COPLING v. CATHEL

Filing 21

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/24/2013. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DENNIS COPLING,
Petitioner,
v.
RONALD CATHEL, et al.,
Respondents.

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Civil Action No. 05-6010 (JBS)
OPINION

APPEARANCES:
DENNIS COPLING, Petitioner pro se
# 289645-106257C
New Jersey State Prison
6-Left, P.O. Box 861
Trenton, New Jersey 08625
JASON MAGID, ESQ.
CAMDEN COUNTY PROSECUTOR’S OFFICE
25 North Fifth Street
Camden, New Jersey 08102
Counsel for Respondents
SIMANDLE, Chief Judge
Petitioner Dennis Copling (“Petitioner”), a convicted state
prisoner presently confined at the New Jersey State Prison in
Trenton, New Jersey, has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New
Jersey state court judgment of conviction entered on or about
March 25, 1997.

For the reasons stated herein, the Petition

will be denied for lack of substantive merit.

I.
A.

BACKGROUND

Procedural History
On or about October 5, 1995, a Camden County Grand Jury

indicted Petitioner on five counts as follows: (Count One) first
degree conspiracy to commit murder, in violation of N.J.S.A.
2C:5-2; (Counts Two and Three) first degree murder, in violation
of N.J.S.A. 2C:11-3a; (Count Four) possession of a weapon for an
unlawful purpose, in violation of N.J.S.A. 2C:39-4b; and (Count
Five) unlawful possession of a handgun, in violation of N.J.S.A.
2C:39-5b.

(Ra1, Camden County Indictment No. I-2469-10-95.).1

A trial was held before a jury and the Honorable Linda
Rosensweig, J.S.C., in January 1997.

On February 5, 1997, the

jury returned a verdict of guilty on Counts One, Three, Four and
Five, and on the lesser included charge of aggravated
manslaughter under Count Two.

Judge Rosensweig sentenced

Petitioner on March 25, 1997, to a term of life imprisonment
with a thirty (30) year parole disqualifier on the murder count
(Count Three), and merged Count One and Count Four into Count
Three.

On Count Two (aggravated manslaughter), Petitioner was

sentenced to a thirty year prison term with a fifteen year
parole disqualifier to be served concurrently to the sentence
The State provided the relevant state court record with a list
of exhibits, hereinafter denoted as “Ra”. See Docket entry no.
14-1).
2
1

imposed under Count Three.

On Count Five, Petitioner was

sentenced to a prison term of five years with a two and a half
year term of parole ineligibility to be served consecutively to
Count Three.

In sum, Petitioner was sentenced to an aggregate

prison term of life plus five years with a thirty-two year
parole disqualifier.
about March 25, 1997.

A judgment of conviction was entered on or
(Ra3.)

Petitioner filed a notice of appeal from his conviction and
sentence to the Superior Court of New Jersey, Appellate
Division.

(Ra4.)

In a published opinion entered on December

16, 1999, the Appellate Division affirmed the conviction and
sentence, except the consecutive sentence imposed on Count Five,
which was reversed and remanded for re-sentencing consistent
with the Appellate Division’s opinion.

(Ra7.)

Copling, 326 N.J. Super. 417 (App. Div. 1999).

State v.
An amended

judgment of conviction was entered accordingly on January 28,
2000, in which the sentence on Count Five was imposed to be
served concurrently with the sentence on Count Three.

(Ra8.)

The Supreme Court of New Jersey denied certification on April 4,
2000 (filed on April 6, 2000).

(Ra12.)

On or about December 8, 2000, Petitioner filed his first
state petition for post-conviction relief (“PCR”).

(Ra13.)

Oral argument was heard on the first PCR petition on August 26,
3

2002, at which time an Order denying the PCR petition was
entered.

(Rta10).2

Petitioner appealed from denial of his first

state PCR petition, and the Appellate Division affirmed in an
unpublished opinion decided May 23, 2005.

(Ra22).

The Supreme

Court of New Jersey denied certification on September 12, 2005.
(Ra26).
On July 11, 2006, Petitioner filed his second PCR petition,
which was denied by Order dated June 11, 2007, as time-barred
pursuant to New Jersey Court Rule 3:22-12.

(Ra27).

On March

17, 2009, Petitioner filed a motion for leave to appeal nunc pro
tunc.

(Ra28).

The Appellate Division denied Petitioner’s

motion and dismissed the appeal without prejudice in an Order
filed on May 8, 2009.

(Ra29).

Petitioner then filed a motion

to reinstate his appeal and file his appeal nunc pro tunc, which
was denied by the Appellate Division in an Order filed on July
7, 2009.

(Ra30, Ra31).

On or before December 27, 2005, Petitioner filed a petition
for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
before this Court.

In an Order entered on January 5, 2006, this

Court granted Petitioner’s application to proceed in forma
pauperis, advised Petitioner of his rights under Mason v.
“Rta” refers to the transcripts of the relevant state court
proceedings provided by the State and listed in Docket entry no.
14-1.
4
2

Meyers, 208 F.3d 414 (3d Cir. 2000).

(Docket entry no. 3).

On

February 28, 2006, this Court entered an Order dismissing this
petition without prejudice to Petitioner filing one allinclusive habeas petition, as requested in his February 3, 2006
letter response to the Court’s Mason Order.

(Docket entry no.

4).
On or about June 8, 2011, Petitioner filed a motion to reopen his habeas action.

(Docket entry no. 5).

This Court

granted Petitioner’s motion in an Order entered on December 22,
2011.

The Order denied Petitioner’s request to add unexhausted

claims and his application for appointment of counsel.

The

Order also directed Respondents to file an answer to
Petitioner’s habeas petition.

(Docket entry no. 6).

Respondents answered the petition on April 12, 2012,
providing the relevant state court record.
14, 15).

(Docket entry nos.

Respondents also filed a motion to seal Exhibit Ra-PSR

(Petitioner’s presentence report).

(Docket entry no. 16).

The

Court granted Respondents’ motion to seal in an Opinion and
Order entered on December 19, 2012.
20).

(Docket entry nos. 19 and

Petitioner filed a traverse/reply to Respondents’ answer

on or about May 4, 2012.

(Docket entry no. 18).

5

B.

Factual Background
The facts of this case were recounted below and this Court,

affording the state court’s factual determinations the
appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply
reproduce the recitation as set forth in the published opinion
of the Superior Court of New Jersey, Appellate Division, decided
on December 16, 1999, with respect to Petitioner’s direct
appeal:
Lakesha Buckhannon (hereinafter “Lakesha”) lived with her
mother in Camden. Lakesha’s older half-brother, Kirby
Bunch (known as and hereafter referred to as “K.C.”), lived
nearby. Lakesha received a puppy as a Christmas present in
1994, and her friend, Gary Copling (hereinafter “Gary”),
defendant’s younger brother, offered to help walk and train
the puppy.
On January 17, 1995, Gary took the dog to his home, but
when Lakesha stopped at the Copling residence to retrieve
the dog, Gary said he did not have it. Lakesha was upset
and believed Gary was lying to her, so she called her
brother K.C. Lakesha told K.C. what had happened with the
dog then she, K.C., their cousin, Latisha Fair (hereinafter
“Latisha”), and K.C.’s friend, Nate Simmons (hereinafter
“Nate”), drove around the neighborhood looking for Gary.
When they found him at a friend’s house, K.C. hit Gary with
a bottle and then began to punch, kick, and choke him.
Eventually, Nate pulled K.C. off of Gary, and Gary fled.
The next day, Lakesha, her mother, and Latisha were at the
home of a friend when defendant, Gary’s older brother,
arrived. Defendant had learned that K.C. had beaten Gary
the previous evening. Defendant demanded to know K.C.’s
whereabouts. Defendant kept repeating that he was going to
“get” K.C. Defendant also stated that he was going to find
K.C. and kill him. Because defendant was visibly upset,
Lakesha’s mother called the police. The police arrived,
but did not take any action. Thus, Lakesha and Latisha
6

