Harris v. Ricci

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-2562

AMBROSE A. HARRIS,
Appellant
v.

*MICHELLE R. RICCI, Administrator, New Jersey State
Prison;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

*(Substituted 3/31/10 pursuant to Rule 43(c), Fed. R. App. P.)

On Appeal from the United States District Court
for the District Court of New Jersey
(D.C. No. 3-05-cv-04858)
District Judge: Honorable Anne E. Thompson

Argued April 15, 2010

Before: SLOVITER and HARDIMAN, Circuit Judges,
and POLLAK * , District Judge

(Filed: June 3, 2010)
____
Carl J. Herman
443 Northfield Avenue
2 nd Floor
West Orange, N.J. 07052

*
Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
James K. Smith, Jr. (Argued)
Office of Public Defender
Appellate Section
Newark, N.J. 07101

Attorneys for Appellant

Daniel I. Bornstein (Argued)
Office of Attorney General of New Jersey
Division of Criminal Justice
Trenton, N.J. 08625

Attorney for Appellee
______

OPINION OF THE COURT
______

SLOVITER, Circuit Judge.

Before and during his state court trial for capital murder,
Ambrose Harris was the subject of numerous inflammatory
articles in two local newspapers, the Trentonian and the Trenton
Times. Ultimately, the court presumed prejudicial pretrial
publicity. Harris moved for a change of venue or, in the
alternative, for a jury from another county (a “foreign jury”).
The trial court adopted the alternative proposal. Harris, who was
convicted and unsuccessful in his state court appeal, filed a
petition for a writ of habeas corpus in the federal district court
claiming that the denial of his motion to transfer venue deprived
him of his constitutional right to a fair trial. Harris appeals the
District Court’s denial of his petition for a writ of habeas corpus.

I.

Background

Harris was indicted in June 1994 for having murdered

2
Kristin Huggins.1 Due to the pervasive publicity surrounding the
murder and his arrest, Harris moved the trial court to transfer his
case from Mercer County, New Jersey, where the crime was
committed, to a different venue or, in the alternative, for the
impanelment of a foreign jury. More specifically, Harris argued
that “a fair trial [could not] be had in Mercer County” because of
highly prejudicial pre-trial media coverage by two newspapers –
the Trentonian and the Trenton Times – which had a combined
circulation in Mercer County of about 130,000. App at 59.

The trial court agreed with Harris that the “likelihood”
that the “taint” from these sources would “permeat[e] the trial
[could not] be ignored.” App at 60. The trial court took
particular note that the “intensity of [the] newspaper coverage
[was] complicated by the vengeance-seeking crusade of the
Trentonian” which generated a “stream of invective” that was
“constant and prolonged and sensationalized,” App at 60, and
which “pander[ed] to its readers’ worst instincts,” App at 59.2
Therefore, although the trial court denied Harris’s motion for a
change of venue, it granted his motion to impanel a foreign jury.

Harris filed an interlocutory appeal to challenge the trial
court’s decision to impanel a jury from Hunterdon County, and

1
The facts of that heinous murder and its investigation were
set out in some detail by the New Jersey Supreme Court. See State
v. Harris, 716 A.2d 458, 463-66 (N.J. 1998). It is not necessary to
recite those facts here in order to resolve the issue before this court.
2
“The newspaper ran many front-page, invective-filled
headlines: ‘Ex-Inmate: Suspect is a Loudmouthed Punk,’ ‘Huggins
Suspect “Would Kill You in a Heartbeat,”’ ‘Profile of a Monster:
The Man Who Killed Kristin Huggins Committed His First Rape
as a Teenager,’ ‘From Boy to Beast,’ ‘Huggins Slayer Terrorizes
Prison,’ ‘He’s Satan in Disguise.’ Other news accounts discussed
[Harris’s] prior criminal record as well as other crimes he was
suspected of committing. An editorialist predicted that death by
lethal injection would rid society of ‘one of the biggest pieces of
human trash ever to blight Trenton streets.’” State v. Harris, 716
A.2d 458, 469-70 (N.J. 1998).

