MILLER v. CATHEL et al

Filing 30

OPINION. Signed by Chief Judge Jerome B. Simandle on 9/8/2016. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WARREN MILLER,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 06-6116 (JBS)

v.
RONALD CATHEL, et al.,

OPINION
Respondents.

APPEARANCES:
Warren Miller, Petitioner pro se
408547/48971B
East Jersey State Prison
Lock Bag R
Rahway, New Jersey 07065
James F. Smith, Esq.
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, New Jersey 08330
Attorney for Respondent Ronald Cathel

SIMANDLE, Chief Judge:
I.

INTRODUCTION
Warren Miller, a state prisoner confined at East Jersey

State Prison, has submitted a second amended petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Second Amended
Petition, Docket Entry 21. Respondent Ronald Cathel opposes the
petition on the grounds that Petitioner failed to exhaust the
available remedies in state court and procedurally defaulted on

certain claims. Answer, Docket Entries 24 and 25. For the
reasons stated herein, the petition shall be denied and no
certificate of appealability shall issue.
II.

BACKGROUND
The facts of this case were recounted below and this Court,

affording the state court’s factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the
recitation of the facts as set forth by the New Jersey Superior
Court, Appellate Division in its opinion denying Petitioner’s
second post-conviction relief (“PCR”) appeal:
On April 21, 1998, Theresa Newton, a friend of defendant,
was assaulted in her home. The assault occurred as a
result of a drug-related dispute. After the assault,
Alvin Jones visited Newton and offered to sell her some
Percocets for her pain. Jones gave Newton two Percocets
for $2 each, but Newton did not pay. Instead, she asked
Jones to come back later for the money; Jones agreed and
left.
Shortly thereafter, defendant arrived at Newton's home.
When he saw that Newton had been assaulted, defendant
became angry and upset. While defendant was there, Jones
returned, but defendant told Jones “to come back later,
it's not a good time, come back.” Jones and defendant
then argued at which time defendant stabbed Jones in the
chest. Jones ran away and later died from his wounds.
Keith Burke, the brother of Newton's boyfriend, was
present at Newton's home throughout this entire
incident.
After the fight, defendant asked Newton, the owner of
the knife, to hide the knife for him, which she did. The
next day, two men came to Newton's home, asked where the
knife was, and told her to “get rid of it.” Newton told
them “you get rid of it, I'm not,” but they left the
knife there. Newton then took the knife to the house of
her friend, Renee Elam, and hid the knife in Elam's
2

bedroom closet; Elam was not home at the time. Newton
went back to Elam's home a week later to retrieve the
knife, but it was not there. Apparently, Elam had found
the knife in the closet while she was cleaning and threw
it in a dumpster.
Newton, Burke, and at least one other person, Kathy
Keyes, each identified defendant's picture, displayed in
a photographic array, as the person who stabbed Jones.
While another witness, Carolyn Williams, could not
identify defendant in the photo array, she witnessed the
altercation and identified defendant as the person who
stabbed Jones.
State v. Miller, No. A-6015-08, 2011 WL 5299607, at *3–4 (N.J.
Super. Ct. App. Div. Nov. 7, 2011); Re 16.1
An Atlantic County Grand Jury indicted Petitioner for
first-degree murder, N.J. STAT. ANN. § 2C:11-3(a)(1)-(2) (Count
One); third-degree possession of a weapon for an unlawful
purpose, N.J. STAT. ANN. § 2C:39-4(d) (Count Two); fourth-degree
unlawful possession of a weapon, N.J. STAT. ANN. § 2C:39-5(d)
(Count Three); and third-degree hindering apprehension, N.J.
STAT. ANN. § 2C:29-3(b)(1), (Count Four). State v. Miller, No. A5279-99, slip op. at 1-2 (N.J. Sup. Ct. App. Div. Mar. 27,
2002); Re 3.
Petitioner proceeded to trial before a jury beginning on
March 14, 2000. 1T.2 As recounted by the Appellate Division:

1 Re refers to the exhibits to Respondent’s Answer, Docket
Entries 24 and 25.
2 1T = Trial Transcript dated March 14, 2000; Re 20.
2T = Trial Transcript dated March 15, 2000; Re 21-22.
3T = Trial Transcript dated March 16, 2000; Re 23.
4T = Trial Transcript dated March 20, 2000; Re 24.
3

Newton, Burke and Elam testified as witnesses for the
State. Each were incarcerated at the time, and each
testified in jail garb. According to defendant, each
were also wearing leg shackles. No objection was made to
their testimony or the prison garb.
In his opening statement, the prosecutor represented
that these witnesses were defendant's “friends”:
I suggest to you that if anyone tries to tell
you that these witnesses are bad people and
you shouldn't believe them because they're bad
people, well, these people were his friends,
his associates. These are the people that he
knew. These are the people that were with him
so that they know that this happened. He
selected them, the State didn't, he chose
them. These were the people he was around when
he committed this act.
Defense counsel did not object to this characterization.
In his opening statement, defense counsel argued that
“you'll see that other people had as much or more motive
to do this act that the [p]rosecutor has [ascribed] to
my client.”
Miller, No. A-6015-08, 2011 WL 5299607, at *4 (alterations in
original). The jury ultimately convicted Petitioner of Counts
Two and Three and on Count One’s lesser-included offense of
first-degree aggravated manslaughter. Miller, No. A-5279-99,
slip op. at 2. He was acquitted of Count Four. Id. He pled

5T = Trial Transcript dated March 21, 2000; Re 25.
6T = Trial Transcript dated March 22, 2000; Re 26.
7T = Trial Transcript dated March 23, 2000; Re 27.
8T = Sentencing Transcript dated April 14, 2000; Re 28.
9T = First PCR Hearing Transcript dated December 3, 2004; Re
29.
10T = Second PCR Hearing Transcript dated January 19, 2009; Re
30.
4

guilty to two separate pending indictments charging him with
third-degree CDS possession, N.J. STAT. ANN. § 2C:35-10(a), and
third-degree terroristic threats, N.J. STAT. ANN. § 2C:12-3(a).
Id. Sentencing took place on April 14, 2000. 8T. At that time,
the trial court imposed an extended term on the aggravated
manslaughter charge, resulting in a life sentence, and an 85%
parole disqualifier pursuant to New Jersey’s No Early Release
Act (“NERA”). Miller, No. A-5279-99, slip op. at 2-3.
Petitioner filed a direct appeal challenging his conviction
and sentence. Petitioner’s Appellate Brief, Re 1. The court
affirmed the convictions and sentence but remanded for further
proceedings regarding the NERA parole disqualifier. Miller, No.
A-5279-99, slip op. at 4. On remand, the trial court reduced the
period of parole ineligibility to twenty-five years, six months.
State v. Miller, No. A-3430-04, 2006 WL 1085795, at *1 (N.J.
Super. Ct. App. Div. Apr. 26, 2006); Re 11. Petitioner sought
review from the New Jersey Supreme Court, but the court denied
certification on June 19, 2002. Order Denying Certification Direct Appeal, Re 6.
Petitioner thereafter filed a timely PCR petition in
September 2002. Re 7 at 79-85. His pro se submission raised two
points:
I.

Petitioner was denied effective assistance of trial
counsel in violation of both the United States
Constitution and the New Jersey State Constitution.
5

II.

Petitioner was denied effective assistance of
appellate counsel in violation of United States
Constitution and the Constitution of State of New
Jersey.