left their friend’s house to find K.C. and warn him about
defendant.
That evening, K.C. was at Nate’s apartment. A mutual
friend, Benjamin Young (hereinafter “Ben”), was also
visiting. According to the testimony of Nate and Ben,
Malik arrived at the apartment upset and angry, wanting to
know why the three men had jumped Gary the previous night.
Nate told Malik that the three had not jumped or beaten
Gary. Malik then said they “well, you’re going to speak
with [Gary’s] brother.” K.C. and Malik then walked into
the kitchen together.
Nate testified that he was sitting in the living room when
K.C. and Malik entered the kitchen. Nate saw another man
enter the kitchen through the back door of the apartment.
The man was wearing a foam rubber half-mask over the lower
half of his face. Nate described the man as about 6’2”,
well built, and wearing a black and white jacket, a black
hooded sweatshirt with the hood pulled up, a black sweater,
and dark green pants. Nate testified that the man said,
“Why you jump my brother?” and pulled a black automatic
handgun from his jacket pocket. K.C. was standing in front
of Malik and grabbed for the gun. Both Nate and Ben heard
a gunshot and started to run. As they fled, they heard
between three and five more gunshots. Nate further
testified that the man in the mask matched the height and
build of defendant.
Timothy Queensberry, a neighbor, testified that he was at
home that same evening and heard gunshots and a voice
shouting that he recognized as K.C.’s. After hearing the
commotion, Queensberry walked outside and saw K.C. lying on
the ground, calling for help. Queensberry could tell that
K.C. had been shot and asked who had shot him, to which
K.C. replied, “Dennis,” obviously referring to defendant.
As Queensberry was aiding K.C., a car stopped momentarily
across the street and then drove away. Then a man,
described as about 5’6” tall and “kind of built”, ran to
Queensberry and K.C., pulled a black 9-millimeter handgun
from his waist, and shot K.C. once in the neck. The man
fled, firing shots behind him, but failing to hit anyone.
Queensberry testified that the man he saw shoot K.C. in the
head was not defendant, whom Queensberry knew.
7

The police arrived and found K.C. dead on the ground
outside the apartment. The police found Malik in the
kitchen, still alive but suffering from gunshot wounds. A
loaded 9-millimeter handgun, containing seven rounds of
live ammunition with one round still in the chamber, was
found on the floor in the kitchen. The emergency medical
personnel transported both victims to the hospital where
K.C. was pronounced dead, and Malik subsequently died.
The autopsy indicated that K.C. had been shot three times:
in the back of the neck, the middle of his back, and his
lower left side. The gunshot to the neck had been fired
from a distance greater than eighteen inches. The other
two gunshots to his torso were “contact” wounds, resulting
from the gun being placed directly on his body. Neither
the shot to his neck nor to his lower left side would have
been independently fatal; however, the shot to his back
alone would have been likely to cause death. The reported
cause of death was the combined effect of three gunshot
wounds.
The autopsy performed on Malik revealed that he had been
shot twice, in his back and thumb. The wound to his back
was fired from a distance and caused his death.
One bullet was recovered from each victim’s body. Two
spent 9-millimeter shell casings were found at the scene,
one on the kitchen floor and one outside the apartment. A
third 9-millimeter shell casing was found by a neighbor and
turned over to the police. The State Police laboratory
determined that all three shells were fired from the same
weapon, but that none of the shells could have been fired
from the gun found at the scene on the kitchen floor.
On January 27, 1995, the police arrested defendant for
killing K.C. and Malik. Defendant was provided with
Miranda3 warnings. At first, defendant maintained that he
was unaware of the deaths of the two victims. However,
later in the interview with the police at the prosecutor’s
office, defendant admitted that he had gone with Malik and
Donne Parker, known as “Fahim” on the evening of January
18, 1995, to find K.C. at Nate’s apartment and fight with
him. Fahim waited in the car while Malik and defendant
3

Miranda v. Arizona, 384 U.S. 436 (1966).
8

walked up to the apartment. Defendant waited outside while
Malik entered the apartment. Defendant had instructions
from Malik to fetch Fahim if any problems developed.
Inside the apartment, Malik and K.C. began to exchange
heated words, so defendant ran back to the car to summon
Fahim. Defendant stated that he fled from the apartment,
but Fahim entered the apartment and shot at K.C. According
to defendant’s oral statement, as he was running, he heard
shots, looked behind him, and saw K.C. lying on the ground
with Fahim standing over him and shooting at him. The oral
interview was interrupted when defendant’s family arrived
at the prosecutor’s office. A formal written statement was
never prepared.
At trial, Leervin Hill testified that on the evening of the
crime, he saw defendant pacing and cursing on the street.
Defendant approached Hill, took a black foam rubber halfmask from around Hill’s neck, and walked away with the
mask. Both Lakesha and Latisha testified that they had
seen defendant with a handgun prior to the killings.
At trial, the State contended that defendant fired two
shots at K.C. in the kitchen and that Fahim, acting as an
accomplice and using the same gun, returned and shot K.C.
once in the neck outside the apartment. The State further
contended that the doctrine of transferred intent holds
defendant culpable for murdering Malik because the shot
that killed Malik was intended to kill K.C.
(Ra7, December 16, 1999 Appellate Division Opinion, State v.
Copling, Docket No. A–2058–97T4 slip op. at 2-7).
II.

STATEMENT OF CLAIMS

Petitioner asserts the following claims in his petition for
habeas relief:
Point One:

The state court’s ruling Petitioner’s state and

federal constitutional rights to due process and a fair trial

9

were not violated by the State’s withholding of exculpatory
information was contrary to clearly established Federal law.
Point Two:

The state court’s ruling that the Petitioner

was not denied his Sixth Amendment right to effective assistance
of counsel for failing to investigate, interview and call
eyewitnesses who exculpated Petitioner was contrary to clearly
established Federal law.
Point Three:

The state court’s ruling that failure of the

trial court to provide the jury with an instruction on
identification was not error was contrary to clearly established
Federal law.
Point Four:

The state court’s ruling that the failure of

the trial court to provide the jury with a jury instruction on
passion/provocation was not plain error was contrary to clearly
established Federal law.
Point Five:

The state court’s ruling that the failure of

the trial court to grant Petitioner’s request for an adjournment
and for the removal of his trial attorney because of a conflict
of interest did not deprive Petitioner of a fair trial was
contrary to clearly established Federal law.
Point Six:

The state court’s ruling that the prosecutor’s

elicitation of testimony about a prior incident involving

10

Petitioner’s possession of a gun did not deprive Petitioner of a
fair trial was contrary to clearly established Federal law.
Point Seven:

The state court’s ruling that the

Petitioner’s maximum term of life on the murder count and a
consecutive sentence for a first time offender was not error was
contrary to Federal law.
The State essentially contends that the petition is without
merit, or fails to raise a claim of federal constitutional
dimension that would entitle Petitioner to habeas relief.

The

State also asserts that Petitioner failed to exhaust his state
court remedies as to Points Three through Seven in the petition,
but despite this failure to exhaust, Petitioner fails to raise
even a colorable federal claim as to these unexhausted grounds
such that they are subject to dismissal on the merits pursuant
to 28 U.S.C. § 2254(B)(2).
III.

STANDARD OF REVIEW

A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.

Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).

A pro se habeas petition and any supporting submissions

must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).
11

Thus,

because Petitioner is proceeding as a pro se litigant in this
matter, the Court will accord his habeas petition the liberal
construction intended for pro se petitioners.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, this Court has jurisdiction to
entertain a petition for federal habeas relief as follows:
[A] district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
Section 2254(d) of the federal habeas corpus statute
provides the standard of review for federal court review of
state court criminal determinations and provides, in relevant
part, as follows:
(d) 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.

12

28 U.S.C. § 2254(d); see also Parker v. Matthews, 132 S.Ct.
2148, 2151 (2012).
“Clearly established Federal law” should be determined as
of the date of the relevant state court decision and is limited
to the record that was before the state court that adjudicated
the claim on the merits.

Greene v. Fisher, –––U.S. ––––, 132

S.Ct. 38, 181 L.Ed.2d 336 (2011); Cullen v. Pinholster, 563 U.S.
––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

A state-

court decision is “contrary to” clearly established federal law
if the state court (1) contradicts the governing law set forth
in Supreme Court cases or (2) confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a different result.

Williams

v. Taylor, 529 U.S. 362, 405–06 (2000); Jamison v. Klem, 544
F.3d 266, 274 (3d Cir. 2008).

The state court judgment must

contradict clearly established decisions of the Supreme Court,
not merely law articulated by any federal court,

Williams, 529

U.S. at 405, although district and appellate federal court
decisions evaluating Supreme Court precedent may amplify such
precedent, Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir.
2004)(citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877,
890 (3d Cir. 1999)).