3
the State cross-appealed the trial court’s decision to impanel a
foreign jury in the first instance, arguing that it was unnecessary.
The Superior Court of New Jersey, Appellate Division, held that
“the trial court did not abuse its discretion in concluding” that
“prejudice [in Mercer County] may be presumed due to pretrial
publicity,” and affirmed the trial court’s decision “that th[e] case
should be tried before a foreign jury.” State v. Harris, 660 A.2d
539, 541-42 (N.J. Super. Ct. App. Div. 1995) (Harris I).
However, the Appellate Division also held that the trial court
should have considered whether the racial demographics of the
county from which it would draw the new jury pool were
comparable to the racial demographics of the community in
which the crime was committed, and further found that the trial
court had abused its discretion in selecting Hunterdon County as
the source of the jury pool because the racial demographics of
Hunterdon County differed markedly from those of Mercer
County. Id. at 544-45. It then remanded for further proceedings.
Id. at 545.

On remand, the trial judge decided to impanel jurors from
Burlington County, a county contiguous to Mercer County,
where the racial demographics generally matched those of
Mercer County, and where the combined readership of the
Trentonian and the Trenton Times was only around 22,000,
divided fairly evenly between the two. See State v. Harris, 716
A.2d 458, 471-72 (N.J. 1998) (Harris II). The jury voir dire was
conducted in Burlington County. During jury selection, Harris
moved the trial court to change venue from Mercer County to
Burlington County. In support of this motion, Harris submitted
evidence that, among other things, the Trentonian was sold at
sites near the Mercer courthouse. The trial court denied Harris’s
motion. Instead, each day of trial the jurors were transported by
bus from the Burlington courthouse to the courthouse in Mercer.
Meanwhile, “the inflammatory publicity continued throughout
the trial[].” 3 State v. Harris, 859 A.2d 364, 429 (N.J. 2004)

3
According to the New Jersey Supreme Court:
“Dramatically prejudicial headlines were attendant to the
guilt-phase deliberations. The Trentonian headlines read, ‘One
Juror Stalls Verdict,’ and ‘Battling Harris Jury Draws Public Fire.’

4
(Harris IV).

Harris was convicted and the jury recommended that he
be sentenced to death. Harris II, 716 A.2d at 463. The New
Jersey Supreme Court affirmed Harris’s conviction and the
jury’s recommended death sentence. Id. at 498. The New Jersey
Supreme Court held, in part, that “the selection of a jury
composed of out-of-county residents, and [the trial court’s]
general questioning of the jurors during the trial concerning any
exposure to trial publicity sufficiently ensured that defendant’s
trial was free of extraneous influences.” Id. at 463. More
specifically, the Court noted that in the past it had approved the
use of a foreign jury as a “trial management technique[] . . . to
ensure that a defendant’s right to an impartial jury is not
compromised,” id. at 470, and it observed that “a change of
venue has the same benefits and drawbacks as the impanelling of
a foreign jury since both methods utilize jurors from
communities where publicity may be less intense,” id. (quoting
State v. Williams, 459 A.2d 641, 656 n.13 (N.J. 1983)).
Although the Harris II Court affirmed Harris’s conviction, it
stated that “[w]hen . . . a capital case is accompanied by a stream
of public invective such as surrounded this case, it occasions us
to reconsider our precedent,” id., and held that “[i]n future
capital cases a court should change the venue of a capital trial
when there is a realistic likelihood that presumptively prejudicial
publicity will continue during the conduct of a trial,” id. at 471.
Later, the New Jersey Supreme Court undertook a separate
“proportionality review” of the recommended death sentence and
concluded that Harris’s sentence was not disproportionate
compared to other cases. State v. Harris, 757 A.2d 221, 307

A feature story quoted a Trenton resident as expressing the opinion
that ‘[m]ost people figure the jury would think, “We’ll have lunch
on the county, and we’ll squirt him-this afternoon.”’ Similar
publicity continued during the penalty phase. A headline such as
‘Ambrose Eyed in ‘67 Slay.’ An editorial recommended death for
Harris. The day after the jury returned its guilt verdict, a front-page
photograph of Harris ran over a caption which read, ‘So why’s this
killer smiling? Because he’s seen juror No. 7 crying, and he thinks
she’ll never go for the death penalty.’” Harris II, 716 A.2d at 472.