Id. at 84. Appointed PCR counsel supplemented the petition,
arguing appellate counsel erred by failing to raise the issue of
prosecutorial misconduct on direct appeal and failing to
communicate with Petitioner during the appeal. Id. at 68-72. PCR
counsel also argued trial counsel failed to preserve a videotape
allegedly containing exculpatory evidence and failed to present
witnesses on Petitioner’s behalf. Id. at 73-76. An affidavit
submitted by Petitioner added an allegation that trial counsel
had not fully explained his right to testify at trial. Id. at 77
¶ 1.3
Oral argument on the motion was held on December 3, 2004.
9T. The PCR court determined Petitioner had not established a
prima facie case of ineffective assistance of trial and
appellate counsel and, with the exception of the issue of
Petitioner’s right to testify, denied the petition without an
evidentiary hearing.4 The court reserved on the issue of

3 The affidavit was originally submitted unsigned as it was
pending Petitioner’s signature. PCR counsel later submitted an
amended affidavit after Petitioner requested changes be made.
State’s First PCR Appeal Reply Brief, Re 8 at 98-101; see also
State v. Miller, No. A-3430-04, 2006 WL 1085795, at *3 (N.J.
Super. Ct. App. Div. Apr. 26, 2006).
4 Petitioner attempted to raise a claim under Blakely v.
Washington, 542 U.S. 296 (2004), during the hearing, 9T4:6-22,
6

Petitioner’s failure to testify pending submission and review of
the portion of the trial transcript reflecting the colloquy
between the trial court and Petitioner. Upon receiving and
reviewing the transcript, the PCR court denied the petition on
January 6, 2005. Re 7 at 87-95.
Petitioner raised two arguments in his appeal to the
Appellate Division:
I.

The lower court should have held a full evidentiary
hearing on the Defendant's claim of the ineffective
assistance of appellate counsel because the
defendant presented a prima facie case that the
appellate counsel failed to communicate with the
defendant, which resulted in a deficient appeal and
the lack of a pro se appeal brief.

II.

The Defendant's post conviction attorney denied the
Defendant his right to the effective assistance of
counsel by failing to fashion effective arguments,
failing to amend the Defendant's affidavit and by
displaying little familiarity with the Defendant's
post conviction claims. (Not Raised Below).

Miller, No. A-3430-04, 2006 WL 1085795, at *1. Petitioner
submitted a supplemental pro se brief expanding on his argument
that PCR counsel misrepresented his argument regarding the right
to testify question to the PCR Court. Re 9. The Appellate
Division found no ineffective assistance on the part of
appellate or PCR counsel and affirmed the findings of the PCR
Court. See generally Miller, No. A-3430-04, 2006 WL 1085795. The

but the PCR court did not rule on the merits as cases applying
Blakely were pending before the New Jersey Supreme Court. See
9T14:7 to 16:9; 19:21-24. See also Re 7 at 87-95.
7

Supreme Court denied certification on July 6, 2006. State v.
Miller, 902 A.2d 1236 (N.J. 2006); Re 13.
Petitioner thereafter filed a petition for writ of habeas
corpus on November 19, 2006. The petition as filed did not state
a claim for relief but merely discussed the exhaustion and
procedural default doctrines and requested the Court read the
petition liberally. See Petition, Docket Entry 1. The Court
issued a Notice and Order pursuant to Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000), on January 8, 2007. Petitioner responded to
the order on May 30, 2007 by requesting a stay and abeyance as
he had “issues to present in state court that [he] must
exhaust.” Mason Response, Docket Entry 3. After soliciting the
State’s position and receiving an amended petition setting forth
the arguments Petitioner wanted to exhaust, the Court granted
the motion for the stay on February 21, 2008. Order Granting
Stay, Docket Entry 14.
Petitioner filed a second PCR petition in the state courts
arguing that the fact that several of the State’s witnesses had
testified while wearing prison clothing and shackles violated
his due process and fair trial rights, and that his trial,
appellate, and first PCR attorneys were ineffective for failing
to raise the issue. Re 14 at 104-20. He also reasserted his
Blakely claim in light of the New Jersey Supreme Court’s
decision in State v. Natale, 878 A.2d 724 (N.J. 2005). Id. at
8