“[C]ircuit precedent does not constitute

‘clearly established Federal law, as determined by the Supreme
13

Court,’ [and] therefore cannot form the basis for habeas relief
under AEDPA.”

Parker, 132 S.Ct. at 2155.

The state court is

not required to cite or even have an awareness of governing
Supreme Court precedent “so long as neither the reasoning nor
the result of [its] decision contradicts them.”

Early v.

Packer, 537 U.S. 3, 8 (2002); Jamison, 544 F.3d at 274–75.

Few

state court decisions will be “contrary to” Supreme Court
precedent.
The federal habeas court more often must determine whether
the state court adjudication was an “unreasonable application”
of Supreme Court precedent.

A state-court decision ‘involves an

unreasonable application’ of clearly established federal law if
the state court (1) identifies the correct governing legal rule
from the Supreme Court’s cases but unreasonably applies it to
the facts of the particular case; or (2) unreasonably extends a
legal principle from Supreme Court precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.
U.S. at 407.

Williams, 529

A showing of clear error is not sufficient.

Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003).

Nor is habeas

relief available merely because the state court applied federal
law erroneously or incorrectly.

See Harrington v. Richter, 562

U.S. ––––, ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011)
14

(Under § 2254(d)(1), “an unreasonable application of federal law
is different from an incorrect application of federal law.”
(quoting Williams at 410)); see also Thomas v. Varner, 428 F.3d
491, 497 (3d Cir. 2005); Jacobs v. Horn, 395 F.3d 92, 100 (3d
Cir. 2005).

“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, 131 S.Ct. at 786 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

Accordingly, “[a]s a

condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”

Harrington, 131 S.Ct. at 786–87.

The Supreme Court repeatedly has reiterated the deference
that the federal courts must accord to state court decisions.
See Felkner v. Jackson, –––U.S. ––––, 131 S.Ct. 1305, 1307, 179
L.Ed.2d 374 (2011)(“AEDPA imposes a highly deferential standard
for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.”); Cullen v.
Pinholster, 131 S.Ct. at 1398; Eley v. Erickson, __ F.3d __,
2013 WL 1405923, *4 (3d Cir. April 9, 2013).
15

See also

Harrington, 131 S.Ct. at 786 (“We must use habeas corpus as a
guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through
appeal.”); Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862,
176 L.Ed.2d 678 (2010)(“whether the trial judge was right or
wrong is not the pertinent question under AEDPA”); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)(“The question under AEDPA is
not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable -- a substantially higher threshold.”); Lockyer,
538 U.S. at 75 (“it is not enough that a federal habeas court,
in its independent review of the legal question, is left with a
‘firm conviction’ that the state court was erroneous.”).
Further, AEDPA’s standard applies even where “the state court
analyzed and rejected a habeas petitioner’s federal claims on
the merits but gave ‘no indication of how it reached its
decision.’”

Grant v. Lockett, 709 F.3d 224, 230 (3d Cir.

2013)(quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.
2012)).
A state court decision is based on “an unreasonable
determination of the facts” only if the state court’s factual
findings are “‘objectively unreasonable in light of the evidence
presented in the state-court proceeding.’”
16

Miller–El v.

Cockrell, 537 U.S. 322, 340 (2003)(citing, inter alia, 28 U.S.C.
§ 2254(d)(2)).

Moreover, a federal court must accord a

presumption of correctness to a state court’s factual findings,
which a petitioner can rebut only by clear and convincing
evidence.

28 U.S.C. § 2254(e); see also Rice v. Collins, 546

U.S. 333, 339 (2006) (petitioner bears the burden of “rebutting
the presumption by ‘clear and convincing evidence.’” (quoting 28
U.S.C. § 2254(e)(1)); Duncan v. Morton, 256 F.3d 189, 196 (3d
Cir. 2001)(factual determinations of state trial and appellate
courts are presumed to be correct).

Where a state court’s

factual findings are not made explicit, a federal court’s “duty
is to begin with the [state] court’s legal conclusion and reason
backward to the factual premises that, as a matter of reason and
logic, must have undergirded it.”
280, 289 (3d Cir. 2000).

Campbell v. Vaughn, 209 F.3d

In determining what implicit factual

findings a state court made in reaching a conclusion, a federal
court must infer that the state court applied federal law
correctly.

Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433

(1982)).
Even if the petitioner is entitled to habeas relief under
AEDPA, the court may grant the writ only if the error was not
harmless.

Under the harmless error standard, the court must

“assess the prejudicial impact of [the] constitutional error in
17

[the] state-court criminal trial.”
121 (2007).

Fry v. Pliler, 551 U.S. 112,

The court should hold the error harmless unless it

led to “actual prejudice,” in the form of a “substantial and
injurious effect or influence in determining the jury’s
verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)(quotation omitted); Eley v. Erickson, __ F.3d __, 2013 WL
1405923 (3d Cir. April 9, 2013).
IV.
A.

DISCUSSION

Brady4 Violation
In his first claim, Petitioner alleges that he had learned

from his state PCR attorney during his PCR proceedings that a
witness, Barbara Buckhannon had related information to Detective
Forte of the Camden County Prosecutor’s Office about a witness
to the crime, named Quetta Smith.

Ms. Smith allegedly was

present at the scene of the crime during the shooting and had
observed several perpetrators but Petitioner was not one of
them.

This potentially exculpatory information about witness

Quetta Smith was never provided by the State to Petitioner, and
such information could have been used to corroborate the
testimony of witness Timothy Queensberry, who testified that the
man he saw shoot the victim was not Petitioner.
Point One.)
4

Brady v. Maryland, 373 U.S. 83 (1963).
18

(Petition,

Petitioner raised this claim in his state PCR proceedings.
At the PCR hearing on August 26, 2002, the PCR judge noted that,
in the certification submitted by Barabara Buckhannon,
Buckhannon stated that she had been interviewed and questioned
by Detective Forte about six times between the day after the
murder and the time of trial.

The PCR court then read verbatim

Buckhannon’s statement into the record:
During these interviews I advised Detective Forte that I no
longer believed Dennis Copling shot my stepson, Kirby
Bunch. My trial testimony was tendered truthfully to the
effect that Dennis Copling had made terroristic threats
towards my daughter and I.
At the time of my trial testimony for the prosecution I was
of the belief that Dennis Copling was not the individual
who shot my stepson, Kirby Bunch. The primary reason for
my belief that Dennis Copling was not the individual who
shot my stepson are statements made to me by my cousin,
Quetta Smith. Quetta Smith told me within a week of the
murder of Kirby Bunch before his funeral services commenced
that she was an eyewitness present at the scene of the
crime during the time and place of the shooting, that she
observed several perpetrators of the crime and Dennis
Copling, whom she knew very well, was not one of them.”
(Rta10, PCRT 20:17-21:13.)
In rejecting Petitioner’s claim of a Brady violation, the
PCR court ruled:
Based upon that, it is unclear whether she’s talking about
the conspiracy to commit the murder of Kirby Bunch outside
of the apartment or the murder that this defendant was
convicted of committing by his own conduct, which was the
murder of [Malik] Winston, inside of the apartment.