5
(N.J. 2000) (Harris III).

Harris next petitioned for post conviction relief, making
“multiple claims of ineffective assistance of counsel and
assorted other challenges to the validity of his conviction and
sentence.” Harris IV, 859 A.2d at 374. His petition was
eventually reviewed de novo and denied by the New Jersey
Supreme Court.4 Id. at 380, 449.

Thereafter, Harris filed a petition for a writ of habeas
corpus in the New Jersey district court. See Harris v. Cathel,
Civ. No. 05-4858 (AET), 2009 WL 539898, at *1 (D.N.J. Mar.
4, 2009) (Harris V). While the resolution of his petition was
pending, New Jersey repealed the death penalty and New Jersey
Governor Jon Corzine commuted Harris’s death sentence to life
imprisonment without the possibility of parole. See id. at *2.
Harris thereafter abandoned all of his arguments based on the
imposition of the death penalty, and pressed only the following
claims that “flow from the Sixth Amendment’s guarantee of a
fair trial”: (1) in light of the pretrial publicity surrounding the
case, the trial court’s use of a foreign jury deprived him of a fair
trial; (2) the trial court should have taken more extensive
precautions to ensure that the impaneled jurors were not infected
by the mid-trial publicity; (3) the trial court should have held a
hearing to explore allegations of contact between jurors and a
former public defender; (4) the trial court should have allowed
Harris to call a witness who would have testified that Gloria
Dunn, who was Harris’s accomplice in the murder of Kristin
Huggins and who was the state’s primary witness against Harris,
was a violent person; and (5) his counsel was ineffective. Id. at
*2, *7, *9. The District Court rejected all of Harris’s arguments,
denied his petition for a writ of habeas corpus, and denied Harris
a certificate of appealability. Id. at *10. This court granted
Harris’s petition for a certificate of appealability, finding that the
“sole claim presented [on] appeal [was] ‘adequate to deserve

4
The New Jersey Supreme Court found that because of
some of the PCR “court’s statements, and the bias, flippancy, and
disdain they portray[ed,]” it would “afford no weight to any of its
findings or conclusions.” Harris IV, 859 A.2d at 378.

6
encouragement to proceed further,’” App. at 30 (quoting Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003)), and instructed the
parties to brief “the issue of whether the New Jersey Supreme
Court held contrary to, or unreasonably applied, ‘clearly
established Federal law,’ see 28 U.S.C. § 2254(d)(1), in
affirming the trial court’s decision to impanel a foreign jury
rather than transfer the case to a different venue in light of the
pretrial publicity that surrounded the case,” App at 30-31.5

II.

Analysis

Because this case arises from a state court proceeding in
which the merits of Harris’s sole claim on appeal were
adjudicated, the standards established by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) apply. See 28
U.S.C. § 2241-2266. Harris is not entitled to a writ of habeas
corpus unless the state proceedings “(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.” Id. §
2254(d)(1)-(2). The certificate of appealability granted in this
case is limited to the “contrary to” prong.

There has been considerable judicial commentary on the
requirements imposed by AEDPA. “A state court decision . . .
fails the ‘contrary to’ prong of AEDPA if the state court reaches
a conclusion opposite to the Supreme Court’s own conclusion on
a question of law or decides the case differently where the
Supreme Court was confronted by a set of materially
indistinguishable facts.” McMullen v. Tennis, 562 F.3d 231, 236
(3d Cir. 2009) (citation omitted). “Similarly, a state court ruling
is considered an ‘unreasonable application’ if the state court

5
The District Court had jurisdiction under 28 U.S.C. §
2254(a). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(a).

7
unreasonably applies the correct legal rule to the particular facts,
unreasonably extends a legal principle to a new context, or
unreasonably refuses to extend the principle to a new context
where it should apply.” Id. (citations omitted).

The effect of extensive pretrial publicity has also been the
subject of numerous decisions by the courts, including the
Supreme Court. This court has noted the Supreme Court’s
holdings that “‘adverse pretrial publicity can create such a
presumption of prejudice in a community that the jurors’ claims
that they can be impartial should not be believed.’” Flamer v.
Delaware, 68 F.3d 736, 754 (3d Cir. 1995) (en banc) (quoting
Patton v. Yount, 467 U.S. 1025, 1031 (1984)).