149-50. The PCR Court determined that the second PCR was barred
under state law as Petitioner had not shown excusable neglect
for failing to raise his claims regarding the witnesses’
clothing within five years of the judgment and that it would not
be in the interest of justice to relax the time bar. 10T7:6-23.
In spite of holding the time bar applied, the PCR court
addressed the merits of the petition “in the interest of – of a
comprehensive resolution of the issues . . . .” 10T7:23 to 8:12. It reserved its decision on the Blakely/Natale issue and
asked the parties for supplemental briefing. 10T14:16 to 15:8.
On February 5, 2009, the court issued a written decision denying
the Blakely/Natale claim. Re 14 at 173-75. Petitioner appealed,
and the Appellate Division concluded that the second PCR was
barred under New Jersey Court Rule 3:22–4(b)(1) and should be
dismissed on that basis. State v. Miller, No. A-6015-08T4, 2011
WL 5299607, at *7 (N.J. Super. Ct. App. Div. Nov. 7, 2011). The
Supreme Court denied certification on May 3, 2012. State v.
Miller, 42 A.3d 890 (N.J. 2012).
After completing his return to the state courts, Petitioner
moved to reopen his habeas proceedings on June 7, 2012. The
Court granted the motion and directed Petitioner to file a
second amended petition containing all of the grounds he wished
the Court to consider. The Second Amended Petition was filed on
September 20, 2013, Docket Entry 21, and Respondent’s answer was
9

filed on February 28, 2014, Docket Entries 24 and 25. Petitioner
submitted a traverse on May 5, 2014. Docket Entry 27.
Petitioner raises the following grounds in his second
amended petition for this Court’s review:
I.

Counsel did not act expeditiously to preserve a
videotape.

II.

Counsel did not speak with or present character
witnesses.

III.

Petitioner had a right to have the witnesses who
testified in his matter testify without shackles
and jail clothing.

IV.

The lower court should have held a full evidentiary
hearing on the Defendant’s claim of the ineffective
assistance of appellate counsel because the
Defendant presented a prima facie case that the
appellate counsel failed to communicate with the
Defendant. Which resulted in a deficient appeal [on
jail clothing issue] and the lack of a pro se brief.

V.

No jury charge was given regarding the witness’
appearance at trial. Trial Counsel’s failure to
request such a charge, Appellate Counsel’s failure
to raise the issue and prior PCR Counsel’s failure
to raise to previously raise [sic] this issue all
constitute the ineffective assistance of counsel.

VI.

Defendant
was
denied
his
Sixth
Amendment
constitutional right to trial by jury and
Fourteenth Amendment Due Process right because his
sentence violates the dictates of State v. Natale
and Blakely v. Washington. U.S. Const. amend. VI,
XIV; N.J. Const. (1947) Art. I, Pars. 8, 9, 10, 11.

[VII].5 The order denying post-conviction relief should be
reversed and the remanded [sic] for a full
evidentiary hearing because the Defendant made a
[prima] facie showing that trial counsel’s failure

5 The Court has renumbered the points as the petition repeats
numeral VI.
10

to object to State’s witnesses Keith Burke, Theresa
Newton, and Jean Renee Elam testifying in court in
leg shackles and wearing prison garb, and the trial
courts failure to take any ameliorative action,
violated the Defendant’s Sixth Amendment right to
effective assistance of counsel and Fourteenth
Amendment Due Process right to a fair trial.
[VIII]. The order denying post-conviction relief should be
reversed and the matter remanded for resentencing
because the sentence imposed on the Defendant’s
conviction for aggravated manslaughter on Count One
was unlawful.
[IX].

Prior Counsel were ineffective for failing to raise
these issues any prior proceedings
(A) Trial Counsel
(B) Appellate Counsel
(C) Prior PCR Counsel

Second Amended Petition. Respondent argues the claims raised in
the second PCR petition are procedurally defaulted and the other
claims are unexhausted.
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas custody on behalf of a person in
state 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).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
the claim

11

(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.