19

But, under Brady, the first element that the defense has to
establish is that the testimony would have been favorable
to the defense. And I find from the showing that has been
made today, that the defense has not satisfied the
threshold showing that would be required in order to have a
hearing.
That is because there is not enough from Barbara Buckhannon
to establish that the purported witness, Quetta Smith
(phonetic), would have been able to see anything that was
favorable because if she was a witness to what occurred
outside of the apartment, the defendant is alleged only to
be a conspirator. That’s what he was convicted of.
But, the conspiracy is not one that would have been formed
outside of the apartment. It would have been formed
inside. And therefore, her presence outside the apartment
would not be – or, her ability to observe something that
occurred outside the apartment would not bear upon the
conspiracy charge.
Certainly, if she was standing outside, it would not bear
upon what went on inside, which was the murder of [Malik]
Winston for which Dennis Copling was convicted.
The defense has presented the affidavit or verification of
– not verification, the affidavit or certification of
Barbara Buckhannon. The defense spoke to her and could
have presented an affidavit which is more detailed and
could have related better what it was that Quetta Smith
(phonetic) says.
Therefore, I find that the affidavit or certification
presented by Miss Buckhannon is highly ambiguous as to
whether Quetta Smith (phonetic) saw anything that would
have been favorable or exculpatory.
And therefore, I find that that prong of the Brady Test has
not been established.
It is also the responsibility of the defense to show that
the State was aware of the exculpatory material and
suppressed it. And although Barbara Buckhannon says that
Detective Forte interviewed her approximately six times and
she goes on to say that during these interviews she advised
20

Detective Forte that she no longer believed that Dennis
Copling shot her stepson, Kirby Bunch, what she did not say
in this verification (sic.) is that she mentioned Quetta
Smith’s (phonetic) name to Detective Forte.
She simply says that she herself was aware of what Quetta
Smith (phonetic) had told her, that she spoke to Detective
Forte, but she does not say in this affidavit that during
her interviews with Detective Forte she ever mentioned
Quetta Smith’s (phonetic) name.
It is the burden of the defense when alleging a Brady
violation to come forward with competent proof and I find
that the affidavit that has been submitted does not
establish that Barbara Buckhannon told Detective Forte of
the existence of Quetta Smith (phonetic).
I therefore find that the second prong has not been
established, which is the prong requiring the defense to
show that the State suppressed the evidence.
Because I find that the first two have not been
established, there is really not a need to review the issue
of materiality. But, I think it’s fair to say that if she
had information only pertaining to what went on outside of
the apartment, then it wouldn’t have been material in any
event for the reasons I’ve already explained when
discussing the elements of whether the testimony would be
favorable or not and there is really no need to repeat it.
Therefore, I find that the defense has today failed to
establish the elements required under Brady to establish a
denial of due process.
(Rta10, PCRT 21:15-24:20.)
The Appellate Division affirmed the decision by the PCR
court on appeal from denial of the PCR petition.

The Appellate

Division first addressed the facts pertinent to its decision on
the Brady claim:

21

There were a total of five males inside the apartment where
Bunch and Winston were shot by defendant, namely, the two
victims, defendant, and two friends of Bunch. After being
shot three times by defendant, Bunch was able to exit the
building where he was found lying on the ground by a
neighbor. While receiving aid from the neighbor, Bunch was
shot in the neck by a second shooter.
(Ra22, March 23, 2005 Appellate Division Opinion, pg. 3.)
Finding the PCR court’s ruling on this issue to be
“thorough and well-reasoned,” the Appellate Division reiterated:
Here, it is clear from the trial record that no women were
present inside the apartment when defendant shot Bunch and
Winston. Thus, assuming the veracity of Buckhannon’s
hearsay statement as to what she was told by Mrs. Smith
and, assuming the State was aware of this information prior
to trial (two major assumptions), any observations made by
Smith would be limited to the shot fired on the street.
Since the State never contended that defendant fired any
shots outside of the apartment, the value of Smith’s
observations is, at best, dubious as to defendant’s guilt.
In these circumstances, we do not discern a Brady violation
or a need for an evidentiary hearing.
(Ra22, May 23, 2005 Appellate Division Opinion, pp. 7-8.)
“[T]he suppression by the prosecution of evidence favorable
to an accused ... violates due process where the evidence is
material either to guilt or to punishment.”
373 U.S. 83, 87 (1963).

Brady v. Maryland,

This rule requires prosecutors to

disclose known material information favorable to the accused and
“to learn of any favorable evidence known to the others acting
on the government’s behalf in the case, including the police.”
Kyles v. Whitley, 514 U.S. 419, 437 (1995).
22

Thus, Brady

expressly proscribes withholding evidence “favorable to an
accused” and “material to [his] guilt or to punishment.”
v. Bell, 556 U.S. 449, 451 (2009).

Cone

To establish that a Brady

violation undermines a conviction, a convicted defendant must
make each of three showings: (1) the evidence at issue is
“favorable to the accused, either because it is exculpatory, or
because it is impeaching”; (2) the State suppressed the
evidence, “either willfully or inadvertently”; and (3)
“prejudice ... ensued.”

Strickler v. Greene, 527 U.S. 263, 281–

282 (1999); see Banks v. Dretke, 540 U.S. 668, 691 (2004).
“The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.
A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.”
473 U.S. 667, 682 (1985).

United States v. Bagley,

Thus, nondisclosure merits relief

only if the prosecution’s failure “‘undermines confidence in the
outcome of the trial.’”

Kyles v. Whitly, 514 U.S. 419, 434

(1995) (quoting Bagley, 473 U.S. at 678).
In this case, this Court agrees with the state courts’
determination that the potential information from the alleged
witness Quetta Smith was not material and would not have cast a
different light sufficient to undermine confidence in the
23

verdict, which is necessary to sustain a Brady violation.

The

information provided by Ms. Buckhannon regarding Quetta Smith
dealt with the events that had occurred outside the apartment,
and the State had never argued that Petitioner was the person
who had shot the victim outside the apartment.

Moreover, the

State had presented substantial evidence at trial to show that
Petitioner was the shooter inside the apartment, where only five
males had been present, as noted by the Appellate Division,
namely, the Petitioner, the two victims and two friends of the
victim, Bunch (or K.C.).

Several witnesses had testified at

trial regarding Petitioner’s participation in the shooting
inside the apartment.

Further, the victim identified “Dennis”

as the person who shot him inside the apartment.

Petitioner

also implicated himself in the plot to kill K.C. in a statement
he gave to police.

Thus, any argument that Quetta Smith would

have provided “exculpatory” testimony had Petitioner and his
counsel been made aware of her,5 is completely meritless and of
inconsequential value.

Therefore, this Court finds that, in

light of this substantial evidence against Petitioner, there is

This Court notes, as did the PCR court and Appellate Division,
that it was a “major assumption” to suppose that Ms. Buckhannon
made the State aware of Quetta Smith and that the State had this
information regarding Quetta Smith before trial, which is the
second factor under Brady, that the State either willfully or
inadvertently suppressed evidence.
24
5

no basis to conclude that the result of his trial would have
been different if information concerning the alleged witness
Quetta Smith had been produced to Petitioner and used at trial.
Accordingly, this Court finds that the decision of the state
courts regarding an alleged Brady violation was neither contrary
to, nor an unreasonable application of, clearly established
federal law, nor was the state court decision based upon an
unreasonable determination of the facts in light of the evidence
presented to it.

Petitioner is not entitled to relief on this

first claim.
B.

Ineffective Assistance of Counsel
Petitioner next alleges that he was denied his Sixth

Amendment right to effective assistance of counsel because his
trial counsel failed to adequately investigate, interview and
call eye witnesses who would exculpate Petitioner.

In

particular, Petitioner alleges that trial counsel met with him
only once before trial.

At that conference with counsel,

Petitioner related that he wished to actively participate in his
defense, and requested copies of discovery and other documents,
which were never provided to Petitioner.

Petitioner also asked

that counsel interview a number of State witnesses.

One of

these witnesses was Barbara Buckhannon, who allegedly had
provided the name of an eye witness, Quetta Smith, which
25

Petitioner did not discover until his PCR proceedings.
Petitioner alleges that, on January 21, 1997, he informed the
trial court about this lack of communication with counsel, but
the trial judge failed to address his concerns.

Petitioner

states that the only defense tendered by counsel at trial was
that Petitioner “was not the one who committed the crimes and
could not be identified as the perpetrator.”

(Petition, Point

Two, Supporting Facts.)
The Court first will discuss the clearly established
federal standard as set forth in Strickland v. Washington, 466
U.S. 668 (1984).

In Strickland, the Supreme Court “has

recognized that the right to counsel is the right to the
effective assistance of counsel.

Government violates the right

to effective assistance when it interferes in certain ways with
the ability of counsel to make independent decisions about how
to conduct the defense.

Counsel, however, can also deprive a

defendant of the right to effective assistance, simply by
failing to render adequate legal assistance.”

Strickland, 466

U.S. at 685–86 (internal quotation marks and citations
omitted)(citing and quoting McMann v. Richardson, 397 U.S. 759,
771 n. 14 (1970), and Cuyler v. Sullivan, 446 U.S. 335, 344–50
(1980)).

“The benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined
26

the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686; Ross v. Varano, __ F.3d __, 2013 WL
1363525, *9 (3d Cir. April 5, 2013).
To prevail on an ineffective assistance of counsel claim, a
petitioner must demonstrate (1) that his counsel’s performance
fell below an objective standard of reasonableness, and (2) that
but for counsel’s errors the result of the underlying proceeding
would have been different.

