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Marshall Rountree, A/K/A Mark Hawkins v. Karen Balicki

May 13, 2011


On Appeal from the United States District Court for the District of New Jersey (D.C. No. 0312-1 1-07-cv-05763) District Judge: Honorable Renee M. Bumb

The opinion of the court was delivered by: Aldisert, Circuit Judge.


Argued February 14, 2011

Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges.


This appeal by Marshall Rountree, from a judgment of the United States District Court for the District of New Jersey denying his 28 U.S.C. § 2254 habeas corpus petition, requires us to decide if the New Jersey Superior Court, Appellate Division, was unreasonable in concluding that alleged violations of Rountree‟s Sixth Amendment right to counsel did not undermine the reliability of the sentence he received for an armed robbery he committed in Camden County, New Jersey. Applying provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we conclude that the New Jersey appellate court‟s decision in this case was not contrary to and did not unreasonably apply federal law, nor was it based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). We will therefore affirm the District Court.



Within the span of two weeks in July of 1993 Marshall Rountree, who also uses the name Mark Hawkins, perpetrated two unrelated firearm incidents in New Jersey: an armed robbery in Camden County, and a shooting in Essex County. The Essex County shooting occurred on a street, after Rountree and two companions encountered the boyfriend of one of the men‟s sisters. The men exchanged words, then blows. At some point, Rountree drew a revolver and shot the boyfriend, rendering him paraplegic. The Camden County robbery occurred two weeks later when Rountree covered his face with a white towel, approached a woman from behind a dumpster in her apartment building‟s parking lot and said, "I have a gun. Give me your purse or I‟ll shoot you." She surrendered the purse, and called the police after he fled the scene. Minutes later, Rountree, carrying a white towel, was spotted near a shopping mall. Officers arrested him and recovered various items that had been inside the woman‟s purse, but did not recover a pistol. Rountree waived his Miranda rights and provided a taped confession in which he claimed he robbed the woman with a toy pistol and then discarded it into a nearby wooded area. Later, during plea bargaining, he swore under oath that the pistol was real.

Both crimes were subject to New Jersey‟s "Graves Act," which sets forth mandatory penalties if a person "used or was in possession of a firearm" during or in flight from a violent offense. See N.J. Stat. Ann. §§ 2C:43-6(c), (d), (g), (h), 2C:44-3(d). Of particular importance to this appeal is a Graves Act repeat-offender provision, which substantially enhances sentences if a person who possesses or uses a firearm during a crime "has been previously convicted of an offense involving the use or possession of a firearm." § 2C:43-6(c).

In 1993, a grand jury in Camden County indicted Rountree for first-degree armed robbery and third-degree hindering justice. The same year, he was also indicted in Essex County for conspiracy to commit murder, first-degree attempted murder, second-degree aggravated assault, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. Plea negotiations occurred separately in each county. Soon after they began, Rountree‟s Camden County attorney obtained judicial and prosecutorial permission to consolidate the Camden County and Essex County negotiations into one plea bargaining session, pursuant to Rule 3:25A-1 of the New Jersey Rules of Court, which provides in pertinent part:

[W]hen a defendant has charges pending in more than one county at any stage prior to sentencing, either the defendant, or the prosecutor in any such county with the consent of the defendant, may move before the presiding judge of the criminal part in the county in which consolidation is sought, or before any judge designated to hear such motion, for consolidation for purposes of entering a plea or for sentencing.

Although there was every indication that a Rule 3:25A-1 motion would have been granted, Rountree‟s Camden County attorney failed to file one and, as a result, the negotiations continued separately.

As early as March of 1994, prosecutors offered Rountree a choice regarding his Camden County charges: he could plead guilty to non-Graves Act offenses in return for a 12-year sentence, or he could plead guilty to a Graves Act offense in return for a 9-year sentence. If accepted, either offer would have resolved Rountree‟s Camden County charges, but not his Essex County Charges. Rountree‟s attorney wrote him a letter explaining the enhancement effect that a Graves Act conviction would have on any sentence that might be imposed for the shooting in Essex County, and recommended the 12-year non-Graves Act offer. Nonetheless, Rountree chose the 9-year offer. Under the plea agreement, Rountree‟s sentence was to run concurrently with any sentence imposed for the still-unresolved charges related to the shooting he had committed in Essex County.

In the fall of 1994, after entering his plea in Camden County but before the court accepted the plea and sentenced him, Rountree was transferred to Essex County to address the shooting-related charges there. Prosecutors and Rountree were unable to reach a plea agreement, and the case went to trial. In October of 1994, a jury convicted Rountree of first-degree attempted murder, second-degree aggravated assault, and two separate firearm crimes. He received a 20-year Graves Act sentence. Soon after he was sentenced, however, and under threat of appeal, prosecutors agreed that faulty jury instructions required a new trial. Before retrial, and after much negotiation, Rountree pleaded guilty to aggravated assault and possession of a weapon for an unlawful purpose- both of which are Graves Act offenses. The Essex County Court accepted Rountree‟s plea and sentenced him to two concurrent 10-year prison terms, during the first half of which he would be ineligible for parole. At this time Rountree stood convicted of his first Graves Act offense.