28 U.S.C. § 2254(d). A state court decision is “contrary to”
Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
“[A] state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case.”
White v. Woodall, 134 S. Ct. 1697, 1706, reh'g denied, 134 S.
Ct. 2835 (2014). The Court must presume that the state court’s
factual findings are correct unless Petitioner has rebutted the
presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).

12

IV. ANALYSIS
A. Procedural Default
Respondent argues the claims raised in Petitioner’s second
PCR should be dismissed as time-barred. Petitioner did not
address this argument in his traverse. The Court finds that
Petitioner has procedurally defaulted on the claims regarding
the witnesses’ clothing at trial, presented as Grounds III, IV,6
V, and VII, as they were dismissed as time-barred under state
law. State v. Miller, No. A-6015-08, 2011 WL 5299607, at *7
(N.J. Super. Ct. App. Div. Nov. 7, 2011). Ground IX is
procedurally defaulted insofar as it alleges trial counsel and
appellate counsel were ineffective for failing to raise the
issue.7
“Procedural default occurs when a state court determines
that ‘the prisoner . . . failed to meet a state procedural

6 Although Petitioner raised a similarly-worded claim on direct
appeal, the factual portion of the Second Amended Petition makes
clear that Petitioner is only asking this Court to review
appellate counsel’s alleged failure to communicate with him
regarding the jail clothing claim. See Second Amended Petition
at 20-21.
7 To the extent Petitioner argues his first PCR counsel was
ineffective for failing to raise the jail clothing argument in
the first PCR proceedings, “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” 28 U.S.C. § 2254(i).
Accordingly, any alleged ineffectiveness of PCR counsel is not
redressable under § 2254, and this portion of this ground must
be dismissed.
13

requirement.’” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d
528, 540 (3d Cir. 2014) (quoting Coleman v. Thompson, 501 U.S.
722, 730 (1991)). If the state court decision “involving a
federal question . . . is based on a rule of state law that is
independent of the federal question and adequate to support the
judgment[,]” Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008)
(citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)),
federal courts may not review the merits of the claim unless
“the petitioner establishes 'cause and prejudice' or a
'fundamental miscarriage of justice' to excuse the default.”
Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (quoting Lines
v. Larkin, 208 F.3d 153, 159-60 (3d Cir. 2000)).
Here, the Appellate Division concluded Petitioner’s second
PCR was barred by Rule 3:22-4. State v. Miller, No. A-6015-08,
2011 WL 5299607, at *7 (N.J. Super. Ct. App. Div. Nov. 7, 2011).
Rule 3:22-4 states in relevant part that a second or subsequent
PCR petition “shall be dismissed unless . . . it is timely under
R. 3:22-12(a)(2).” N.J. Ct. R. 3:22-4(b)(1). The Appellate
Division analyzed the claims under all three factors of Rule
3:22-12 and determined the second PCR was untimely under all of
them. Miller, 2011 WL 5299607, at *5-7. Thus, “the last state
court rendering a judgment in the case ‘clearly and expressly’
state[d] that its judgment rest[ed] on a state procedural bar.”
Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v.
14

Mississippi, 472 U.S. 320, 327 (1985)). Petitioner has therefore
procedurally defaulted on his prison garb claims. Thus, the
Court may only review the merits of the claims if Petitioner can
demonstrate cause and prejudice or a miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 746-47 (1991).
In spite of previously demonstrating his familiarity with
the procedural default doctrine, see Petition, Docket Entry 1 at
2-3, Petitioner did not address Respondent’s argument in his
traverse beyond asserting “the PCR Court addressed his issues
and was not procedurally barred.” Traverse at 13. As Petitioner
has not established either cause and prejudice or a fundamental
miscarriage of justice to excuse the default, the Court cannot
consider the merits of these arguments. See McCandless v.
Vaughn, 172 F.3d 255, 263 (3d Cir. 1999) (noting court was not
free to consider merits of procedurally defaulted arguments when
petitioner did not argue cause and prejudice or miscarriage of
justice exceptions). Grounds III, IV, V, VII, and IX are
dismissed as procedurally defaulted.
B. Exhaustion
Respondent argues that Grounds I and II should be dismissed
as Petitioner has failed to exhaust his state court remedies on
those claims. “A federal court will not grant a state prisoner's
petition for a writ of habeas corpus unless available statecourt remedies on the federal constitutional claim have been
15