Strickland, 466 U.S. at 687–88.

“Since Strickland, the Supreme Court and the Third Circuit have
emphasized the necessity of assessing an ineffectiveness claim
in light of all the circumstances.”

Grant v. Lockett, 709 F.3d

224, 232 (3d Cir. 2013); Siehl v. Grace, 561 F.3d 189, 195 (3d
Cir. 2009)(citing cases).
When a federal habeas petition under § 2254 is based upon
an ineffective assistance of counsel claim, “[t]he pivotal
question is whether the state court’s application of the
Strickland standard was unreasonable,” which “is different from
asking whether defense counsel’s performance fell below
Strickland's standard.”

Grant, 709 F.3d at 232 (quoting

Harrington, 131 S.Ct. at 785).

For purposes of § 2254(d)(1),

“an unreasonable application of federal law is different from an
incorrect application of federal law.”
27

Id. (internal quotation

marks omitted)(emphases in original).

“A state court must be

granted a deference and latitude that are not in operation when
the case involves [direct] review under the Strickland standard
itself.”

Id.

Federal habeas review of ineffective assistance

of counsel claims is thus “doubly deferential.”
Cullen v. Pinholster, 131 S.Ct. at 1403).

Id. (quoting

Federal habeas courts

must “take a highly deferential look at counsel’s performance”
under Strickland, “through the deferential lens of § 2254(d).”
Id. (internal quotation marks and citations omitted).
Petitioner raised his ineffective assistance of counsel
claim in his state PCR proceedings.
Petitioner’s claims.

The PCR court rejected

On appeal from denial of the PCR petition,

the Appellate Division affirmed the PCR court’s decision.
Applying the standard set forth in Strickland, and in State v.
Fritz, 105 N.J. 42 (1987), the Appellate Division stated:

“...

we are satisfied that defendant has not established a prima
facie case of trial counsel ineffectiveness.

Our review of the

record does not indicate that trial counsel’s performance was
deficient.

As we noted on direct appeal, ‘the evidence as a

whole created strong inferences’, albeit “circumstantial”, that
defendant was the shooter inside the apartment.”
2005 Appellate Division Opinion at pg. 8.)

28

(Ra22, May 23,

Having carefully reviewed the record, and considering the
claims asserted by Petitioner herein, this Court does not find
that counsel was deficient in his investigation of this case and
preparation of a defense.

The primary allegation of deficient

performance relates to the Ms. Buckhannon’s statement concerning
a possible eyewitness, Quetta Smith, who may have had
potentially exculpatory information.
by this Court above, and rejected.

This issue was addressed
Thus, even if the Court

allows that counsel may have been lax in discovering Quetta
Smith, there was no resulting prejudice that would have changed
the outcome of this case.

As noted by the Appellate Division,

Ms. Smith would only have testified as to the shooter outside of
the apartment, which the State never contended was the
Petitioner.

(Ra22, pg. 22.)

Moreover, on direct appeal, the

Appellate Division observed that “given the strength and sources
of the circumstantial evidence, the issue of identification was
not a key issue.”

(Ra7, pg. 17.)

Further, Petitioner has not provided any factual basis or
even conjecture as to what further investigation was necessary
and what it would have proven for his defense.

“[C]ounsel has a

duty to make [only] reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.”

Strickland, 466 U.S. at 691.
29

See also Kimmelman

v. Morrison, 477 U.S. 365, 384 (1986); accord Lewis v.
Mazurkiewicz, 915 F.2d 106 (3d Cir. 1990)(expressly adopting
Strickland and Kimmelman rationale for the purposes of failureto-investigate analysis); Echols v. Ricci, 2011 WL 3678821
(D.N.J. Aug. 19, 2011), aff’d, 2012 U.S. App. LEXIS 14803 (3d
Cir. July 19, 2012).

At best, Petitioner simply argues that he

did not meet with counsel enough times before trial.
Therefore, there is no demonstration of deficient
performance by counsel on any asserted claims, whether it
concerns a potentially exculpatory witness Smith, or lack of
jury charges on identification and lesser included offenses,
that would have had any effect of undermining the verdict.
Petitioner has not shown by any competent evidence that his
counsel did not conduct a proper investigation in defense of
Petitioner.

Therefore, based on all of the above, this Court

concludes that the determination of the state PCR court and
appellate court in finding no constitutionally ineffective
counsel, resulted in a decision that was neither contrary to,
nor involved an unreasonable application of, clearly established
federal law under Strickland, nor did it result in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
See Williams, 529 U.S. at 413.

The Court will deny federal
30

habeas relief on this ineffective assistance of counsel claim
because it is substantively meritless.
C.

Jury Instruction Claims
In Points Three and Four of his petition, Petitioner

asserts that the trial court erred in failing to provide the
jury with an instruction on identification, and that the trial
court failed to instruct the jury on the lesser included offense
of passion/provocation manslaughter.
1.

Identification Instruction

In his first claim concerning omitted jury instructions,
Petitioner contends that “because the sole defense presented at
trial was that because petitioner was not the person who had
shot and killed the victims, that the trial court’s failure to
instruct the jury of the State’s burden to prove the
petitioner’s identity as the perpetrator beyond a reasonable
doubt, was error.”

(Petition, Point Three, Supporting Facts.)

Petitioner raised this claim on direct appeal.

The Appellate

Division ruled as follows:
A specific instruction regarding identification is required
when that issue is essential to a case. See State v.
Green, 86 N.J. 281, 290 (1981). To support his contention,
defendant cites State v. Frey, 194 N.J. Super. 326 (App.
Div. 1984), where the eyewitness did not have an
opportunity to see the perpetrator well. In Frey, we
determined that, although the judge instructed the jury
that the State had the burden of proving that the defendant
was the assailant, and defense counsel failed to object to
31

the charge, the omission of a complete and specific
identification charge was reversible error. Id. at 329-30.
As part of an identification charge, the trial judge must
inform the jury that the State’s case relies on an
eyewitness identification of the defendant as the
perpetrator. The jury must also be informed that in
weighing the reliability of that identification, the “jury
should consider, among other things, ‘the capacity or the
ability of the witness to make observations or perceptions
... at the time and under all of the attendant
circumstances for seeing that which he says he saw or that
which he says he perceived with regard to his
identification.’” State v. Cromedy, 158 N.J. 112, 128
(1999)(citing State v. Green, supra, 86 N.J. at 293-94).
Here, although the evidence of defendant’s identity as a
perpetrator was circumstantial, the evidence as a whole
created strong inferences. Defendant was seen dressed
entirely in black on the day of the killings and he took
Leervin Hill’s mask. Thereafter, defendant met with a
group of people, including Latisha and Lakesha, and told
them that he was looking for K.C. and was going to kill
him. When Malik entered Nate’s apartment just prior to the
killings, and questioned K.C. and others about the attack
upon Gary the preceding evening, K.C. disavowed any
involvement. Malik replied that they were going to speak
to Gary’s older brother. Almost immediately thereafter,
the masked man, who fit the body type of defendant and was
dressed in black with dark green pants, entered the
apartment and asked K.C. why he had jumped his brother.
After the shootings, K.C., while lying on the ground and
wounded, told the neighbor that “Dennis” had shot him. In
his unrecorded statement to the prosecutor and the police,
defendant admitted that he, Malik, and Fahim went to Nate’s
apartment looking for K.C., and admitted that he had been
dressed in black clothes and a ski mask. In total, the
physical description, the clothes, the ski mask,6 and the
defendant’s oral statements, including his asking K.C. why
he had jumped his brother, clearly implicated defendant.
Moreover, identification of defendant did not rest solely
The ski mask in question was not described by defendant in his
statement to police. The mask taken from Hall was described as
a foam half-mask, which may be considered a ski mask.
32
6

on a single eyewitness, unlike that in Green, supra, 86
N.J. at 297.
The judge instructed the jury that the State must prove all
elements of the crimes beyond a reasonable doubt, and that
the defendant was not obligated to prove anything. The
judge instructed the jury that in order to find defendant
guilty of murder, they must find, beyond a reasonable
doubt, that defendant caused the deaths of K.C. and Malik,
and did so purposely or knowingly.
Defendant argues that because the identification charge was
not given to the jury, “there is no way to dispel the
possibility that the jury, although not convinced beyond a
reasonable doubt that [defendant] was at the scene,
nonetheless convicted him because it erroneously believed
that he had the obligation to prove that the perpetrator
had been someone else.” However, defendant’s
identification, although obviously an important aspect of
the case, was not an essential, contested issue. The State
did not rely exclusively upon a single eyewitness to
provide evidence of the perpetrator’s identity. Nor did
the defendant rely on misidentification in his defense.
Given the strength and sources of circumstantial evidence,
the issue of identification was not a key issue. Thus, a
jury instruction specifically on identification was
unwarranted. Although it may be better practice for a
trial judge to give an identification charge in every case
where identification is even a remote issue, it is
abundantly clear that the failure to do so in this case did
not constitute plain error, and if there was error, it
clearly was harmless under the factual circumstances of
this case.
(Ra7, December 16, 1999 Appellate Division Opinion at pp. 1417.)
Generally, a jury instruction that is inconsistent with
state law does not merit federal habeas relief.

