Superior Court’s exhaustive treatment of their direct ap *81 peal. State v. Scherzer, 301 N.J.Super. 363, 694 A.2d 196 (1997). Because we write only for the parties, we will not recite them again here. Kevin Scherzer and Kyle Scherzer were indicted along with three co-defendants, not present in this appeal, in May 1990 on “various sexual assault charges allegedly committed against a mentally defective victim, M.G.” Id. at 209. In September 1990, the prosecution’s request to have three of the juvenile defendants, one of whom was Archer, tried as adults was granted. All eight defendants were indicted in a superceding indictment charging the following: Count (1) conspiracy to commit aggravated sexual assault; Counts (2) and (4) first degree aggravated sexual assault (sexual penetration of a mentally defective person); Counts (3) and (5) first degree aggravated sexual assault (sexual penetration using physical force or coercion); and Counts (6)-(9) third degree aggravated criminal sexual contact.

Pre-trial hearings and motions began in June 1991 and continued until March 1992. Jury voir dire began on September 22, 1992. Trial commenced on October 15, 1992. The jury reached its verdict on March 16, 1993. All three defendants were found guilty on Counts One and Three. Kevin Scherzer and Christopher Archer were found guilty of Count Two, first degree aggravated sexual assault upon a mentally defective person. Kyle Scherzer was found guilty of the lesser included offense of attempted aggravated sexual assault. Each was acquitted on Counts Four through Nine. The defendants were sentenced as young adult offenders and each received sentences of an indeterminate term not to exceed 15 years. The defendants filed a timely appeal with the New Jersey Superior Court Appellate Division.

On appeal, the defendants’ convictions were affirmed on Counts One and Two, but vacated with respect to Count Three. The Appellate Division determined that “the State had to prove that defendants engaged in an act of sexual penetration while aided or abetted by at least one other person and that defendants used force or coercion.... [W]e are convinced that the State failed to present enough evidence to prove to a reasonable jury that force or coercion were used against M.G.” Scherzer, 694 A.2d at 215. The defendants’ convictions on Count Three, therefore, were vacated. The defendants were re-sentenced on June 30, 1997. Kevin Scherzer and Archer each received a sentence of an indeterminate term not to exceed 15 years. Kyle Scherzer received an indeterminate term not to exceed seven years. All three defendants appealed their sentences, which were affirmed by the Appellate Division on January 14, 1998.

Each of the three defendants then filed a petition for a writ of habeas corpus in the District Court. The defendants argued that their writs should issue because (1) they had been deprived of the effective assistance of counsel in violation of their Sixth Amendment rights; (2) they had been denied their right to an impartial jury in violation of their Sixth Amendment rights; (3) prosecutorial misconduct had robbed them of their right to a fair trial; (4) the introduction of testimony by the state’s witness Dr. Ann Burgess violated their right to a fair trial; and (5) there was insufficient evidence to convict on Counts One and Two. The District Court determined that the petitioners had adequately exhausted their state court remedies as required by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2254, but denied them petitions on December 13, 2002. This Court granted the Kevin Scherzer’s re *82 quest for a Certificate of Appealability on the following grounds:

(1) whether the Scherzers were denied their right to counsel by their attorneys’ absences and, if so, whether a harmless error analysis applies when counsel is absent during critical stages of the proceedings and, if it does, whether the attorneys’ absences in this case were harmless ...; (2) whether the petitioners’ right to counsel was violated by a conflict of interest; (3) whether the petitioners were denied their right to an impartial jury by the jurors’ prayers for the victim and certain jurors’ exposure during trial to co-workers’ negative comments about the petitioners; (4) whether the prosecutor improperly commented on the petitioners’ behavior at trial and on their failure to testify; and (5) whether the errors alleged in Ground Five of the § 2254 petitions prejudiced the petitioners when considered cumulatively.

This Court granted Kyle Scherzer’s request for a Certificate of Appealability on the same grounds, plus an additional one: whether the trial court’s instructions regarding accomplice liability were proper. Christopher Archer’s Certificate of Appealability was limited to the grounds enumerated (3), (4), and (5) in Kevin Scherzer’s Certificate of Appealability.

II.

Because the District Court did not conduct its own evidentiary hearing, we must review the state court’s decision applying the same standard as the District Court. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002). 1 Our standard of review is governed by AEDPA, 28 U.S.C. § 2254(d), which states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(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.

The Supreme Court explained this standard in Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.

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Bluebook (online)
111 F. App'x 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scherzer-v-ortiz-ca3-2004.