exhausted. The exhaustion requirement is satisfied only if the
petitioner can show that he fairly presented the federal claim
at each level of the established state-court system for review.”
Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (internal
citations omitted).
“To ‘fairly present’ a claim, a petitioner must present a
federal claim's factual and legal substance to the state courts
in a manner that puts them on notice that a federal claim is
being asserted.” McCandless, 172 F.3d at 261. Petitioner failed
to fairly present to the New Jersey Supreme Court his arguments
that trial counsel was ineffective for failing to preserve a
videotape and failing to speak with or present character
witnesses; they are therefore unexhausted.
Both of these claims were raised in his first PCR petition
and arguably raised before the Appellate Division.8 In his
petition for certification, however, Petitioner only raised two
grounds for the state Supreme Court’s consideration:
I.

Whether the lower court should have held a full
evidentiary hearing on the Defendant's claim of the
ineffective assistance of appellate counsel because
the Defendant presented a prima facie case that the

Respondent correctly notes that the only claims explicitly
raised before the Appellate Division were claims of PCR
counsel’s ineffectiveness, not trial counsel’s. See State v.
Miller, No. A-3430-04, 2006 WL 1085795, at *1 (N.J. Super. Ct.
App. Div. Apr. 26, 2006). The Court need not determine whether
the trial counsel claims were properly presented to the
Appellate Division as it is undeniable that they were not
presented to the New Jersey Supreme Court.
8

16

appellate counsel failed to communicate with the
Defendant, which resulted in a deficient appeal and
the lack of a pro se appeal brief.
II.

Whether the Defendant's post conviction attorney
denied the Defendant his right to the effective
assistance of counsel by failing to fashion
effective
arguments,
failing
to
amend
the
Defendant's affidavit and by displaying little
familiarity with the Defendant's post conviction
claims.

Petition for Certification, Re 11 at 3. Petitioner argued in the
brief that “[t]he Appellate Court’s reasoning was misplaced
because the Petitioner’s argument under Point II was not that
Petitioner made a prima facie case on the right to testify
matter, but that the PCR attorney’s performance was ineffective,
causing the failure to make a prima facie case.” Id. It is clear
that Petitioner only asked the state Supreme Court to decide
whether PCR counsel effectively represented him during his first
PCR proceedings, not whether trial counsel was ineffective.
Moreover, the petition only referenced trial counsel’s alleged
failure to properly advise Petitioner on his right to testify,
not his alleged failure to secure the videotape or call
witnesses at trial. Id. Therefore, these claims have not been
fairly presented to each level of the New Jersey state courts.
As Petitioner did not exhaust these claims and he cannot
return to the state courts to exhaust them now,9 “the exhaustion