Where a federal

habeas petitioner challenges jury instructions given in a state
criminal proceeding, the only question for the court to consider
33

is “whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due
process.”

Estelle v. McGuire, 502 U.S. 62, 72-73 (1991).

It is

well established that the instruction “may not be judged in
artificial isolation,” but must be viewed in the context of the
instructions as a whole and the trial record.

Further, in

reviewing an ambiguous instruction, the court should inquire
“whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the
Constitution.

Estelle, supra (citations omitted); see also

Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676, 684 (2010)(no
right to habeas relief if Supreme Court has not previously held
jury instruction unconstitutional for same reason); Waddington
v. Sauausad, 555 U.S. 179 (2009).
The United States Court of Appeals for the Third Circuit
has observed that a habeas petitioner who challenges state jury
instructions must “point to a federal requirement that jury
instructions ... must include particular provisions,” or
demonstrate that the jury “instructions deprived him of a
defense which federal law provided to him.”
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997).

Johnson v.
This is because

district courts do not “sit as super state supreme courts for
the purpose of determining whether jury instructions were
34

correct under state law with respect to the elements of an
offense and defenses to it.”

Id.

However, a jury instruction that “reduce[s] the level of
proof necessary for the Government to carry its burden [of proof
beyond a reasonable doubt] is plainly inconsistent with the
constitutionally rooted presumption of innocence.”
United States, 409 U.S. 100, 104 (1972).

Cool v.

See also In re

Winship, 397 U.S. 358, 364 (1970)(“the Due Process Clause
protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged”); Sandstrom v. Montana, 442 U.S.
510, 523 (1979)(jury instructions that suggest a jury may
convict without proving each element of a crime beyond a
reasonable doubt violate the constitutional rights of the
accused); Smith v. Horn, 120 F.3d 400, 416 (1997), cert. denied,
522 U.S. 1109 (1998)(the Due Process Clause is violated only
where “the erroneous instructions have operated to lift the
burden of proof on an essential element of an offense as defined
by state law.”).
“[T]rial courts must avoid defining reasonable doubt so as
to lead the jury to convict on a lesser showing than due process
requires.”

Victor v. Nebraska, 511 U.S. 1, 22 (1994).

Supreme Court explained in Victor, so long as the court
35

As the

instructs the jury on the necessity that the defendant’s guilt
be proved beyond a reasonable doubt, the Constitution does not
require that any particular form of words be used in advising
the jury of the government’s burden of proof.

Rather, taken as

a whole, the instructions must correctly convey the concept of
reasonable doubt to the jury.

Victor, 511 U.S. at 6 (citations

and internal quotation marks omitted).

“[A] misdescription of

the burden of proof ... vitiates all the jury’s findings.”
Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)(emphasis in
original).

Such an error is considered structural and thus is

not subject to harmless error review.

See id. at 280-82.

But

see Neder v. United States, 527 U.S. 1, 8-11 (1999)(applying
harmless-error analysis where jury was not instructed on an
element of an offense).
Additionally, “[a]n omission, or an incomplete instruction,
is less likely to be prejudicial than a misstatement of the
law.”

Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

Specifically, in this case, the Appellate Division determined
that the trial court’s failure to give the jury a specific
instruction on identification was not error because the issue of
identification was not an essential, contested issue.

The state

courts emphasized that due to the strong and substantial
circumstantial evidence, the issue of identification was not a
36

key issue.

Further, the failure to give specific instructions

on identification did nothing “to lift the burden of proof on an
essential element of an offense.”

Accordingly, this Court finds

that Petitioner was not deprived of a fair trial by an omitted
identification charge, and any error as asserted by Petitioner
regarding the omission of an identification instruction was, at
the very most, plainly harmless in light of the overall record.
There was no error of constitutional dimension, and the state
court ruling on this issue is neither contrary to nor an
unreasonable application of the applicable federal law, nor is
the decision based upon an unreasonable determination of the
facts.

Therefore, Petitioner is not entitled to relief on this

claim.
2.

Failure to Instruct on Lesser Included Offense

In Point Four of his petition, Petitioner contends that the
trial court erred in not giving a jury charge on the lesser
included offense of passion/provocation manslaughter.
Petitioner contends there was ample evidence to support a jury
charge on the lesser included offense because Petitioner had
learned of his younger brother’s assault a few hours before the
victims were shot, and that there was testimony that showed
Petitioner was enraged upon learning of the assault on his
younger brother.

(Petition, Point Four, Supporting Facts.)
37

Petitioner raised this claim on direct appeal.

The

Appellate Division noted that the offense of passion/provocation
manslaughter is not demonstrated unless the following four
elements are met:

(1) the provocation must be adequate; (2) the

defendant must not have had time to cool off between the
provocation and the killing; (3) the provocation must have
actually impassioned the defendant; and (4) the defendant must
not have actually cooled off before the killing.

(Ra7, December

16, 1999 Appellate Division Opinion at pg. 9, citing State v.
Mauricio, 117 N.J. 402, 411 (1990)).
The Appellate Division observed the basis for Petitioner’s
claim of provocation was the attack on Petitioner’s younger
brother.

However, the court also noted the trial evidence,

which showed that “[d]efendant was not present during the
attack; he merely heard about the attack the next day,” and that
“upon learning of the attack of his younger brother, defendant
telephoned his mother, who confirmed the prior evening attack
but also assured defendant that his younger brother Gary was not
injured.”

(Ra7, pp. 10-11.)

The Appellate Division further held that the evidence at
trial was insufficient to support a passion/provocation
manslaughter charge, observing:

38

Here, defendant’s younger brother was beaten by K.C. If
defendant were present at that fight, his passion would
undoubtedly have been inflamed. Learning about the attack
the next day probably impassioned defendant just as if he
were present to witness the attack. However, defendant
learned that his brother was uninjured. Thus, objectively,
defendant’s response to the provoking incident was
unreasonable. Defendant’s younger brother and K.C. engaged
in a fist fight; if defendant had been present at the fist
fight, armed with a handgun, and joined the fist fight with
a gun, it would not be characterized as mutual combat.
[citation omitted]. As such, defendant’s actions the
following day are no more justifiable under the mutual
combat rule. It is clear that defendant took unfair
advantage of K.C. and killed him not out of passion or
provocation, but in retaliation.
Defendant notes that K.C. may have been armed at the time
of the killings; however, the combat that would constitute
the provoking incident was the fist fight between K.C. and
defendant’s brother the prior evening, not the incident
that immediately preceded the killings. The provocation in
this case was insufficient to cause a reasonable person to
lose self-control so as to reduce the murder to
manslaughter. [citation omitted]
The second element of passion-provocation manslaughter is
that the time between the provoking incident and the
killing was an insufficient period for a reasonable person
to cool off. Defendant found out about the attack on his
brother “at some point the following day or evening.” It
is clear from the record that defendant was aware of the
attack at around 6:00 p.m. The shooting took place at
about 8:30 p.m. While a reasonable person would be enraged
upon discovering that his or her little brother had been
violently attacked, objectively, it was not error for the
trial judge to conclude that defendant’s passion would
abate in two-and-a-half hours, particularly when defendant
was specifically informed that his brother, though
attacked, was not injured. Stated otherwise, the emotions
that might linger several hours after the discovery of such
news would be insufficient to cause a reasonable person to
lose “mastery of his [or her] understanding ... .”
[citation omitted]. Because a reasonable person would cool
off in two-and-a-half hours after discovering that their
39

brother had been attacked, the facts of this case do not
satisfy the second element of passion-provocation
manslaughter. Thus, the trial judge did not err in
refusing to give the charge.
(Ra7, December 16, 1999 Appellate Division Opinion at pp. 1213.)
As discussed above, questions regarding jury instructions
are typically matters of state law not cognizable in a federal
habeas action, unless the instruction (or omitted instruction as
asserted here) was so prejudicial as to amount to a violation of
due process and fundamental fairness.
72-73.