The Supreme Court has also held that in some
circumstances mid-trial publicity and courtroom events can
result in a presumption of juror prejudice. See Estes v. Texas,
381 U.S. 532, 542-43 (1965) (jury prejudice assumed in part
because trial was conducted in a circus-like atmosphere created
by television and news media); Sheppard v. Maxwell, 384 U.S.
333, 355 (1966) (juror prejudice presumed in part because
“bedlam reigned at the courthouse during the trial and newsmen
took over practically the entire courtroom, hounding most of the
participants in the trial, especially Sheppard.”). Such a
presumption arises, however, only when the “proceedings . . .
[are] entirely lacking in the solemnity and sobriety to which a
defendant is entitled in a system that subscribes to any notion of
fairness and rejects the verdict of a mob.” Murphy v. Florida,
421 U.S. 794, 799 (1975).

The effect of pretrial publicity was also considered in
Rideau v. Louisiana, 373 U.S. 723 (1963), where “the defendant
had ‘confessed’ under police interrogation to the murder of
which he stood convicted.” Murphy, 421 U.S. at 799 (describing
Rideau). “A 20-minute film of his confession was broadcast
three times by a television station in the community where the
crime and the trial took place.” Id. In reversing the defendant’s
conviction, the Supreme Court in Rideau “did not examine the
voir dire for evidence of actual prejudice because it considered
the trial under review ‘but a hollow formality’ - the real trial had
occurred when tens of thousands of people, in a community of

8
150,000, had seen and heard the defendant admit his guilt before
the cameras.” Id.

From this line of precedents, Harris argues that as a result
of the trial court’s finding uncontested on appeal that prejudicial
pre-trial publicity by Trenton-based newspapers created a
presumption of prejudice in Mercer County jurors, “clearly
established federal law, as set forth by the Supreme Court,
require[d] that the venue of the trial be moved away from the
source of the publicity in order to protect petitioner’s Sixth
Amendment right to a fair trial by an impartial jury[.]”
Appellant’s Br. at 1. In other words, Harris argues that the
Supreme Court cases hold that the only possible remedy for a
finding of presumptive prejudice in a community due to pretrial
publicity is a change of venue. No Supreme Court decision
directly so states and we decline to view this argument as a
natural extension of existing precedent.

Harris discounts the relevance of the jurors’ affirmations
that they had not been aware of the publicity, either pretrial or
midtrial. He refers to the statements in the Supreme Court’s
decision in Irvin v. Dowd, 366 U.S. 717 (1961), where the Court
stated that there was “[n]o doubt [that] each juror was sincere
when he said that he would be fair and impartial to petitioner,
but psychological impact requiring such a declaration before
one’s fellows is often its father.” Id. at 728. The Court held that
“[w]here so many [jurors] so many times, admitted prejudice,
[their] statement[s] of impartiality can be given little weight . . .
.[because] [a]s one of the jurors put it, ‘You can’t forget what
you hear and see.’” Id. Irvin is inapposite here. In Irvin, eight
of the twelve jurors had formed an opinion that the defendant
was guilty before the trial began; some went “so far as to say that
it would take evidence to overcome their belief” in his guilt. Id.

It is important to recognize what Harris does not argue.
To our knowledge, Harris has never argued that there was so
much negative pretrial publicity in Burlington County, the
residence of the foreign jurors, that prejudice should be
presumed. Indeed, the trial court held that Burlington County
was not so infected, and the New Jersey Supreme Court
approved that holding. See Harris II, 716 A.2d at 472 (“The

9
principal risk of jury contamination in this case arose in Mercer
[C]ounty and not in the home counties of the jurors.”).
Significantly, Harris himself had requested that the trial be
transferred to Burlington County.

