NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2691
____________
CARNELL GIBBS,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
ATTORNEY GENERAL NEW JERSEY
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-11-cv-01137)
District Judge: Honorable Noel L. Hillman
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on February 7, 2020
Before: SHWARTZ, SCIRICA, and COWEN, Circuit Judges.
(Filed: May 19, 2020)
________________
OPINION*
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
After he shot two people outside a New Jersey bar, Petitioner Carnell Gibbs was
convicted of murder, attempted murder, and unlawful possession of a handgun. His
attempts at post-conviction relief in New Jersey state court and in federal district court
have so far failed. He now appeals the dismissal by the federal district court of his § 2254
habeas petition based on a claim that his original trial counsel was ineffective for failing
to ensure an impartial jury. Gibbs alleges that three of the jurors knew him and that his
counsel failed to take appropriate action. Because we find that the New Jersey court’s
denial of this claim was reasonable under existing federal law, we will affirm the federal
trial court’s denial of Gibbs’ habeas petition.
I.
In October 1998, outside a bar in Pleasantville, New Jersey, Gibbs challenged
John Byrd to a fight. In front of numerous onlookers—as Byrd prepared for a fistfight by
taking off his jacket—Gibbs shot Byrd multiple times with a handgun, and then walked
over to his body and fired more shots. At that point, one of the onlookers, Alex Crawford,
approached Gibbs with his hands up in an attempt to intervene. Gibbs shot him twice, and
Crawford died at a nearby hospital. Fortunately, Byrd survived despite eight to ten bullet
wounds. Gibbs was indicted and tried by jury.1 On April 18, 2000, he was convicted of
1
Gibbs was indicted on six counts: (1) first-degree murder, N.J.S.A. 2C:11-3a(1)(2); (2)
first-degree attempted murder, N.J.S.A. 2C:5-1, and 2C:11-3a(1)(2); (3) first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1)(2); (4) second-degree
conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-b(1); (5) third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and (6) second-degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a.
2
all counts against him and sentenced to 70 years’ imprisonment.2
After his conviction, Gibbs filed a motion for a new trial, contending his counsel
had learned—three to four weeks after trial—that three selected jurors had potential
connections to Gibbs and were therefore biased against him. In support of the motion,
Gibbs included three letters written by his family members that described tenuous
connections between Gibbs and three of the jurors that were selected. During a hearing
before the state trial court addressing the motion for a new trial, Gibbs’ counsel stated
that he had no indication of the connections during trial, nor did he recall Gibbs
mentioning any relationship with the jurors during jury selection or trial. During voir
dire, each of the allegedly biased jurors had not expressed any knowledge of Gibbs and
stated they could be impartial. Gibbs’ attorney, however, did use fifteen preemptory
challenges to strike other jurors. The court denied the motion for a new trial and denied a
request for it to interview the jurors—citing the vagueness in the letters and the lack of
sufficient evidence of bias.
On June 9, 2003, after exhausting the direct appeals of his conviction, Gibbs filed
a Petition for Post-Conviction Relief (“PCR”) in New Jersey state court. On May 10,
2007, he filed a supporting brief that included new allegations about the allegedly biased
jurors. He now claimed—seven years after his conviction—that he had told his attorney
about the jurors during voir dire. Gibbs offered an undated note found in trial counsel’s
2
Gibbs was sentenced consecutively to 50 years for first degree murder and 20 years for
first degree attempted murder. He was also given a 4-year concurrent sentence for
unlawful possession of a weapon, and the remaining convictions were merged for
sentencing purposes.
3
files that read: “I know some of them . . . I don’t like . . . He knows my mom[.]” App.
244–245. According to Gibbs, he had given counsel this note during voir dire. Thus, he
claimed that he informed his counsel that he knew three prospective jurors and they did
not like him, also averring that he had played basketball with one juror and had “other
encounters” with another. App. 245–246. But, according to Gibbs, his attorney stated—in
reference to the jurors that allegedly knew him—that “this might work in our favor” and
could create an issue on appeal if Gibbs was convicted. App. 246. The jurors were seated
without objection. Gibbs’ PCR was denied by the New Jersey trial court and that denial
was affirmed—in a reasoned decision—by the New Jersey Superior Court, Appellate
Division.3
On February 25, 2011, following the denial of his New Jersey PCR by the
Appellate Division, Gibbs filed a habeas petition in federal court under 28 U.S.C. § 2254.
On April 30, 2018, his petition was denied by the trial court. Gibbs appealed, and we
granted a certificate of appealability on the issue of whether Gibbs’ trial counsel was
ineffective by failing to seek to interview or exclude the three jurors who were allegedly
biased against him.4
II.5
Because the federal trial court did not conduct an evidentiary hearing, our review
3
The New Jersey Supreme Court denied review.
4
Though Gibbs raised fourteen issues in federal court, only this issue was granted a
certificate of appealability.
5
The trial court had jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction
pursuant to 28 U.S.C. §§ 2253 and 1291.
4
of its denial of Gibbs’ petition for habeas corpus is plenary. See Dellavecchia v. Sec'y
Pennsylvania Dep't of Corr., 819 F.3d 682, 691 (3d Cir. 2016). Gibbs contends that his
counsel was ineffective for failing to strike or interview three allegedly biased jurors, thus
robbing him of the right to a fair trial guaranteed under the Sixth Amendment of the U.S.