See Estelle, 502 U.S. at

The Supreme Court has held that due process requires

that a jury instruction on a lesser included offense be given
only when the evidence warrants such an instruction.
v. Evans, 456 U.S. 605, 611 (1982).

See Hooper

Moreover, on habeas review,

a trial court’s finding as to whether the evidence at trial
warranted an instruction is a finding of fact entitled to the
§ 2254(d) presumption of correctness.

Miller v. Fenton, 474

U.S. 104, 112 (1985).
Here, the state courts found that the evidence did not
support an instruction on passion/provocation manslaughter.
This Court agrees and finds that Petitioner was not deprived of
a fair trial by the omission of a jury charge on
passion/provocation manslaughter.
40

There was substantial

evidence at trial, as discussed above, to negate the second,
requisite element of passion/provocation manslaughter.
Consequently, there was no rational basis for the jury to
convict on a passion/provocation manslaughter charge as
suggested by Petitioner.

The state courts’ decisions in this

regard were neither contrary to nor an unreasonable application
of Supreme Court precedent.

Accordingly, Petitioner is not

entitled to relief on this claim.
D.

Trial Counsel’s Conflict of Interest
Next, Petitioner asserts that he was deprived of a fair

trial by the trial court’s refusal to grant Petitioner’s request
for an adjournment and removal of trial counsel based on an
alleged conflict of interest.

Petitioner alleges that, before

trial, it was discovered that defense counsel was “close
personal friends with one of the State’s primary witnesses, Sgt.
Joseph Forte, the Chief Investigator of the case,” who had
participated in the interrogation of Petitioner.

Petitioner

expressed his concern to counsel that counsel could not
effectively cross-examine Forte during trial.

Petitioner also

related this concern to the Office of the Public Defender, and
asked for new counsel to be assigned.

The request was denied.

Petitioner then notified the trial court of his concern about a
conflict of interest, and asked that the trial be adjourned.
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This request also was denied.

(Petition, Point Five, Supporting

Facts.)
Petitioner raised this issue on direct appeal.

The

Appellate Division rejected Petitioner’s claim, finding that:
Defendant does not allege that counsel had previously
represented Sergeant Forte, or that they were in business
together. According to the Rules of Professional Conduct,
an attorney cannot represent a client if the attorney is
limited by his or her responsibilities to a third person or
limited by the attorney’s own interests. [New Jersey Rules
of Professional Conduct (R.P.C.)] 1.7. However, friendship
alone, without more, should not preclude effective
representation. Trial counsel’s close friendship with
Sergeant Forte was not alleged to be so strong as to
outweigh counsel’s obligation to vigorously represent
defendant. We thus conclude that the trial judge did not
abuse her discretion in permitting defendant’s counsel to
represent defendant at trial.
(Ra7, December 16, 1999 Appellate Division Opinion at PP. 2324.)
Here, Petitioner fails show that the trial judge abused her
discretion in allowing defense counsel to continue
representation of Petitioner at trial.

As the Appellate

Division observed, there was no evidence or suggestion that
counsel’s friendship with Sgt. Forte would have interfered with
his vigorous and partisan representation of Petitioner.

Rather,

it was only Petitioner’s speculation that counsel’s
representation of Petitioner would be undermined by counsel’s
friendship with Sgt. Forte.

Thus, Petitioner has failed to
42

demonstrate by “clear and convincing evidence,” that the state
court’s determination of the facts, which are presumed correct,
was unreasonable in light of the record.

Because this Court

finds no merit to Petitioner’s claim for habeas relief, it will
be denied accordingly.

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E.

Prior Incident Regarding Petitioner’s Possession of a Gun
In Point Six of his petition, Petitioner asserts that the

State had elicited testimony from the witness Lakesha in which
she stated that a few days before the murders, she had seen
Petitioner with a gun.

Although defense counsel strenuously

objected to the testimony, the trial court overruled the
objection.

When Lakesha’s trial testimony resumed, she stated

that it was a few weeks before the murders that she had seen
Petitioner with a gun.

Again, the defense objected and the

trial court overruled the objection.

Then, outside the presence

of the jury, the trial court questioned Lakesha where she again
changed her statement and stated that the night she saw
Petitioner with a gun, he had it with him the whole night.
Petitioner alleges that the trial judge allowed the State to
present “other-crimes-evidence concerning the petitioner being
in possession of a gun on a prior occasion,” which effectively
deprived him of a fair trial.

(Petition, Point Six, Supporting

Facts.)
Petitioner also raised this claim on direct appeal.

On

appeal, Petitioner argued that when he initially was questioned
by the police, he admitted that he and his friends drove to
Nate’s apartment on the night of the murders looking to fight
K.C., but he did not bring a gun with him, and he was surprised
44

that Fahim had a gun.

However, this exculpatory statement to

the police “was undermined by the allegedly improper admission
of other-crimes testimony, [New Jersey Rules of Evidence
(N.J.R.E.)] 404(b), that he had been in possession of a gun on a
prior occasion.”

(Ra7, December 16, 1999 Appellate Division

Opinion at pg. 17.)

In examining Petitioner’s claim, the

Appellate Division discussed N.J.R.E. 404(b) and State v.
Cofield, 127 N.J. 328, 338 (1992), which set forth a four-prong
test for admissibility of other-crimes evidence.7

The Appellate

Division rejected Petitioner’s claim as follows:
Defendant argues that the State failed to satisfy the first
prong of the Cofield test because the evidence of
defendant’s prior possession of a gun was not probative
with regard to any material issue in the case. At trial,
the State argued that the evidence of prior gun possession
was relevant to defendant’s ability to possess a firearm
and relevant to whether he was armed on the day of the
killings. When the State first elicited the testimony that
Lakesha had seen defendant with a gun a few days prior to
the killings, defendant objected. The trial judge
overruled the objection. However, after Lakesha resumed
testifying, she stated that she had seen defendant a few
weeks prior to the killings. Defendant renewed his
objection. The judge at first sustained defendant’s
objection because the prior possession had been two weeks
before the killings. However, after recess, the judge
spoke with Lakesha outside the jury’s presence and learned
The four factors include: “(1) the evidence of the other crime
must be admissible as relevant to a material issue; (2) it must
be similar in kind and reasonably close in time to the offense
charged; (3) the evidence of the other crime must be clear and
convincing; and (4) the probative value of the evidence must not
be outweighed by its apparent prejudice.” Cofield, 127 N.J. at
338.
45
7

that, on the night that Lakesha saw defendant with the gun,
he had it in his possession for the entire evening while he
played cards with his friends. Thus, the judge reversed
her ruling and permitted the evidence, finding that the
evidence tended to make it more likely that defendant
possessed a gun on the night of the killings. Thus, the
judge allowed the testimony; however, she gave the jury a
limiting instruction. She informed the jury to consider
defendant’s possession of the gun two weeks prior to the
killings as relevant only to whether defendant had access
to a gun.
The next day Latisha testified and corroborated Lakesha’s
testimony that defendant had, on a prior occasion,
possessed a gun. Defendant again objected on the grounds
that such evidence was other-crimes evidence. The trial
judge held that under the Cofield test, the testimony was
permissible. During jury instructions, the judge informed
the jury that the evidence of prior possession elicited
from both Lakesha and Latisha could only be considered for
the limited purpose of establishing defendant’s access to a
gun. The State admits that possessing a gun is not a crime
or wrong under Rule 404(b). Yet the evidence satisfies the
Cofield test, particularly in light of the specific
limiting instruction given to the jury. Lastly, the State
notes that even if the judge erred in permitting the
testimony, the error was harmless because of the
overwhelming evidence of guilt, the negligible weight of
such evidence, the limiting instructions, and the
likelihood that the jury failed to accept the witnesses’
testimony as credible. We agree. Even if the judge
improperly admitted the evidence, the error was harmless.
The strength of the circumstantial evidence indicating that
defendant possessed a gun at Nate’s apartment and shot the
two victims with the gun overcame any prejudice that might
have resulted from testimony that defendant possessed a gun
on a prior occasion.
(Ra7, December 16, 1999 Appellate Division Opinion at pp. 1921.)
“[T]he Due Process Clause does not permit the federal
courts to engage in a finely tuned review of the wisdom of state
46

evidentiary rules.”
6 (1983).