Nor does Harris argue that the trial court impaneled jurors
who were actually biased as a result of the pretrial publicity.
Such an argument would in fact be difficult to sustain in light of
the New Jersey Supreme Court’s findings on direct appeal that
the trial court “took firm steps to ensure that none of those
households that received the Trentonian (the newspaper
containing the most inflammatory material) would be on this
jury,” and that “[a]ny juror who regularly read the Trentonian
was effectively subject to elimination for cause in the jury
selection process.” Id.

In fact, Harris does not argue that the impaneled jurors
were actually biased for any reason, whether due to exposure to
publicity before or during the trial or otherwise. In any event,
the New Jersey Supreme Court found on direct appeal that “the
[trial] court ensured that during the course of the trial most jurors
were assembled at the Burlington County Court House and
transported directly to the Mercer County Court House with
attempts to minimize the exposure to the hawking of papers en
route to the court house.” Id. The New Jersey Supreme Court
further noted that “whenever [defense counsel] requested
[during trial that] the court . . . question jurors concerning any
prejudicial headlines and accounts, the court did ask the jurors to
acknowledge by a show of hands if they had seen or read any
news accounts of the trial and that on each of these occasions it
received no response.” Id.

Harris’s argument is exclusively based on the trial court’s
determination that a presumption of prejudice against him arose
as to the inhabitants of Mercer County because of their exposure
to pretrial publicity. From that, Harris argues that any foreign
jurors impaneled in Mercer County should ipso facto be
presumed to be prejudiced. Harris relies on the Supreme Court
decisions to argue that the statements by the foreign jurors
during voir dire that they could be and were unbiased should be
disregarded wholesale as untrustworthy, even when voir dire was

10
conducted within a community with little prejudicial pretrial
publicity. He discounts the measures taken by the trial judge to
prevent impaneling jurors who were biased and to shield the
foreign jurors from being exposed to prejudicial media coverage
during trial.

We cannot decide this case on the basis of the opinions on
which Harris depends for his argument that once a court has
found that “pretrial publicity in connection with a capital trial
ha[s] . . . tainted the jury pool . . . the defendant [is] entitled as a
matter of federal constitutional law to a change of venue to
another county.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)
(citing Irvin, 366 U.S. 717). None of the Supreme Court cases
that Harris relies on addressed, or even mentioned, the use of a
foreign jury to ameliorate the effects of pretrial publicity. Even
in the one opinion that has language that on its face appears to
support Harris’s position, Groppi v. Wisconsin, 400 U.S. 505
(1971),6 the Court acknowledged that there “are many ways to
try to assure the kind of impartial jury that the Fourteenth
Amendment guarantees.” Id. at 509. Neither Groppi nor Rideau
considered whether the impanelment of a foreign jury could
achieve the same end.

The same can be said of the courts of appeals decisions to
which Harris cites. See Gaskin v. Sec’y, Dep’t of Corr., 494
F.3d 997, 1004 (11th Cir. 2007); Goss v. Nelson, 439 F.3d 621,
625 (10th Cir. 2006); Daniels v. Woodford, 428 F.3d 1181, 1210
(9th Cir. 2005); United States v. Higgs, 353 F.3d 281, 307 (4th
Cir. 2003); Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir.
1999); Pruett v. Norris, 153 F.3d 579, 585-86 (8th Cir. 1998).

In any event, we cannot decide this case on the basis of
any of those authorities because, as we noted at the outset, this
case is governed by AEDPA. Harris must show that the New

6
In Groppi, the Court, citing Rideau, stated: “[o]n at least
one occasion this Court has explicitly held that only a change of
venue was constitutionally sufficient to assure the kind of impartial
jury that is guaranteed by the Fourteenth Amendment.” Groppi,
400 U.S. at 510 (discussing Rideau, 373 U.S. at 723).

11
Jersey Supreme Court’s decision upholding the use of foreign
jurors to ameliorate the effects of the pretrial publicity was
contrary to law clearly established by the Supreme Court of the
United States. See 28 U.S.C. § 2254(d)(1). Even Harris
concedes that the Supreme Court has never squarely considered
this issue.