9 See N.J. Ct. R. 3:22-4, 3:22-5.
17

requirement is satisfied because there is an absence of
available State corrective process.” Lines v. Larkins, 208 F.3d
153, 160 (3d Cir. 2000) (internal citations and quotation marks
omitted). “Even so, this does not mean that a federal court may,
without more, proceed to the merits. Rather, claims deemed
exhausted because of a state procedural bar are procedurally
defaulted, and federal courts may not consider their merits
unless the petitioner ‘establishes “cause and prejudice” or a
“fundamental miscarriage of justice” to excuse the default.’”
Id. (quoting McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.
1999)).
Petitioner has not established cause and prejudice or that
a miscarriage of justice will result absent a determination of
the merits. His traverse does not address either requirement and
only asserts that he exhausted both claims. Traverse at 3.
Having found that he has not exhausted the claims, and
Petitioner not having established cause and prejudice or a
miscarriage of justice, the Court therefore cannot consider the
merits of these arguments. Grounds I and II are dismissed as
procedurally defaulted.
C. Blakely v. Washington
In Grounds VI and VIII, Petitioner argues his sentence
violates Blakely v. Washington, 542 U.S. 296 (2004). Respondent
argued Petitioner also procedurally defaulted on this claim,
18

however it is not clear that the Appellate Division found it to
be barred under state law. In denying Petitioner’s second PCR
appeal, the Appellate Division only discussed the claims
relating to the witnesses’ clothing as being time-barred. See
State v. Miller, No. A-6015-08T4, 2011 WL 5299607, at *5–7 (N.J.
Super. Ct. App. Div. Nov. 7, 2011). All other raised claims were
determined to be without merit. Id. at *7. The Court therefore
considers the state courts to have ruled on the merits of this
claim.10
In Blakely, the Supreme Court held that the sentencing of a
defendant to more than the statutory maximum based on a judge’s
finding of deliberate cruelty violated the Sixth Amendment as
that fact was not submitted to a jury and proved beyond a
reasonable doubt. Petitioner argues the life sentence imposed
violates Blakely because the sentencing court applied
aggravating factors not found by a jury. Relying on Natale,11 he
asserts that he is entitled to “pipeline retroactivity” as he
attempted to raise this argument in his first PCR proceeding.

10 Respondent did not file a copy of Petitioner’s petition for
certification for his second PCR petition on the electronic
docket. The Court therefore presumes Petitioner presented this
argument to the New Jersey Supreme Court.
11 In State v. Natale, the New Jersey Supreme Court abolished
presumptive terms in order to comply with Apprendi v. New
Jersey, 530 U.S. 466 (2000), and applied its decision to “to
defendants with cases on direct appeal as of the date of this
decision and to those defendants who raised Blakely claims at
trial or on direct appeal.” 878 A.2d 724, 745 (N.J. 2005).
19

Petitioner was sentenced on April 14, 2000. 8T. Direct
review ended on September 19, 2002, 90 days after the New Jersey
Supreme Court denied certification on his direct appeal. The
fact that his direct appeal was pending at the time Apprendi was
decided does not entitle him to relief under Blakely.12 As
Petitioner’s direct appeal had concluded by the time Blakely was
decided in 2004, he was not in the “pipeline” for retroactivity
purposes. Moreover, the United States Supreme Court has not made
Blakely retroactive to cases on collateral review. See Yuzary v.
Samuels, 269 F. App'x 200, 201 (3d Cir. 2008). Therefore,
Petitioner is not entitled to federal habeas relief on this
ground.
D. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court conviction
unless he has “made a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by

12 Petitioner also would not be entitled to relief under
Apprendi. “[T]he Apprendi line of cases only require additional
findings of fact by a jury where the sentence imposed exceeds
the statutory maximum.” Burns v. Warren, No. 13-1929, 2016 WL
1117946, at *44 (D.N.J. Mar. 22, 2016). Petitioner was not
sentenced beyond the statutory maximum for first-degree
aggravated manslaughter. See N.J.S.A. 2C:43-7(a)(1); State v.
Miller, No. A-5279-99, slip op. at 11 (N.J. Sup. Ct. App. Div.
Mar. 27, 2002). Therefore, Apprendi does not apply to his
sentence.
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demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right. As jurists of reason could not disagree with this Court's
resolution of his claims, either on the merits or on procedural
grounds, the Court shall deny Petitioner a certificate of
appealability.
V.

CONCLUSION
For the reasons stated above, the second amended petition

is denied. A certificate of appealability shall not issue. An
accompanying Order will be entered.

September 8, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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