Marshall v. Lonberger, 459 U.S. 422, 438 n.

The admissibility of evidence is generally a question

of state law which is not cognizable under habeas review. See
Estelle v. McGuire, 502 U.S. 62, 67 (1991); Keller v. Larkins,
251 F.3d 408, 416 n. 2 (3d Cir. 2001) (“A federal habeas court,
however, cannot decide whether the evidence in question was
properly allowed under the state law of evidence”); Hickey v.
Jeffes, 571 F.2d 762, 766 (3d Cir. 1978) (“As to the contention
that the trial court erred in admitting the victim’s testimony
of a prior flirtatious conversation, we find that, if there was
any error in the court’s ruling ... that error was at best one
of interpretation of the state’s law of evidence and did not
arise to constitutional dimensions”).
However, there can be habeas relief for the admission of
prejudicial evidence if the admission was fundamentally unfair
and resulted in a denial of due process.
502 U.S. at 72.

Estelle v. McGuire,

In cases not governed by the AEDPA, the Third

Circuit has held that the admission of evidence may violate due
process where the evidence “undermine[d] the fundamental
fairness of the entire trial.”

Keller v. Larkins, 251 F.3d 408,

413 (3d Cir. 2001); see also Lesko v. Owens, 881 F.2d 44, 51 (3d
Cir. 1989) (“the erroneous admission of evidence that is
relevant, but excessively inflammatory, might rise to the level
47

of a constitutional violation”); Bisaccia v. Attorney General of
State of New Jersey, 623 F.2d 307, 313 (3d Cir. 1980)(when “the
probative value of ... evidence, though relevant, is greatly
outweighed by the prejudice to the accused from its admission,
then use of such evidence by a state may rise to the posture of
fundamental fairness and due process of law”).

But § 2254(d)(1)

of the AEDPA does not permit this Court to grant habeas relief
based on Third Circuit precedent.

See Parker, 132 S.Ct. at 2155

(“circuit precedent does not constitute ‘clearly established
Federal law, as determined by the Supreme Court,’ [and]
therefore cannot form the basis for habeas relief under
AEDPA.”).
This Court is not aware of any Supreme Court case clearly
establishing that the admission of other crimes or bad acts
evidence constitutes a violation of federal constitutional
rights, and Supreme Court cases suggest the contrary.

See,

e.g., Estelle v. McGuire, supra (allowing evidence of prior
injuries in a trial for infant murder); Spencer v. Texas, 385
U.S. 554 (1967)(rejecting due process challenge to admission of
evidence of prior similar crimes when judge gives limiting
instruction).
“[The Supreme] Court has held on numerous occasions that it
is not an unreasonable application of clearly established
48

Federal law for a state court to decline to apply a specific
legal rule that has not been squarely established by this
Court.”

Knowles v. Mirzayance, 556 U.S. 111, 121 (2009)

(citation and internal quotation marks omitted).

Because the

admission of Lakesha’s testimony concerning Petitioner’s prior
possession of a gun, with a careful limiting instruction by the
trial court, was not contrary to, or an unreasonable application
of clearly established federal law, as determined by the Supreme
Court, Petitioner is not entitled to habeas relief under Ground
Six.

See Albrecht v. Horn, 485 F.3d 103, 128 (3d Cir. 2007)

(“Where evidence of a defendant’s prior bad acts is admitted, a
defendant’s interests are protected by a limiting instruction,
which mitigates the possibility of prejudice”); Charlton v.
Franklin, 503 F.3d 1112, 1115 (10th Cir. 2007)(state court’s
admission of evidence of petitioner’s prior bad acts did not
render trial fundamentally unfair or warrant habeas relief);
Minett v. Hendricks, 135 Fed. Appx. 547, 553 (3d Cir.
2005)(“Minett cites no Supreme Court case clearly establishing
the admission of ‘other crimes’ evidence constitutes a violation
of federal fair trial rights”).
Therefore, because Petitioner has not shown a deprivation
of a constitutional right, an unreasonable application of
federal law by the state court, or an unreasonable determination
49

of the facts in light of the evidence presented in the state
court proceeding, as required to grant habeas relief pursuant to
28 U.S.C. § 2254(d), this claim will be denied for lack of
merit.
F.

Sentencing Issue
Finally, Petitioner alleges that he should not have

received a maximum term with a consecutive term as a first time
offender.

He further argues that the trial court failed to give

sufficient weight to the mitigating factors.
presented this claim on direct appeal.

Petitioner

Relying on state law

exclusively, the Appellate Division noted that a reviewing court
may not substitute its judgment for that of the sentencing
court, so long as the sentencing court properly identified and
balanced the relevant aggravating and mitigating factors.
Moreover, the reviewing court may modify a sentence if it shocks
the judicial conscience.

(Ra7, December 16, 1999 Appellate

Division Opinion at pp. 24-25.)

The Appellate Division then

rejected Petitioner’s contention that the trial court failed to
give sufficient weight to the mitigating factor that this crime
was Petitioner’s first indictable conviction, finding as
follows:
Here, the sentencing judge gave minimal weight to the
mitigating factor of defendant’s lack of a criminal record.
She reasoned that, because defendant was only nineteen when
50

he killed K.C. and Malik, he had been an adult for so short
a time that his lack of a criminal record warranted only
minimal weight.
Defendant argues that the judge should have given the
mitigating factor greater weight. In addition, the
mitigating factor should have counterbalanced the
aggravating factor that defendant would likely commit other
offenses. However, the trial judge satisfied her duty to
identify and balance the aggravating and mitigating
factors. Even if she had given greater weight to the
mitigating factor, the three aggravating factors are
sufficient to outweigh the single mitigating factor,
particularly because, as the judge determined, the nature
of the murder of K.C. was exceptionally heinous. Having
considered the record and the argument of counsel, we
conclude that the findings of fact regarding aggravating
and mitigating factors were based on competent and credible
evidence in the record, that the court did not apply
incorrectly the sentencing guidelines enunciated in the
Code and that, in applying the facts to the law, the court
reached a conclusion that could have reasonably been made
upon a weighing of the relevant factors. [citations
omitted]. Nor does the sentence shock the judicial
conscience. [citations omitted].
(Ra7, pp. 25-26.)
As stated above, the violation of a right created by state
law is not cognizable as a basis for federal habeas relief.

See

Estelle, 502 U.S. at 67–68 (“We have stated many times that
‘federal habeas corpus relief does not lie for errors of state
law.’” (quoting Lewis v. Jeffers, 497 U.S. 764, 680 (1990)));
see 28 U.S.C. § 2254(a)(“district court shall entertain an
application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or
51

laws or treaties of the United States”).

Here, Petitioner

alleges only that the state court failed to properly consider
the mitigating factor that he was a first time offender in
sentencing.

As the record shows, the sentencing court did

consider the mitigating factor, but accorded it minimal weight
against the three aggravating factors, one of which the court
gave greater weight because of the heinous nature of the crime.
Accordingly, because Petitioner’s allegations with regard to his
sentencing relate only to alleged violations of state law, and
because the sentence does not shock the judicial conscience,
Petitioner is not entitled to federal habeas relief on this
claim.
V.

CERTIFICATE OF APPEALABILITY

This Court next must determine whether a certificate of
appealability should issue.
Rule 22.2.

See Third Circuit Local Appellate

The Court may issue a certificate of appealability

only if the petitioner “has made a substantial showing of the
denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

For

the reasons discussed above, this Court’s review of the claims
advanced by Petitioner demonstrates that he has failed to make a
substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue.

52

Thus,

this Court declines to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
IV.

CONCLUSION

For the above reasons, this Court finds that the § 2254
habeas petition must be denied, and a certificate of
appealability will not issue.

May 24, 2013
Date

An appropriate Order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United State District Court

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