A recent decision of the Supreme Court illustrates its
deferential approach to the state courts’ decisions, even in the
face of what appears to be its doubt about the merits of that
decision. In Renico v. Lett, - - U.S. - - , 2010 WL 1740525, at *5
(May 3, 2010), the Court reviewed the Sixth Circuit’s grant of a
writ of habeas corpus to a defendant who was retried for murder
following the trial judge’s grant of a mistrial after the jury “had
deliberated for at least four hours following a relatively short,
and far from complex, trial . . . .” The Michigan Supreme Court
had concluded there was no violation of the Double Jeopardy
Clause because the trial court exercised its sound discretion. Id.
at *4. The federal district court granted a writ of habeas corpus,
and the Sixth Circuit affirmed, both concluding that the trial
court’s declaration of a mistrial constituted an abuse of
discretion because there was no manifest necessity. Id. at *5

The Supreme Court reversed and its reasoning is
instructive here. It stated that the question “is not whether the
trial judge should have declared a mistrial. It is not even
whether it was an abuse of discretion for her to have done so-the
applicable standard on direct review. The question under
AEDPA is instead whether the determination of the Michigan
Supreme Court that there was no abuse of discretion was ‘an
unreasonable application of . . . clearly established Federal
law,’” and it later explained that the application must be
“objectively unreasonable.” Id. (citations omitted). In reversing
the Court of Appeals, the Court stated in a footnote, “whether
the trial judge was right or wrong is not the pertinent question
under AEDPA.” Id. at *9 n.3. It noted that the Michigan
Supreme Court’s decision, “while not necessarily correct - was
not objectively unreasonable.” Id. at *9.

Applying Lett to this case, our way is clear. Had Harris
requested a change of venue at a federal trial, the federal court

12
likely would have granted it. In fact, even the New Jersey
Supreme Court used the opportunity to opine on the need to
consider a venue change in the future under similar
circumstances. See Harris II, 716 A.2d at 471. But this was not
a federal, but a state, trial. We cannot hold that the New Jersey
courts’ decision to impanel foreign jurors after taking careful
steps to ensure an impartial and unbiased jury was an objectively
unreasonable application of federal law. We therefore will
affirm the District Court’s denial of Harris’s petition for a writ
of habeas corpus.

I append a statement by Judge Pollak, a member of this
panel.

13
Pollak, District Judge.

I join the court’s fine opinion. What is at issue in this
profoundly unfortunate case is dictated by this court’s grant of a
certificate of appealability instructing counsel to address the
question whether the affirmance by the New Jersey Supreme
Court of “the trial court’s decision to impanel a foreign jury
rather than transfer the case to a different venue in light of the
pretrial publicity” orchestrated by the Trentonian 7 constituted
what 28 U.S.C. § 2254(d)(1) terms “an unreasonable application
of[] clearly established Federal law[] as determined by the
Supreme Court of the United States.” Since, as the court notes,
Harris does not “argue that the trial court impaneled jurors who
were actually biased,” what is at issue is whether any decision or
line of decisions of the Supreme Court directs that “transfer to a
different venue” should, as a matter of federal constitutional
requirement, have been taken as a prophylactic measure,
additional to utilizing jurors from another county, to minimize
the danger that the pretrial publicity would generate juror bias.
The court’s opinion convincingly demonstrates that, thus far, no
case decided by the Supreme Court has put in place such a
constitutional mandate governing the procedures of state courts.
The court rightly observes that “[h]ad Harris requested a change
of venue at a federal trial, the federal court likely would have
granted it.” I would only add that if, under circumstances
comparable to those obtaining at Harris’s trial, a federal trial
court were to decline to move the trial to another venue, it is to
be hoped, and indeed expected, that a court of appeals would
conclude that the trial court’s ruling was an abuse of discretion.
But the case before us is a state case, with respect to which we
are required to view the state court’s decision through the
limiting prism of § 2254(d)(1). And therefore, as the court’s
opinion establishes, the District Court’s denial of habeas corpus

7
Dissenting in State v. Harris, 716 A.2d 458, 507 (1998)
(“Harris II”), Justice Handler described the pretrial publicity this
way: “A sea of horrendous, sensationalistic, and unremittant
publicity engulfed this prosecution. The Trentonian, a daily tabloid
newspaper, was the primary, almost exclusive, source of this
unabated torrent.”

14
must be affirmed.

15