Constitution. Our review of Gibbs’ claim is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a petitioner’s claim that was
“adjudicated on the merits” in state court fails in federal court unless the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly established
Federal law.” Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (quoting 28 U.S.C. §
2254(d)). “A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
When assessing an ineffective assistance of counsel claim we apply the Strickland
standard, which requires that a petitioner show deficient performance and prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). The ultimate question is whether
counsel’s performance fell below “an objective standard of reasonableness.” Id. at 687–
88. It is a deferential standard that becomes “doubly” so when combined with the
deferential AEDPA standard. See Harrington, 562 U.S. at 105 (quoting Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)). Therefore, a state court is given “even more
latitude” when we review ineffective assistance of counsel claims under § 2254. See
Knowles, 556 U.S. at 123.
5
Based on this deferential review, Gibbs’ § 2254 petition fails. The New Jersey
Appellate Division6 adjudicated his claim on the merits. It determined that (1) counsel
was not deficient for failing to attempt to strike the jurors during voir dire and that (2)
Gibbs could not establish prejudice for counsel’s failure to move to interview the jurors.
The Appellate Division determined that if counsel was unaware of the allegedly biased
jurors until after trial, he could not have been ineffective for failing to object during voir
dire. Alternatively, it held that if counsel had been told about the jurors by Gibbs during
voir dire and stated that having those jurors could be an advantage or create an issue on
appeal—as Gibbs alleged seven years after trial—then counsel’s decision to not object to
the jurors was strategic and not deficient. The Appellate Division went on to find that
counsel’s failure to file a motion to interview the jurors would not have prejudiced Gibbs
because the trial judge would not have granted the motion based on Gibbs’ vague
allegations of bias, which were undermined by those jurors failing to acknowledge any
relationship with Gibbs or prejudice again him during voir dire.
We find that the New Jersey Appellate Division’s determination was not an
“unreasonable” application of federal law. See 28 U.S.C. § 2254(d). Gibbs’ counsel could
not be ineffective for failing to remove the jurors if he did not know about the allegations
of bias until after trial—as his counsel stated was the case during the post-trial hearing.
See United States v. Noel, 905 F.3d 258, 272 (3d Cir. 2018) (“[W]e would not fault a
defendant for failing to inquire further into voir dire responses that raised no potentially
6
Under AEDPA, we look to the highest state court to issue a reasoned opinion and
examine its reasoning. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
6
material concerns at the time, yet later turned out to be demonstrably and materially
false.”); see also Strickland, 466 U.S. at 689 (holding that we are obligated “to evaluate
the conduct from counsel’s perspective at the time”).
But even if Gibbs’ counsel had seen Gibbs’ note and been told of the jurors during
voir dire; if counsel had concluded that keeping the jurors would benefit his client, his
strategic decision could be seen by a “fairminded jurist[]” as reasonable. See Harrington,
562 U.S. at 101. None of the jurors acknowledged during voir dire that they knew Gibbs
when asked by the trial judge, and each stated that he could act as an impartial juror. As
the Appellate Division held, Gibbs’ counsel could have reasonably thought that any sort
of relationship to Gibbs could make those jurors more sympathetic and made the tactical
decision to keep the jurors.7 The Appellate Division reasonably applied federal law by
giving “wide latitude” to Gibbs’ counsel who was making a tactical decision. See
Strickland, 466 U.S. at 689; cf. Breakiron v. Horn, 642 F.3d 126, 141–143 (3d Cir. 2011)
(finding that a counsel’s alleged strategic decision to allow a possibly biased juror to
remain was unreasonable when that juror had clearly been exposed to a prejudicial
statement and had never stated that he could be impartial).
Regardless, even if Gibbs’ counsel could be considered deficient, there was no
prejudice here. Gibbs has not presented sufficient evidence to establish that the jurors—
7
We note that the most plausible reading of the record is that Gibbs’ counsel was not
aware of any potential issues with the jurors until after trial, as he stated to the trial court
on the record. Had counsel been aware of any potential issues, the record suggests—
based on the fact that he used fifteen preemptory challenges to strike other jurors—that
he would have objected contemporaneously.
7
who stated they would be impartial and who were approved by the trial judge—were
biased. Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (stating that an
appellate court cannot easily “second-guess” the conclusions of a trial court during voir
dire). His allegations of juror bias presented seven years after trial are terse and
undeveloped, providing few details beyond vague statements of general animus. Those
allegations are not enough to establish bias in light of the record.8
The Appellate Division’s finding of a lack of prejudice for failure to interview the
jurors was also a reasonable application of federal law. Gibbs’ counsel, though he did not
formally request to interview the jurors, essentially made the identical request when he
asked the trial judge to question the jurors. Based on the record before him, the trial judge
denied that request and Gibbs’ motion for a new trial. The Appellate Division reasonably
concluded that the trial judge would have also denied a formal request for Gibbs’ counsel
to interview the jurors because Gibbs’ allegations were vague and contradicted the clear
record during voir dire when each of the jurors denied knowing Gibbs while stating they
could be impartial.
III.
For the foregoing reasons, we will affirm the denial of habeas relief.
8
Additionally, as laid out in the Appellate Division’s opinion, the facts here were clearly
enough for an impartial jury to convict Gibbs on all counts. There were multiple
eyewitnesses to the shooting and any self-defense claim by Gibbs was contradicted by
enough evidence for a jury to “certainly . . . conclude that Byrd was unarmed when shot.”
App. 108. Plus, Gibbs shot Byrd multiple times while he was helplessly lying on the
ground. Finally, Gibbs admitted that he shot Crawford, the innocent bystander, without
any reason to believe he was armed or a threat.
8