14-2-1561 State v L.A., App. Div. (Ostrer, J.A.D.) (26 pp.) In this PCR case, presented after an evidentiary hearing on remand, we explicate the familiar Strickland prejudice standard, requiring a defendant to show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668 (1984). We note the test is not outcome-determinative; “reasonable probability” does not mean more likely than not; it means “probability sufficient to undermine confidence in the outcome.” Ibid. We address the prejudice prong’s application to a claim that counsel failed to call an exculpatory witness. We conclude a court must assess the absent or uncalled witness’s credibility in light of the totality of the circumstances. The issue is not whether the absent witness is more credible than the state’s witness; it is whether the absent witness’s testimony sufficiently undermined confidence in the result. The court’s ultimate goal is to assess the challenged trial’s fairness and reliability. Here, the trial judge found the absent witness credible, but denied relief because he perceived the victim-witness more credible. We reverse the court’s denial of PCR because the court failed to consider the totality of circumstances, and misapplied the test for determining prejudice under Strickland. [Decided Oct. 8, 2013.]
23-2-1573 Allstate New Jersey Insurance Company v. Lajara, App. Div. (Ostrer, J.A.D.) (29 pp.) In this interlocutory appeal, we affirm the trial court’s order striking a jury demand in a private civil action under the Insurance Fraud Prevention Act (Act), N.J.S.A. 17:33A-1 to -30. We previously held that a right to trial by jury does not apply to a civil action under the act by the commissioner of the Department of Banking and Insurance. State v. Sailor, 355 N.J. Super. 315, 323-24 (App. Div. 2001). We analyze the statute in view of established principles of statutory construction, and reject defendants’ argument that the act impliedly establishes a right to a jury trial. We distinguish Zorba Contractors Inc. v. Housing Authority of Newark, 362 N.J. Super. 124 (App. Div. 2003), which found an implied jury trial right under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -109. We also conclude that there is no constitutional right to trial by jury under the fraud prevention law because the equitable nature of the statutory right to relief was unknown at common law before adoption of the state constitution. [Decided Oct. 9, 2013.]
10-8-1521 National Collegiate Athletic Association v. Governor of New Jersey, Third Cir. (Fuentes, U.S.C.J.) (128 pp., including dissent by Vanaskie, U.S.C.J.) In this challenge to the validity of New Jersey’s Sports Wagering Law as violative of the Professional and Amateur Sports Protection Act of 1992, 29 U.S.C. § 3701 et seq., which makes it unlawful for states or persons to sponsor, operate, advertise or promote gambling based directly or indirectly on professional or amateur sports, the Third Circuit concludes that the PASPA is aimed at an activity that is quintessentially economic and that has substantial effects on interstate commerce and thus it does not exceed Congress’ enumerated powers under the Commerce Clause, and that it does not violate the anti-commandeering doctrine or the equal sovereignty of the states, and that it specifically prohibits New Jersey’s Sports Wagering Law, which would have permitted state authorities to license sports gambling in casinos and racetracks and casinos to operate sports pools. It also finds that plaintiff-sports leagues have standing to bring this action. It therefore affirms the district court’s decision granting summary judgment to plaintiffs and enjoining the SWL. [Filed Sept. 17, 2013.]
10-8-1564 In re Pendleton, Third Cir. (per curiam) (9 pp.) In Miller v. Alabama, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.” Corey Grant, Franklin Baines and Michael Pendleton (petitioners), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Before a second or successive petition may be filed in district court, the petitioner must apply for a certification from the appropriate U.S. court of appeals. A certification giving leave to file a successive petition will be granted when the petitioner has made a “prima facie” showing that his or her claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The parties agree that Miller states a new rule of constitutional law, but dispute whether the Supreme Court has made Miller retroactive to cases on collateral review. Concluding petitioners made a prima facie showing that Miller is retroactive, the circuit panel grants the motions. [Filed Oct. 3, 2013.]
14-8-1555 United States v. Fish, Third Cir. (Roth, U.S.C.J.) (10 pp.) The factors in Application Note 5 of U.S.S.G. § 2S1.1(b)(3) are illustrative, not required; typical but non-exhaustive. When the modus operandi of a money-laundering scheme is not made up of the Application Note 5 factors, the district court must establish the relevant facts concerning the scheme’s operation and based on those facts, determine whether the scheme is complex or intricate. Applying a clear-error standard, the district court did not err in concluding that the facts of the scheme here supported a determination of sophistication and application of the sentencing enhancement. [Filed Oct. 1, 2013.]