Rountree then returned to Camden County in July of 1995 to complete sentencing on his plea to the robbery-related offenses still pending there. Somewhat unexpectedly, the Camden County Court rejected the plea agreement. It explained that the 9-year sentence Rountree had accepted before his transfer to Essex County was either too lenient for the crimes he had committed or, alternatively, was illegal. The court reasoned thusly: even if Rountree had used a toy pistol (as he initially claimed) the 9-year sentence the government had offered was too lenient under New Jersey law; alternatively, if the pistol was real, then the sentence was illegal under the Graves Act (which requires extended prison time for repeat firearm offenders) given Rountree‟s recent Graves Act conviction in Essex County. Rountree responded by withdrawing his guilty plea.

The Camden County case was set for trial in April of 1996, and plea negotiations continued. On the day of trial, the Camden County prosecutor offered Rountree a 20-year sentence with a 7-year term of parole ineligibility, to run concurrently with the 10-year sentence he had received in Essex County (hereinafter, the "April 1996 offer"). Rountree rejected it. He explained to the court that he was not interested in the prosecutor‟s offer because he believed that the time he had already served in Essex County was "dead time"-i.e., that it would not count toward either of his sentences. The trial court explained that regardless of whether he accepted the plea, his time served would indeed count toward his Essex County sentence, but would not count toward his Camden County sentence. Rountree reiterated his rejection of the plea, the trial proceeded, and a jury convicted him of first-degree armed robbery (a Graves Act crime) and of hindering justice.

The Camden County sentencing judge determined that, given Rountree‟s prior Essex County Graves Act conviction, Rountree was a person who had "been previously convicted" of a Graves Act crime. See N.J. Stat. Ann. § 2C:43-6(c). The court then applied the Graves Act‟s repeat-offender provision and imposed a 50-year sentence, with parole eligibility after 16 years and 8 months, to run consecutively with his 10-year Essex County sentence.


Rountree challenged his conviction and his sentence on direct appeal, and the New Jersey Superior Court, Appellate Division, affirmed. State v. Hawkins, 719 A.2d 689 (N.J. Super. Ct. App. Div. 1998). The Supreme Court of New Jersey denied Rountree‟s petition for certiorari. State v. Hawkins, 744 A.2d 1211 (N.J. 1999).

Rountree then sought post-conviction relief on several grounds, including that his Camden County attorney‟s failure to consolidate his Camden County and Essex County plea bargaining into one, lump-sum negotiation violated his Sixth Amendment right to counsel. See State v. Rountree, 906 A.2d 1124 (N.J. Super. Ct. App. Div. 2006). The state court agreed that the Camden County attorney‟s failure to file a motion to consolidate fell below what is expected of "counsel" within the meaning of the Sixth Amendment, but held that the failure to consolidate was not prejudicial to Rountree‟s case because the record indicated that he would not have accepted any offer likely to emerge from a consolidated negotiation. Id. at 1138. The Supreme Court of New Jersey denied review. State v. Rountree, 926 A.2d 852 (N.J. 2007). This exhausted Rountree‟s state court remedies.

Rountree then filed in the District Court an 18 U.S.C. § 2254 habeas corpus petition. See Rountree v. Balicki, No. 07-5763, 2008 WL 4950008 (D.N.J. Nov. 18, 2008). His petition challenged the state court‟s post-conviction ruling as to his Camden County (but not his Essex County) sentence, alleging that deficient performance by his Camden County counsel undermined the reliability of his Camden County sentence. On November 18, 2008, the District Court applied the Antiterrorism and Effective Death Penalty Act ("AEDPA") and denied Rountree‟s petition on the merits. Id. at *1.

Less than 30 days later, on December 15, 2008, Rountree filed in the District Court a pro se motion for extension of time to file for a certificate of appealability. On February 24, 2009, he filed a motion for a certificate of appealability with this Court. One year later, on February 24, 2010, we certified the appealability of three issues: (1) whether his untimely notice of appeal deprived this Court of jurisdiction; (2) whether his trial counsel was ineffective, and, if so; (3) whether his trial counsel‟s conduct was prejudicial to his case.

Five months later, on July 29, 2010, Rountree filed a motion to expand his certificate of appealability to include certification of: (1) whether the state court acted contrary to, or unreasonably applied, clearly established federal law when it held that the Supreme Court‟s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), did not retroactively invalidate Rountree‟s Camden County sentence; (2) any relevant sentencing implications from his not having been indicted for possession of a firearm in Camden County; (3) whether the Camden County trial judge made improper responses to ...

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